Friday, May 26, 2017
The Courts Are Out Of Control And Fail To Follow The Law. Another Sign Of A Disintegrating Country
JUDICIAL TYRANNY: Fourth Circuit Upholds National Stay On Trump Travel Ban Executive Order; Blames Trump's 'Religious Intolerance, Animus, And Discrimination'
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
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.