Actual rights — such as life, liberty, property, and conscience — are denied by the courts. American Christians cannot run their own property in accordance with their conscience — the most sacred of all property rights. “Bake the damn cake,” they say!
Yet, these same courts have created an affirmative right to immigrate based on religious liberty for Muslims living in a shack on some Somali hilltop.
Now, the Fourth Circuit has taken this debauchery a step further and has created a right to not feel perceived stigma – to the point that such a grievance can overturn national security and, presumably, diplomatic and military policies. The sky is the limit, if we are to hold the Fourth Circuit to a consistent reading of its own ruling.
As I noted in my first piece analyzing the Fourth Circuit’s immigration ruling on Thursday, this case was not about letting a foreign national into the country. Indeed, none of the relatives of the plaintiffs were even denied entry. What the court did was nullify the intangible executive policy, rhetoric, and directive in general about fighting Islamic terror because the plaintiffs felt stigmatized.
This is the only way they were able to obtain standing and assert an injury-in-fact to satisfy an Establishment Clause violation. Thus, the court has now opened the door for any Muslim American or even Muslim LPR (legal permanent resident) to shoot directly at a national security policy in court — even beyond immigration — assert the injury of feeling a negative stereotype and a stigma, and have the court “overturn” that policy.
Take a look at this footnote from Page 60 of the opinion, whereby the courts essentially say the Justice Department can’t collect data on honor killings because it stigmatizes Muslims:
Plaintiffs suggest that EO-2 is not facially neutral, because by directing the Secretary of Homeland Security to collect data on “honor killings” committed in the United States by foreign nationals, EO-2 incorporates “a stereotype about Muslims that the President had invoked in the months preceding the Order.” Appellees’ Br. 5, 7; see J.A. 598 (reproducing Trump’s remarks in a September 2016 speech in Arizona in which he stated that applicants from countries like Iraq and Afghanistan would be “asked their views about honor killings,” because “a majority of residents [in those countries] say that the barbaric practice of honor killings against women are often or sometimes justified”). Numerous amici explain that invoking the specter of “honor killings” is a well-worn tactic for stigmatizing and demeaning Islam and painting the religion, and its men, as violent and barbaric.
Judge Thacker, in her concurrence, also cited the “stereotype” of honor killings as reason to make the president’s policy rise to the level of an Establishment Clause violation.
There are no words to describe the infinite and insane consequences that flow from this decision. By definition, almost all of our key diplomatic, military, homeland security, and national security policies are focused on the threat of Islamic terrorism. The consummate threat of our time will always involve, in some form, the recognition of a threat within the religion of Islam.
Any smart lawyer could now use the language of this ruling to strike down almost any foreign policy or homeland security policy on behalf of a Muslim by contending that such a policy violates the Establishment Clause because it stigmatizes Muslims.
What is to stop a Muslim LPR from suing our government for engaging in war almost exclusively in “Muslim” countries? Every major military engagement is against a Muslim-majority country or Muslim entity.
Plaintiffs could cite the same “data” and anecdotes suggesting that these policies cultivate an anti-Islam bias in this country and make them feel “anxious,” “stigmatized,” “stereotyped,” and “like an outsider.” This is the new threshold for determining whether a policy violates the Establishment Clause. And it could now apply to foreign policy and national security.
Most certainly, they could lodge lawsuits against any FBI policy of data collection and basic law enforcement actions because they are primarily focused on one religion as it relates to terrorism. Also, it’s quite clear from this decision that the DHS couldn’t ask basic questions to determine whether a visa applicant is a Sharia supremacist, practices honor killings, or believes in performing female genital mutilation. That is a prima facie violation of the Establishment Clause, according to these judges.
That means that the courts have now codified the Obama-era policies of willful blindness into law. And not only into law, but into the Constitution, thereby preventing even Congress from implementing basic protections.
Entry of aliens is just as much a part of foreign affairs as military and diplomacy
Lest you think my hypothetical case of a Muslim suing against military or diplomatic policy is an exaggeration or even an extrapolation of this case, think again. The decisions governing aliens entering this country are not only controlled by the delegated authority Congress has given over through statute to the president; it is also inherent in the president’s own Article II powers to conduct foreign affairs.
Here are a few quotes from past court decisions demonstrating this point:
The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. * * * When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power." [930 F. Supp. 1360, 1365 (N.D. Cal. 1996)]
It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference” (Harisiades v. Shaughnessy,1952).
When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.
Thus, the decision to admit or to exclude an alien may be lawfully placed with the President, who may, in turn, delegate the carrying out of this function to a responsible executive officer of the sovereign, such as the Attorney General. The action of the executive officer under such authority is final and conclusive. Whatever the rule may be concerning deportation of persons who have gained entry into the United States, it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien (Knauff v. Shaughnessy, 1950).
Thus, to grant standing to a Muslim to shoot down an immigration policy under the pretense of an Establishment Clause violation is tantamount to granting standing to sue against any foreign policy. This would mean that an American Jew should be able to sue the State Department for promoting a Palestinian state — a policy that would uproot Jews from Judea and Samaria.
No other diplomatic policy directly targets a religion to the point that the outcome and purpose of such a policy is to make a land — the Jewish homeland of all places — Jew-free. The stigma of Israel as an occupier is directly responsible for the violence and persecution of Jews on college campuses. There is a much stronger case to be made for suing on these grounds, along with FBI hate-crime data on attacks against Jews, than the claim before the Fourth Circuit … once we accept their maniacal premise.
The precedent this decision sets on vetting immigrants is also breathtaking. What flows seamlessly from this opinion is that any American immigrant relative of someone who was denied a visa could sue and assert a religious liberty right.
Whereas for the first 200 years of our history we only admitted people who shared our values, now the courts are saying you can only deny entry to someone with absolute, unqualified known ties to terror. His values system is out of bounds. Support for honor killings or FGM, notwithstanding. As I note in Chapter 6 of “Stolen Sovereignty,” this not only violates the legalities of sovereignty, it violates the philosophy behind our immigration system since our founding of only bringing in “meritorious.”
In Federalist No. 69, when contrasting the role of a president from that of a king, Alexander Hamilton observed that “[T]he one [a president] can confer no privileges whatever; the other [a king] can make denizens of aliens.”
Now, unelected lower-court judges have more power than a king.
Editor's note: An earlier version of this piece erroneously referred to Judge Thacker as male. CR apologizes for the error.