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Fourth Circuit Holds Trump’s Travel Ban to New Standard
The Fourth Circuit refused Thursday to reinstate President Trump’s revised travel ban. There is no doubt that this is a Trump-only decision.
The Fourth Circuit clearly says that the executive order is legal on its face because of its invocation of national security reasons. But the court refuses to apply the traditional deference to the President and Congress in immigration affairs because of Trump’s statements both as a candidate and as President that — it claims — reveal he is acting in bad faith. According to the Court, Trump’s true motive is to ban Muslims from entering the US, and the ban on the Muslim-majority nations was simply a means to escape judicial scrutiny.
The Court’s approach here is unprecedented. Federal judges have never before questioned the motive behind a President’s order, which was otherwise valid on its face. Trump, on the other hand, has given courts the material — also for first time — to question the good faith of a presidential order. But the decision could hamstring future Presidents. Courts could be forever in the business of testing the “real” purposes of presidential actions for invalid motives. No matter how they decide, such review could sap chief executives of the speed and decisiveness that are necessary to deal with national security threats.
Published in General
When people are killed in America by Islamic terrorists that would have been kept out by these lawful executive orders I expect each one of these judges to personally admit their culpability to the loved ones of the victims. Why have an executive or legislative branch when the almighty Federal Judges can make and execute all the laws of the land.
The amazing thing about this post by Mr. Yu is that he is not outraged at the illegal behavior of judges. Why is he not calling for the impeachment of the judges? They have utterly usurped executive power vested in the President and violated the Constitution and separation of powers. They have violated their oaths. For a judge to say that an executive order as written is legal, but then declare it illegal because of who the executive was that issued the order, is so utterly preposterous that it beggars the whole idea of a federal judiciary. The Constitution is gone. And I doubt the Supreme Court will restore it. [Redacted.] He clearly has a bias in favor of illegal behavior by judges. Again, stunning.
You’ve committed the same error as the judges by looking beyond the text to divine emotion and motive.
Professor, please tell me you don’t think SCOTUS will affirm this opinion. It has always beeen hornbook law that if a statute or order is legal, a court will not inquire into the motive of the governmental entity. As you stated. If this is allowed to stand, the search to manufacture “bad faith” ( a concept which never entered in to this area of law before) won’t stop at campaign rhetoric; it’ll go all the way back to third grade book reports!
Also, I’m horrified at the thought of extending the protections of our constitution to non-resident aliens. To me that means we wouldn’t be a sovereign nation any more.
Well that’s [redacted]. The motivations are irrelevant. Is the act constitutional or not? If it is constitutional then they are enacting legislation from the bench. Impeach them.
Don’t the lower courts have to disagree for SCOTUS to take the case? It seems like the lower court judges all agree that impure thoughts invalidate constitutional prerogatives. Come on in, jihadi’s!
It’s not a requirement, but when different circuits come to different conclusions on the same question it increases the likelihood of SCOTUS granting cert. Since this is a separation of powers issue (and the opinion contradicts SCOTUS precedence) I think they’ll probably hear it, and soon.
If foreigners with no connection to America have constitutional rights, I have some European friends who want to immigrate.
What a truly awful precedent.
I suspect the supremes will not take kindly to having they previous rulings contradicted.
Within US borders, non-citizens enjoy the same rights protected by the US Constitution as citizens. Take it from this post at learnliberty.org by George Mason U Law professor and Volokh Conspiracy blogger Ilya Somin:
Don’t be so horrified. For some aliens, one of the nicest things about being in America (e.g., a foreign student, visiting researcher, priest or pastoral worker, diplomat, businessman, investor, seasonal agri or hotel worker, supermodel, etc) is the opportunity to breathe the free air and to enjoy civil and political rights one may not be guaranteed in one’s homeland. Many fortunate enough to experience this are often quite grateful. America, thanks for being America.
Whatever else we might say about this case and the Hawaii companion case now in the 9th Circuit, they do not–no way–extend rights to outsiders. All of the plaintiffs were U.S. citizens or U.S. entities who claimed that their rights were being violated (in various ways).
I just want to contest this part. During the campaign Trump’s entire motive for discussing the prevention of Muslims from entering the country was to prevent terrorism. When he discovered a more nuanced way to prevent terrorism from foreigners, by banning travel from states with bad vetting, he abandoned the idea of a Muslim ban. There’s nothing but good faith here. The judges are wrong.
Let me be blunt. I may be a lawyer, but sometimes the first level abstractions we engage in are just too much. Two days ago the kind of people our President is worried about set off nail bombs in an arena full of young girls and other perfectly nice people, all in the name of Islam. That is what the President is trying to prevent. This sort of sick, evil crime is becoming distressingly frequent, and I am getting sick and tired of courts indulging in semi-abstract legal talk about pernicious motives based on speculation about impure motives, all in order to frustrate the executive. Discretion should be with the executive, and we should presume that the executive is doing his best to protect real people from real threats. Decisions that frustrate these efforts endanger us all for transparently political motives, and should be resisted and called out for what they are.
I very much doubt this is the case. FDR springs to mind, for example.
The Fourth Circuit recognized that presidential action in the immigration and national security sphere must be given great deference. That’s Separation of Powers. But there is such a thing as abuse of discretion, and great deference cannot mean judicial abdication. That’s Checks and Balances. If a President could merely put any facially plausible lipstick on any unconstitutional pig, the Constitution would be undone.
I join John Yoo’s suggestion that the 4th Circuit went too far afield in checking lipstick shades, but it was a close case, and John is also right that Trump gave the Court far too much to work with (as is his wont).
But I write chiefly to warn against the kind of non-productive emotionalism evident in the above quote pulled from @Michael Lukehart’s post. The Manchester killer was native-born British, and would not have been affected by the E.O. if he had been native born in the U.S. and done his killing here. So what exactly does @Michael Lukehart mean by “that kind of people?”
His reaction is just like the Dem reaction when someone shoots up a campus or a nightclub–pass gun control regulations that, even when passed, would not have prevented this very killer from legally obtaining the very same weapons. It vents some emotion, which is not necessarily a bad thing, but it has zero efficacy in addressing the problem.
Something along those lines was not far beneath the surface of the Fourth Circuit opinion: it becomes more plausible to think that the “anti-terrorism” E.O. was not actually issued in good faith for the purpose of protecting our citizens from terrorism, because it was so spectacularly ineffective for that purpose. (Again, it’s not a bad thing, all things being equal, to make purely symbolic gestures, like wearing a “Boston Strong” tee-shirt, or inventing a hash-tag. But if things are not equal, and the gesture is being questioned as pernicious rather than merely ineffective, it’s fuel to the fire.)
It is the nature of the beast that we don’t know just how good a job our anti-terrorist fighters are doing. It’s probably surprisingly good, but why not make it better? Let’s take all of the money spent on travel ban personnel, and invest it into more and more and more agents to do undercover work. Yes; in mosques if that is where the action is. Or in white skinhead groups, if needed. Or in black separatist cells. Or wherever the bona fide discretionary judgments of the front-line warriors takes us.
Moderator Note:
Simmer down, please.I know all that, [redacted], I said “non-resident aliens”. That means people not already here. [Redacted.]
This court mentioned “tearing apart Muslim families” didn’t it? And, if people inside our country can claim their rights are violated cuz their alien relatives can’t come in–we’re there.
The more immigrants, students and refugees we allow in from terrorist producing nations and religions, the more difficult the job of monitoring them. While we must do all you say, there is no reason to allow more people in who because of their profile would have to be followed. Moreover, the fewer coreligionists and peers the more likely some kind of acculturation might occur. During the process of extreme vetting we recruit some of our informants. We shouldn’t want a ban, just extreme vetting that does the same thing but with choice and flexibility.
Yuh! The mere fact that unfortunately we have a lot of dangerous people in here already (thanks, Ted Kennedy!) is no reason to let in more of ’em.
I mean: two things can be bad at the same time.
(but hey, good news! I just heard a report that visas from Muslim countries are dropping-_down 20%. So we are achieving our goal, in spite of the Trump-hating judges. It’s like wth the Southern border: 93% drop in illegal entry! even without the wall!!)
Maybe, but–from what I have heard, admittedly I have not delved into these opinions–none of these opinions seem to have addressed the legal issue. In fact, the courts have outright stated that the president has the statutory authority to do exactly what these orders seek to accomplish, but, because Trump is the one who issued the orders (and for no other reason), the courts have ruled against the administration. It would be one thing clearly if the argument about rights had been addressed by the court in formulating their opinions, but that does not seem to be the case.
Prof, with all due respect, it is actually surprisingly poor. I have been in this field for over ten years at various levels. I can give you an entire list of terrorist acts that were known by the IC/law enforcement and yet were permitted to happen.
Fort Hood: The perp had numerous email conversations with the American born leader of AQ in the Arab Peninsula months before his attack. Was not acted on because of fears of “racism.”
Underwear Bomber: His own father tipped us off to his son’s contact to known AQ sympathizers who showed him how to construct the bomb that was in his pants. Was allowed on the plane and, but for the passengers of that plane, would have blown it up on Christmas.
Time Square Bomber: Known to have taken numerous trips to Pakistan where he is said to have trained with the Taliban in Waziristan.
San Bernadino: The wife of the couple had overt terrorist rhetoric on her Facebook page prior to being allowed in on a marriage visa.
Boston Bombers: The older brother visited a known radical cleric in the Russian Stans, and the older brother was on our no fly list!!
These are the big headline attacks or attempted attacks. I am sure if I spent some real time I could dig up more. Our “counterterrorism” regimen is nothing more than an excuse to create a surveillance state where the law enforcement have unfettered access to intelligence gathered in ways that are in direct violation of the 4th amendment so as to conduct easy criminal investigations–the low hanging fruit if you will.
No thanks, we don’t need a ‘Murican version of the gestapo to prevent terrorism of the Islamic variety. We just need to enforce our immigration laws.
What terrorist attack would have been stopped by the enforcement of our immigration laws?
Oh this is great: try 9/11! Read the 9/11 commission report (I have) and you come to find out that had our immigration laws been enforced–all of them were here on expired visas–that attack would have never happened. Next time try throwing some heat when you are pitching against Hank Aaron. Next!!!!!
I’m trying to think of an attack in the US that was carried out by an illegal alien. I’m coming up blank.
So from what I read of the report 3 of the 19 were in illegal overstay status on their visas. They rest were legal nonimmigrant aliens with valid visas. Technically correct but hardly dispositive. I think your blanket statement above is overwrought.
Also, Robert, is it possible for you to discuss things without being so hostile?
I’m with David Horowitz. @davecarter references this legal analysis in the thread … Tell The Fourth Circuit to Go Fly A Kite. Here is a brief summary of Horowitz’ legal case …
Even more broadly than this present case of the Fourth Circuit intervention, well beyond their jurisdictional authority, which stomps on the clear province of the Executive Branch enumerated in US Code and our separation of powers, Horowitz suggests it is time to “end lower court fascism”. More Horowitz:
The only remedy is judicial impeachment. It is time for some examples to be made of wayward judges in our District Courts.