The absurdity of the practice of using campaign rhetoric as a basis for evaluating otherwise constitutional actions was put on full display Monday, as a trio of judges questioned an ACLU lawyer over the constitutionality of President Trump's travel moratorium.
The three judges — Niemeyer, Agee, and Shedd, all GOP appointees – did manage to tear into the ACLU lawyer Omar Jadwat on the use of the president's campaign rhetoric. In question after question, the trio of judges arguably made a stronger case for the president's temporary immigration cool-off than the administration's own attorney, in what can best be described as a constitutionalist feeding frenzy.
Judge Paul Niemeyer, who also wrote a beautiful dissent in the recent transgender case in the Fourth Circuit, was the first judge to finally get to the bottom of all these immigration cases.
Despite all of it, Jadwat held that Trump's words – rather than the law itself – were more than enough reason to block the action from the bench. Never mind that the original language in the order was watered down to comply with the original lower court ruling. Never mind that previous presidents invoked this power with no problem. And of course, never mind that by definition, there can be no restrictions whatsoever placed on national sovereignty.
This followed a stiff line of questioning from the rest of the Fourth Circuit bench, which focused primarily on the ability of the executive branch to limit immigration.
It's important to remember, though, that a bad day in court for the ACLU does not necessarily imply a good day for the administration, national security, or the sovereignty of the United States. First off, the Fourth Circuit – much like the Ninth – is one that President Obama was able to remake with progressivist appointees. Over two terms, the last president appointed seven jurists, drastically changing the face of the court, giving Democrat appointees a 10-5 majority among active judges.
Combine that with the fact that two Republican appointees on the court recused themselves from the case – which was heard by the entire bench instead of a three-judge panel – and the numbers don't look too optimistic for Trump in this case. Sadly, Democrat appointees will always side with the political outcome of the Left, irrespective of the absurd jurisprudence behind the decision. Whereas a number of GOP appointees will often side with the Left in particular cases.
But again, this sort of imbalance isn't limited to any one or two courts. As Philip Wegmann reported at the Daily Signal last year, Obama was able to use his eight-year tenure to remake the judicial branch largely in his image. Now 70 percent of federal appeals courts are commanded by Democrat-appointed majorities.
Ergo, we should expect an en benc majority ruling against the updated travel moratorium, with a stellar and scathing dissent authored by one of the three who grilled Jadwat, and not much else. The Constitution, statute, sovereignty, and presidential powers be damned. Meanwhile, oral arguments for this case's sister suit in the Ninth Circuit are coming up, where the odds of sovereignty prevailing are even scarcer.
It's clear that one of these cases will eventually make it to the Supreme Court. But sadly, neither the administration's lawyers nor even most GOP-appointed judges have uprooted the entire premise of these lawsuits by affirming the plenary role of the political branches in immigration decisions. Even if Trump wins a narrow victory at the Supreme Court, far from a forgone conclusion with Kennedy and Roberts, it will be on narrow grounds.
The Left has a permanent first-and-goal on our one-yard line with as many tries as needed. They are already attacking his immigration orders, existing statutes, and state enforcement laws on multiple fronts. We have to win every time; they must only win once. This is because they never feel bound by precedent, even when 200 years of case law say the courts have no ability to second-guess immigration decisions. Yet once they limit sovereignty even once, they use that decision as the new baseline. This was on full display today when the judges, and even the administration's lawyer, accepted ambiguous and implied words from non-binding dicta as binding precedent rather than the explicit decisions of cases such as Kleindienst v. Mandel, which prove court precedent in favor of Trump.
“You know what you have us doing?" Niemeyer asked. “We are a court of the third branch. And you have the judiciary and all the various judges in this country supervising and assessing how the executive is carrying out his office and the national security … Don't we have some respect for the first branch and second branch … which Mandel said is the area in which we owe the 'greatest deference' to Congress and the executive?"
The lesson from today will be that once again our side cannot be too clever by half — trying to agree to the basic premise of the Left and then split hairs with legal fog on their terms. Once we agree that the courts have full veto power over all policies and statutes as the sole and final arbiter, and once we agree that the Constitution creates some limitation on immigration policy, we have already lost the war, even if we somehow achieve a brief defensive victory in a skirmish.