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.