Conservatives continue to entertain false hopes of transforming the judiciary through a “conservative” Supreme Court and through Trump’s appointment of 20 percent of the lower court judges. But the Supreme Court does not rein in lower-court judges, and the Trump administration keeps abiding by district judges’ nationwide injunctions, so the Left continues to gut Trump’s ironclad executive powers, even after he already won at the Supreme Court. The case of the “travel ban” is a perfect example of why Trump should finally delegitimize the entire concept of judicial supremacy rather than trying to beat the Left at its own casino game.
Throughout Trump’s first year in office, we watched one lower court after another create a right to immigrate and demand that the commander in chief surrender his power over sovereignty and national security to the courts. The courts violated 130 years of case law that emphatically concluded courts have no power to grant standing for lawsuits asserting a right to enter the country and that such decisions are exclusively up to the political branches of government. And this administration went along with the charade, even when a Massachusetts judge said its first, stronger, immigration moratorium was totally within the president’s powers.
On June 26, 2018, the “debate” over sovereignty should have come to an end when Chief Justice Roberts, writing for the 5-4 majority in Trump v. Hawaii, ruled that the president has categorical and plenary authority under 8 U.S.C. §1182(f) to exclude anyone he wants. However, on that day, I warned that “until we shut down the lower courts’ terrible practice of placing nationwide injunctions on national security policies, a power they manifestly do not have, the Left will continue shopping these cases to the same capricious lower court judges.” I also warned that experience with other issues has shown that as the lower courts continue chipping away at the original SCOTUS ruling, “the Supreme Court will gradually adopt their approach in the ever-evolving, one-directional ratchet of progressive jurisprudence.”
And here we are today. This AP article shows how a number of foreign nationals from countries on the so-called “travel ban” list – Iran, Libya, Somalia, Syria, and Yemen – continue successfully obtaining visas from the administration under the threat of incessant lawsuits. In an interview with a lawyer for the Council on American-Islamic Relations, a group named as an unindicted co-conspirator in a terror finance trial by the Fifth Circuit Court of Appeals, the AP observed, “When people file litigation, it attracts swift notice from the State Department or the Department of Homeland Security.”
The Trump administration allowed the lower courts to win by watering down the moratorium twice rather than having the Supreme Court rule on the original one. One of the changes in the watered-down version was relinquishing the categorical ban on visas and offering waivers to those who apply for them and claim exigent circumstances. The AP reports that of the 28,100 immigrant visa applications from those countries between December 2017 and Oct. 31, 2019, “11,325 have been deemed qualified for waivers and 16,775 have not.” So much for a “ban,” even on immigration from the very few countries on the list.
Now, groups like CAIR and the ACLU are using this against the administration. Agitation groups are now filing lawsuits and asserting that all these people are entitled to waivers. The AP observes, “The Supreme Court upheld the ban in June 2018, in part because of the promised waiver system that would allow people to come despite the ban if certain criteria were met.” That seems to be the thinking of administration officials based on what lower courts are now doing, but it’s simply not true.
While Roberts mentioned the existence of waivers as one of the factors to swat down arguments of the lower courts and of plaintiffs that the president had acted unlawfully, he offered one all-encompassing reason to uphold the ban without qualification.
The Immigration and Nationality Act (8 U.S.C. §1182(f)) allows the president “for such period as he shall deem necessary, [to] suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” The Supreme Court already ruled on this in 1993, and Chief Justice John Roberts made it clear that there are no limits to this power. “By its terms, §1182(f) exudes deference to the President in every clause,” wrote Roberts in the majority opinion in Trump v. Hawaii. “It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187.”
Thus, the issue of waivers is moot because the Trump administration doesn’t have to issue them at all to anyone who is not a citizen. But the hands-off Supreme Court and activist forum-shopped lower court judges are ensuring that victories at the high court are merely formulaic and ultimately meaningless. As I warned at the time, only Justice Thomas made it clear that there is no avenue for anyone to ever get standing in a lawsuit for the right to enter the country as an alien and that there are absolutely no limitations on the president’s power over admission into the country whatsoever. I predicted that absent a five-justice majority built on Thomas’ concurrence, the lower courts would just manipulate the perceived loopholes in the Roberts ruling, despite the general categorical language he used to affirm Trump’s broad power over entry.
And the rest is history. We are left with a slowdown of visas from just a handful of countries, in lieu of the original promise of a moratorium on immigration from the Middle East. All because the administration refuses to assert executive power over visas, even after the SCOTUS ruling.
This is just one issue, but it’s a glimpse into why the Left keeps winning the judicial game. Most victories at the Supreme Court are even more meaningless than the travel ban verdict, because the language is even more ambiguous. Lower-court liberal judges have no shame in going against the Supreme Court. Yet somehow the executive branch feels bound not just to a political opinion of the co-equal Supreme Court, but even to opinions from rogue lower-court judges. Until the administration gets more aggressive, even the most ironclad executive powers will be weakened and the campaign promises that hinge upon them relegated to nothing more than a dream.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.