Wall Street Journal (Editorial)
May 29, 2017
President Trump’s travel ban is now teed up for the Supreme Court, with an appellate circuit enjoining the revised version this week and the Administration vowing an appeal. Mr. Trump was unwise to invite this confrontation, but the High Court now has to rescue the judiciary from harming presidential power and maybe American security.
On Thursday the full 13-member Fourth Circuit Court of Appeals held 10-3 that Mr. Trump’s executive order to limit U.S. entry from six nations associated with heightened terror risks was the product of bigotry and thus violates the First Amendment’s establishment clause. Judge Roger Gregory’s 205-page ruling claims the ban “drips with religious intolerance, animus, and discrimination” against Muslims.
The problem is that both the Constitution and statutes passed by Congress endow the President—any President—with broad authority to deny admission to foreign nationals to protect U.S. interests. The courts can narrowly engage, but the Constitution gives the political branches dominant authority on immigration and foreign policy.
Under decades of Supreme Court precedent, the government only needs to show that some immigration action has a “facially legitimate and bona fide” justification. The Trump Administration argues the ban is a temporary pause to improve security vetting, and Congress and even President Obama singled out the six nations in 2016 as countries of concern for exporting terror and increased visa scrutiny.
The courts aren’t allowed to look beyond the four corners of the official rationale laid out in the executive order, but Judge Gregory circumvents these limits by deputizing himself as a mind reader. He rehearses Mr. Trump’s various campaign statements about a “Muslim ban,” and even statements from political operatives who didn’t join the Administration, to infer motives of “a primarily religious purpose.”
Psychoanalysis of elected officials is a mug’s game, especially for one as improvisational as Mr. Trump. Which re-education camp does he have to graduate from to make foreign-policy decisions about Muslim-majority nations without the courts deducing bias? Does Judge Gregory have an opinion about Mr. Trump’s recent Saudi Arabia trip, or the President’s vision of new alliances in the Middle East?
This impulse leads judges to self-appoint as the supervisors of executive power in foreign affairs, and Judge Gregory even dismisses evidence of real terror plots by aliens because “we remain unconvinced” that the order “has more to do with national security than it does with effectuating the President’s promised Muslim ban.” Whatever happened to analyzing legal texts and Supreme Court precedents?
Mr. Trump’s original order was chaotic and overbroad, but the emended edition was legally sound, and judges are now ignoring the law to make a political point. The separation of powers was designed to check abuses by the three branches of government, and the judiciary should check executive excesses. But that isn’t an excuse for the judiciary to exceed its authority simply because this President’s name is Trump. The Supreme Court will now have to prevent an imperial judiciary from harming constitutional powers that this President, or a future one, may need to protect America.
Appeared in the May 27, 2017, print edition.
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