Decision Attacking Travel Freeze Is Really an Attack on Free Speech

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Nowhere are the polarized perspectives in today’s politics more evident than in the 4th Circuit’s ruling on May, 25. The decision shockingly upheld a lower court injunction against the president’s “travel ban” Executive Order. That order seeks to suspend some immigration from a handful of countries in order to improve vetting and protect the homeland.

In sustaining the injunction, the majority opinion (10-3, on partisan lines) found that the Executive Order at issue itself is fine. And even though the court concedes that should end the inquiry, it cannot resist the temptation to give in to Trump Derangement Syndrome.

This is the phenomenon when normal people just act crazy at the mere mention of the president’s name. The problem, the court now claims, is the mere fact that an otherwise lawful action was taken by President Trump makes it unlawful. Candidate Trump’s campaign talk, they opine, supports the claim that the order is a “Muslim ban.”

No reason here to repeat the obvious about how little the facts support that claim. Anyone can see that there is no religious test for visas; but there is ample evidence the countries at issue are failed states without the ability to carry out proper vetting. Clearly the majority didn’t much care about facts.

The opinion rubber-stamps the ACLU’s argument that Trump’s campaign rhetoric should inform its legal construction of an Executive Order even when its purpose is clear from the four corners of the paper.

Since when does a court look at campaign statements to evaluate the proper construction of a legal document? To attack an elected officials lawful actions based on prior campaign statements is without precedent. Where does such an analysis lead? Via the law of unintended consequences, we find that an overzealous effort to protect one fundamental right – the Establishment Clause of the First Amendment — inadvertently impinges more directly on an even more important one, Freedom of Speech. This decision will chill that most sacred and valued element of our First Amendment liberty, Freedom of Speech at its highest ebb – political speech in the context of a political campaign.

The 4th Circuit is telling future candidates to consider that your campaign statements can and will be used against you in evaluating the legality of all your official actions. All the ACLU has to do is file suit, make wild claims of injury and allege what it claims are improper motives.

In other words, the court’s questionable claim that the Executive Order violates First Amendment prohibitions on an establishment of religion (despite the avowed and explicitly secular nature of the order itself) results in impinging on another First Amendment liberty, Freedom of Speech. Keep in mind this comes at a time when Freedom of Speech is under attack here and around the world. It is a right that millions of Americans have fought and died defending over hundreds of years.

Moreover, this politicized result takes away from the people recourse if unelected judges insist the nation must face substantial security risks at the hands of legal innovations and smugly arrogant, partisan judges. A free people would never accept this development with equanimity.

This result could never have happened without the corruption of general and legal education in America. I recall when I was in law school many years ago that there was a tendency to lionize Equal Protection and Due Process analysis at the expense of traditional powers of sovereignty and prudential deference in international affairs and immigration matters. I wondered at the time what would happen when these students became judges and began to apply “Civil Rights” related legal analysis to areas of policy historically left to the discretion of Congress and the Executive Branch pertaining to foreign relations, immigration and the war powers.

We are now finding out. That day is now upon us. An out-of-control Judiciary is now arrogating to itself core powers that ensure our political branches can defend and protect this nation. It is doing so based on an inappropriate conversion of legal doctrines only developed for the domestic sphere and with little thought to the actual consequences of their innovations.

The result is an intolerable loss of freedom and security for Americans. It cannot be sustained.

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Dan is the Federation for American Immigration Reform (FAIR)'s President after joining the organization in 1982. He has testified more than 50 times before Congress, and been cited in the media as "America's best-known immigration reformer." Dan has appeared on virtually every significant TV and radio news/talk program in America and, in addition to being a contributing editor to ImmigrationReform.com, has contributed commentaries to a vast number of print media outlets.

16 Comments

  1. avatar
    AtheisticallY YOURS on

    Its going to take a FEDERAL JUDGE GETTING MURDERED in the NEXT MUSLIM-ORIGINATED TERRORIST ATTACK for ANY federal judge to “get it”. Maybe THEN, they will see HOW DANGEROUS THESE MONSTERS ARE IN THIS COUNTRY! Its not so much about “where” they are from, as it is the MANDATORY VIOLENCE AND TERRORISM this death cult of a religion called”Islam” mandates!

  2. avatar
    Andrew Reader on

    It is more than attack on free speech. It is usurpation of power.

    There are about three thousand of federal judges in the U.S. They were supposed to interpret the laws as these laws were written without any political bias, well meaning or not. Now, some of them gave themselves the right to decide the US foreign and immigration policy.

    The effect of this is an unlawful creation of unelected supergovernment with veto power over the elected president of the US. for if one of this 3,000 federal judges disagrees with president’s foreign or immigration policy decision, he can block it with an restraining order. It is not just unlawful, it is utterly absurd.

    I wish President Trump would just ignore these un-Constitutional interferences with his plenary powers.

    I used to think that Liberalism does to the U.S. what AIDS does to human body. Now, I see Liberalism more like ebola.

  3. avatar

    Lets Really Break from Religion on Security Matters, Like:

    From the need for extreme vetting, this Muslim excuse to let some bad apple ISIS in is irrelevant. Ask the Saudis…

    • avatar

      Did you see the story about a week ago that “clock boy” and his family lost their court suit against his school district. Remember how the media carried on for days about the supposed Muslim “profiling” and his genius “invention” of some clock, all topped off by an invitation to the White House from Obama.

      They lost because the court recognized what was clearly the real situation. He invented nothing. He took the innards of an old Radio Shack digital clock and screwed it in to a small briefcase where it looked to a layman as if it could be an explosive. Which is what the first teacher said, who told him to put it away. Kids get suspended all the time because they form a gun shape with their fingers and yet this little scam artist and his family were turned into heroes. Now that the suit was dismissed, the media seems to forget their role in the initial story.

  4. avatar

    If you doubt your decision to vote for Trump, the fact that Hillary would have been appointing even more judges to add to the activists who delivered this decision should reassure you. The three judge dissent effectively rips apart the majority decision. Obama did this exact same thing a couple years ago, with the exact same countries, but somehow no one challenged it or called it racist. Now these judges have decided, no matter the precise and specific language of the federal statute that has been repeatedly upheld, that the only thing that matters are previous statements made during a political campaign, statements which have nothing to do with legality.

    Apparently, because Obama, and Hillary, repeatedly denied that Islam has anything at all to do with any terrorist threat, he was allowed to do his temporary ban. What would the court do if a president Hillary would have done the same thing? Would they have concluded, and how could they otherwise given their reasoning, that she had the legal power to do it? This brings the words “judicial activism” to a whole new level. There is not even a pretense in the majority decision to address the real subject here. Which is, does the president have the power to limit the entry of foreigners for any reason he designates. He clearly has that power and the Supreme Court has said so. If someone feels the law is wrong, it’s up to Congress to change it, not the courts.

    • avatar

      2-0 next the Supreme Court n this is getting very interesting……3 or nothing…

      • avatar

        I’m aware of the rulings. You’re ignoring what is the issue here. The president has the power under federal laws passed by Congress and upheld previously the Supreme Court to decide what foreigners are allowed to enter. Freedom of religion under the constitution applies to American citizens. The courts have never held before that foreign nationals who are not and never have been in this country are entitled to assert “rights” under our legal system.

        If you were to take the analogies further in this slippery slope court decision, what is to stop more lawsuits when a president issues clearly legal [as even this court acknowledged] executive orders? The Supreme Court has held that corporations have the same rights as persons, something I disagree with, but still the law. Suppose a president Bernie Sanders were to issue allowable executive orders concerning banks and stock trading companies.

        What would this court then say to those companies if they decided to sue to stop those orders because of Bernie’s many anti-corporate campaign statements? It’s pretty astonishing to contend that we have moved to a system where keeping the promises you made in a campaign means that you can be stopped by the courts merely on the basis of those statements, never mind if the executive orders meet the legal standard. But all this might be a little too much for you to absorb, so maybe try a sentence at a time.

        • avatar

          Leland take a pill n relax…..after you take a pill read what I wrote again….if it does not work take another pill…..until finally you realize every thing you said I never said n unrelated to my feedback.

          Simply put, 3 or nothing n quiet Interesting, why? Because the Supreme Court will exactly do that: if the power used by the president was unconstitutional that us what these judge’s argument was.

          Pal my Money is green I don’t know about yours…..freedom of religion is our way of life as it is for many in the rest if the World…n for us to tice inside n outside these borders….your views are very close minded….

          Remember course 101 for you, The Supreme Court interprets the law…like a judge in court,..they are the gods in our system…..so again … interesting…we will see what happens…

          Now scare Bernie would do something this Congress n president are afraid??? You just described a president we need….due to the corporations outsourcing the jobs in Telecommunications, oil, retail, etc no giving jobs to us n instead bringing people n the Banks doing what they want….crash of 2008…?.did u ever work in your life ? what country are you from? Because the way you answered you don’t live here…..

          • avatar

            How ironic that you would write “freedom of religion is our way of life as it is for many in the rest of the world”, There is no freedom of religion in Muslim countries. If you publicly announce you’re leaving Islam you die. You can actually talk about being “close minded” when you don’t utter a word of criticism about their stone age philosophy. You’re a joke.

          • avatar

            Leland you brain scattered many of the rest does not mean everybody and the least the muslims…..”EVERYBODY” knows they go against freedom of religion…….”focused”..you are a complete CLOWN!!!!

          • avatar

            So if you agree Muslims “go against freedom of religion”, why do we want them here. I’ve said they should not be here if they don’t want to conform to our traditions. I guess you must agree that they should stay in their own nations.

          • avatar

            Leland the answer is already well understood and as I suspected you can’t really provide an answer to the link …..

            You have to learn to read n understand what us within the context if the reading not your head….

          • avatar

            Leland and to see how is the world changing…..

            Ireland’s Governing Party Elects First Openly Gay Leader as Next Possible Prime Minister
            Associated Press
            2:36 PM ET
            (LONDON) — Ireland’s governing Fine Gael party has elected Leo Varadkar, the gay son of an Indian immigrant, as its new leader and the country’s likely next prime minister.
            Varadkar defeated rival Simon Coveney in a contest to replace Enda Kenny, who resigned last month