Napolitano, Fox’s senior judicial analyst and a former New Jersey Superior Court judge, argued that the Constitution gives decision-making authority on foreign policy exclusively to the president. “The decision to ban is not reviewable,” he said during Fox’s “Special Report” Thursday night.
“This is an intellectually dishonest piece of work that the 9th Circuit has produced tonight because it essentially consists of substituting the judgment of three judges for the president of the United States,” Napolitano said. “When the Constitution unambiguously gives this area of jurisdiction — foreign policy — exclusively to the president.”
“That is why this is so profoundly wrong,” he added.
Napolitano was likely referring to Article II of the Constitution, which grants the president the exclusive power to engage in negotiations with other countries and appoint ambassadors, subject to the consent of the Senate. Baker Spring, a national security policy research fellow at the Heritage Foundation, said the Constitution “makes it clear that the President — not the House, or even the Senate — must take the lead in the making of American foreign policy.”
The left-leaning, San Francisco-based appeals court rejected the Trump administration’s request to resume the controversial executive order in a 3-0 vote. The legal panel included Judges William C. Canby, Jr., appointed by former President Jimmy Carter, Richard R. Clifton, appointed by former President George W. Bush, and Michelle T. Friedland, appointed by former President Barack Obama.
“We hold that the government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to stay would cause irreparable injury, and we therefore deny its emergency motion for a stay,” the court’s decision read.