The Hill (Op-Ed)
By Jonathan Turley
June 26, 2017
Samuel Johnson once said, “When a man knows he is to be hanged … it concentrates his mind wonderfully.” For opponents of the Trump immigration order, minds became distinctly more concentrated around 11am this morning, when the U.S. Supreme Court reinstated much of Trump’s order in a reversal of the U.S. Court of Appeals for the Ninth Circuit. While the court will hear the merits in October and could still rule against the administration, these preliminary decisions often reflect a view of underlying merits.
For those of us who have long argued that the legal authority supported Trump, the order was belated but not surprising. However, the order does offer a brief respite for some self-examination for both legal commentators, and frankly, the courts. At times the analysis surrounding the immigration order seemed to drop any pretense of objectivity and took on the character of open Trump bashing.
The Supreme Court ruled the administration could enforce its immigration order under Section 2(c), which deals with the suspension of entry from six countries. The court ordered that the vetting could commence with the exception of “foreign nationals who lack any bona fide relationship with a person or entity in the United States.”
The court ruled “when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.” The preliminary ruling on this type of stay indicates that, when the final merits are decided, a majority of the court is likely to make the changes permanent and binding.
Indeed, three justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — did not want any limitation on lifting the injunction and dissented from that part of the opinion. To use Johnson’s rhetoric, the date of the hanging is set for the October term absent a dramatic shift on the court. That gives us some time to contemplate how this controversy has impacted our core institutions.
I previously wrote that Trump seems at times to bring out the worst of people — supporters and opponents alike. Yet, his signature attacks often cause people to fulfill the very stereotypes that he paints, particularly among some reporters and judges. Ironically, Trump’s attacks on the media as biased may not have been true at the outset but they are true now. Mainstream media have become openly hostile to Trump.
There is often little distinction on some cable networks between the hosts and their guests in attacking Trump, who brings much of this criticism on himself in ill-considered and often insulting attacks. However, the media is trained to resist such personal emotions and retain objectivity. Throughout much of its history, it has done precisely that … until Donald Trump .
He seems like the itch that reporters and commentators just have to scratch and frankly sometimes it seems like a few are enjoying it too much. With ratings soaring, hosts and legal experts have shown little interest or patience in the legal arguments supporting his case, even though the Obama administration advanced similar arguments in court.
The hostile (and often distorted) analysis in the media was disconcerting but predictable, given the trend toward greater opinion-infused coverage. Networks are fighting for greater audience shares based on formulaic coverage — offering echo-chamber analysis to fit the ideological preferences of viewers. For the anti-Trump networks, the legal analysis is tellingly parallel with the political analysis. These cable shows offer clarity to viewers in a world without nuance. The law, however, often draws subtle distinctions and balancing tests. In this way, viewers are being given a false notion of the underlying legal issues in these controversies.
What has been more concerning is the impact of Trump on the courts. Trump shocked many in both parties by his personal attacks on judges as well as general disrespect shown to our courts. These were highly inappropriate and inaccurate statements from a president. However, once again, courts seemed to immediately become the very stereotype that Trump was painting.
Of course, the White House gave the courts a target-rich environment in the first travel order, which was poorly drafted, poorly executed and poorly defended. Yet, the courts did not just strike those portions that were problematic. Where existing case law requires courts to use a scalpel in striking down provisions, judges pulled out a meat ax. They enjoined the entirety of the order while lashing out at Trump’s most sensational campaign rhetoric.
In the second round, the judicial decisions became even more problematic. The Trump administration brought in capable people who drafted the order correctly and defended it well. It addressed glaring errors in the original order like not exempting green card holders. It did not make a difference. The trial court in Hawaii even denied the ability of the administration to study and work on improving vetting procedures in the high-risk countries (part of the order later reversed in the Ninth Circuit).
In the Fourth and Ninth Circuits, judges brushed over the obvious improvements and again relied on Trump’s own comments and tweets. It seemed like sensational tweets were more important than long-standing precedent or official statements from the administration.
The level of reliance on campaign statements by the courts was wrong in my view, as I have repeatedly stated. The record had conflicting statements from Trump and his associates but courts seemed to cherry-pick statements, relying on those that fulfilled their narrative while ignoring those that did not. The analysis of the order should have turned largely on the face of the document. While such political statements can be relevant to analysis (particularly in areas like racial discrimination), the court has always minimized such reliance in favor of more objective textual analysis.
A long line of cases following the decision in Kleindienst v. Mandel followed this approach. In that case, the court rejected such inquiries over the denial of a visa to a Belgian Marxist journalist. It stated that “when the Executive exercises [its] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.”
The Supreme Court’s decision is consistent with this long-standing precedent. In fairness to the courts and some commentators, there are good-faith reasons to argue against the travel order. Indeed, I predicted at the outset that there would be conflicting decisions in the courts. However, it was the tenor and basis for the decisions that I found disturbing. Courts that once gave President Obama sweeping discretion in the immigration field seemed categorically opposed to considering the same accommodation for President Trump. For commentators, viewers were given a highly distorted view of the existing law — brushing aside decades of cases while supporting the notion that a major federal policy could live or die by the tweet.
The Supreme Court’s stay should cause an examination of more than the lower court decisions. It should concentrate minds in both the courts and the media on the loss of objectivity in analysis over the “immigration ban.” There seemed an inability to separate the policy from the personality in this controversy. That is a serious problem for both institutions. Injunctions come and go. Yet, integrity and objectivity are things that, once lost, are hard to regain.
Jonathan Turley is the Shapiro Professor of Public Interest at George Washington University.
The views expressed by contributors are their own and are not the views of The Hill.
For more information, go to: www.beverlyhillsimmigrationlaw.com