By thumping the Trump travel ban, judges give themselves new power to be backseat drivers

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?



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  • 1. Since when is the 4th Circuit liberal? It was the most conservative circuit, and I doubt Obama packed it.
    2. It is not a new reach for the federal bench. As I noted before in the discussion with Dan Miller, there was a clear religious animus demonstrated, and the only question was whether Guiliani was successful in "making it legal." Apparently he was not. Note that no federal judge has upheld either version of the ban.
    3. Nor may any federal judge give a president carte blanche to violate the First Amendment. You suppose that it would have been any better for a federal judge to ignore campaign attacks on the press if Trump suddenly had an executive order to arrest people at the New York Times for espionage? Or does the Pentagon Papers case (New York Times Co. v. United States, 403 U.S. 713 (1971)) have anything to say about that?

  • In reply to jack:

    "1. Since when is the 4th Circuit liberal? It was the most conservative circuit, and I doubt Obama packed it."
    Ah, Jack, you need to update yourself:

  • In reply to Dennis Byrne:

    So, it appears that some things have changed.

  • In reply to jack:

    What happened to the idea of "facial"? Judges who absolutely know what something means, although it says something else.

  • In reply to Dennis Byrne:

    Consult a legal text on constitutional law on "unconstitutional on its face" and "unconstitutional as applied." In short, you are saying that the judges should have ignored the evidence, as well as the "as applied" doctrine.

    The first ban was not before this court, but to the extent that there was an exemption for religious minorities, it was also unconstitutional on its face.

  • fb_avatar

    So much for Chevron deference, eh? Guess it only applies to Democrat presidents. Typical progressive Left double standard. Just remember how many times SCOTUS slapped down the previous administration and its judicial surrogates.

  • In reply to FreeMarketMaven:

    THERE IS NO CHEVRON DEFERENCE TO AN UNCONSTITUTIONAL ACT. You also seem to forget that the former president was a professor of constitutional law. Maybe you should go to dummies dot com and pick up Constitutional Law for Dummies.

  • In reply to jack:

    You don't mess with jack, FreeMarketMaven. Best to follow his advice.

  • In reply to Aquinas wired:

    But the hit and run artistes of the alt right never come back.

  • In reply to jack:

    Although Obama admirers (including those at the University of Chicago) choose to call Obama a "professor" he was actually a senior lecturer. Not on a tenure track. I think that tenured full professors who have earned their title, working their way up through assistant professor, etc. might not agree that Obama was a "professor" in the true sense.

  • In reply to Dennis Byrne:

    But one must recognize that, professor or senior lecturer, he knows a lot more about the Constitution than reading=and-thinking averse Trump.

  • In reply to Dennis Byrne:

    But, despite this semantic quibble, are you saying that FreeMarketMaven is more learned in constitutional law?

    Also, since you say he was a senior lecturer of law, he was not an adjunct or mere lecturer or Bigelow Fellow. The Senior Lecturer page includes Federal Circuit Judges Easterbrook, Posner, and Wood, and I know personally they were tenured, as well as distinguished U of C scholars such as Profs. Epstein and Landes. Again, I challenge FreeMarketMaven to post his credentials and see if he remotely approaches theirs. A quick search reveals an Atlantic article that " Neil Gorsuch and Barack Obama both graduated from Harvard Law School in 1991." I don't think FreeMarketMaven did, but let him prove to the contrary.

  • In reply to jack:

    An unconstitutional act? There can be a difference of opinion on that. Stating your opinion in all caps was no more persuasive (in my view) that the 4th circuit judges who KNOW that the meaning of a legal document is something other than what it says. And that they can pick and choose which prior statements reveal the "real" meaning. No telling where this loose reading of language will lead us. Maybe it will mean that lawyers can be replaced by mind readers.

  • In reply to Dennis Byrne:

    I was only referring to FreeMarketMaven's attempted assertion of Chevron Deference. If he or you want to research what that doctrine really is, feel free to post your results.

    As to whether constitutionality is a matter of opinion, you didn't do so well on the Affordable Care Act, and, as I have repeatedly noted, no court has found either ban constitutional. Sessions didn't have the guts to appeal the first ban, and it is a matter of opinion whether he has the guts to appeal now. If he doesn't or doesn't get both the 4th or 9th Circuits reversed on the merits, the bans are unconstitutional, despite your opinion, as a matter of res judicata.

    As I have indicated, both Mike Mulligan* and you ought to crack open a law book first. AW knows of which he speaks.

    *Brian Hanley finally admitted, after a rooftops decision and Tom Bradygate, "I wish I had gone to law school."

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