The Courts are Wrong on Trump Travel Order

from – National Review – by Kevin D. Williamson

President Donald Trump’s second attempt at restricting travel from certain predominantly Muslim countries has been struck down for a second time, and for a second time, the courts are in the wrong.

The language of the Immigration and Nationality Act is plain enough: “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Chief Judge Roger Gregory of the Fourth Circuit Court of Appeals makes a two-part argument that one must admire for its creativity: In the first part, he argues that, because of Trump’s dopey anti-Muslim comments during the campaign, it is reasonable to conclude that the travel restrictions constitute “invidious discrimination,” a constitutional no-no. But the Constitution, as Judge Gregory readily admits, does not protect the rights of foreign nationals not under the authority of the U.S. government or otherwise classifiable as U.S. persons: “Aliens who are denied entry by virtue of the President’s exercise of his authority under Section 1182(f) can claim few, if any, rights under the Constitution.”

Yet, he argues in the second part, failing to apply the standards of U.S. civil-rights law to . . . the entire population of the rest of the world, presumably, makes it likely that the U.S. government will violate the civil rights of U.S. citizens who share certain demographic features: “When the President exercises that authority based solely on animus against a particular race, nationality, or religion, there is a grave risk — indeed, likelihood — that the constitutional harm will redound to citizens.”

So, on the one hand the judge is attempting to read the state of the president’s soul rather than the language of the executive order, and, on the other hand, he is arguing that the executive order violates the Constitution not because it violates the Constitution but because something else might violate the Constitution — someday. Trump is in effect being accused of presidential pre-crime.

This represents what is known as outcome-oriented judicial reasoning: Pick your conclusion first, and then construct a case around it in whatever way is most convenient. It is also preposterous. It is plain judicial politicking of the sort that undermines the standing of the judiciary and the faith of the people in that judiciary. This in turn damages the perceived legitimacy of our legal institutions, undermining the rule of law itself.

The “inadmissible aliens” section of the law (8 U.S. Code § 1182) is indeed extraordinary. It might even be unconstitutional in the breadth of Congress’s delegation of power to the president. It might not. The courts have not found it to be unconstitutional. They have found only that the condition of Donald Trump’s soul is unconstitutional. It is the Nixon standard inverted: “When this president does it, that means it’s illegal.”

The policy in question might be good, bad, or ultimately inconsequential. My own view is that significant restrictions on travel and immigration to the United States from such countries as Yemen and Somalia is an eminently reasonable prophylactic against Islamic terrorism, and I’d put a few more countries — Pakistan, Egypt, and Saudi Arabia — on that list. But the question here is not whether this is a good policy — it is a question of whether it is a policy that the president is entitled to enact. It might be a mistake, but it is far from obvious that it is an unconstitutional mistake.

Judge Gregory insists that the policy amounts to “invidious discrimination,” which means discrimination that has no rational basis. That plainly is not the case: The rational basis for the policy is preventing jihadists from entering the United States. Maybe that is not a rational basis of which you approve — and maybe it is not even a particularly strong rational basis — but it is a rational basis nonetheless. Even if we were to assume that the standards of protection from discrimination that apply to U.S. citizens apply to foreigners abroad with no connection to the United States — and they do not — the rational basis of the law is fairly straightforward.

If the Immigration and Nationality Act itself is partly unconstitutional, then the courts should say so. If Congress does not like the content of 8 U.S. Code § 1182, then Congress can change it. But to set aside a presidential act that accords perfectly well with the letter of the law as the law stands because a judge believes that he detects malice on the president’s part is not jurisprudence.

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anthony ross
4 years ago

Couldn’t find a place to comment on the poll of 27 May 2017 regarding a petition to the supreme court to vote yes on the travel ban.
I had to vote no. The Supreme Court must not be influenced by popular opinions. They are tasked with the responsibility of judging the constitutionality of laws and, assuming the laws are constitutional, interpreting the laws themselves.
If the poll had asked for a petition which:
1. Asked for a petition for the SC to hear the case. Or
2. Asked for the House to immediately start impeachment hearings on the judges, from the circuit court or the appellate court, who voted for the injunctions against the travel ban.
I would have replied emphatically yes!
Is there a plan in place to start impeachment hearings on these judges? If not how does something get started.

Phil Bronner
4 years ago

Article I, Section 8, Clauses 4, and 18 give Congress the power to control who comes into this country, and to write the laws that accomplish that. Congress, in 1952 updated the Aliens and Nationality laws (USC 1182, Title 8, Chapter 12) giving the authority to the Executive branch under para. f “Suspension of entry or imposition of restrictions by President”. “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants. or impose on the entry of aliens any restrictions he may deem to be appropriate.”…
It would appear that these left wing federal judges: 1. Are not familiar with the Constitution and its division of powers. 2. Are unaware of the law (noted above) that’s been in existence (and used) since 1952. 3. Are completely unaware that rights guaranteed to citizens of the United States, are NOT guaranteed to the world’s population in other nations! and finally, 4. They have no Constitutional authority EXCEPT as specified in Article III. They have no RIGHT to “legislate” from the bench…Congress is the only branch that can legislate. They cannot “interpret” the Constitution, (as Justice Scalia said) “The Constitution says what it says, and doesn’t say what it doesn’t say.” These judges need to be impeached and removed from office for violating their oaths, the Constitution, and USC 1182, Title 8 Chapter 12, para.f. And it can’t happen fast enough!

4 years ago

We need to look inside all three branches of our government and recognise the Fifth Column traitors who would take this country down. Tell all of these college educated “snowflakes” to study some history so they can understand what’s happening here and now. A lot of parallels to Europe of about a hundred years ago.

Dolores Adams
4 years ago

This is protecting our country from these terrorists by banning them from the most notorious of terrorists countries.
Wonder if Judge Gregory was appointment by obama?

4 years ago

I’d love to see an article explaining how judges like this can be removed from office. Can they be impeached by Congress?

4 years ago

Just one death caused by anyone who would have been stopped but was able to get into our Country due to these Judges makes THEM accessories to murder and should be arrested.

4 years ago

Makes a person wonder why these judges are putting their careers on the line, who do they owe? If someone does come into the country and commits a terrorist act the press will not blame them,President Trump will get the blame for not keeping us safe. These judges are in the same category as Hillary Clinton. They can and should be replaced for doing a great disservice to the United States. No person is above the law and that includes these judges

Thomas H
4 years ago

So liberals (including their politicians, judges, and media) are FOR terrorists coming into our country . Got it!

Lee S
4 years ago
Reply to  Thomas H

Very well put. Just love it! Nice job!

4 years ago

While I agree with the SPIRIT of Trump’s intent — to keep unvetted people from certain countries associated with jihadism out of the U.S. — his action was kind of heavy handed, don’t you think? There are GOOD people in every country — and some had green cards, work visas, student visas, etc. I WANT to see a travel ban — from ALL foreign countries — only admitting those who have passed careful INDIVIDUAL VETTING. China and Japan do this — why not us? Japan even checks foreign visitors’ fingerprints. The technology is available — let’s use it. Take money from welfare cheats and use it for this security purpose! Our security people also need to know about multiple short trips to key countries, like Libya, Yemen, etc. and people who OVERstay their permits/visas. Other countries do — why not us?
This needs to be heard by the U.S. Supreme Court. Also want to see Ruth Bader Ginsburg retire — so we can have a strong, pro-American, conservative group on our court — the only way we can adequately protect our nation.

Thomas H
4 years ago
Reply to  ElenaT

How is keeping terrorists out of our country “heavy handed”?

Randy Geiger
4 years ago

Once again, we the American public are found to be insignificant and almost expendable by the rhetoric, actions and decisions of the socialist leaning of the left in all areas of our government.

Teresa Buhs
4 years ago

I know a lot of judges that need to be impeached and replaced.

Mike M
4 years ago

I had not heard the term “Outcome Oriented Judicial Reasoning” before, but it does a very good job of telling what the Judges have come to do regularly. Witness the right to kill in abortion, by bringing in a new right to privacy. Why doesn’t any murder done in privacy have the same right. the Law schools for decades have been teaching this twisted logic.

4 years ago

These leftist federal judges crossed over the line they need to be replaced by President Trump or they will continue to go against the constitution.

4 years ago

The swamp in our judicial system needs to drained. When the judges swear to uphold the Constitution and then rule against what is truly Constitutional because of politics, they are part of the swamp that needs to be drained.

4 years ago
Reply to  Martin

Totally agree.
I think these judges are more concerned about their status with the IN Crowd
Instead of the Constitution and the will of the citizens
Mark Levin was spot on with his book “Men in Black”
Labeling the bunch as tending to act like an unintended oligarchy
What an eye opener

4 years ago

I m wondering if the judge would admit aliens into his house or does he have walls and fences around his house to keep people out? Like so many other rich people and celebrities who preach not keeping people from other countries out but are not willing to practice what they preach?

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