The old saw that “bad facts make bad law” is supposed to be operative only when a court is in a position of making law — i.e., deciding a vexing legal question in the absence of firm guidance from a statute or precedent. That is not the situation, however, in the matter of President Trump’s temporary ban on entry into the U.S. by refugees and aliens from seven Muslim-majority countries. Federal district judge James Robart of Seattle was not on tabula rasa when he issued a temporary restraining order suspending the ban. He was acting in defiance of the law.
Trump’s executive order is patently lawful. In our system, border security is a plenary power of the political branches; the judiciary has almost no authority over it. Moreover, not only is a president at the height of his constitutional power in acting against foreign threats to national security; Congress, which has indisputable authority to prescribe qualifications for aliens seeking to enter the country, has further vested the president with sweeping discretion to impose temporary bans. The controlling provision of federal immigration law, Section 1182(f), could scarcely be clearer:
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.
Trump’s executive order explicitly relies on this statute and tracks its language. The statute does not invite judicial second-guessing of his judgment. The claim that the executive order imposes an unconstitutional “Muslim ban” is specious. No matter how foolish such a policy would be, it is anything but clear that the Constitution would prohibit a categorical ban on Muslim aliens — or, indeed, on all aliens. And even so, Trump has not come close to doing such a thing.
The ban applies to refugees and aliens from seven Muslim-majority countries, affecting less than 15 percent of the world’s Muslim population. The seven countries — Iran, Iraq, Syria, Libya, Yemen, Somalia, and Sudan — were not chosen because they are Islamic. The exclusion is expressly rooted in an Obama-era law, now codified in Section 1187(a) of the immigration law, that permits the federal government to refuse visas to aliens who cannot be realistically vetted for security risks because their native countries are either sponsors of anti-American terrorism (as is the case with Iran) or have been left with dysfunctional or nonfunctional governments because of war.
Even as to the seven cited countries, the ban is only temporary (90 days). Similarly, the refugee ban is anticipated to be temporary (120 days) — although for Syrian refugees there is no definitive limit because U.S. security agencies have conceded that vetting them is extraordinarily difficult. The point is not to keep Muslims out; it is to set up a reliable screening system that will deny visas to persons who threaten national security. Significantly, the order empowers the secretaries of state and homeland security to make exceptions on a case-by-case basis (e.g., for aliens who have helped our armed forces overseas). In addition, it caps refugee admissions at 50,000 for this year, which is comfortably within historical levels — including during several of the Obama years.
Nevertheless, acting at the behest of two states led by Democratic governors, Washington and Minnesota, Judge Robart (an appointee of President George W. Bush’s) suspended Trump’s order. His ruling is judicial policymaking masquerading as law: The judge believes that the executive order provides more anxiety for aliens and hardship for the administration of state universities than security for the United States. That Robart tacitly realizes that this call is not his to make is evident from his ruling’s failure to mention, much less address, the legal authority cited by the president. Nor does Robart explain how he figures the states should prevail on the merits, notwithstanding that this is a prerequisite to the issuance of a temporary restraining order.
This decision should be an easy one to overturn, even for the notoriously liberal Ninth Circuit. Yet, the Trump administration’s self-inflicted wounds have helped its opposition muddy the waters. The order, signed on a Friday night, was immediately put into effect, with no time for agencies to prepare or for travelers holding formerly valid visas to change their plans. The result was a weekend of confusion and chaos. The relevant Cabinet officials, Homeland Security Secretary John Kelly and Secretary of State Rex Tillerson, reportedly had minimal involvement in the policymaking process, even though they are principally responsible for enforcing the president’s order and explaining it to the public; apparently, they were embroiled in a dispute with the White House political team over the ban’s application to lawful permanent residents (LPRs), who are already subject to extensive vetting and considered the legal equivalent of citizens for most purposes. Kelly was eventually authorized to waive restrictions against LPRs and others with lawful visas, but not before the media characterized the administration’s performance as amateur hour driven by anti-Muslim bias.
Judge Robart’s ruling is judicial policymaking masquerading as law.
When Robart made his ruling, Trump did less than nothing to call attention to its baselessness. He launched a Twitter attack on the “so-called judge” who issued it and on “the court system” — a fit of unpresidential pique that will not go unnoticed by the appellate court. Even though the administration, notwithstanding its objections, immediately complied with Robart’s ruling, Trump ensured that the weekend’s big story was the president’s seeming undermining of judicial legitimacy.
The appellate court should overrule Robart, but it has an out: Generally, temporary restraining orders cannot be appealed; review must await the entry of a permanent injunction. That principle should not control in this case: Robart did not put an end date on his “temporary” injunction, so treating it like one would elevate form over substance. He also took the unusual step of making the suspension nationwide, even though his jurisdiction is generally limited to the greater Seattle area and the case involves just two of the 50 states. Given that the restraining order suspends government policy in an area where there is almost no legitimate judicial role, it cries out for immediate appellate review. But the Ninth Circuit could use the nominally temporary nature of the injunction to sidestep a decision, returning the case to Robart for further, drawn-out proceedings.
Thus far, the Ninth Circuit has refused to grant the administration an immediate stay. It has, however, directed rapid briefing from the parties and could issue a decision in the next few days. The stakes are high. With only eight justices currently on the Supreme Court, and all four liberals hardwired to endorse “progressive” results, the administration must anticipate a 4–4 deadlock there at best. If that were to happen, the Ninth Circuit’s decision would stand.
The president’s executive order is entirely lawful, and a dutiful judiciary would make that clear. Donald Trump can help the Ninth Circuit come to the right decision by letting his lawyers, rather than his Twitter account, do the arguing.