Those who still believe we are a sovereign nation won an important victory today in Trump v. Hawaii, but the war in the lower courts will continue unless Congress shuts it down.
Congress and the president have the full power to deny entry to any non-citizen or class of non-citizens seeking to enter this country for any reason – good or bad. Those decisions are exclusively up to the political branches of government, to be debated in the political realm, and there is no opening for the courts to get involved. This principle “has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government,” not “merely” by “a page of history … but a whole volume” (Galvan v. Press). The concept is “inherent in sovereignty,” consistent with “ancient principles” of international law, and “to be exercised exclusively by the political branches of government.” (Kleindienst v. Mandel).
This should have been the decision handed down by the court today on Trump’s so-called travel ban, which had already been watered down by lower courts to a mere executive policy of increased vetting of immigrants from dangerous countries. The Supreme Court should have issued a strong rebuke to the lower courts, and the opinion should have been 9-0.
Unfortunately, while this opinion was a relatively strong win for the president and for sovereignty, every justice but Justice Thomas left the door open for the lower courts and smart, truculent lawfare experts to continue chipping away at the “plenary power doctrine” protecting our sovereignty.
What the court was deciding
Even Trump’s original order was not a complete travel ban, much less a ban on Muslim immigration, as it left out 92 percent of the world’s Muslims. It merely suspended immigration from a small subset of predominantly Muslim countries on a temporary basis due to the rampant concern of terrorist activity. But that order never earned its day in the high court; the lower courts won by forcing the president to change his order twice. Many provisions got watered down:
Thus, if the president ever wanted to go further to protect our security, a proposition many conservatives support, the lower courts would return to their mischief immediately and say those provisions are not covered by today’s ruling.
What did the majority opinion say?
Even though lower courts will likely come back for more bites at limiting the power of the president over sovereignty, Chief Justice Roberts, writing for the 5-4 majority, was clear about much of the plenary power doctrine. Here are some key observations:
Delegated authority from Congress to exclude is unlimited (mostly): For over a year, I have noted that, all other provisions of law notwithstanding, section 212(f) of the INA (§1182(f)) is clear as a bell in granting the president full power to shut off all immigration and that there are no limits on this power. I have suggested that the president use this power to shut off border migration. Roberts was almost 100 percent clear that this provision shuts down any other question of presidential authority. “By its terms, §1182(f) exudes deference to the President in every clause,” wrote Roberts. As we noted on Monday, the Supreme Court already addressed and affirmed the unrivaled power of 1182(f). It’s amazing that it took 16 months of wrangling with lower courts to affirm what the court already addressed. That’s why I’m suspicious this decision will fully tamp down the lower court shenanigans.
Roberts does seem to buttress his point by noting that Trump gave a very substantial reason for the shutoff and did a lot of executive legwork behind it, but it’s unclear if Roberts would rule that an 1182(f) shutoff that didn’t contain a “12 page Proclamation” that is “more detailed than any prior order issued under §1182(f))” would be insufficient. Thomas was right when he tersely wrote in his concurrence that “Section 1182(f) does not set forth any judicially enforceable limits that constrain the President.”
Standing: The government rightfully argued that the courts don’t even have jurisdiction to review a case denying a visa. However, the majority opinion noted that the court skirted the question for this case and decided it on the merits. I’m happy the justices arrived at the right decision on the merits, but the fact that the Supreme Court is fine with Article III courts reviewing denial of visas for people who never even entered the country is disturbing.
A First Amendment right to immigrate? Next, Roberts dealt with the claim that Trump violated the Establishment Clause by discriminating against Muslims in immigration policy. While I fully agree with Roberts’ opinion and believe he did a terrific job deftly swatting down the lower courts and the dissenting opinion, I’m still concerned that he seems to indicate there is an opening to assert an Establishment Clause violation in immigration and national security policy. “For our purposes today, we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review,” wrote Roberts. Clearly, he was trying to show how even if we apply the rational basis test, Trump’s modest order undoubtedly meets that standard. He also mentioned a number of other factors, including the lack of reference to religion in the order, the fact that it contains multiple exceptions and waivers, and that some Muslim countries that were previously listed were de-listed after cooperating.
What would this mean if, say, a president wrote an order limiting our record-high immigration from the Middle East, citing legitimate concerns about our ability to assimilate so many? It’s unclear because Roberts, writing for the majority, tried to be as narrow as possible. But the lower courts are not being narrow, and they will come back for more. Moreover, in his concurrence, Anthony Kennedy made it clear that he would regard a more robust restriction as a violation of the Constitution. And constitutional rulings in future will bind not only the president, but Congress as well.
The four liberals are off the wall: It is simply mind-blowing that all four liberals on the court and almost all of the forum-shopped lower court judges believe that we have no sovereignty and that there is a justiciable right to enter the country. As Roberts warned in a footnote, “What is far more problematic is the dissent’s assumption that courts should review immigration policies, diplomatic sanctions, and military actions under the de novo ‘reasonable observer’ inquiry applicable to cases involving holiday displays and graduation ceremonies.”
Sotomayor, in her dissent, compares Trump’s order to the internment of the Japanese. Well, what better authority on this subject than Justice Robert Jackson, the famous Nuremberg prosecutor who was a champion of due process rights, wrote the dissent in Korematsu v. United States (the Japanese internment case), and was regarded as one of the greatest writers of his time? “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will” (Shaughnessy v. Mezei, 345 US 222-223 (1953) (Jackson, J., dissenting)).
What does this all mean? It’s time to fight the lower courts
Overall, the opinion from the majority was stronger than I expected. However, I doubt this is going to shut down most of the immigration lawsuits in the lower courts. This is why Thomas’s concurrence is so important. 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.
Conservatives in Congress should immediately press for stripping the lower courts of power over immigration or at least clarifying that they have no power to impose universal nationwide injunctions beyond the individual plaintiffs.
The president is now vindicated in the plain language of a statute that should never have been held up in court for almost a year and a half. He’d be wise to invoke 1182(f) and shut down cross-border migration entirely. Based on the universal outcry of the dangers to migrants and Americans, Trump would easily meet the rational-basis test established by the chief justice.
However, past history should caution us about complacency. These lawsuits are the legal version of a circus, and the victory was a narrow one at 5-4. Unless Congress and the president begin asserting their power over sovereignty, the lower courts will continue chipping away, and the Supreme Court will gradually adopt their approach in the ever-evolving, one-directional ratchet of progressive jurisprudence.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.