In the last week, two federal district-court judges in two different federal circuits have issued new injunctions against the Trump administration’s latest “travel ban.” Both injunctions are wrong, but one is dangerously wrong, representing not just an extraordinary act of judicial supremacy but also a cavalier disregard for the Supreme Court of the United States.
Before I go any farther, let me add this caveat. One of the judges (Theodore Chuang, from Maryland) is a close friend of mine. I’ve known him since my earliest days of law school, and he’s a man of keen intellect and high integrity. He’s one of Barack Obama’s best appointments to the federal bench. Even the smart and wise can be wrong, however, and he’s wrong in this case.
But first, some background. We are now on our third travel-ban executive order. The Trump administration withdrew the first one (we’ll call it EO-1) after poor drafting and incompetent and possibly even malicious implementation created chaos in airports nationwide and contributed to a wave of court injunctions blocking its enforcement.
While court cases were still pending against EO-1, the Trump administration went back to the drawing board and crafted a second executive order, EO-2. Both EO-1 and EO-2 temporarily blocked immigration from multiple jihadist or jihadist-dominated nations, and both orders required the Department of Homeland Security to conduct a review to determine whether the United States needed additional information from any given country to determine whether a potential immigrant or visitor represented a security threat to the United States.
Plaintiffs of course challenged EO-2, and it was also enjoined — first in district courts and then in federal courts of appeal. These decisions were extraordinary on a number of fronts — so unusual that they constituted a unique kind of jurisprudence. I called it “Trumplaw.” In essence, judges were abandoning common standing rules, rereading binding precedent, and sometimes even ignoring controlling authority to rule against Donald Trump. They were acting less as judges and more as particularly potent members of the #Resistance.
On June 26, 2017, the Supreme Court restored a degree of judicial order. It didn’t rule on the merits of the case, but its per curiam (unanimous) decision was instructive nonetheless. First, it lifted the injunction on the vast bulk of the travel ban, keeping in place protections only for those immigrants or visitors with “bona fide relationships with a person or entity in the United States.” Second, it rejected judicial claims that individuals or entities in the United States could somehow represent the interests of the tens of millions of potential immigrants who don’t have any current tie to the United States. Here’s the Supreme Court:
The interest in preserving national security is “an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). To prevent the Government from pursuing that objective by enforcing [the travel ban] against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.
The justices thus freed the Trump administration to impose the lion’s share of its temporary travel ban while the administration conducted its review of foreign information-sharing capabilities and processes, and on September 24 it issued a new order (EO-3) responding to the results of that review. According to the order, the secretary of homeland security had identified seven countries that were “inadequate” not just in providing information but also in other security provisions.
The secretary recommended immigration restrictions that “would help address the threats that the countries’ identity-management protocols, information-sharing inadequacies, and other risk factors pose to the security and welfare of the United States.” While the recommended restrictions were indefinite, they were not necessarily supposed to be permanent. As the order notes, the restrictions “also encourage the countries to work with the United States to address those inadequacies and risks so that the restrictions and limitations imposed by this proclamation may be relaxed or removed as soon as possible.”
The order placed significant restrictions immigration and entry from Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. Critically, only the North Korean and Syrian restriction constituted a total ban on entry (and even the total ban could be waived on a case-by-case basis). The rest of the nations faced varying degrees of restrictions but no total ban.
For each nation, the order outlined the deficiencies that increase the threat to the United States. For example, regarding Iran, the order notes that it “regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals subject to final orders of removal from the United States.” Even so, the order permits entry under valid student visas (with enhanced screening).
Plaintiffs promptly challenged EO-3, and the two rulings partially blocking its enforcement — one from Hawaii, and one from Maryland — are wrong in distinct ways. Let’s deal with the worst first: Judge Derrick Watson’s ruling in Honolulu.
Simply put, it’s 40 pages of judicial defiance. To understand the extent of Judge Watson’s malfeasance, one has to linger over the actual words of the governing statute:
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.
How does one get from there — a statute empowering the president to “suspend the entry” of “any class of aliens” when he (not the court) finds their entry would be “detrimental to the interests of the United States” — to a ruling stopping him from exercising exactly that power? When the judge decides it’s entirely up to him to evaluate the president’s reasoning according to the judge’s perception of American interests.
Time and again throughout the opinion, the judge suggests alternative policies, wonders at the exclusion or inclusion of different countries, and acts far more like a Homeland Security bureaucrat debating the wisdom of various policy proposals than a judge determining whether the plain language of a very simple statute applies. Yes, the president made findings. They’re on the face of the document. Moreover, those findings happen to be true. Iran is the “source of significant terrorist threats.” Yemen does have “significant identity-management challenges.” They are “amplified by the notable terrorist presence within its territory.” The fact that the judge would prefer a different kind of response does not negate the president’s clear statutory authority.
Seeking a legal hook on which to hang his obvious revulsion, Judge Watson claims that Trump’s order violates the Immigration and Nationality Act’s prohibitions against “nationality-based discrimination.” But this is specious. The order singles out nations for different treatment not because, say, Yemenis are inherently dangerous but rather because their government — through acts or omissions that their government can correct — places American national security at risk. In other words, the problem isn’t their nationality but rather the political conditions in their country — conditions that create an unacceptable risk to national security.
to the extent that one could critique the travel ban’s application to jihad, it’s actually under-inclusive. It doesn’t apply to jihadist hotbeds such as Iraq, Afghanistan, and Pakistan.
Once he decided that he disliked Trump’s new executive order as much as he disliked EO-1 and EO-2, Judge Watson acted like the Supreme Court didn’t exist. He went ahead and enjoined the travel ban not just for those who have — in the Supreme Court’s words — “bona fide relationships with a person or entity in the United States,” but rather extended his injunction to protect nationals of every majority-Muslim country on the list, regardless of their connection to the United States.
My friend, Judge Chuang, was far more careful. He deferred to SCOTUS and barred enforcement of EO-3 against only those individuals who possess a “credible claim” of a “bona fide relationship” in the U.S. In other words, he let the vast bulk of the order stand. At the same time, however, he helped crack open Pandora’s box. He ruled that EO-3 likely violates the establishment clause. In other words, its true purpose was express hostility to the Muslim faith, not to protect American national security. Or, to put it another way, EO-3 is the fruit of Trump’s poisonous public statements, and the ban’s limited scope does not represent a “purposeful, persuasive change in the primary purpose of the travel ban” sufficient to cleanse the ban of the president’s allegedly unconstitutional intent.
There are multiple problems with my friend’s reasoning. (To be fair, his hands were somewhat tied by Fourth Circuit case law applied to EO-2.) First and most simply, EO-3 isn’t Trump’s promised Muslim ban. It’s nowhere close to Trump’s promised Muslim ban. It’s not even a ban on Muslim immigration from the states the EO targets, and its exemptions are broader and more generous than in EO-2. The order is such a dramatic climb-down from Trump’s campaign rhetoric (and such a modest, loophole-filled immigration restriction in absolute terms) that had he trotted out this EO during the primary campaign, he would have been crucified by his more mainstream Republican opponents.
Moreover, in confronting threats to our national security, we have to face an uncomfortable fact — the primary terrorist threat comes from jihadists, and jihadists are Muslim. Nation after nation in the ban list is either run by or overrun with jihadists. In fact, to the extent that one could critique its application to jihad, it’s actually under-inclusive. It doesn’t apply to jihadist hotbeds such as Iraq, Afghanistan, and Pakistan. There are debatable military and diplomatic reasons for these exclusions, but an order aimed at jihad that doesn’t even sweep in all relevant jihadists hotbeds is hardly evidence that the true purpose of this order is anti-Muslim.
But there’s a broader problem with examining campaign statements and political rhetoric for evidence of anti-religious or pro-religious bias. American political rhetoric is dripping with religious references and religious motivations, including religious antipathy. There are reasons why judges are to evaluate statutes, regulations, and orders on their face rather than try to divine the true heart of the lawmaker. How can Judge Chuang know that Trump wasn’t playing his base all along, throwing them red meat with absolutely no intention of following up with his promised temporary ban? After all, his actual order is evidence of a promise broken, not a promised kept.
One gets the feeling that at least some federal judges are in the grips of the belief that Trump is a unique threat and that existing law simply doesn’t check him enough. So they stretch. They reach beyond the maximum limits of their existing power and create new precedents that not only exceed their authority but will almost certainly exacerbate the ongoing problem of judicial supremacy, of viewing the judicial branch as the arbiters of what’s prudent and wise, not what’s lawful and constitutional.
The latest executive order may or may not be the best policy choice (I’m generally more inclined to favor it than some of my colleagues), but in this instance the threat to the constitutional order comes not from Trump but from those who seek to check him. Judges should stay in their lane. It is not their job to correct policy blunders or to rescue us from policy failures. And it is certainly not their job to second-guess the commander-in-chief’s national security assessments. Trump’s third travel ban must stand.