Yesterday, the Supreme Court gave the Trump administration what is mostly a win as it signaled its discomfort in having the courts act as a de facto maker of immigration and security policy.
On May 25, the Fourth Circuit upheld a nationwide injunction against the second iteration of President Trump’s executive order that restricted travel to the United States from six failed states and one state sponsor of terrorism. As National Review noted, it was a bizarre decision that seemed to be calculated to insult or personally chastise the president than to seriously address the issues.
A strange madness is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump. We’ll call this new jurisprudence “Trumplaw,” and its latest victim is once again the so-called Trump travel ban. The perpetrator is the Fourth Circuit Court of Appeals.
Here is the essence of the court’s ruling: Trump’s campaign statements were so grotesque that they not only (1) hurt the feelings of a Muslim resident so much that he was granted standing to challenge an executive order that did not apply to him, but also (2) rendered an otherwise lawful executive order so damaging that the harm to the plaintiff’s feelings (and his wife’s possibly delayed entry into the United States) outweigh the government’s asserted national-security interest in pausing to reexamine foreign entry from hostile and war-torn countries.
Since Trumplaw is such a novel form of jurisprudence, it’s exceedingly hard to square with existing precedent. So, when existing precedent either doesn’t apply or cuts against the overriding demand to stop Trump, then it’s up to the court to yank that law out of context, misinterpret it, and then functionally rewrite it to reach the “right” result.
The government appealed the case to the Supreme Court. As the 90-day effective period of the executive order expired, the Supreme Court asked both sides to submit briefs arguing whether or not the issue was moot. The government said it was and urged the Court to not take the case and to order the injunctions dissolved. The plaintiffs argued that it was not moot but even if it was the Court should leave the injunctions in place. Yesterday the Court acted:
The high court late Tuesday dismissed one of two pending cases on Mr. Trump’s executive order from March that barred travel to the U.S. by people from six Muslim majority countries. The president said the ban was needed for national security, while his critics said the prohibition unlawfully targeted people because of their religion.
The justices, in a two-paragraph order, said the case was moot because the old six-country ban expired. It was replaced by a new, third version of the travel ban the president issued Sept. 24 that focuses on nationals from eight countries, including the non-Muslim majority nations of North Korea and Venezuela.
Lawsuits already are moving forward in lower courts challenging the new restrictions.
As part of its dismissal, the Supreme Court vacated a May ruling by the Fourth U.S. Circuit Court of Appeals, based in Richmond, Va., that said the president’s last travel ban “drips with religious intolerance” and was likely unconstitutional.
The high court said wiping out the lower court ruling was consistent with its established practices for cases that become moot. The court said it was taking no position on the legality of the travel ban.
Justice Sonia Sotomayor dissented from the court’s decision to take the lower court ruling off the books.
For all intents and purposes the original case never happened.
We will hear more from the travel ban as challenges to the new travel ban are being filed because the real objective here is the destruction of the ability of the executive branch to actually manage immigration.