A Unanimous Rebuke to Judges on the Travel Ban
The Supreme Court on Monday began the process of rebuking lower courts for usurping the political branches on national security. The entire Court, even the four liberals, agreed to hear the Trump Administration’s appeal of appellate-court rulings blocking its immigration travel ban, and the Justices allowed nearly all of the 90-day ban to proceed in the meantime.
This is a victory for the White House, though it is more important for the Constitution’s separation of powers. President Trump’s ban is neither wise nor necessary, but that is not an invitation for judges to become back-seat Commanders in Chief. Yet that is precisely what liberal majorities on both the Fourth and Ninth Circuit Courts of Appeal did in blocking the travel bans, and the Supreme Court is saying those rulings will not be the last judicial word. The Court’s unsigned per curiam opinion set the case for an early hearing on the legal merits in the next term that begins in October.
Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch, wrote a concurrence arguing that the Court should have lifted the lower-court injunctions in toto. He also added a cheeky aside that “I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.”
Some Justices might not agree with that, but it’s notable that Chief Justice John Roberts managed to corral a unanimous Court for lifting nearly all of the injunctions. That means even the liberals understand that injunctions need to be issued with care, especially on national security where judges lack the knowledge and electoral accountability of the executive and Congress.
The High Court’s precedents are clear, especially Kleindienst v. Mandel (1972) that said courts should defer to the executive if there is a “facially legitimate and bona fide” justification on national security. Judges can’t run roughshod over the Constitution merely because an unpopular President issued the travel order.
Democrats and the media will now begin a ferocious lobbying campaign to turn five Justices against these precedents, in particular the Chief Justice and Justice Anthony Kennedy. We doubt this will succeed because this isn’t a close legal call, and it concerns the Presidency more than this particular President.
Appeared in the June 27, 2017, print edition as ‘A Unanimous Rebuke on the Travel Ban.’