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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
From the opinion:
Plaintiffs are organizations “whose clients, located in the US and the Middle East, will be delayed reunification with their families” (emphasis added). As far as I’m concerned, “rights” of non- resident aliens are being asserted. And if we start allowing alinns who haven’t weaseked their way into the jurisdiction of the US to assert claims under our Constitution, we have lost our sovereignty.
Wowser. If we start impeaching judges or justices because they have made “wrong” decisions–wrong in the eyes of one of the Branches of Government that the Judicial Branch is checking–then liberty is extinguished here.
Tyranny of the Majority much? The Framers would not be happy.
This is an illogical, indefensible, and partisan decision. And the judges are smart people, so they must know this to be true. Therefore, they knowingly put politics ahead of the law.
To see how ridiculous the decision is, let’s do a thought experiment. At the G7 summit, Trump chokes on a well-done piece of steak (with ketchup on it, of course). He dies. Pence assumes the presidency.
Now, can President Pence issue the exact same executive order? The Fourth Circuit suggests that the answer may be yes, because Pence didn’t make exactly the same statements that Trump did on the campaign trail. Same executive order, different president. One president’s action: unconstitutional. Another president’s identical action taken weeks later: constitutional.
Absurd.
Or would the Fourth Circuit say that Pence must be assumed to be acting in bad faith, as well, because he was Trump’s running mate? They might even say that the exact same executive order issued by Pence’s successor, President Sasse, was unconstitutional because Sasse is a member of the same party.
Here’s an alternative approach: The executive order could be judged by the actual words on the page. I trust that the Supreme Court will take that approach. I would have loved to read what Scalia would have written about the Fourth Circuit’s decision.
If this were to stand, it would have a chilling effect on campaign rhetoric.
Shame on you, Fourth Circuit.
Perhaps Horowitz’ suggestion of using the power of the purse against the lower courts first is best.
However, impeachment is there for a reason as well. And any impeachment case wouldn’t be “because they have made a ‘wrong’ decision”. It would be because they insisted on chronically overstepping the bounds of the law, their jurisdiction and their abrogation of the other two Branches of Government.
If you are under the impression that the problem with our legal system is that it is over funded then you should probably talk with a few litigators and trial attorneys.
So now the word “you” is a violation of CoC? And I have to stand by and see my words deliberately misinterpreted? This is too important an issue to be conciliatory about.
I’ve read several discussions of the dissent from the 3 judges. It seems to this non lawyer they have the better of the arguments.
First, the plaintiffs have a weak claim to standing. They opine that they may be harmed at some time in the future. It’s my understanding that courts are supposed to address actual harm not “stuff that might happen in the future maybe”.
Second, there are precedents going back to the founding that prescribe how judges are to evaluate the text of a law vice the background. And here I’m not referring to textualism versus living Constitution disputes.
I think this will give us a good window into the theology of the court.
It was probably because you used all caps which is a CoC violation.
Sorry, but no I didn’t. They redacted the word”you”( no caps,) and a sincere inquiry as t whether the commentator had actually read the portion of my post he (she? it?) quoted.
OK, so for the record, you are for Judges ignoring the law in order to make rulings on totally partisian grounds, but calling for those judges to be removed from office is an act of Tyranny.
Thanks for stating so clearly that you are not for the rule of law.
Here is a political analysis of the 4th Circuit decision.
The decision against the executive order was 10-3. The breakdown is:
This does not necessarily imply any overt political motivation on the part of the judges. It may be more a matter of judicial philosophy and temperament.
This is another dangerous example of the politically correct courts making decisions. not based on the rule of law, but personal political views. The intelligence that prompted him to make the call is classified. Everywhere you turn, they are attempting to squash his leadership. We are being held hostage by bad judges.
Come on. formerlawprof is not saying he is “for” any such thing. Don’t put words in his mouth, and don’t use straw man arguments.
It’s possible to believe that one thing is bad, that the supposed “cure” is worse, and that neither should occur.
No, he said calling for judges to be removed for what they did an act of Tyranny. Calling for it is the act of the Tyrant. If you cannot remove judges for failing to follow the law, then there is nothing you can remove them for. They are not doing their jobs. Since he thinks just calling for their removal is an act of a Tyrant, then he, defacto must support what they did.
Hypatia, I read your comment in full.
Thanks for clarifying what you meant by non-resident aliens. I’m in a field where I deal with non-citizens visiting the US, so “non-resident alien” to me is a technical term and means something very particular.
With that in mind, I used it to go on a tangent and trusted that the rest of the commenters were following the larger conversation, while recognizing the tangent as such. It’s an idea worth repeating–the moral significance of the Constitution of the United States to the rest of the world.
As Jamie points out only 3 of them would have been thrown out. Of course because they would have been tossed on a visa overstay back in 2001 no one would have thought to question them about their activities. So at best we might say one plane on 9/11 would not have been hijacked though depending on who those three were perhaps nothing would have changed.
The problem with putting the onus of anti terrorism on immigration enforcement is that immigration enforcement is not designed to stop terrorism. This would be like putting the onus of stopping murders on traffic cops because some murderers speed on their way to kill their victims.
The law enforcement solution to Islamic terrorism is to engage it in exactly the same manner in which domestic terrorist (such as the Ku Klux Klan) were engaged. Which is by infiltrating and monitoring these groups to bring up criminal charges against them whatever you can pin on them. Your best bet then would be that if you have some would be terrorist suspect, rather than wait for them to commit a terrorist act just bust them for some lesser crime. Such a policy though seems rather set up for abuse.
So not to derail the conversation, but would not the most hilariously ironic conclusion to all of this be that Gorsuch votes with the Liberals to up hold the lower court rulings? I’m trying to think if there is an outcome to this that would cause more heads to explode?
Sigh. So who gets to decide whether it is or is not the case that the 10 judges in the majority “ignored the law?” Who decides if the rulings were made on “totally partisan grounds?”
Should we poll the Ricochet membership? The House of Representatives? Or perhaps some totally non-partisan entity that has yet to be identified.
As a lay person, I used to read the “reasoning” of behind major court opinions of interest, hoping to find a methodological coherence that leads to a single robust deductive conclusion, but after much disappointment I no longer bother. Face it, the narrative of the judicial revolt against Trump is just one more iconic example of a political question fought using a “legal language” that is designed to accommodate anyone’s belief; nothing more than a sophomoric and imprecise ritual of adding rationalizations as gloss for politicized judge’s pre-determined outcome.
The sham is obvious, no matter which side you decide is right. Their so called “higher judicial reasoning” is mocked by its purely political results, i.e, the travel ban split EXACTLY along party lines in both the 9th and 4th circuits. And the disagreements between the majority and dissenting jurists were emotional and rancorous, loaded with hyperbole and even professional ethics accusations. Both in written opinions and in articles by partisan legal “experts” there was a great deal of irrelevant moralizing and sermonizing as “argument”. And it even reached the obvious absurdity of an ACLU lawyer admitting that an identically written EO, if issued by someone else than Trump, could be totally legal.
SO IF THAT IS NOT the very definition of a fake impartial process and politically rigged outcome for shutting down Trump along partisan lines, what is? (And mind you, I was a never Trumper).
Sorry lawprof, the game is up. Tens of millions of common Americans no longer respect or honor judges or courts as worthy of anything other than their contempt. You can speak in florid terms of judges allowing “discretion but then again, not too much discretion” (as if your conventional ambiguity means anything) but we all know it boils down to raw power – a judge says Trump has used too much discretion (whereas Obama could not) just because a guy in a robe says it has to come out that way.
The people’s representatives in Congress, of course. That is the purpose of impeachment. What other remedy is there for a lawless judge?
If you cannot see the problem in using campaign rhetoric and the supposed intent of the author to evaluate a law, then I am glad you are no longer a professor of law. What next, the judge just strikes down the law because they personally disagree with it or don’t like the attorney arguing for it?
Well answered.
1.) By this standard, we could roll back substantial parts of the welfare state -starting with Obamacare’s promise that it wasn’t a tax and if you liked your plan you could keep your plan, all the way back through the promises that we could afford both guns and butter for the Great Society programs, and to Social Security is really your money because you paid for it. But of course we all know that this isn’t how it works. We have one law for the rulers and one law for the ruled -even when the ruled manage to get a tribune elected president. Remind me again why this isn’t grounds for open revolt? I’ll accept “because we’d lose” as an answer, but I just think we should be clear that the reason we’re obeying these self-styled philosopher kings is because they have more guns than we do.
2.) On the question of “who decides these judges overstepped their bounds,” I would be fine with “2/3 of the senate” as an answer -which is why impeachment is a pointless exercise and we should focus our efforts elsewhere.