On Thursday, the Fourth Circuit Court of Appeals affirmed a district court ruling placing a nationwide stay on the implementation of President Trump’s executive order banning travel from seven Muslim-majority countries. The judge, Chief Judge Roger Gregory, is a President Bill Clinton appointee; he was reappointed by President George W. Bush. He was part of the Fourth Circuit majority that declared traditional marriage laws unconstitutional.
His decision on the travel ban is full of legal stupidities and outright manipulations. He begins by characterizing the Trump travel ban as “an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” Now, it’s bad lawyering to appeal to language outside the text of a statute or executive order in order to strike down that law — a law is specifically-worded, carefully-crafted in order to be implemented in a particular way. Pointing to loose language by advocates for any given law would give the courts ample reason to strike down that law. For example, the Supreme Court could have, on that basis, struck down Obamacare as an unconstitutional mandate; President Obama had said repeatedly that Obamacare was not a tax. But the Court ignored his language — and the language of the law itself — in order to uphold Obamacare.
In this case, the Fourth Circuit decided that since, in its view, President Trump is a nasty Nellie, the executive order had to be stayed. The Court explained, “The First And Second Executive Orders were issued against a backdrop of public statements by the President and his advisors and representatives at different points in time, both before and after the election and President Trump’s assumption of office.” Nowhere did the Court quote any of President Trump’s latest speech in Saudi Arabia, in which he praised Islamic civilization and labeled Islamist terrorists devotees of death rather than Allah. That would be inconvenient to their argument. Their argument requires them to state that Trump pursued the executive order in “bad faith, as a pretext for its religious purpose.” The Court even says that it is not “able to awake without the vivid memory of these statements. ...To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint.” This is an insane statement — a Court openly patting itself on the back for chilling freedom of speech it doesn’t like, as an excuse for striking down policy it doesn’t like.
The Fourth Circuit also ruled that the Establishment Clause of the First Amendment — the clause banning Congress from making any law discriminating on the basis of religion — somehow applies now to foreigners without American citizenship. “Congress granted the President broad power to deny entry to aliens,” Gregory wrote, “but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”
The Fourth Circuit got involved in policymaking in its decision, as well. Rejecting the rationale of the executive order that it was designed to prevent unvetted immigrants from high terror risk countries from entry, the Court instead quoted a report from the Department of Homeland Security stating that “most foreign-born, US-based violent extremists became radicalized many years after entering the United States, and concluded that increased screening and vetting was therefore unlikely to significantly reduce terrorism-related activity in the United States.” Here’s the question: so what? Is this DHS report the final word? Why should the Court make it so? What gives the Court the right to decide that one particular assessment of risk factors in terror ought to trump all others?
The Court also gave standing to various Americans who have relationships with those abroad: a man with an Iranian wife; a college student with a sister from Syria, among others. Incredibly, the Court even found standing on the basis of hurt feelings. “Beyond claiming injury to their family relationships, several of the individual Plaintiffs allege that the anti-Muslim message animating EO-2 has caused them feelings of disparagement and exclusion.” Apparently, one of the plaintiffs “sense[d] a lot of hostility from people” when he walked around with his wife, who wears a hijab. Well, whoop-de-do. The federal tax code causes me feelings of disparagement and exclusion every April. That doesn’t make it unconstitutional.
This is a judicial usurpation of the highest order. It essentially amounts to the Court playing super-legislature again, and engaging in the political debate. President Trump would be well within his Constitutional rights to ignore the Court’s injunction here — or at least appeal to Congress to limit the jurisdiction of the federal courts.