Conservatives continue to entertain false hopes of transforming the judiciary through a “conservative” Supreme Court and through Trump’s appointment of 20 percent of the lower court judges. But the Supreme Court does not rein in lower-court judges, and the Trump administration keeps abiding by district judges’ nationwide injunctions, so the Left continues to gut Trump’s ironclad executive powers, even after he already won at the Supreme Court. The case of the “travel ban” is a perfect example of why Trump should finally delegitimize the entire concept of judicial supremacy rather than trying to beat the Left at its own casino game.
Throughout Trump’s first year in office, we watched one lower court after another create a right to immigrate and demand that the commander in chief surrender his power over sovereignty and national security to the courts. The courts violated 130 years of case law that emphatically concluded courts have no power to grant standing for lawsuits asserting a right to enter the country and that such decisions are exclusively up to the political branches of government. And this administration went along with the charade, even when a Massachusetts judge said its first, stronger, immigration moratorium was totally within the president’s powers.
On June 26, 2018, the “debate” over sovereignty should have come to an end when Chief Justice Roberts, writing for the 5-4 majority in Trump v. Hawaii, ruled that the president has categorical and plenary authority under 8 U.S.C. §1182(f) to exclude anyone he wants. However, on that day, I warned that “until we shut down the lower courts’ terrible practice of placing nationwide injunctions on national security policies, a power they manifestly do not have, the Left will continue shopping these cases to the same capricious lower court judges.” I also warned that experience with other issues has shown that as the lower courts continue chipping away at the original SCOTUS ruling, “the Supreme Court will gradually adopt their approach in the ever-evolving, one-directional ratchet of progressive jurisprudence.”
And here we are today. This AP article shows how a number of foreign nationals from countries on the so-called “travel ban” list – Iran, Libya, Somalia, Syria, and Yemen – continue successfully obtaining visas from the administration under the threat of incessant lawsuits. In an interview with a lawyer for the Council on American-Islamic Relations, a group named as an unindicted co-conspirator in a terror finance trial by the Fifth Circuit Court of Appeals, the AP observed, “When people file litigation, it attracts swift notice from the State Department or the Department of Homeland Security.”
The Trump administration allowed the lower courts to win by watering down the moratorium twice rather than having the Supreme Court rule on the original one. One of the changes in the watered-down version was relinquishing the categorical ban on visas and offering waivers to those who apply for them and claim exigent circumstances. The AP reports that of the 28,100 immigrant visa applications from those countries between December 2017 and Oct. 31, 2019, “11,325 have been deemed qualified for waivers and 16,775 have not.” So much for a “ban,” even on immigration from the very few countries on the list.
Now, groups like CAIR and the ACLU are using this against the administration. Agitation groups are now filing lawsuits and asserting that all these people are entitled to waivers. The AP observes, “The Supreme Court upheld the ban in June 2018, in part because of the promised waiver system that would allow people to come despite the ban if certain criteria were met.” That seems to be the thinking of administration officials based on what lower courts are now doing, but it’s simply not true.
While Roberts mentioned the existence of waivers as one of the factors to swat down arguments of the lower courts and of plaintiffs that the president had acted unlawfully, he offered one all-encompassing reason to uphold the ban without qualification.