We were pleasantly surprised by two commonsense court rulings last week: one by the U.S. Court of Appeals for the District of Columbia Circuit and one by the U.S. Court of Appeals for the Second Circuit, which is based in New York. Federal circuit courts are one level below the U.S. Supreme Court in the federal judiciary. While we had expected to have to wait for definitive rulings by the Supreme Court for adjustments to the almost palpable anti-Trump bent sometimes reflected in the various circuits – there are 13 of them spread across the country – the two rulings suggest that the process may have already begun at the circuit level. And that would be a good thing.

In the case decided in the District of Columbia, the appeals court dismissed a lawsuit brought by the House Judiciary Committee against President Trump’s former White House Counsel Donald F. McGahn to enforce its subpoena directing him to testify about possible efforts by the President to obstruct the Russia investigation.


Trump had instructed McGahn not to testify on the grounds that his former legal aide was “absolutely immune” from being compelled to testify about his duties and did not have to comply with the Congressional demand. Moreover, the Administration argued, Congress had no standing to bring a subpoena enforcement case against an aide to a president which it said was really a political dispute between two branches of government. The House argued that issuing the subpoena was a valid exercise of its constitutional oversight authority which is absolute. A district court judge disagreed with the White House, ruled against McGahn, and ordered him to appear.

By a 2-1 vote, the three judge appeals panel reversed and dismissed the Congressional lawsuit but did not directly address the “absolute immunity” issue. Instead, the court ruled that Congress could not use the courts to secure compliance with its subpoenas directed at executive branch officials. The court’s reasoning was straightforward: The Constitution forbids federal courts from resolving “this kind of interbranch information dispute.”

The court added that, “the absence of a judicial remedy doesn’t render Congress powerless.” That is, Congress had political tools to induce presidents to negotiate and compromise in disputes like the McGhan confrontation, such as withholding appropriations or derailing the president’s legislative agenda. What Congress can’t do is use the courts as an always available club in order to get a leg up on a president and subvert the notion that the Executive, the Congress and the Judiciary are co-equal branches of the federal government.

Surely, when one considers the unseemly squabbling between Trump and Reps. Nadler and Schiff, we rather think that the court is on to something.

In the second federal appellate decision, the Manhattan-based Second Circuit Court of Appeals, the court ruled that the Trump administration can withhold grants from law enforcement agencies in states and cities that limit the extent of cooperation with federal immigration authorities in seeking to track down undocumented aliens. The ruling reversed a lower court decision and found that the federal government had the discretion to impose condition when distributing grant money.

Whatever one’s views on the Trump administration immigration policies, it would seem that any other result would be counterintuitive. How can local authorities hinder with impunity the efforts of the federal government to enforce our immigration laws? Yet, in fact, three other federal circuit courts have ruled the other way, despite the fact that the Supreme Court has repeatedly noted that the federal government supersedes the power of states when immigration policy enforcement is concerned.

To be sure, people can reasonably disagree over immigration policy, but what we have to return to as a nation is that those policy disagreements should be hammered out in elections or the legislative process – not in the courts where they are turned into legal issues.

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