The Federal Courts Join ‘the Resistance’

LAST Thursday, the Fourth Circuit Court of Appeals joined the resistance. In a 205-page opinion, it struck down President Trump’s 90-day travel ban on foreign nationals from six majority Muslim countries. The ban was squarely within the authority of the president under USC 1182(f ), which provides that: “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 . . . suspend the entry of all aliens or any class of aliens.”

That’s clear enough, but the court set aside the order for two reasons. First, the text had to be read in the context of Trump campaign speeches that dripped “with religious intolerance, animus and discrimination.” Second, the court doubted that the order’s “vague words of national security” were supported by evidence that the excluded foreigners posed a danger to Americans.

Conservative commentators pounced on the first of those grounds. The ban extended to six really dangerous Muslim countries, and not to the 44 other majority-Muslim states. The charge of bias also seemed flat-footed when made after Trump’s inclusive speech about Islam in Saudi Arabia.

Further, it was improper to impugn presidential decisions on the basis of unguarded things said in the midst of a campaign. After an election, and after taking the oath of office, presidents should be given the benefit of the doubt.

But here the court was saying it didn’t believe Trump’s claim that the order was meant to protect Americans from foreign terrorists: The president was a liar.

That’s an extraordinary assertion of judicial power, one that takes us into uncharted constitu-- tional waters. If Trump is a liar, then everything is up for grabs. He wants to build a wall? That must reflect anti-Mexican bias, no? Recall when he said Mexicans were “bringing drugs. They’re bringing crime. They’re rapists”? Or that missile strike on Syrian bases. If a ban on refugees from Syria can be struck down for bias, what about an attack on the country itself ?

By itself, that would be a judicial coup d’état. But it’s the second basis for the decision, the claim that the aliens excluded by the order didn’t really pose a threat, that’s more interesting.

This flies in the face of what in American constitutional law is called the political question doctrine. That’s the idea that there’s a border between judicial and political issues, and courts should not stray from one to the other.

In a democracy, politics should be left to the presidency and Congress. But that’s not what the Fourth Circuit believes. And indeed, once it thought itself competent to psychoanalyze the president and determine his true motives, the court was bound to discount alternative explanations.

And so the court did rule on whether the ban was justified, as a political matter, in a decision that’s an object lesson on why courts should stay away from politics. Presidents have access to nationalsecurity information denied a court, but the Fourth Circuit nevertheless relied on a news article about an unread Homeland Security report “that citizenship in any country is likely an unreliable indicator of whether a particular individual poses a terrorist threat.”

Then there were 10 former foreign-policy officials who disagreed with the order. Big deal. There will always be 10 highly politicized former officials who’ll disagree with a president — but who won’t know what the president heard that morning in a presidential daily briefing.

What happens now? Maybe nothing. After all, the ban was lifted and terrorists struck overseas and not here. We rolled the dice and got lucky. Beyond that, I never thought that the ban made political sense. It simply distracted the administration from the real work to be done — reform of the 1965 Immigration Act.

Or maybe something will happen, if the Supreme Court agrees to review the case. That seldom happens unless different circuit courts are split on the issue. Here, the Fourth and Ninth Circuit both struck down the order.

But sometimes the Supreme Court will agree to review a case even where there aren’t split circuit decisions. It did that in Bush v. Gore in December 2000. The court had to do so, to determine who the president really was.

For the same reason it should agree to review the Fourth Circuit’s decision.

In a democracy, politics should be left to the presidency and Congress.