The courts become part of the resistance

  • 1 June 2017
  • NormanL
The courts become part of the resistance

The Fourth Circuit Court of Appeals struck down the President's travel ban affecting individuals from selected countries either linked to terrorism, or in the grip of civil war. It's not the first time the ban has been struck by a court, but in this instance, the appeals court flouted both established Supreme Court precedent and created a "Trump exception" to the law. According to this item in the Wall Street Journal:

If the Fourth Circuit’s reasoning were to stand, it could cripple the president’s ability to defend the country. The judges claim Mr. Trump’s campaign statements, supposedly hostile to Islam rather than Islamist terror, transform his order into an “establishment” of religion in violation of the First Amendment. If the president is forbidden to impose temporary limitations on immigration from any Muslim-majority nations, it would follow that he is prohibited from taking any hostile or unfavorable actions, including the use of economic sanctions or military force, toward any Muslim-majority nation.

Making foreign policy is not the judiciary’s job, and the court’s decision in this case is in direct conflict with the Supreme Court’s admonition in Mandel that courts may not review the president’s exercise of discretion on foreign affairs—or balance it against asserted constitutional interests—once a facially legitimate and bona fide reason has been articulated. Further, the executive order is clearly authorized by Congress under the Immigration and Nationality Act. As Justice Robert Jackson famously observed in Youngstown v. Sawyer (1952), the president’s authority is most formidable when he is acting with Congress’s consent.

It is therefore difficult to avoid the conclusion that the Fourth Circuit and the other courts that have stayed Mr. Trump’s executive orders on immigration are engaged in the judicial equivalent of the “resistance” to his presidency. Judges are, in effect, punishing the American electorate for having chosen the wrong president. That is not the judiciary’s role. Every federal judge has an obligation to accept the limitations imposed by the Constitution on his power—to exercise “neither force nor will, but merely judgment,” as Hamilton put it in Federalist No. 78.

The federal courts have long been assumed to be divorced (mostly) from politics. But it is becoming increasingly and disturbingly clear that at least some federal courts have decided to become highly political.

That is not just wrong, it is dangerous. The administration will appeal the Fourth Circuit's ruling, but there are no guarantees such an appeal will be granted. It should be, not only to correct a legal wrong, but also to give a full Supreme Court airing to the judiciary's decision to become an ally of the Democratic resistance.