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Judicial Supremacy Over Immigration

Here are four observations about the decision of the latest federal court to hold up implementation of President Trump’s second executive order on terrorism:

The executive order, issued by the President on March 6, 2017, and entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” imposed “a temporary pause” on entry of nationals from the countries of Iran, Libya, Somalia, Sudan, Syria, and Yemen. Unlike the first executive order from January on the same subject, the second order allowed exceptions and waivers on a case-by-case basis. The order did not mention the word “Muslim” or even the word “religion” (except in a short introductory passage refuting the notion that the prior executive order had an “animus” against religion). On May 25, 2017, the Fourth Circuit Court of Appeals, based in Virginia, upheld a federal district court’s injunction against the order. The Department of Justice has now filed an appeal in the Supreme Court.

First, the court chose to essentially ignore the unusually comprehensive and discretionary powers over entry visas given to the President by the Congress. The Immigration and Nationality Act, 8 U.S.C. 1182(f), authorizes the president to “suspend” by means of “proclamation” the entry into the United States of “any class of aliens” that he finds “would be detrimental to the United States.” Rather than focusing on that and other provisions of immigration law, the court instead held, in a ruling unprecedented in the history of the Constitution, that the President has effectively — though the court did not use the word — “disestablished” the Muslim religion in violation of the First Amendment’s Establishment Clause. The court concluded that the executive order failed to satisfy the first of the three prongs of the Establishment Clause case of Lemon v. Kurtzman (1971) in that if failed to have a secular purpose.

Second, the court stated that the real purpose of the order is the President’s “desire to exclude Muslims from the United States.” As proof, the court turned away completely from immigration law and from the words of the order itself to cite a handful of extrinsic statements by Trump about Muslims during the presidential campaign and immediately after the election. The court quoted four campaign statements by Trump criticizing Muslim immigration into this country, even though in the last of the four he had amended his language by saying “I’m talking about territory [i.e. countries] instead of Muslim.” Although one might reasonably allow that Trump, after criticism, had changed his mind as well as his language, the court said that the change of language was merely a subterfuge by Trump to hide his continuing animus against Muslims. The court then cited two post-election statements by Trump, but in neither of which did he state that he was going to target the entry of Muslims into the United States.

Third, the court denied that there is any national security goal at all in the second order and went on to endorse alternative evaluations of the threat of terrorism that it finds more credible. The court said that “according to a news article,” a Department of Homeland Security (DHS) document has concluded that national origin is a poor predictor of who may be a terrorist. The court declared its approval of the district court’s acceptance of the affidavit of “ten former national security, foreign policy, and intelligence officials” who have asserted that “there is no national security purpose for a total ban on entry for aliens” from the six countries. That is, an official presidential document the stated purpose of which is to “protect its citizens from terrorist attacks,” which is over 6,000 words in length with long sections of analysis and explanation, was completely in error on the subject. To the court, “the Government’s asserted national security interest” was merely “a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.”

Fourth, at several places in the court’s ruling, it is hard to distinguish legal phrasing from the kinds of words used in the countless op-ed columns denouncing President Trump. The court starts right in on the first page of its decision by stating that the executive order “in context drips with religious intolerance, animus, and discrimination.” It speaks of “psychological harm” to and “feelings of marginalization and exclusion” of the plaintiffs. The court states that it is “a dangerous idea” for the government to argue that discretionary decisions about the issuance of visas by American consulates are not reviewable by a federal court. The executive order “chooses sides on religious issues,” the court says, and the order is “steeped in animus.”

In introducing campaign statements into constitutional law and in deciding what should be done about national security, a federal appeals court has now entered an entirely new era of judicial supremacy.

Thomas Ascik is an attorney.