Our robed masters have really made their presence felt on the lower federal courts in their treatment of President Trump’s three so-called Muslim travel ban orders. The Supreme Court will have the final word and it is in light of the Court’s prospective final word in Trump v. Hawaii that David Rivkin and Lee Casey declared last week in the Wall Street Journal (at least according to the overoptimistic headline) that “The judicial ‘resistance’ is futile” (behind the Journal’s subscription paywall).
This week the Fourth Circuit Court of Appeals rejoined the Ninth Circuit to hold President Trump’s orders unconstitutional in International Refugee Assistance Project v. Trump. Sitting en banc, the court ruled 9-4 against the administration. Writing for the court, Judge Gregory held that the administration’s “proffered rationale for the Proclamation lies at odds with the statements of the President himself” and determined that “examining official statements from President Trump and other executive branch officials, along with the proclamation itself, we conclude that the proclamation is unconstitutionally tainted with animus toward Islam.”
Dahlia Lithwick has posted a concise summary for Slate here. Anyone in his right mind would want a summary in lieu of the original, which runs to a total of 285 pages (including concurrences and dissents).
What we have here is an excess of communication. According to the court, Trump’s stated rationale for promulgating the orders is not bona fide. It is made in bad faith. The court itself seems possessed of a certain animus. Perhaps mania is the more apt word.
Yet the court’s opinion serves a purpose. It is an exhibit in the suicidal insanity of the left. It is an exhibit in the left’s continuing war on the sovereignty of the American people to treat questions of immigration as they see fit.
The court applies Supreme Court precedent construing the First Amendment establishment clause to the executive orders, as though foreign nonresidents of the United States fall under the protection of the First Amendment as construed (erroneously) by the Supreme Court. It takes the association of Islam with terrorism itself to be evidence of animus. The association of Islam with terrorism becomes a thought disapproved if not prohibited by the First Amendment. According to the court, the purpose of the executive orders is not “primarily secular.” We are in a sort of madhouse. Enter at your peril. These people are, as I say, nuts.
Before the election and the promulgation of Trump’s executive orders, and therefore before the development of the specific arguments before the court, the Claremont Institute’s Professor Ed Erler expressed incredulity about what in fact has come to pass:
Prominent constitutional scholars have argued that, in any case, it would be unconstitutional to ban Muslims from emigrating to the U.S. One Harvard law professor seriously suggests that the Constitution’s prohibition against religious tests for holding public office would bar Trump’s proposal. Presumably, none of the refugees are seeking offices, but it is the spirit not the language of the Constitution that forbids considering immigrants’ religion. If that argument sounds preposterous, other experts invoke the First Amendment’s protections for free exercise of religion, or the 14th Amendment’s guarantee of equal protection of the laws. Such arguments extend these guarantees to the entire world, including potential asylum seekers. To the contrary, the Constitution gives plenary power to Congress to pass laws on naturalization and, by necessary implication, regulating immigration. The Supreme Court has always correctly recognized this power as inherent in national sovereignty.
To borrow an expression, I’m with him. I’m not with Ilya Somin.
We all recall President Obama’s 2008 pre-election promise to transform the United States. It betrayed a certain animus against our constitutional order. I would love to have seen a court take President Obama’s pre-election promise into account in the multifarious litigation over Obamacare.
There is much to meditate on here. I’m embedding the court’s opinions below. Look at the list of parties. Look at the list of amici filing briefs. Look at the list of attorneys. We don’t roll into the opinion itself until page 15. All the way around, it is almost unbelievable.
Quotable quote: Judge Niemeyer (dissenting): “The opinions of the district court and those supporting the majority’s judgment are demonstrably wrong in virtually every material respect.”