The temporary nationwide injunctions placed on President Trump’s most recent executive order, issued March 6 (“Protecting the Nation from Foreign Terrorist Entry into the United States”) by two federal district courts are the latest skirmishes in progressive liberalism’s war against the idea of the sovereign nation-state and the exclusive citizenship that attaches to “separate and equal” nations (to use the language of the Declaration of Independence).
The district court decisions perfectly represented Secretary of State John Kerry’s parting advice to the American people when he warned the nation to prepare itself for a “borderless world.” The argument now seems to have clearly entered what progressive constitutional scholars have called the “post-constitutional era,” an era where the Constitution is only an afterthought in the advancement of Progressivism.
The March 6 order replaced an identically titled executive order that Trump issued on January 27. The first executive order was enjoined primarily on due process grounds because it did not accord resident aliens and visa holders requisite due process rights. A legal doctrine that has developed over the years holds that while aliens seeking entry to the United States generally have no due process rights, when they develop ties, as legal residents and green card holders do, they acquire some due process rights. Thus legal residents and green card holders as well as those already holding visas were not included in the redrafted order.
A provision of the first order giving admissions preference to Christian minorities in majority-Muslim countries was also eliminated because it was thought to provoke unnecessary Establishment Clause issues. The second executive order was redrawn to meet the legal objections lodged by the federal district courts and, by and large, it was thought that the Justice Department lawyers had succeeded in meeting all the constitutional objections. But one could hardly predict the depths to which the federal district courts would delve in dredging up tendentious and wholly fabulous new arguments to defeat Trump’s revised order.
Departing from Precedent… and Common Sense
More than a century ago, the Supreme Court stated the common sense of the matter as it was understood by every American since the founding:
It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. [Ekiu v. U.S., 142 U.S. 651, 659 (1892).]
Some half-century later, the court made another commonsensical statement of the necessary consequences of sovereignty:
The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. . . . When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power. Thus the decision to admit or to exclude an alien may be lawfully placed with the President, who may in turn delegate the carrying out of this function to a responsible executive of the sovereign. [Knauff v. Shaughnessy, 338 U.S. 537, 542-543 (1950)]
Accordingly, the Immigration and Nationality Act of 1952 granted broad latitude to the president:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
This language is remarkable for the fact that it does not contain any limits or qualifications on the president’s discretion. Until the recent decisions enjoining President Trump’s executive orders, case law by and large, has supported the president’s broad authority to act under this provision. Until now, courts have always recognized that the President’s power over national security and foreign policy is extensive, deriving from inherent powers embodied in Article II of the Constitution and powers delegated by Congress. Courts almost always defer to the executive in these two areas.
What the Order Said
The second executive order is designed to protect the citizens of the United States “from terrorist attacks, including those committed by foreign nations.” It seeks to accomplish this goal by improving “the screening and vetting protocols and procedures associated with the visa-issuance process” in order to detect “foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States. It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program.”
Section 2 of the executive order suspends for ninety days entry of all immigrants from six designated terrorist nations: Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraq had been included on the first order, but was dropped on the second because it was thought to be unjust treatment to deny categorically entry to those who had cooperated with the American war effort in Iraq: translators, advisors, combatants and others, although everyone seems to agree that the vetting in Iraq continues to be inadequate.
These six nations were designated state sponsors of terrorism before the Trump took office and were treated as such in various actions by the Obama administration. The principal reason that these countries are listed in the executive order is that they do not have adequate screening and vetting procedures in place to minimize “the risk of erroneously permitting entry of a national . . . who intends to commit terrorist acts or otherwise harm the national security of the United States.” The risk, according the executive order, is “Unacceptably high.” Indeed the heads of the major security agencies in the Obama administration warned that active terrorists will inevitably slip through security screening cracks of our own security apparatus. Trump quite reasonably believes that emigrants from terrorist-designated nations should undergo more thorough screening in the sending nations than they currently receive. This is a national security priority.
The two decisions, State of Hawaii and Ismail Elshikh v. Trump and International Refugee Assistance Project v. Trump issued temporary nationwide restraining orders against the March 6, 2017 Executive Order. Both decisions were announced on March 15. The Justice Department has announced that it will appeal the International Refugee Assistance case, which was decided in Maryland federal district court, presumably calculating the appeal would have better chances in the Fourth Circuit Court of Appeals than in the notoriously liberal-radical Ninth Circuit. One interesting difference between the two decisions, which are otherwise quite similar, is that Judge Watson in the Hawaii case found both Section 2, banning entry for 90 days from the six designated countries unconstitutional, as well as section 6, which suspends the refugee program for 120 days. Judge Chuang found fault only with Section 2. The Justice Department asked Judge Watson to reconsider his section six ruling, but he refused to do so.
The Hawaii case produced a thoroughly dishonest decision exposing progressive “post-constitutionalism” for the absurdity that it is. Judge Watson, an Obama appointee, granted standing to Hawaii because of the likely injuries it would suffer to its university system and the loss of revenue it would incur due to decreased tourism. The university system would suffer a financial loss, the state argued, since it recruits students from the six designated countries and tuition revenues will consequently be diminished. There are also “non-monetary losses, including damage to the collaborative exchange of ideas among people of different religions and national background on which the State’s education institutions depend.”
“The University trades in ideas and the diversity of ideas,” plaintiffs alleged. The universities, after all, “have a mission of global engagement” and their mission would be mutilated by the ban on emigration from terrorist designated nations. National security considerations must therefore be seen in the light of its effects on diversity and global engagement.
The Maryland case did not include the state as a plaintiff, although Judge Chuang, also an Obama appointee, allowed the Middle East Studies Association to assert claims that the executive order “would make it more difficult for certain members to travel for academic conferences and field work, and that the inability of its members to enter the United States threatens to cripple its annual conference, on which it relies for a large portion of its early revenue.” It is difficult to credit claims such as these when weighed against the executive order’s national security claims. Nevertheless, Judge Chuang thought the association would likely prevail in asserting its constitutional claims.
Both cases held that plaintiffs were likely to prevail in their argument that the executive order violated the Establishment Clause. The plaintiff in the Hawaii case, Ismail Elshikh, a naturalized U.S. citizen of Egyptian descent, is the imam of the Muslim Association of Hawaii. He is married to a Syrian woman who is also Muslim. His mother-in-law, also Muslim, seeks a visa to enter the United States from Syria. The six-nation ban would prevent her from visiting her son-in law, daughter and grandchildren, as we learn later in the opinion, solely because she is Muslim.
The question has always been whether an individual has a right to assert a claim alleging the violation of an individual right under the Establishment Clause. The familiar language of the First Amendment is that “Congress shall make no law respecting an establishment of religion. . .” Although conceding that “the injury-in-fact prerequisite can be ‘particularly elusive’ in Establishment Clause cases because plaintiffs do not typically allege an invasion of a physical or economic interest,” Judge Watson nevertheless contends that psychological injuries are enough to confer standing.
Government endorsement of religion treats members of disfavored religions as second-class citizens and outsiders and sends a message that government is hostile to their religion. In Dr. Elshikh’s case, he was “deeply saddened by the message” conveyed by the Executive Order and “that a broad travel-ban was ‘needed’ to prevent people from certain Muslim countries from entering the United States.” Judge Watson concludes that “these injuries are sufficiently personal, concrete, particularized, and actual to confer standing in the Establishment Clause context.”
The idea that a subjective feeling of sadness was a real or significant injury and likely to prevail as sufficient evidence that the executive order disfavored the Muslim religion to such an extent that it was an endorsement of non-Muslim religions and therefore an establishment is far-fetched, not to say ludicrous. Likely to prevail at trial? Hardly. Not if Madison and other drafters of the Bill of Rights were members of the jury. Proof of establishment must surely rest on stronger evidence than the hurt feeling or hysterical musings of perfervid imaginations.
Both cases give standing to plaintiffs for Establishment Clause claims and both relied on Lemon v. Kurtzman, the 1971 case that created the standard for determining when government action is tantamount to an establishment of religion. The most important part of the Lemon test is that the law or government action must have a secular purpose; it must be neutral with respect to religion. Both judges admit that the executive order on its face is neutral. It addresses the issues of terrorism and the adequacy of screening and vetting in the designated countries.
But both judges note that since the six countries are overwhelmingly Muslim, they dismiss almost out of hand the government’s argument that this is not proof of animus against Muslims because these countries only represent a fraction of the world’s Muslim population. Judge Watson’s conclusion is that it is “no paradigmatic leap to conclude that targeting these countries likewise targets Islam.” One certainly does not have to have an advanced degree in logic or metaphysics to see the logical flaw in the Judge’s conclusion. After all, it is terrorism that is targeted, not Islam. Not all Muslim countries are designated countries; not all Muslim nations pose imminent threats nor do all lack proper vetting and screening procedures.
What convinced both judges that the natural security purpose of the executive order was merely pretext was not the language of the order, which contains religiously neutral language, but the ex cathedra statements of Donald Trump and his staff during the presidential campaign. According to Judge Watson, the campaign language reveals “significant and unrebutted evidence of religious animus driving the promulgation of the executive order.” The remarks of campaign advisers, Rudolph Giuliani and Stephen Miller, were also rehearsed to demonstrate animus against Muslims. The fact that presidential rhetoric leading up to the actual executive order had gradually evolved into the neutral language of national security cannot disguise or minimize the religious animosity that still rests at the core of the order. The national security reasons of the order are merely pretextual and there is a “dearth of evidence indicating a national security purpose.”
Although Judge Chuang’s legal analysis is considerably more sophisticated that Judge Watson’s rather casual assumptions about what passes for constitutional analysis, he accepts the argument that Trumps ex cathedra statements are more dispositive in determining the executive order’s purpose than the plain language of the order itself. While both judges seem to realize that interpreting the text of the order is their first obligation, both are too impatient to reach a result that satisfies their predisposition to reach a progressive result that looks forward to a “world without borders” to be deterred by taking the text of the order seriously. Both judges pick up any constitutional bludgeon that falls readily to hand—here, the Establishment Clause.
Judge Chuang notes that plaintiffs in the Maryland case raise the issue of whether any national security issues are involved at all since the executive order does not identify any terror activities that have been committed by foreign nationals from the designated countries. He seems to imply that the absence of any past terrorist acts precludes any national security action to meet anticipated or potential risks. Hardly solid logic, but it is the logic both Judge Watson and Judge Chuang seem to indulge. Only in the post-constitutional era does the nation have to endure an act of terror before it can prevent acts of terror!
Judge Chuang concludes there are “legitimate questions whether the travel ban for the Designated Countries is actually warranted.” In Chuang’s opinion there are simply no genuine security issues involved in the order. The security concerns are merely thinly disguised pretexts for religious animus. If the security issues were real, the judge remarks, then “generally courts should afford deference to national security and foreign policy judgments of the Executive Branch.” He cites the 2010 case of Holder v. Humanitarian Law Project as authority. The judge, however, quickly avoids the necessity of judicial deference by repeating his categorically denial that the executive is engaged in making judgments about national security: “In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban.” Rather Judge Chuang and Judge Watson both have decided that the national security purposes of the order are merely elaborate pretexts to indulge the Trump Administration’s pervasive animus toward Muslims. Judicial deference to the Executive therefore is not warranted because no national security issues are implicated!
The Justice Department has announced it will appeal the Maryland ruling. If the Fourth Circuit finds—as it surely must—there are genuine and pressing national security interests involved in the executive order, then the court must show proper deference to the executive branch, not only to the president’s powers under Article II of the Constitution, but to the broad statutory authority granted to him by Congress.
The court’s first obligation is to the text of the executive order, not the rhetorical flourishes, hyperbole and transparent exaggerations of campaign speeches. In the Humanitarian Law Project case, Chief Justice Roberts, writing for a 6-3 majority, noted that deference was due to the executive branch in national security and foreign policy matters because
concerns arise in connection with efforts to confront evolving threats in an area where information can be difficult to obtain and the impact of certain conduct difficult to assess . . . [C]onclusions must often be based on informed judgments rather than concrete evidence, and that reality affects what we may reasonably insist on from the Government. . . . The Government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions.
This is surely the situation we face as a nation today, a situation that is thoroughly understood by the Trump administration. The increasing threat of worldwide terrorism and the threat to the American homeland will continue to be a concern in the immediate future. A “world without borders” is obviously not the solution—it will exacerbate the problem.
The election of Trump gave the nation some respite to shore up the nation’s defenses against those who would demonstrate “who we are as a people” by increasing diversity through accelerated refugee programs and deluding the American people that diversity and openness are our greatest security against terrorism. Trump appealed to the American people in terms of citizenship and borders. The executive order is part of that appeal and the minions of the administrative state have rallied to defeat it.