Let us pause for a moment and consider the restrictions placed on future presidents that the 4th Circuit Court of Appeals has imposed in continuing the ban on President Donald Trump's temporary freeze on travel from nations with a history of exporting terrorism.
Thanks to the decision of the Richmond (Va.) liberal-dominated court, future presidents could be held accountable by federal judges for their campaign statements. While on its face that might sound right and just, it's a straightjacket that diminishes the power of a president who changes his mind, sees the light or casts aside those promises as unworkable, illegal or immoral. Or a president who misspoke or who didn't know what the hell he was talking about. Or was lying about his true intents. In other words, just about every person who has run for the office at one time or another (although Trump has excelled in all these categories).
The majority 10-3 majority opinion, written by Chief Judge Roger L. Gregory waved away those concerns with an unpersuasive and cavalier assurance that it would never happen. As if he could predict the future.
What we have here is the self-appointment of a panel of federal judges as official second-guessers who in their lofty positions will hold a president's feet to the fire, even when it is not in our nation's interests. Or not the president's intent.
I will be accused of stretching the negative implications of court's decision. But I think not. I will quote from dissent, written by Paul V. Niemeyer:
...the district court simply cast aside the President’s decision as nothing more than a sham based on its own ideas concerning the wisdom of the Executive Order. In doing so, the district court made the extraordinary finding - based on a preliminary evidentiary record - that the President exercised his otherwise lawful authority to effect the temporary pause primarily because he bears animus towards Muslims and wants to impose a “Muslim ban.” Remarkably, the district court made this finding while also acknowledging that the Executive Order is facially neutral, that there are heightened security risks with the countries listed in the Executive Order, and that national security interests would be served by the travel pause
The shortcomings inherent in the district court's fact-finding are obvious. It is primarily based on the district court's selectively negative interpretation of political campaign statements made before the president swore his oath of office, its acceptance of the national security assessment of former government officials (many of whom openly oppose this president), its failure to account for the national security assessment of the current attorney general and secretary of Homeland Security, its misplaced conclusion regarding the president's decision not to submit the executive order to the executive bureaucracy for 'inter-agency review,' and the purported novelty of the temporary travel pause. [Emphasis added.]
This is a new reach by the federal bench, well beyond the powers it was granted in the Constitution and in contradiction of the well-founded principle of the separation of powers. It empowers the courts to disregard whatever factual and classified information that the President has and which the courts do not. It allows the courts to use an unprecedented yardstick to measure the wisdom of an executive action--action that is clearly authorized by Congress and resides exclusively with the president.
No, I'm not shilling for Trump, the inexperienced and incompetent president who poked the bee-hive on his first day of office with a poorly constructed executive order that may or may not have been wise, according to one's own views. My own view is that it is prudent to put a 90-day hold on immigration from countries that have a demonstrated history of threatening our national security while working out intelligent and workable screening for immigrants. But he botched it, thanks to his impulsive and ill-advised action.
Not that the appellate court, in upholding the flawed decision of the Maryland federal district judge, were motivated by what's best for the nation: As the dissenting judge wrote:
In my view, the very serious national security interest served by the temporary travel pause (as determined by those who are duly empowered to make the decision and who have access to current intelligence information) greatly outweighs the alleged temporary and relatively minor harm that will befall these few plaintiffs. The district court abused its discretion by failing to strike this balance.
Who elected that judge to be the backseat driver?