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Jeff Sessions’s attack on a Hawaii judge is an attack on judicial review itself

It’s not “amazing that a judge on an island in the Pacific” can strike down an executive order. It’s how the US works.

Tillerson, Kelly And Sessions Announce New Immigration Executive Order Photo by Mark Wilson/Getty Images

The ability of federal judges to strike down actions taken by Congress or the executive branch if they’re deemed unconstitutional is a hallmark of the American system of government. It’s an important part of the system of checks and balances, ensuring that the president and legislators don’t acquire too much power.

But to Attorney General Jeff Sessions, the nation’s top law enforcement officer, it’s “amazing” — and he means that in a bad way.

“I really am amazed that a judge sitting on an island in the Pacific can issue an order that stops the president of the United States from what appears to be clearly his statutory and constitutional power," Sessions told conservative radio host Mark Levin during an interview Tuesday (as reported by CNN’s Andrew Kaczynski on Thursday). “The judges don't get to psychoanalyze the president to see if the order he issues is lawful. It's either lawful or it's not.”

The “judge sitting on an island in the Pacific” in question is District of Hawaii judge Derrick Watson, who ruled in March against the Trump administration’s attempt to temporarily ban residents of six majority-Muslim countries and nearly all refugees from entering the US. (Watson’s ruling is just a temporary injunction while the lawsuit against the ban, brought by states including Hawaii, gets a full hearing in court; the Trump administration is appealing Watson’s ruling to the Ninth Circuit Court of Appeals, and appealing a separate ruling against the ban, issued in Maryland, to the Fourth Circuit Court of Appeals.)

Sessions’s remark has gotten a lot of attention as an attack on the state of Hawaii (not least because it fits a little too easily in a long tradition of racist dog-whistling about the "foreignness" of nonwhite and specifically Pacific Islander Americans), but it’s part of a broader attack from Republicans on the “liberal Ninth Circuit” as a whole — and the first indication that not only President Trump, but his chief law enforcement officer, is uneasy with the idea of judicial review itself.

President Trump Holds Rally In Nashville, Tennessee
President Trump getting mad at “so-called judge”s in Nashville in March.
Photo by Andrea Morales/Getty Images

When Sessions derided the “island in the Pacific” to Levin, it was part of an argument for the constitutionality of the travel ban — by attacking the Ninth Circuit (which also ruled, in February, against the administration’s first version of the ban) as out of step with the rest of the American judiciary.

“We've got cases moving in the very, very liberal Ninth Circuit, who, they've been hostile to the order," Sessions told Levin. "We won a case in Virginia recently that was a nicely written order that just demolished, I thought, all the arguments that some of the other people have been making. We are confident that the president will prevail on appeal and particularly in the Supreme Court, if not the Ninth Circuit.” (This argument conveniently ignores the fact that even if the Ninth Circuit didn’t exist, the travel ban would be on hold thanks to another ruling in Maryland.)

The “very, very liberal Ninth Circuit” meme is common among Republicans, who enjoy trotting out a factoid (of questionable provenance) about how often the Ninth Circuit’s rulings are overturned by the Supreme Court. It’s not just a political talking point in the service of contrasting the liberal West Coast with the rest of real America. Republicans in Congress held a hearing earlier this year on weakening the Ninth Circuit by splitting it in two — presumably, allowing more liberal states like California and Hawaii (and possibly Washington, which spawned the case that killed the first travel ban) to be under one set of judges, and more conservative states like Arizona to be in another.

But Sessions’s self-professed “amazement” that a judge can put an executive order on hold echoes something in the president’s own rhetoric, too: an attempt to discredit the idea that a judge has the power to question anything the executive branch does in the name of national security.

When Judge James Robart ruled against Trump’s first travel ban, the president attacked him on Twitter, calling him a “so-called judge” and blaming him preemptively for any terrorist attacks that happened after the ban was put on hold. The night Judge Watson issued his ruling, Trump spent a chunk of a campaign-rally-style speech in Nashville decrying it.

The rhetoric is worrisome enough — even judges who agree with the Trump administration that the ban is constitutional have gone out of their way to chide the administration for being so hostile to a coequal branch of government. But while the Department of Justice isn’t talking about “so-called judges” within the courtroom, some of the legal arguments it’s making in defense of the travel ban have tipped into similar territory, as the administration’s lawyers argue that the ban is a matter of national security and therefore it’s inappropriate for the judicial branch to question its necessity.

On the surface, this looks like a standard political culture war: a former Senator from Alabama taking a stand for “real America” against West Coast elites. But the president under whom Jeff Sessions serves hasn’t shown a tremendous amount of respect or deference for the idea that a judge anywhere could tell him what to do or what not to do. And chief law enforcement officer Sessions, instead of tempering this strain in the president’s worldview, appears to be encouraging it.

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