February 19, 2009

Urbina's Overreach Rebuked

In October, Judge Ricardo Urbina ruled that, since the Uighurs were not considered to be "enemy combatants," they had to be released into the U.S. (see the background on the Uighurs in the appeal opinion here).  This was an extraordinary case of judicial activism.  The fact is, Urbina was fed up with the Bush administration over the detainee program so he made this political move couched in a judicial opinion.  In reversing, the Court of Appeals for the D.C. Circuit said as much when it concluded, 
[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the government to exclude a given alien. With respect to these seventeen petitioners, the Executive Branch has determined not to allow them to enter the United States.
As to Urbina's judicial activism, the court stated,
The critical question is: what law “expressly authorized” the district court to set aside the decision of the Executive Branch and to order these aliens brought to the United States and released in Washington, D.C.?  The district court cited no statute or treaty authorizing its order, and we are aware of none. (emphasis added).  As to the Constitution, the district court spoke only generally. The court said there were “constitutional limits,” that there was some “constitutional imperative,” that it needed to protect “the fundamental right of liberty.” These statements suggest that the court may have had the Fifth Amendment’s due process clause in mind.  But the due process clause cannot support the court’s order of release. Decisions of the Supreme Court and of this court – decisions the district court did not acknowledge – hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.

Hopefully this opinion will put other judges on notice that their job is to interpret the laws as they are written not to issue political statements from the bench.

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