On Monday, the Supreme Court handed President Trump a legal victory, reinstating the bulk of his Executive Order restricing travel from seven Middle Eastern countries, and exercising adult supervision over appellate judges from the 9th and 4th Circuit Federal Courts of Appeal who had made up bad law in order to thwart a president they oppose. An indicator of how shoddy the lower courts’ reasoning was is that the High Court’s ruling was unsigned, or per curium. This means the ruling was unanimous, without dissent.
The lower courts had divided entirely on partisan lines, with Republican appointed judges voting to uphold the president’s order and Democrat appointed judges voting to block it. A non-lawyer or a cynic might conclude that’s just politics at work, and there is no “right answer.” The Supreme Court on Monday put the lie to that assumption. The Democrat appointees in the lower courts were engaging in lawless obstruction.
They admitted the Order was facially neutral and valid, but determined that Trump’s bad intent poisoned it. The Chief Judge of the 4th Circuit showed his cards thusly, describing an “Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance.” In other words, candidate Trump’s statements about imposing a “Muslim ban” evinced discriminatory intent, and everything President Trump does should be judged through that filter.
This is audacious. Federal law grants the president plain authority to: “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” It was the Obama administration, not the Trump administration, that had already identified the seven targeted nations “as presenting heightened concerns about terrorism and travel to the United States.” The Plaintiffs and the appellate courts conceded that the same order from a different president would not have been problematic. This is insane.
Trump’s Order deferred immigration from seven nations posing special security concerns, in order to review the adequacy of vetting procedures. Those nations were flagged by the previous administration. The order did not affect over 55 other Muslim and Arab nations. In context, candidate Trump’s words and President Trump’s actions demonstrate a concern for and opposition to an extremist strain of Islamism, not hostility to the entire Muslim religion.
The Order was entirely within Trump’s Constitutional and statutory authority. But the lower courts determined that, by virtue of campaign statements, Trump was ineligible to use his presidential authority. A devastating parsing of this reasoning comes from Princeton Professor Robert George: “What is the question? The lower courts treated the question as “What can Trump do or not do.” The Supreme Court treated the question as “What can presidents do or not do.”
The dissents in the 4th and 9th Circuits had already made mincemeat of the reasoning of the willful majorities. Briefly:
Presidents are accountable for the legal effect of their actions, not for judicial psychoanalysis of their motives.
Candidates are not sworn office holders. Many loose or tentative things are said on the campaign trail. Once a person is elected, takes the oath, receives the relevant briefings, and has benefit of structured counsel and advice, the situation is entirely different.
If candidates’ campaign statements are fair game, there is no reason to stop there. We can learn about a politician’s thinking from all previous statements, comments, interviews, writings, private emails, and maybe college papers. The majority’s logic would require a forensic psychoanalysis of an office holder’s entire adult life to judge the legitimacy of his actions.
This free form approach to judging is nothing more than a license for judges to find any reason to block the action of any president of whom they disapprove, which is what the majority did.
The Supreme Court yawned and slapped down the novel, lawless theory.
A final troubling point needs to be made. What the judges did, in their sphere of action, is really no different from what Occupy or Antifa protesters do in the streets, what insubordinate federal bureaucrats do in their cubicles, what lawless leaking intelligence officials do in hushed conversations in coffee shops or park benches. They allied with the resistance. The judges joined a vast nebulous cohort that believes its disgust for Donald Trump renders him illegitimate. They are entitled to take any step possible to neutralize him, and if possible, remove him.
The problem with this seditious, insurrectionist mentality is that the American people saw who and what they were electing. They went ahead and Constitutionally elected him. And their will, not the will of progressive insiders or violent street crusaders, is sovereign.
This week the Supreme Court took the nation a step back in the right direction.