Activist federal judges in Hawaii and Maryland have issued rulings blocking the Trump administration’s second executive order (EO) limiting travel to the U.S. from certain unstable, dangerous countries. Per the courts, these orders will supposedly prohibit potential religious discrimination until the complainants’ case can be heard on the merits. However, they do nothing of the sort. In fact, they simply offer more of the same flawed reasoning found in the orders blocking implementation of the first “travel ban,” EO-13769. They also demonstrate the dangers that emerge when the courts appoint themselves enforcers of an anti-borders orthodoxy, rather than performing their constitutionally assigned function as the interpreters of existing legal precedent.
The Trump administration succeeded on a platform that promised immigration enforcement. But those who oppose the president seem determined to use the courts to nullify any changes to the dangerously lax Obama immigration policies. Unfortunately, the courts have been all too willing to oblige — completely ignoring the fact that, since the dawn of the Republic, the judiciary has firmly held that presidential action with regard to immigration is virtually immune from review. That leaves the president facing a constitutional crisis that could alter the way the executive branch responds to immigration issues.
On February 19, in Washington v. Trump, the Ninth Circuit Court of Appeals upheld a temporary restraining order (TRO), issued by the federal district court in Seattle, preventing the Trump administration from implementing EO-17369. The TRO had been requested by the states of Washington and Minnesota, based on dubious claims that they would suffer irreparable harm if the EO was implemented as written.
Instead of fully addressing the pertinent issues, the Ninth Circuit glossed over numerous separation-of-powers problems. Instead, the court focused on its belief that the EO might discriminate on the basis of religion, despite the lack of any evidence to support that contention, and the fact that all relevant precedent indicates that the court lacks any authority to conduct such a review.
Previously, on February 13, the U.S. District Court for the Eastern District of Virginia (EDV), in Aziz v. Trump, issued a preliminary injunction barring the implementation of the “travel ban” in that district. That decision came on the heels of one issued on February 3 by the U.S. District Court for the District of Massachusetts, in Loughhalam v. Trump, which reached the opposite conclusion. In a well-reasoned opinion, rife with relevant precedent, Judge Nathaniel Gorton “decline[d] to encroach upon the ‘delicate policy judgment’ inherent in immigration decisions.”
While ignoring the Loughalam holding, the media lauded the Ninth Circuit and EDV decisions as open-borders triumphs. Yet the District of Massachusetts acted on solid legal reasoning, unlike its sister courts. The press also failed to take into account that the Ninth Circuit is the most overturned court in the U.S. Accordingly, should another circuit reach the merits of a complaint related to the EO, its decision is much more likely to resemble Loughalam than either Washington v. Trump or Aziz.
The defective analysis employed by the Ninth Circuit and the EDV appears to be a deliberate attempt to bend the law to achieve a politically correct conclusion. Such an action is problematic, as it impedes President Trump in his legitimate attempts to ensure the security and safety of the American people. However, these decisions also have far deeper constitutional implications.
The defective analysis employed by the Ninth Circuit and the EDV appears to be a deliberate attempt to bend the law to achieve a politically correct conclusion.
In Federalist No. 47, James Madison famously observed: “The accumulation of all powers legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” Under our constitutional framework, the role of the courts is to interpret the law using established doctrine. They are set up to receive and interpret legal information, delivering consistent, transparent opinions. However, they are ill disposed to handle the type of covert information-gathering, situational analysis, and moment-by-moment decision-making regularly undertaken by the executive branch in the conduct of national defense and international relations.
Therefore, the political branches have wide latitude to take action on immigration, with limited review by the courts. This is called the plenary-power doctrine. Accordingly, the Ninth Circuit should have stated that it lacked jurisdiction to review the respondents’ claims, quashed the lower court’s TRO, and remanded the case for a dismissal of the complaint. Instead, it legislated from the bench, with the EDV, and later Hawaii and Maryland, following suit. All these courts have attempted to redefine the executive’s role with regard to immigration. The president’s primary responsibility in the immigration context has always been the maintenance of American sovereignty and the protection of U.S. citizens. However, the Ninth Circuit and EDV decisions replace that constitutional responsibility with an obligation to protect “constitutional rights” allegedly possessed by foreigners outside the United States. The recent Hawaii and Maryland decisions rely on the same tortured logic.
All the EO decisions are part of a disturbing trend in constitutional jurisprudence: the judicial dissolution of the separation of powers, combined with the creation of judge-made “rights” that do not flow directly from the Constitution or valid legislation. This phenomenon can be clearly seen in the Supreme Court’s decision in Boumediene v. Bush, where it held that foreign enemy combatants may access the federal courts to challenge their detention after being captured during combat operations.
While the legal challenges to the latest immigration EO may appear to be a gritty but straightforward debate over immigration policy, they actually represent a judicial repudiation of fundamental constitutional principles in favor of an internationalist agenda. If the courts of the U.S. were to expand on the aberrant Boumediene holding (as they appear to be doing) when deciding immigration executive-order cases, they would give overseas aliens, with no prior connection to the United States, the right to challenge every action by executive-branch officials. As a result, the U.S. would no longer be a sovereign nation. Control over its borders would be transferred to the citizens of foreign states, in the form of a legally enforceable right to be admitted to the U.S. The recognition of such a right by American courts would also act as a brake on the power of thepolitical branches to conduct foreign relations, repel foreign invasions, and prescribe the conditions under which aliens may be admitted to and remain in the U.S. The fate of the Republic could hang in the balance.
Because the courts seem perfectly willing to legislate immigration policy from the bench, the Trump administration is in for a long fight with broad implications for American concepts of self-governance. If handled correctly, that conflict could lead to a government-wide renaissance in traditional federalism. Handled badly, it may result in the imposition of an internationalist kritarchy (judge-directed government) that advances utopian interests over the national-security concerns of the American people.
— Matt O’Brien is the former chief of the National Security Division within the Fraud Detection and National Security Directorate at U.S. Citizenship and Immigration Services. He has also served as the assistant chief counsel in the New York district of U.S. Immigration and Customs Enforcement. He is currently the director of research at the Federation for American Immigration Reform (FAIR).