By Kevin D. Williamson
Friday, May 26, 2017
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.
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.
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