Judging the Travel Ban—and Judges
The Supreme Court agreed Friday to hear a legal challenge to President Trump’s travel ban, and this is good news for the rule of law and those who believe in the proper separation of powers under the Constitution. The Justices have a chance to rule on the legality of Mr. Trump’s ban but also whether judges can ignore the law merely because they loathe Mr. Trump and all his works.
That’s our read of the Supreme Court’s announcement Friday granting the Administration’s petition for certiorari in Trump v. Hawaii. The Justices agreed to hear the case in near-record time, which means they can hold oral arguments and issue a ruling this term. This may suggest that at least some of the Justices want to rebuke the judiciary for stretching the law to join the political resistance to Mr. Trump.
The Administration is fighting a preliminary injunction issued by a lower court in Hawaii against the third iteration of its travel ban. We disagree with the policy merits of the ban, but the clear language of the law and the Constitution give Presidents enormous latitude on national security and immigration. The Ninth Circuit Court of Appeals nonetheless upheld the nationwide injunction.
This isn’t merely about one rogue circuit court. In the year since Mr. Trump took office, there have been 19 nationwide injunctions against Administration initiatives ranging from sanctuary cities to new rules on contraceptive coverage. Many of these rulings reject longstanding legal understandings or refer to Mr. Trump’s campaign statements rather than the language of the regulation. To put it another way, more than a dozen district judges and at least two full appellate courts—the Fourth and Ninth Circuits—appear to be operating as a political resistance.
Attorney General Jeff Sessions may have been looking at this judicial landscape this week when he asked the High Court to bypass the Ninth Circuit and overturn a lower-court ruling blocking the Administration’s decision to end the Deferred Action for Childhood Arrivals program. Federal Judge William Alsup ruled that it is illegitimate for President Trump to use an executive directive to counter President Obama’s previous directive. We hope the Justices choose to hear that case as well.
The courts need to oppose genuine acts of executive excess, but judicial rulings have to be rooted in law, not political animus. Otherwise the judiciary will be guilty of the same lawless impulses that liberals claim to fear in Mr. Trump.
Appeared in the January 20, 2018, print edition.