The principles and doctrines enshrined in our Constitution are considered timeless and that is the animating conservative belief against judicial activism. To make the assertion that because “times have changed” leads us into dangerous territory where the Constitution becomes a “living, breathing document” subject to change or reinterpretation based on the whims of the times.
Naturally, our Founders could not have anticipated all the various scenarios and controversies that have occurred over the years as a result of their words in the Bill of Rights. That is not to say that controversies did not occur which implicated the Bill of Rights as the Alien and Sedition Acts proved. Lincoln’s suspension of habeas corpus during the Civil War is still debated to this day.
Further, throughout American history, there have been movements that tested the Bill of Rights. The Mormonism of John Smith and company, Eugene Debs and socialism, and various anarchist actions like the Haymarket incident come to mind. Many of these movements were framed at the time as an insult to or threat against our unique way of life and beliefs. Throughout them all, the Republic has survived despite the fact that at times, the actions of the government may have been heavy-handed.
Perhaps our Founders realized the violence that sometimes accompanies Islam. Referred to as “Mohammedans” or “Turkmen” at the time, our first foreign military action was against Muslim pirates along the Barbary coast of Northern Africa. Muslims in America at the time were but a minute fraction of the total population. Such is not the case today.
So the question arises within the current environment whether the Bill of Rights can tolerate Muslim immigration to the United States and the potential to import ideologies antithetical to our system of government. Specifically, this entry will look at the so-called “Muslim travel ban” and the Fourth Circuit’s recent decision upholding an injunction against it’s implementation.
The purported reason was that the situation in the seven targeted countries had so deteriorated that it was difficult for the government to properly vet potential entrants to this country. One of the most glaring omissions of the Court’s ruling- and that of the lower District Court- was they never mentioned the reality on the ground in these countries. Further, the seven countries had been designated as state sponsors of terrorism or were recognized war zones where there was no rule of law. Even further, it was not the new Trump administration that had made these determinations. In essence, the courts ignored real facts.
Instead, the Fourth Circuit’s decision totally ignored the apparent confusion in existing immigration law. One part of the existing law allows the Executive Branch to block entry of certain groups or classes of people who represent a real or perceived threat to the United States. This part of the law, never rescinded in the many changes to immigration law, was passed in the 1950’s to deal with Communists. It conflict’s with a change in the 1960’s regarding discrimination in immigration decisions based on race, religion, sex or ethnicity. Perhaps if nothing else, if this case reaches the Supreme Court, they will not pull back from clearing the confusion to give guidance to future administrations.
The Fourth Circuit instead decided only the apparent Constitutional question justifying that doing so supercedes statutory interpretation. They claimed that the travel delay (it was not a ban; just a 90 day delay) “drips of religious intolerance.” To reach that decision, despite the neutral wording of the Executive Order, the 4th Circuit had to do exactly what other courts admonished against: “judicial psychoanalysis of a drafter’s heart of hearts.”
To survive under current Supreme Court jurisprudence, an action like this must pass the Lemon Test: (1) it must serve a secular purpose, (2) it can neither advance nor prohibit a religion, and (3) it cannot foster government entanglement with a religion. With respect to items (1) and (3), this writer sees no apparent violations of the Lemon test.
The Court, to reach their decision under the second prong, resorted to statements by Trump the candidate, Trump the President-elect, and Trump the President to essentially practice “judicial psychoanalysis of a drafter’s heart of hearts.” Mainly, they used Trump’s words on the campaign trail to drive a nail into the Executive Order.
As the dissent noted, this creates a dangerous precedent for future courts. Many things are said and many things are promised on a campaign trail that often run into reality once the person making the statement/promise get into office. The Fourth Circuit made themselves one of those “realities” for better or worse.
To further understand why the EO does not necessarily violate the second prong of the Lemon Test, although it does affect a potentially large population, the seven countries are a fraction of the world’s total Muslim population. Left untouched are countries with greater Muslim populations- countries like Egypt, Saudi Arabia and Indonesia. The reason is that these countries have functional governments upon whom the United States can rely upon to assist in the vetting process of potential immigrants and refugees.
The decision addresses the issue of “standing” and “harm-” two issues that allow the Judicial branch to hear a case in the first place. In effect, they decided there was standing and harm because some of the plaintiffs felt “disparagement and isolation” as a result of the Executive Order. So they not only engaged in “judicial psychoanalysis of the drafter’s heart of hearts,” they also agreed that when one FEELS “isolation” or “disparagement,” they have standing before the courts. In essence, their feelings were hurt.
Unfortunately, the ham-handed method in which the first Executive Order was rolled out and executed doomed the second Order. This perhaps demonstrates naivete and perhaps stupidity within the Trump administration. Many pundits, analyzing the decision, noted that Trump’s words on the campaign trail and after his election came back to haunt him and the court had no other choice to decide this case as they did.
It will be interesting to see whether the Supreme Court ultimately takes up this case and, if so, how they rule. This writer views this whole controversy more as an example of Trump’s ineptitude rather than as a vital Constitutional question. If a country is 99% Muslim, it stands to reason that 99% of the applicants for a visa from that country will be Muslim. But considering that the targeted countries (except Iran) have anything BUT resembling a functional central government, the focus should be there. Considering that this was, except in the case of Syria, a 90-day “time out,” the 4th Circuit determined that “feelings of isolation and disparagement” and words on the campaign trail were more important than preventing a terrorist act. Their observation that no one from any of the targeted countries had committed an act of terrorism on American soil proves this. One wonders how THEY would feel when the first terrorist act does, in fact, occur.