Yesterday the 4th Circuit Court of Appeals upheld a district court order that found President Trump’s second travel ban to be unconstitutional. This is one of those news stories that make me sad rather than angry.
The decision is ridiculous. The court’s majority relied heavily on candidate Donald Trump’s stump speeches in which he talked about a ban on all Muslim immigration. The court found that this “context” demonstrated a discriminatory intent. The decision’s implication is that a different president could have issued the same order, and it would have been constitutional. The ACLU’s lawyer made this explicit during his oral argument, saying that the order under attack may well have been constitutional if it had been issued by Hillary Clinton.
This is idiotic. For a court to say that a presidential order may or may not be constitutional depending on who the president is–constitutional if issued by a Democrat, unconstitutional if by a Republican–is the ultimate repudiation of the rule of law. Moreover, the president’s order didn’t ban all Muslim immigration. It is absurd to condemn the order the president issued by arguing that he really wanted to issue something different.
It is also worth noting that the idea that a president can’t “discriminate” with regard to travel to the U.S., or immigration, is ridiculous. Of course he can, and so can Congress. For most of our history, our immigration policy has been explicitly discriminatory. It arguably still is. Under federal law, the president has blanket authority to suspend immigration or travel, wholly or in part, from any country or group of countries, on the ground that it is in the national interest. The suggestion that a random Yemeni has a constitutional right to enter the United States is untenable, and flies in the face of all precedent.
Decisions like those we have seen on Trump’s travel orders can’t be viewed as legal rulings. As such, they are absurd. They can only be understood as part of the establishment’s war on the Trump administration. The Democrats (the 4th Circuit is now heavily Democrat) simply refuse to accept Trump’s authority as president.
I assume the 4th Circuit’s decision will ultimately be overturned in the Supreme Court, and Trump’s travel order will be upheld. However, as Steve pointed out during our Power Line Live event last night, there is a risk that Anthony Kennedy might decide to go out in a blaze of liberal glory, establishing previously unknown rights on behalf of Yemenis, Iranians, Syrians and so on. Unfortunately, we can assume that the four Democratic Party justices will vote as their party wants, regardless of how irrational that position may be.
As I said, this news story makes me sad rather than angry. The fact that Democratic Party judges are so far gone in hate and partisanship as to repudiate the rule of law suggests that the fabric of our society is coming apart.