The Georgetown Law Journal Online

Judge James L. Robart, a 1973 alum of Georgetown University Law Center and a former Administrative Editor of The Georgetown Law Journal, issued a temporary restraining order (TRO) enjoining the enforcement of President Trump’s Executive Order of January 27, 2017. The controversial Executive Order, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” dramatically alters the United States admission process for non-citizens. Most notably, it temporarily bars refugees and nationals from seven majority-Muslim countries from entering the United States.

Historical practices can help define the separation of powers. One branch’s claim of authority and another branch’s acquiescence can put a “gloss” on the sparse text of Articles I–III, especially when repeated over time. . . . [W]e try to explain why courts were on the sidelines of these gloss games and why other disputes over Article III are likely to reflect a similar structure. The key, we think, lies in a distinctive feature of judicial decision making: the doctrine of stare decisis.