The Fourth Circuit’s decision in the temporary travel ban broke new ground when it comes to judicial activism. I wrote about the decision in a post called “Trump Resisters in Robes.” John wrote about it in a post called “An Affront to the Rule of Law.”
The bias and prejudice that poisons the majority’s political diatribe is encapsulated in an outrageous statement made right on page one. There, Judge Roger Gregory claims that the text of the executive order “speaks with vague words of national security” but “in context drips with religious intolerance, animus, and discrimination.” Then, he makes the astounding claim that the executive order violates the First Amendment because it establishes “a religious orthodoxy” and favors “one religion over another.” The rest of the opinion resides in the same imaginary, Alice-in-Wonderland world that Gregory and his cohorts have created in their own minds about this issue.
Executive Order 13,780 is very straightforward. I defy any objective individual to read the order and conclude that it establishes a religious orthodoxy or “drips with religious intolerance, animus, and discrimination.” Further, there have been no statements made by any government officials, government agents, or elected individuals – including the president – during the term of this administration that provide any evidence of such an intent. (What may or may not have been said by individuals during a campaign when they were not government officials and had no governmental authority has no bearing on the legality and constitutionality of this order – particularly given the applicable Supreme Court precedent.)
Von Spakovsky then takes on the majority’s claim that there are only insufficiently “vague words of national security” concerns in the executive order:
In fact, [the order] explains why the president was attempting to suspend temporarily – for only 90 days – the entry of aliens from six countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) while the Department of Homeland Security determined whether its vetting procedures were sufficient to prevent the entry of terrorists into the United States.
As the text outlines, three of these countries have been designated as state sponsors of terrorism: Iran, Syria, and Sudan. The other three have failing governments and are safe havens for terrorists. The problems this causes range from an inability to trust any information or identity documents these countries provide, to the “illicit flow of weapons…and foreign terrorist fighters” through these counties.
Each of them is “a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” Any of “these circumstances diminishes the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States.”
The Fourth Circuit’s dismissal of these concerns can only be understood as “judges substituting their judgment and policy preferences for that of the president and our intelligence agencies, the State Department, and the Pentagon when it comes to our national security and the terrorism threat.” And because the Fourth Circuit’s “judgment” is so hard to defend, it is best understood as resistance to President Trump.
The title of the Rivkin/Casey article is “The Fourth Circuit Joins the Resistance.” Their main point, also made by von Spakovsky, is that the Fourth Circuit’s decision cannot be squared with the Supreme Court’s decision in Kleindienst v. Mandel (1972). There:
the Supreme Court rejected a petition from American scholars seeking admission to the country on behalf of a foreign colleague who had been kept out because he advocated communism. The plaintiffs argued that the government’s refusal to admit their colleague on account of his views violated their First Amendment rights. The justices upheld his exclusion and made three things clear: first, aliens have no constitutional right to enter the U.S.; second, American citizens have no constitutional right to demand entry for aliens; and third, the decision to deny admission to an alien must be upheld if it is based on “a facially legitimate and bona fide reason.”
The Fourth Circuit’s robed resisters claim that President Trump’s order was issued in bad faith, based on a discriminatory motive. As we have emphasized, that finding is illegitimately based on Trump’s campaign rhetoric. In any event:
the Fourth Circuit fundamentally misconstrued [an option by Justice Kennedy] which nowhere suggested that, once the government had articulated a facially legitimate purpose, the courts could weigh whether there might have been an additional, improper purpose. As the Fourth Circuit dissenters explained, Mandel requires only a facially legitimate and facially bona fide reason.
The danger of scrutinizing the president’s motive as the Fourth Circuit did is apparent — it would “constitute an invitation to the judiciary to direct the nation’s foreign and defense policies.”
If the Fourth Circuit’s reasoning were to stand, it could cripple the president’s ability to defend the country. . .If the president is forbidden to impose temporary limitations on immigration from any Muslim-majority nations, it would follow that he is prohibited [when, as with this president, a court disapproves of his campaign rhetoric] from taking any hostile or unfavorable actions, including the use of economic sanctions or military force, toward any Muslim-majority nation.
Making foreign policy is not the judiciary’s job, and the court’s decision in this case is in direct conflict with the Supreme Court’s admonition in Mandel that courts may not review the president’s exercise of discretion on foreign affairs—or balance it against asserted constitutional interests—once a facially legitimate and bona fide reason has been articulated. Further, the executive order is clearly authorized by Congress under the Immigration and Nationality Act. As Justice Robert Jackson famously observed in Youngstown v. Sawyer (1952), the president’s authority is most formidable when he is acting with Congress’s consent.
Rivkin and Casey are confident that the Supreme Court eventually “will remain faithful to its precedents and reverse the Fourth Circuit’s wrongheaded decision.” I’m less confident — Supreme Court precedents are decisive for Justice Kennedy except when he has the strong urge to override them — but think this is the most likely outcome.