Trump resisters in robes: the Fourth Circuit’s travel ban decision [UPDATED]

My take on the Fourth Circuit’s decision travel ban decision differs from John’s. He says the decision makes him “sad rather than angry.” It makes me angry and a little sick.

You need not have attended law school to analyze this case properly. During his presidential campaign, Trump spoke at times of a travel ban on Muslims. But as president he did not impose one. His temporary travel ban extends to only six mostly-Muslim countries. The vast majority of Muslims reside elsewhere and thus are not banned. Moreover, the ban extends to non-Muslims in the six countries.

The six countries encompassed by the ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen. They have this in common: the situation there likely precludes the vetting of residents who want to enter the U.S. Either the government is implacably hostile to the U.S., making it impossible to obtain its help in the vetting process, or the situation is too chaotic to permit proper vetting. In addition, all six countries are either plagued by significant internal terrorism or export terrorism (or both).

It should be axiomatic that presidential action must be judged based on what it does, not what the president said he would do when he ran for office. And where the president does something quite different from what he said he would do, it is preposterous to strike down the action based on what proved to be empty campaign rhetoric.

Thus, in the end I agree with John. The Fourth Circuit’s decision can only be understand as part of the left’s resistance to President Trump.

No one should be surprised that the federal judiciary has enlisted in the resistance. It is, to borrow Trump’s rhetoric, a swamp.

The opinions in the case are here. I highly recommend the dissent of Judge Niemeyer (joined by Judges Shedd and Agee), an outstanding jurist before whom I once had the pleasure of appearing.

Judge Niemeyer concludes that the district court, whose decision the appeals court upheld, “seriously erred (1) by refusing to apply the Supreme Court’s decision in Mandel [Kleindienst v. Mandel, 408 U.S. 753 (1972); (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and by radically extending Supreme Court Establishment Clause precedents.” (Emphasis added.)

Niemeyer provides powerful arguments for all three propositions. It’s enough to make me angry and a little sick.

UPDATE: Neo-neocon offers her take on the robed resisters here.

Responses

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