Law & the Courts

Trump’s Immigration Pre-Crime

(Reuters photo: Joshua Roberts)
The courts are wrong on the ‘Muslim ban.’

President Donald Trump’s second attempt at restricting travel from certain predominantly Muslim countries has been struck down for a second time, and for a second time, the courts are in the wrong.

The language of the Immigration and Nationality Act is plain enough: “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.”

Chief Judge Roger Gregory of the Fourth Circuit Court of Appeals makes a two-part argument that one must admire for its creativity: In the first part, he argues that, because of Trump’s dopey anti-Muslim comments during the campaign, it is reasonable to conclude that the travel restrictions constitute “invidious discrimination,” a constitutional no-no. But the Constitution, as Judge Gregory readily admits, does not protect the rights of foreign nationals not under the authority of the U.S. government or otherwise classifiable as U.S. persons: “Aliens who are denied entry by virtue of the President’s exercise of his authority under Section 1182(f) can claim few, if any, rights under the Constitution.”

Yet, he argues in the second part, failing to apply the standards of U.S. civil-rights law to . . . the entire population of the rest of the world, presumably, makes it likely that the U.S. government will violate the civil rights of U.S. citizens who share certain demographic features: “When the President exercises that authority based solely on animus against a particular race, nationality, or religion, there is a grave risk — indeed, likelihood — that the constitutional harm will redound to citizens.”

So, on the one hand the judge is attempting to read the state of the president’s soul rather than the language of the executive order, and, on the other hand, he is arguing that the executive order violates the Constitution not because it violates the Constitution but because something else might violate the Constitution — someday. Trump is in effect being accused of presidential pre-crime.

This represents what is known as outcome-oriented judicial reasoning: Pick your conclusion first, and then construct a case around it in whatever way is most convenient. It is also preposterous. It is plain judicial politicking of the sort that undermines the standing of the judiciary and the faith of the people in that judiciary. This in turn damages the perceived legitimacy of our legal institutions, undermining the rule of law itself.

The “inadmissible aliens” section of the law (8 U.S. Code § 1182) is indeed extraordinary. It might even be unconstitutional in the breadth of Congress’s delegation of power to the president. It might not. The courts have not found it to be unconstitutional. They have found only that the condition of Donald Trump’s soul is unconstitutional. It is the Nixon standard inverted: “When this president does it, that means it’s illegal.”

The policy in question might be good, bad, or ultimately inconsequential. My own view is that significant restrictions on travel and immigration to the United States from such countries as Yemen and Somalia is an eminently reasonable prophylactic against Islamic terrorism, and I’d put a few more countries — Pakistan, Egypt, and Saudi Arabia — on that list. But the question here is not whether this is a good policy — it is a question of whether it is a policy that the president is entitled to enact. It might be a mistake, but it is far from obvious that it is an unconstitutional mistake.

The rational basis of the law is fairly straightforward.

Judge Gregory insists that the policy amounts to “invidious discrimination,” which means discrimination that has no rational basis. That plainly is not the case: The rational basis for the policy is preventing jihadists from entering the United States. Maybe that is not a rational basis of which you approve — and maybe it is not even a particularly strong rational basis — but it is a rational basis nonetheless. Even if we were to assume that the standards of protection from discrimination that apply to U.S. citizens apply to foreigners abroad with no connection to the United States — and they do not — the rational basis of the law is fairly straightforward.

 If the Immigration and Nationality Act itself is partly unconstitutional, then the courts should say so. If Congress does not like the content of 8 U.S. Code § 1182, then Congress can change it. But to set aside a presidential act that accords perfectly well with the letter of the law as the law stands because a judge believes that he detects malice on the president’s part is not jurisprudence.

Kevin D. Williamson is NR’s roving correspondent.

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