We had thought that the Supreme Court had put a damper on the efforts of many federal judges to artificially treat Trump’s policies with which they disagreed as legal questions, on which they then issued rulings disallowing them. When President Trump hit the ground running on January 20 with a flurry of executive orders implementing his campaign platform on his signature issues – like illegal immigration, deportations, downsizing the federal workforce, prohibiting transgenders from serving in the military and dismantling the Department of Education – lawsuits were promptly initiated by opponents before cherry-picked judges believed to be sympathetic to their cause. The judges promptly accommodated and to boot, they ordered that their rulings should be applied nationwide.
Although it took a while, the U.S. Supreme Court soon took to addressing this shredding of the American doctrine of separation of powers and in a series of decisions, directly curbed the powers of individual judges in a process commentators referred to as “keeping the judges in their lane.” That is, the justices emphasized, judges would henceforth be limited to addressing true legal issues and not political or policy ones presented as legal.
So we were not prepared for the news that last week, Maine federal district judge Nancy Torresen stayed the enforcement of President Trump’s February executive order imposing economic sanctions on personnel of the International Criminal Court – based in the Hague – over its issuing last year of arrest warrants against Israeli Prime Minister Benjamin Netanyahu and then Defense Minister Yoav Gallant, as well as taking other actions the president said were inimical to America’s national interests.
As reported by Reuters, the executive order imposed sanctions on ICC Chief Prosecutor Karim Khan and other non-Americans among the ICC’s 900 staff members. The sanctions include the freezing of U.S. assets of those designated and barring anyone else from providing services to them. It also bars those designated and their families from visiting the United States.
The Trump order said that the ICC “had abused its power” by issuing the unsubstantiated arrest warrants and also engaging in illegitimate and baseless actions targeting America,” referring to ICC probes into alleged war crimes by U.S. service members in Afghanistan.
But in her ruling blocking enforcement of the executive order in a case brought by two human rights advocates Judge Torresen said the executive order was an unconstitutional infringement on free speech: “The executive order appears to restrict substantially more speech than necessary…. [I]t broadly prohibits any speech-based services that benefits the prosecutor, regardless of whether those beneficial services relate to an ICC investigation of the United States, Israel, or another U.S. ally.”
How Judge Torresen’s ruling can be reconciled with the Supreme Court’s admonition about judges staying in their lane eludes us. As we read the Supreme Court’s opinions, the common theme was that making the judgments she made about relevancy were precisely of the sort of foreign affairs policy that were in the exclusive purview of the president.
Hopefully, the Trump administration will try to fast track this case to the Supreme Court to give them the opportunity to quickly reaffirm that they meant what they said and allow President Trump to do his job unhampered by rogue judges who disagree about his policy choices.
