One of the fundamental principles that has made the United States a beacon for liberty around the world is that we are a nation governed by laws, not men. Another has been that our courts of law are forums where justice can be sought and achieved solely on the facts of a case, a place where political bias, wealth and power are to be given no weight — hence why Lady Justice wears a blindfold. Sadly, those principles have been turned on their heads in the litigation of the Trump administration’s executive orders on travel to the United States.
Where courts and judges have long been perceived by many Americans as unassailable institutions of justice, we are now faced with an unsettling politicization of our judicial system. In the travel ban case, one with obvious political overtones, it seems apparent that judge-shopping is part of the plaintiff’s approach. Of all the courts in the land, plaintiffs strategically chose to seek recourse in friendly circuits with Obama-appointed judges.
From the rulings on the administration’s original executive order (EO1) to its third incarnation (EO3), there is evidence that politics, much more than facts, are a driving force in the process. Top legal minds at the Justice Department have learned from the demise of EO1 and revised its successors into airtight, constitutionally-sound documents. How have the judges responded? By largely ignoring the words in the orders and instead focusing on social media posts and comments then-candidate Trump made while barnstorming the nation on the campaign trail last fall.
The chief executive of the United States — no matter his or her party affiliation — has been endowed with the authority to safeguard the country’s national security and protect its citizens. Most pertinent to this case, the Immigration and Nationality Act of 1952 gives the president sweeping powers to restrict the classes of aliens that can enter the country. One of the president’s most invaluable resources is a corps of military and civilian advisers as well as the vast assets of our federal government to deliver the best possible information on threats to the republic and how to mitigate them. The president — with the implicit support of the American people via his win in the Electoral College—is able to make highly informed decisions on complex problems of national importance.
By virtue of State of Hawaii v. Trump, District Judge Derrick Watson is now de facto empowered and deemed better suited to make those decisions over the president. A political appointee with no apparent background in national security matters and no comparable expertise to advise him, Judge Watson has superseded the authority of the president and is essentially rewriting American immigration and national security laws. It would be hard to argue that this is the government the Framers had in mind.
There are more than a few examples of why the lower courts are ill-suited to rule on such cases considering the stakes involved. From the original ruling, Judge Watson endorsed the argument that the travel ban would harm the University of Hawaii by not allowing students from the countries specified in the ban to attend. Think about that for a moment. The president is trying to prevent terrorists from entering the United States from countries identified — by the Obama administration, no less — as security threats. That is considered by the court to be a lesser threat than a lack of cultural diversity at the University of Hawaii. Another plaintiff’s claim that the order unfairly targets Muslims rings hollow given that the majority of Muslim countries around the world are not included in the order at all.
Such arguments would make for interesting rhetoric if they were the exclusive domain of theoretical debate. Unfortunately they are not. The lives of American citizens are at stake. There is a violent case history where refugees from countries on the travel ban list have been allowed entry into the United States, only to go on rampages with the intention of killing innocent American citizens. At a time when hotbeds of anti-American sentiment are numerous around the world, the issue of travel to the United States is one in which national security and the safety of American citizens should take priority over inclusiveness and cultural diversity.
There is still hope that the appeals process on the travel ban case will lead to the Supreme Court, where presumably the justices will render a final and well-reasoned holding on the matter. However, this case is troubling nonetheless, because it raises more fundamental questions than just the merits of the case. Will our courts continue to act as an unelected quasi-legislature? Will the branches of our federal government respect their boundaries as defined by law? Thus far, those issues have played out in a way that can best be described as extra-constitutional, and that is cause for all Americans to stand up and take notice.
Brian Lonergan is director of communications at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.
Also published at: Brian Lonergan, Travel Ban Illustrates the Danger of Treating National Security as Political Football, The Hill, October 28, 2017