The Judiciary’s Lawless Response to Trump’s Executive Order

The imperial American judiciary has struck again. This time it has taken upon itself the prerogative to enter a domain that historically it shied away from: national security. A few weeks ago, a federal judge in Washington State stopped the implementation of President Trump’s executive order temporarily halting entry into the U.S. from seven Islamic-majority countries. These countries were identified—by the Obama administration, no less—as likely spawning grounds for terrorists whose governments are either unable or unwilling to act to screen them out. The decision was followed by similar U.S. district court decisions in other states. The administration appealed the Washington State decision to the notoriously activist, leftist—and frequently reversed—U.S. Court of Appeals for the Ninth Circuit, which upheld it.

It’s not clear if it will appeal the decision to the Supreme Court, as it works on unveiling a substitute executive order—to be sure, the original one may not have been tightly enough written—that it says will meet the courts’ objections while still achieving the president’s objectives. The most important of a number of troublesome points about these court actions is that they go against the standing practice of the federal courts not to interfere in national security decisions of the executive and legislative branches.

National security matters are considered “nonjusticiable”—that is, the courts do not view them as appropriate for judicial resolution. This falls into the category of what’s called the “political question doctrine” in American constitutional law, which means that this is something that’s in the province of the two political branches. That’s why the courts brushed off constitutional challenges to the Vietnam War, side-stepped the challenge of some members of Congress to President Carter’s abrogation of the U.S.-Taiwan mutual defense treaty, and for that matter would not interfere with FDR’s internment of Japanese-Americans during World War II—which was a much greater injustice and violation of individual liberty than delaying the entry of foreign nationals into the U.S. until proper screening can be set up.

The claim of one of the federal judges that the temporary halt was unconstitutional and represented an excessive delegation of power to the executive from Congress is a stretch. In the first place, no one has a constitutional right to emigrate to the U.S. nor do non-citizens have a constitutional right even to enter the U.S. There has never been any question that immigration and movement across our national borders can be subject to reasonable regulation, and national security is the most reasonable and acceptable of reasons for regulation. In fact, Congress has specific power under Article One of the Constitution to legislate on immigration-related matters and appropriate delegation to the executive has always been part of this as it is in virtually all other areas of public policy. I wonder if the judge would have been similarly ready to decide that President Obama’s numerous executive orders—he perhaps reached a historic high in “legislating” from the White House—should have been negated as excessive delegation. For that matter, has the judge been ready to override the unelected federal bureaucracy for essentially making law in a whole range of areas because of Congress’ propensity for enacting vague statutory language?

In one of the cases from Virginia the federal judge decided that Trump’s executive order was a violation of First Amendment-guaranteed religious freedom apparently because during the campaign Trump had talked about the need for a “Muslim ban” and said the U.S. should help persecuted Mideast Christians. Besides apparently ignoring the fact that the U.S. has long been a spokesman for human rights and a haven for the persecuted—it’s not unconstitutional for the U.S. Government to single out particular groups who it thinks are especially in need of help at particular times—she should also have been aware of the fact that courts need a lot more than political campaign rhetoric as a basis for constitutional decision-making.

Moreover, the First Amendment does not countenance doing just any kind of action in the name of religion—and, it follows, that the state can check to make sure that members of certain religions are not aiming to engage in illegal acts in the name of their religion. Isn’t it logical that in an age when most international terrorism is carried out by Islamic groups that adherents of that religion—especially when they come from foreign countries that are particular hotbeds of such activities—will merit close scrutiny? Did the Supreme Court in the nineteenth century stand in the way of the federal government not only suppressing polygamy in territories with heavy Mormon populations, but also confiscating Mormon Church property that was not used for religious purposes because of its support for polygamy? Again, this was a much more obvious example of targeting a religious group than temporarily halting entry by foreign nationals from terrorist-spawning nations and instituting tighter screening.

Apparently, the courts have now decided to enter the last frontier for them: second-guessing presidential national security decisions and, in effect, making national security policy by decreeing that certain procedures and regimens are constitutionally excluded. The courts’ rationale is the usual thing: a convoluted notion of civil rights. Somehow, non-citizens—citizens of certain foreign countries—who identify as at least nominally Islamic are held to have their civil rights violated merely by delays, annoyances, and the need to alter their personal travel plans, that these take precedence over the U.S. Government’s role of protecting its citizens. It seems as if civil rights and the concern for equality has come to mean superseding, preeminent rights for groups denominated by the left—the advocacy groups and the politicians and state officials who brought the challenges to the Trump executive order were all leftists—to be the “first among equals” or, in fact, the superior groups.

I don’t think that any of these advocacy groups or politicians have been out there speaking up for Christians not to have to pay for contraception or abortion in their health insurance, or Christian medical personnel not to have to take part in abortion procedures, or Christian bakers and florists not to have to provide services for same-sex “weddings”—in fact, the same Washington State politicians who are persecuting Baronelle Stutzman opposed Trump’s order—or Christian parents who don’t want their children taking morally reprehensible sex education programs in public schools or their daughters showering after gym classes with boys who claim they are girls, or, for that matter, for the very Christians being brutalized by Islamists in the Mideast who Trump wants to help. I suspect that the real reason for all this isn’t a concern about the religious liberty of Muslims. It isn’t even primarily because of a vague sentimentality or a blind notion of diversity, but mostly because the left sees Islam as good because it represents a challenge to Christianity. Somehow, leftists think that promoting more Islamic influence in the U.S. will “liberate” them from the moral shackles that they believe Christianity put on them and because it’s the main obstacle to achieving their leftist, secularist utopia.

The courts in these decisions overreached in other respects. The Washington State judge applied his temporary restraining order nationwide. I recalled from my law school days a professor lamenting how the students didn’t understand how judicial process works: that, for example, a judge has authority only over the territory that his jurisdiction extends to. Now we see judges with the same confusion that some law students then had. The authority of the first judge extended only to the Western District of Washington. He had no authority to extend it nationwide as he claimed to do with his restraining order. The meaning of this is that government officials outside of his jurisdiction could politely ignore him. Regrettably, recently federal judges have done the same thing after reaching decisions on public issues that conservatives liked. Further, for the Washington judge to allow the State of Minnesota to join in the suit before him made a sham of traditional standing requirements. It gave a green light to “forum shopping” at its worst.

For that matter, for Virginia to run into court claiming that some people temporarily living there were suffering harm from the executive order shows how far the federal courts have strayed from the requirements of building a prima facie case. Now, it seems, a person doesn’t have to show harm to himself. If the issue is popular enough in the minds of politicians the state will make the presumption of harm and go to bat for you, even if you’re not one of its citizens. One of the other judges, in Massachusetts, permitted a husband-and-wife professor team who are Iranian nationals and permanent U.S. residents to press the case against the executive order after being delayed for three hours at airport Customs until being checked out apparently because, despite their admitting to being treated respectfully they suffered the “harm” of experiencing humiliation.

A major part of the problem is that the judges seemed ready to accept the claim that there’s no difference between U.S. citizens and non-citizens—even transitory visitors—when it comes to constitutional and other rights. While the claim may be made that citizens and resident aliens share similar rights—the “right” not to be humiliated is not legally protected for anyone—it’s not the same for short-term visitors. For that matter, it’s the federal government, not the states, which sets the conditions for immigration and entry into the country (one doubts those claiming “states’ rights” in this matter would be so ready to defend them in other areas). Actually, even international human rights documents assert that rights equivalent to those in our Bill of Rights apply to aliens only if they do not interfere with national security, public safety and the like—the protecting of which, again, was the very reason for the executive order. Further, the decisions reek of the courts making judgments about the wisdom or reasonableness of the Government’s approach to protecting national security. The Supreme Court historically, however, has made clear that the courts shouldn’t consider such things—or generally even the intentions of the political decision-makers—when making constitutional decisions.

The judicial actions on the executive order showed how arbitrary and unrestrained by long-established rules and precedent the federal courts have become—possibly in service to ideology. They seem like the magisterial archonocracy that the great conservative thinker Russell Kirk once warned they were becoming. The need for a direct executive challenge to their excessive, illegitimate exercise of power is long overdue. In the manner of Andrew Jackson’s response to the Supreme Court in the Cherokee Indian Case, the president needs to firmly and unflinchingly refuse to carry out or enforce blatantly unconstitutional decisions. If he confronts the Supreme Court once or twice, history shows that the Court is likely to go into retreat—and other federal judges across the land will get the message. That should end the imperial judiciary for our era. Unfortunately, I’m not sure doing such a thing is anywhere on Donald Trump’s radar screen.

Editor’s note: Pictured above is US District Judge James Robart of Washington State who claimed his ruling against President Trump’s executive order extended nationally even though his decisions do not legally extend beyond his district boundaries.

Stephen M. Krason

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Stephen M. Krason's "Neither Left nor Right, but Catholic" column appears monthly (sometimes bi-monthly) in Crisis Magazine. He is Professor of Political Science and Legal Studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists. He is the author, most recently, of The Transformation of the American Democratic Republic (Transaction Publishers, 2012), and editor of three volumes: Child Abuse, Family Rights, and the Child Protective System (Scarecrow Press, 2013) and The Crisis of Religious Liberty (Rowman and Littlefield, 2014); and most recently, Challenging the Secular Culture: A Call to Christians (Franciscan University Press). His next book is Catholicism and American Political Ideologies (forthcoming this fall from Hamilton Books). He is also the author of a new novel, American Cincinnatus.

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