Rogue Judges

            The topic of discussion for this Constitution Monday is the need to control rogue judges. America needs judges that will make decisions in compliance with the Constitution, but some judges try to make their own laws without regard for constitutional rule.

            On January 27, 2017, President Donald Trump signed an Executive Order with the title “Protecting the Nation from Foreign Terrorist Entry into the United States.” The order begins with the following paragraph.

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA),

8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered….

            The executive order then lists the purpose and the policies of the order. Basically, it suspends the entry of all refugees into the United States for 120 days to give the new administration time to review the vetting process and to make sure that any refugees allowed into the nation will not pose a threat to the security and welfare of Americans.

            The order decrees that the United States will not admit any refugees from Syria for an indefinite period of time. It also stops entry into the United States for 90 days of people from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. Liberals were incensed that Trump would stop “Muslims” from entering the nation even though Muslims from many other nations were not included in the ban.

            Trump’s first executive order on immigration was stopped by a rogue judge in Washington, and second executive order on immigration was stopped by liberal judges in Hawaii and Maryland. The first case was taken to the Ninth Circuit Court of Appeals. The Maryland case was taken to the Fourth Circuit Court of Appeals that issued a ruling last week. In both these cases the Circuit Courts ruled in favor of the plaintiffs. The Hawaii case was taken to the Ninth Circuit Court where a ruling is awaited.

            Daniel Horowitz, senior editor at Conservative Review, posted two articles about the insane decision made by the Fourth Circuit. In his first article he claims that the Fourth Circuit Court nullified national sovereignty by their recent decision. The judges ruled strictly along party lines with ten Democrat appointees voting against Trump’s temporary immigration order and three Republican appointees voting for it.

            According to Horowitz, there was no legitimate case or controversy. He notes that Judge Steven Agee said in his dissent that the “three plaintiffs don’t have valid standing.” In other words, they had no right to bring the case in the first place.

            Horowitz writes more about the Fourth Circuit decision in his second article. He reminds his readers that “Actual rights – such as life, liberty, property, and conscience – are denied by the courts,” such as florists, bakers, and photographers who were sued by Americans who do not want to support same-sex marriages. Horowitz continues.

Yet, these same courts have created an affirmative right to immigrate based on religious liberty for Muslims….

Now, the Fourth Circuit has taken this debauchery a step further and has created a right to not feel perceived stigma – to the point that such a grievance can overturn national security and, presumably, diplomatic and military policies. The sky is the limit, if we are to hold the Fourth Circuit to a consistent readying of its own ruling.

As I noted in my first piece analyzing the Fourth Circuit’s immigration ruling on Thursday, this case was not about letting a foreign national into the country. Indeed, none of the relatives of the plaintiffs were even denied entry. What the court did was nullify the intangible executive policy, rhetoric, and directive in general about fighting Islamic terror because the plaintiffs felt stigmatized. This is the only way they were able to obtain standing and assert an injury-in-fact to satisfy an Establishment Clause violation. Thus, the court has now opened the door for any Muslim American or even Muslim LPR (legal permanent resident) to shoot directly at a national security policy in court – even beyond immigration – assert the injury of feeling a negative stereotype and a stigma, and have the court “overturn” that policy.

There are no words to describe the infinite and insane consequences that flow from this decision. By definition, almost all of our key diplomatic, military, homeland security, and national security policies are focused on the threat of Islamic terrorism. The consummate threat of our time will always involve, in some form, the recognition of a threat within the religion of Islam.

Any smart lawyer could now use the language of this ruling to strike down almost any foreign policy or homeland security policy on behalf of a Muslim by contending that such a policy violates the Establishment Clause because it stigmatizes Muslims.

What is to stop a Muslim LPR from suing our government for engaging in war almost exclusively in “Muslim” countries? Every major military engagement is against a Muslim-majority country or Muslim entity.

Plaintiffs could cite the same “data” and anecdotes suggesting that these policies cultivate an anti-Islam bias in this country and make them feel “anxious,” “stigmatized,” “stereotyped,” and “like an outsider.” This is the new threshold for determining whether a policy violates the Establishment Clause. And it could now apply to foreign policy and national security.

            According to Pete Williams at NBC News, the Trump administration filed papers last week asking the justices on the U.S. Supreme Court to “take up its appeal and, in the meantime, to let it enforce the travel ban while the court decides whether to hear a full argument later on the legal aspects of the case.” Williams notes that there is room for hope that the Supreme Court will bring sanity back to the issue because it is more conservative than any previous court ruling on Trump’s order. The Supreme Court usually “tends to defer to presidents on national security issues.” This is good news The issue is finally going to the Supreme Court!

            Adam Liptak at the New York Times explains that the Trump Justice Department sent three urgent requests to the Supreme Court and says that the justices have some options. The first request is for the Court to review the decision of the Fourth Circuit Court and “decide whether to hear the case before they leave for their summer break. But that would still defer arguments to the fall, with a decision to follow.” He says that four justices must agree to hear the case.

            Liptak states that the government sent two other requests to the Supreme Court. These requests ask the Supreme Court “to stay two rulings blocking parts of the travel ban. Granting the stays would revive the ban while the justices decide how to respond to the petition.” Liptak says that five votes are necessary to grant a stay and the Supreme Court “will probably agree to hear the appeal.” He continues with the following statement.

When a major presidential initiative is ruled unconstitutional by a federal appeals court, a review by the Supreme Court almost always follows.

The stay applications present harder questions, and how the court answers them will have important practical consequences.

The court typically moves quickly on requests for stays, often acting in about a week. Under its usual practices, it would not hear arguments on the applications and would issue brief orders announcing the outcome with little or no legal reasoning.

If the court grants the requests, the travel ban will go back into effect and probably expire before the court hears arguments on the merits of the appeal. That could make the case moot.

            Conservatives and liberals have varying opinions on Trump’s attempts to stop Muslim terrorists from entering the United States. According to Liptak, the administration “says that presidents have almost unlimited discretion to make national security judgments and to control immigration.” The challengers claim that the order “was a product of religious intolerance and the culmination of his campaign pledges to institute a `Muslim ban’ – [a violation of] the First Amendment’s prohibition of government establishment of religion.”

            The critical issue at stake here is the sovereignty of the United States and the power of the President to keep Americans safe. Liptak quotes the following statement from the brief submitted by the Justice Department focuses on the importance of a review by the U.S. Supreme Court. This statement summarizes the reasons why this decision is so critical.

This order has been the subject of passionate political debate. But whatever one’s views, the precedent set by this case for the judiciary’s proper role in reviewing the president’s national security and immigration authority will transcend this debate, this order, and this constitutional moment.

            The importance of this issue cannot be overstated. Americans must ask God to intervene in our behalf. We must pray that the Supreme Court will take the case and make a decision that will protect the Constitution and the sovereignty of the nation.