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Symposium: Overreaching judges imperil national security and weaken the Constitution

John G. Malcolm is the Vice President of the Institute for Constitutional Government at The Heritage Foundation.

On the last day of its term, the U.S. Supreme Court agreed to hear Trump v. International Refugee Assistance Project shortly after it reconvenes on Oct. 2, 2017. The case arrived at the court after the government appealed adverse decisions by the U.S. Courts of Appeals for the 4th and 9th Circuits against the so-called travel ban. The cases have been consolidated and will therefore be considered together in the fall.

In what has been characterized – correctly in my view – as a “win” for the president and a rebuke to judicial overreaching by the lower courts, the court unanimously lifted most of the nationwide injunctions that had been entered by the lower courts, allowing the bulk of the president’s “travel ban” to go into effect pending a decision on the merits by the Supreme Court.

Justice Clarence Thomas wrote a brief partial dissent, joined by Justices Samuel Alito and Neil Gorsuch. They argued that the lower-court injunctions should have been lifted in their entirety because the government “has made a strong showing that it is likely to succeed on the merits” and the “failure to stay the injunctions will cause irreparable harm by interfering with its compelling need to provide for the Nation’s security.”

Although predicting the final outcome of a case is always a perilous undertaking, I believe this bodes well for the president. After all, the court decided to take up the issue even though there was no circuit split, and it granted certiorari shortly after asking the parties to brief the matter on an expedited basis. If the president ultimately prevails, that should be welcome news for those who value the rule of law and separation of powers.

As the court stated in 1950 in United States ex rel. Knauff v. Shaughnessy, “[t]he exclusion of aliens is a fundamental act of sovereignty” that resides in the “legislative power” and also “is inherent in the executive power to control the foreign affairs of the nation.” Moreover, as it reiterated in Fiallo v. Bell in 1977, the court has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.”

Congress has plenary power under the Constitution to establish immigration policy, and in Section 212(f) of the Immigration and Nationality Act, it explicitly granted the president the authority to “suspend the entry of all aliens or any class of aliens … for such period as he shall deem necessary,” when he “finds that the entry of any aliens or of any class of aliens … would be detrimental to the interests of the United States.”

On March 6, acting on this authority, President Donald Trump issued a revised executive order:

(1) Directing the Secretary of Homeland Security to conduct a global review to determine whether foreign governments provide adequate information about nationals applying for visas to enter the United States;

(2) Entering a temporary 90-day suspension (subject to individual waivers on a case-by-case basis) on the entry of nationals from six countries — Sudan, Syria, Iran, Libya, Somalia and Yemen;

(3) Suspending decisions on pending applications and all travel by refugees under the United States Refugee Admissions Program for a period of 120 days, during which time the secretary of state is to review the adequacy of current procedures; and

(4) Capping the number of refugees admitted to this country at 50,000 during fiscal year 2017.

In entering this order, President Trump’s power was “at its maximum” because, as the court stated in 2015 in Zivotofsky ex re. Zivotofsky v. Kerry, he was acting with all the constitutional authority “he possesses in his own right plus all that Congress can delegate.”

The executive order was neutral on its face regarding religion and applied to people of all faiths. And although it is true that the six designated countries are majority-Muslim countries (out of 49 such countries around the world), the president stated that these countries were included for national security reasons either because they are safe havens for terrorists or because they are unwilling or unable “to share or validate important information about individuals” needed to “vet” visa applicants properly.

This should hardly have been a surprise. Congress and the Department of Homeland Security had excluded all six countries from participating in the Visa Waiver Program in 2015 and 2016 — long before Donald Trump was elected or took the oath of office. Nonetheless, the executive order set forth details as to why there was a heightened risk that terrorists might exploit weaknesses in those countries to enter the United States successfully.

Courts have traditionally accorded great deference to the executive branch when it comes to national security issues. After all, the president receives daily classified intelligence briefings about the many threats we face. Federal judges do not. Presidents are given primary responsibility for protecting our homeland. Federal judges are not.

As the Supreme Court acknowledged in Reno v. American-Arab Anti-Discrimination Committee in 1999, courts are “ill equipped to determine the[] authenticity and utterly unable to assess the[] adequacy” of a president’s “reasons for deeming nationals of a particular country a special threat ….” Indeed, as the court stated in 2010 in Holder v. Humanitarian Law Project, “when it comes to collecting evidence and drawing factual inferences” in the area of national security, “the lack of competence on the part of the courts is marked, and respect for the Government’s conclusions is appropriate.”

For this reason, among others, the Supreme Court held in 1972, in Kleindienst v. Mandel, that when the executive branch makes a decision to exclude an alien from admission into the country “on the basis of a facially legitimate and bona fide reason,” the courts may “neither look behind the exercise of that discretion, nor test it by balancing its justification” against the constitutional interests of those who might be affected if an applicant is denied a visa. Justice Anthony Kennedy reiterated this same point just two years ago in a concurring opinion in Kerry v. Din (which was joined by Alito and which could be considered controlling because their votes were necessary to achieve a majority).

Lawsuits challenging the legality of the revised executive order were immediately filed in Hawaii and Maryland, and district court judges in those states entered nationwide injunctions against the implementation of the order. Undeterred by binding precedent, the 4th Circuit and the 9th Circuit entered the “Resist” movement and upheld those injunctions.

The 4th Circuit did so on the ground that it could discern — primarily from a handful of tweets and statements by campaign surrogates — that the president’s order was motivated primarily by a desire to exclude Muslims from the United States, not by national security concerns, thus violating the First Amendment. The 9th Circuit did so on the ground that the president exceeded his authority under the Immigration and Nationality Act by not entering sufficient findings that entry into this country by those temporarily excluded under the order would be detrimental to the interests of the United States.

Both courts clearly believed that the president’s stated reasons for issuing his executive order were pretextual and that his true motivation was based on religious animus towards Muslims. In reaching this conclusion, the courts did what the Supreme Court had told them they could not do – they looked behind the stated, facially legitimate, bona fide reasons for the exercise of the president’s discretion to try to discern some darker, hidden motive on his part. Indeed, even the ACLU’s lawyer admitted during oral argument before the 4th Circuit that the only reason he was arguing that revised executive order was unconstitutional was because it was signed by President Trump and that the order would be constitutional had it been signed by another president.

Judges should not second-guess presidential authority based on some hidden intent divined from tweets by the president and statements made by his surrogates during the heat of a presidential campaign. The lower courts may have taken the measure of the president and found him lacking, but it is the job of judges to apply the law, not to try to psychoanalyze our commander in chief.

The Supreme Court should reverse the lower-court decisions and uphold the president’s authority to implement his revised executive order. A contrary result would needlessly imperil our national security and do great damage to the structure of our Constitution.

Recommended Citation: John Malcolm, Symposium: Overreaching judges imperil national security and weaken the Constitution, SCOTUSblog (Jul. 11, 2017, 1:45 PM),