Judicial review double standard

COMPLETELY CONSTITUTIONAL

It is now official. There is a double standard when it comes to judicial review of actions taken by the current occupant of the oval office. President Donald J. Trump's executive order temporarily suspending the issuance of visas to citizens of six countries that are state sponsors of terrorism or were otherwise designated by Congress and the prior administration as of particular concern for terrorist activity "could be constitutional" if the identical order had been issued by Hillary Clinton, had she won the election last November. But because it was issued by President Trump, it is unconstitutional.

That concession by plaintiffs at oral argument before the full 4th U.S. Circuit Court of Appeals in the case of International Refugee Assistance Project v. Trump is truly astounding. Even more astounding, however, is that a large majority of the appellate court accepted the proposition. Trump's executive order is likely unconstitutional, the court concluded in upholding a nationwide injunction against the order's implementation, because the six countries it targeted are overwhelmingly Muslim, and the national security concern expressly stated in the order is, according to the court, mere pretext masking an anti-Muslim purpose by this president. Never mind that the same six countries (plus a seventh, contained in the first version of the executive order) had already been subjected to heightened immigration vetting requirements by Congress and by the prior administration, which had certified these particular countries to be either state sponsors of terrorism or "as presenting heightened concerns about terrorism and travel to the United States." What was a valid national security concern under Obama has instead become, in the court's mind, mere pretext for religious animus under Trump.

At least the 4th Circuit (unlike the 9th U.S. Circuit Court of Appeals, when it upheld a nationwide injunction against the first executive order) referenced the relevant statute - Section 1182(f) of Title 8 of the U.S. Code - that unambiguously gives the president the authority to "suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants ... whenever [he] finds that [their] entry ... into the United States would be detrimental to the interests of the United States." But that facial legitimacy of the president's action was, according to the 4th Circuit, fatally undercut by various statements the president made while he was a candidate. And even there, the court deployed another double standard, interpreting the statements in the worst possible light when the normal course is to presume good faith and constitutional conduct on the part of elected officials. Trump is apparently not entitled to that normal presumption because, according to the court, his statements provided a "context," a "backdrop," that "drips with religious intolerance, animus, and discrimination."

Just what were those statements that were so heinous as to require the court to reject the normally dispositive deference to the executive in the context of immigration and national security concerns? None of them proposed a ban on Muslims divorced from national security concerns. Even the first statement, which the court apparently considered the most egregious, was explicitly tied to national security. That statement, issued by candidate Trump on Dec. 7, 2015, months before the first primary election was even held, proposed "a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on." (Emphasis added.) The italicized language indicates that the proposal was both temporary and tied to security concerns. Moreover, the proposal was explicitly based on a then-recent poll that 25 percent of Muslims in the United States - one in four - "agreed that violence against Americans here in the United States is justified as a part of global jihad," further indicating that its purpose was security, not religious animus.

That broad statement was further honed during the course of the campaign to be even more narrowly tailored, modifying the proposal to "suspend immigration from any nation that has been compromised by terrorism until such time as proven vetting mechanisms have been put into place." As before, the italicized language here makes clear that the proposal was both temporary and directly tied to national security.

None of that mattered to the 4th Circuit, which instead relied, inter alia, on a declaration by former intelligence officials, "four of whom were aware of intelligence related to terrorist threats as of January 20, 2017" - which is to say, were members of the prior administration - to bolster its claim of pretext. That line in the opinion, perhaps more than any other, makes manifest what is really going on here, and that is objection by the prior administration and its appointees in the judiciary to the shift in policy that was effected by the results of the November 2016 election. Disagreement over how the threat of terrorism from radical Islamists was being addressed was one of the principal issues on which the 2016 presidential election was waged. Trump promised repeatedly throughout the campaign to be more proactive in his response to that threat than the prior administration had been (and than the administration of Hillary Clinton would likely be). And like it or not, Trump was elected president of the United States on Nov. 8, 2016, and sworn into office on Jan. 20, 2017, in large part because of those promises.

What we are witnessing, then, is a deliberate attempt to thwart those policies, and thereby undermine or reverse the results of the election. The courts are being enlisted in that effort, and have thus far proved all too willing to oblige, enjoining implementation of President Trump's shift in immigration policy on the rather weak contention that statements made by candidate Trump renders it unconstitutional.

The real unconstitutionality on display here is the usurpation of power by courts bent on denying to the duly-elected president the constitutional authority of his office. The challenge to what has happened here cannot be expressed in strong enough terms, as we are witnessing what amounts to a coup d'etat by some members of the judiciary. We have for far too long indulged the false claim that whatever a judge does becomes "law," such that any challenge to it undermines the rule of law. Judges, not less than legislative or executive officials, undermine the rule of law when they exceed their constitutionally assigned authority. And the Constitution's assignment of authority here is pretty clear. As the Supreme Court has itself recognized, "The exclusion of aliens is a fundamental act of sovereignty ... inherent in the executive power to control the foreign affairs of the nation." When that power is combined with an express delegation of authority from Congress, such as we have here, the president's authority over foreign affairs is at its zenith.

Temporarily blocking admission into the country of individuals from countries that Obama himself determined to have "significant presence of terrorist organizations" or which had become "a safe haven for terrorists" until the administration has confirmed that our vetting procedures are adequate to the task of preventing terrorists from coming to our shores is not only well within the president's power, but quite arguably his duty. Whether or not a particular judge or panel of judges likes the policy judgment made by the president, it is the president, not the judge, who was elected to make that decision, and the judiciary owes the same kind of deference to this president that it has given, in response to nearly identical executive orders, to every president since Section 1182(f) of the Immigration and Nationality Act was adopted in 1952. The double standard at play in the 4th Circuit's decision has no place in a nation devoted to the rule of law.