The Fourth Circuit Court of Appeal’s ruling against President Trump’s so-called travel ban empowers both radical Islam and judicial imperialism. The combination portends lasting damage to the United States.
To rehash, the executive order (EO) proclaimed temporary restrictions (the main one, for 90 days) on travel to the United States by the nationals of six countries — Iran, Libya, Somalia, Sudan, Syria, and Yemen. Those countries, along with Iraq (cited in Trump’s original executive order, but not the revised EO at issue), had previously been singled out by Congress and President Obama — not because they are Muslim-majority countries, but because a) the presence or promotion of terrorism in their territories makes their nationals suspect and b) their anti-Americanism and/or dysfunctional governments render it impossible to conduct background checks on visa applicants.
This Fourth Circuit’s en banc review of prior invalidations of the EO by “progressive” activists masquerading as jurists produced 205 pages of opinions. The outcome was about as uncertain as Secretariat at Belmont, with ten of the tribunal’s 13 judges joining Chief Judge Roger Gregory’s majority ruling to one degree or another.
Three judges filed compelling dissents that will prove quite useful when, as Trump promises, the case proceeds to the Supreme Court. The continuation of the litigation is an unfortunate outcome, even if conservatives and other rule-of-law types, buoyed by Justice Neil Gorsuch’s appointment, may be right that the EO has a better shot in the High Court.
That’s because the EO doesn’t matter. You may not have noticed, but sharia supremacism has already won, regardless of what the Supreme Court does.
See, the EO was never an end in and of itself. It is a means — a fatally flawed one — to a vital end. That end is a vetting system that enables our security services to distinguish pro-Western Muslims from sharia supremacists. That’s the goal. The EO was conceived as a temporary pause while the vetting system took shape.
From a security perspective, though, the EO was utterly ineffective: applicable to a negligible slice of the global anti-American threat. More significantly, as a strategy, starting with the EO rather than getting to vetting has been a catastrophe.
As we have previously observed, in order to install the vetting system we need, the challenge of Islam must be confronted head-on and without apology. That is unavoidable. You can’t flinch. It is a certainty that the Democrat-media complex — of which Islamist organizations are members in good standing — is going to smear you as a racist “Islamophobe.” (Yes, this is another race-obsessed “progressive” narrative, so Islam gets to be the “race,” so that defenders of the Constitution and Western culture can be cast as “the oppressor.”) You have to be content with knowing that you are not a racist, with knowing that you are defending religious liberty, including the religious liberty of pro-Western Muslims.
There is a single battle that must be won. American culture must be convinced that Islam, while it has plenty of diversity, has a mainstream strain — sharia supremacism — that is not a religion but a totalitarian political ideology hiding under a religious veneer.
Intellectually, this should not be a difficult thing to do. Sharia supremacism does not accept the separation of religion from political life (which is why it is lethally hostile to reform Muslims). It requires the imposition of classical, ancient sharia law, which crushes individual liberty (particularly freedom — of conscience, of speech, and in economic affairs). It systematically discriminates against women and non-Muslims. It is cruel in its enforcement. It endorses violent jihad to settle political disputes (since such disputes boil down to whether sharia is being undermined — a capital offense).
What I have just outlined is not a “theory.” Quite apart from the fact that sharia supremacism is the subject of numerous books, studies, public-opinion polls, and courtroom prosecutions, one need only look at life in Saudi Arabia and Iran, societies in which the regime imposes sharia. As I mentioned a few days ago, one need only look at the State Department’s warnings to Americans who travel to Saudi Arabia.
Nevertheless, what should be easy to establish intellectually is difficult as a practical matter. Sharia supremacists and their progressive allies maintain that Islam may not be parsed into different strains. For legal purposes, they insist it is a monolith that is protected by religious-liberty principles — notwithstanding that a) progressives are generally hostile to religious liberty and b) sharia supremacists themselves would destroy religious liberty. Perversely, then, they argue that the First Amendment is offended by national-security measures against anti-American radicals who would, given the chance, deep-six the First Amendment in favor of sharia.
It is essential to win this debate over the political nature of sharia supremacism. Our law has a long constitutional tradition, rooted in the natural and international law of self-defense, of excluding aliens on the basis of radical, anti-American political ideology. Thus, if sharia supremacism is deemed a political ideology, we can keep out alien adherents of a cause that both inspires the terrorists of today and, wherever it is allowed to take root, produces the terrorists of tomorrow.
Yet, we also have a strong commitment to religious freedom. If at the end of the debate — assuming we ever have the debate — our culture’s conclusion is that sharia supremacism equals Islam, equals religion, equals immunity from governmental protective measures, then the Constitution really will have become a suicide pact. We will have decided that anti-constitutional sharia radicals are just as welcome as any other Muslim.
It is essential to win this debate over the political nature of sharia supremacism.
Since this is the debate we must have — i.e., Can we legally vet for sharia supremacism? – the Trump administration’s burden was to tee up the debate on favorable terrain. That required having it over something that the public would understand as truly crucial to our current and future security.
That something should have been vetting. That would have put the focus on sharia — specifically, on its noxious, counter-constitutional terms. The argument would not merely be about the possibility that trained terrorists might infiltrate refugee populations. It would be about the resistance of sharia supremacism to Western assimilation, which inevitably leads to the phenomenon of sharia enclaves, to “no go” zones, and to the creation of the conditions in which the jihadists of tomorrow are bred. (See, e.g., Europe.) Vetting is what we absolutely have to do to protect the country. It is not more complicated than that.
Trump, instead, teed things up for guaranteed failure. Instead of a battle over vetting, he forced it to be fought over the EO, which would do nothing meaningful to improve our security. The threat from the six cited countries is less severe than from other cauldrons of sharia supremacism that are not covered in the EO. Since the EO is not a defensible security measure, it can easily be made to look like a gratuitous swipe at Muslims — especially in light of Trump’s reckless campaign rhetoric, which often failed to distinguish sharia supremacists from all Muslims (many of whom have taken heroic measures to help Americans fight jihadists).
Having thus failed to define the real threat, Trump walked into a trap of his own making. Forced to defend itself against claims of racism, forced to defend the pointless exclusion of Muslims rather than the essential exclusion of sharia supremacists, the administration has responded by vigorously contending that the travel ban has nothing to do with Islam. “It’s facially neutral,” the Justice Department insists. The administration now stresses that the EO does not mention Islam, does not target Islam, and is not directed at Islam.
Well, isn’t that wonderful! I’m sure the Supreme Court will be impressed — the administration might even win there . . . though I wouldn’t bet the ranch on getting Justice Kennedy’s vote.
The EO is thus worse than ineffective. It is counterproductive.
But you see, the upshot of the administration’s assurances that the EO has nothing to do with Islam is an implicit admission: If a proposed law or executive order did confront Islam directly, it would be unconstitutional. So then . . . how are we ever going to win the debate over vetting? How are we ever going to make an intellectually honest, convincing argument that adherents to a radical political ideology rooted in Islamic scripture can lawfully be kept out of our country?
The EO is thus worse than ineffective. It is counterproductive. It probably means that vetting will never happen — or, alternatively, that the administration will try to enhance vetting but pretend, as it has with the EO, that the enhancement has nothing to do with Islam.
To be fair, while such dishonesty is not excusable, it is understandable. Inexorably, these battles are fought out in the courts — Congress having defaulted its responsibility to make law and to limit the judiciary’s capacity to interfere, which the Constitution empowers it to do. The courts are no longer courts. They are no longer the peer judicial branch of a government of divided powers, in which each branch respects the constitutional authorities and competencies of the others. The courts now claim supremacy over the two political branches.
Naturally, they are smart enough not to come out and say it that way. They’ve done it by gradually dismantling separation-of-powers. This doctrine always held that the judiciary did not intrude on matters like immigration, national security against foreign threats, and war fighting — matters constitutionally committed to the branches politically accountable to the voters whose lives are at stake. But, as I warned at the time, Justice Kennedy put the last nail in that coffin in the 2008 Boumediene decision, which astoundingly held that alien enemy combatants engaged in an offensive terrorist war against the United States are endowed with constitutional habeas corpus rights, to be asserted against the U.S. government — indeed, against the executive branch that is prosecuting the congressionally authorized military campaign.
Kennedy scoffed at the principle that the judiciary has no business meddling in the political branches’ conduct of war. His Orwellian contortion of separation of powers holds that the actions of the political branches are strengthened by judicial review. Under the new dispensation, it is not the Constitution but the judiciary that determines the legitimacy of executive and legislative action in defense of the nation.
When Kennedy and the Court’s “progressive” bloc ignored the settled jurisprudence of judicial modesty (what we might call, “know your place”), they unleashed the lower courts to do the same — knowing there was always a good chance that five Supremes would endorse renegade “progress.” Thus did the Fourth Circuit, in neutering the EO, ignore a binding 1972 Supreme Court precedent, Kleindienst v. Mandel, which prohibits federal courts from second-guessing executive discretion in the immigration context. Mandel should have made the case a slam dunk in favor of Trump’s EO. Instead, Judge Gregory declared robed oligarchy: There can be no judicial “abdication” in situations where “constitutional rights, values, and principles are at stake.”
Simply stated, that is a breathtaking claim of power to act any time the judges see fit, for whatever “value” they choose to vindicate.
What federal judges do not see as fit is Donald Trump. If he orders it, they will undo it, even if it is manifest that the same orders would be upheld if issued by a different president.
And the judges’ values tend not to be your values. You value American national security. They value a new, aggressive, and indiscriminate protection of religion — provided that the religion is Islam. Your value is a trifle. Their value is transformed into a right of Muslim immigration, derived from the new, judicially manufactured right of America-based Muslims not to have their self-esteem bruised.
Sharia supremacism and judicial imperialism: a combination that is breaking our will in a way no previous challengers ever could.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.