The unfolding series of judicial decisions blocking the Trump administration’s past and present temporary travel bans — especially the ruling handed down last night in Hawaii — if upheld by courts of appeal or the Supreme Court, would risk fatally undermining our nation’s constitutional national-security structure and our national sovereignty, and could extend and magnify our military conflicts abroad. To understand why and how, you have to know the meaning of one word: “standing.”
To simplify a rather complex legal doctrine: Rules on “standing” mean that not just anybody can waltz into federal court and challenge government actions. To maintain an action, you must demonstrate that you have suffered a violation of a recognized right. To use the lingo of the courts, you must show that your injuries are “concrete and particularized.”
Faced with this legal reality, here’s what the Hawaii court did: It used the hurt feelings (yes, really) of American residents and the hypothetical economic harm to American states and local institutions to functionally grant constitutional rights to tens of millions of non-Americans living in jihadist, and jihad-dominated, countries.
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But the court went even further, holding that the state had an interest in preventing its citizens from feeling “marginalized” and that the state’s citizens had a right to be free of a government message disapproving of their religion. To protect the feelings of some citizens, that shopkeeper in Raqqa — and therefore all Syrians everywhere — should be freed from the temporary travel ban.
Doubt me? The state of Hawaii argued that it had standing to challenge the president’s temporary travel ban because:
The Executive Order subject[s] citizens of Hawaii . . . to discrimination and marginalization while denying all residents of the State the benefits of a pluralistic and inclusive society. Hawaii has a quasi-sovereign interest in “securing its residents from the harmful effects of discrimination. . . . The Order also harms Hawaii by debasing its culture and tradition of ethnic diversity and inclusion.
The court granted an individual citizen standing to sue in part because he was “deeply saddened by the message [the executive orders] convey.” (Even a more careful and more-limited Maryland district-court decision granted standing to mount an establishment-clause challenge in part because one plaintiff said the order caused him “stress and anxiety.”)
With standing granted, the court then took the next astonishing leap and actually applied the establishment clause of the Constitution, specifically the infernal Lemon test, to an arena where the Constitution grants Congress and the president extraordinary authority. The Lemon test holds that any governmental action must have a secular purpose, may not have the “principal effect” of advancing or inhibiting religion, and cannot “foster excessive entanglement with religion.” If the challenged action flunks any prong of the test, it fails.
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The court then walked through multiple Donald Trump statements (some irresponsible, some factual) in an effort to prove that the primary purpose of the order wasn’t secular. It of course quoted Donald Trump’s campaign statements in favor of a Muslim ban, a plan he unquestionably did not enact, but the court also — curiously and dangerously — quoted statements from Trump that happen to be true. For example:
In March 2016, Trump said, during an interview, “I think Islam hates us.” Mr. Trump was asked, Is there a war between the West and radical Islam or between the West and Islam itself?” He replied, “It’s very hard to separate. Because you don’t know who’s who.”
While the first statement, (“I think Islam hates us”) is plainly overbroad, the second statement is plainly and clearly correct. It is at times quite difficult to separate and distinguish between the radicals and the moderates, and we often don’t know “who’s who.” If we always knew, then 9/11 wouldn’t have happened, nor would we have had dozens of attacks and plots since 9/11.
Next, the court quotes this comment from then-candidate Trump:
But there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States . . . and of people that are not Muslim.
It’s simply astonishing that the court would find the comment problematic. Where has this judge been for the last 15-plus years? Does the court not recognize the plain truth of this statement? American immigration policy has long sought to block the entry of people who adhere to dangerous anti-American ideologies. The fact that our current enemy’s anti-American ideology is fundamentally religious does not grant it constitutional privileges under the First Amendment.
The fact that our current enemy’s anti-American ideology is fundamentally religious does not grant it constitutional privileges under the First Amendment.
What’s the limiting principle here? If a 90-day travel ban on entry from six war-torn or enemy countries gives Hawaii a giant sad, then what about actual bombing raids? If it inhibits the intellectual life of a university for hypothetical scholars, students, and their families to have to wait three months for their visas requests to be evaluated, how much more does it inhibit the school’s commitment to diversity if those same people die as collateral damage in a house-to-house fight for Raqqa?
I’m sure that leftists would say that I’m being dramatic. No, states and citizens can’t sue to block a war. And while that may be true (for now) as a political matter, the absence of clear limiting principles in the decision raises the possibility of a constitutional clash that the Founders never intended and could scarcely imagine. Indeed, we may already be at that point.
And lest the Left think this decision is a blow for social justice, the application of Lemon to immigration and refugee policy now means that it is probably unconstitutional for the American government to favor specific, persecuted religious minorities. After all, the Lemon test prohibits advancing, not just inhibiting, religion. If, in a future religious genocide, secular citizens sue to block Christian or Jewish or Muslim refugees from being placed at the front of the line, Lemon will be their friend.
Unless this case is overturned, the short-term effect, ironically enough, will be to incentivize more conflict overseas. If more-strict immigration restrictions are now constitutionally suspect in the face of our enemies’ religious war, then it starts to remove an important tool from the president and Congress’s national-security toolkit. Unable to lock down the border, yet still facing the obligation to protect American life, a president’s options would be more limited, and the need to strike abroad (or to control ground abroad) would be all the greater.
But never mind, this is Donald Trump we’re talking about, and the normal rules no longer apply. Every woke judge, lawyer, and activist in the country is exerting maximum effort to stop him through any and all available means. Maybe they’ll repair the constitutional damage later. Probably not. The gods of social justice have demanded their sacrifice. The federal courts have so far been all too eager to comply.
— David French is a staff writer for National Review, a senior fellow at the National Review Institute, an attorney, and a veteran of Operation Iraqi Freedom.