Hannah Waris ’20
“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” President Donald Trump furiously tweeted minutes after the United States Court of Appeals for the Ninth Circuit ruled to uphold a lower court’s decision to temporarily block the president’s executive order, the all-caps warning continued the anti-judicial sentiment repeatedly expressed by the Trump administration over the past few weeks. Earlier, Trump referred to U.S. District Judge James L. Robart as a “so-called judge” after Robart issued a temporary restraining order on Trump’s travel ban. Trump has also labelled the two courts’ rulings as “ridiculous” and “disgraceful.”
Trump’s derisive criticisms of the courts in the weeks following his signing of Executive Order 13769, which temporarily banned the entry of nationals from seven Muslim-majority nations as well as refugees from all countries, reveal a shocking lack of regard for the U.S. government’s system of checks and balances. Moreover, they demonstrate a questionable confidence in the necessity of the executive order, considering the lack of evidence showing the order will protect national security. Trump appears confounded and outraged that the judiciary could possibly believe it has so much as a place in reviewing the executive order, much less in temporarily blocking it. His position is deeply misguided on several counts.
First, let’s assess the Trump administration’s repeated claims that the executive order is in the interest of national security. It is difficult to accept that banning immigration from the seven blacklisted countries will do anything to make the United States safer, considering that according to The Economist, not a single terrorist attack on U.S. soil in the past decade has involved a national from any of the affected countries. As for refugees, the threat of danger is similarly scant. As the Economist notes, there have been more than 3.3 million refugees admitted to the U.S. in the past 40 years, and only 20 of them have attempted a terrorist attack. In fact, ten former top U.S. diplomats and security officials argued in an affidavit to the 9th Circuit Court that the executive order could potentially make the U.S. less safe. The order could make other countries reluctant to share key intelligence regarding the fight against ISIS, and the targeting of Muslims in the ban could fuel the fire of radicalization.
Furthermore, contrary to Trump’s claims, the courts certainly have the right to review executive decisions pertaining to national security. According to Politico, it is true that the courts have a long history of giving deference to the president on matters of national security, and with good reason — the chief executive has access to reams of information that the courts do not, and most executive action is taken with ample advice and consult of experts in various executive departments. That being said, presidents do not necessarily get a free pass for their executive orders merely by claiming national security necessitates them. In the 1971 case New York Times v. United States (also famously known as the Pentagon Papers Case), the Supreme Court rejected President Richard Nixon’s claim that newspapers’ publishing of classified materials related to past U.S. activities in Vietnam would pose a threat to national security. “The word ‘security’ is a broad, vague generality,” wrote Justice Hugo Black in his majority opinion, “whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”
Infringement of First Amendment rights might once again be at stake here. One legal argument against the executive order rests on the First Amendment’s Free Exercise Clause — “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Trump’s repeated, explicit calls for a “Muslim ban” on the campaign trail clearly violate the latter clause, and it is difficult not to view the travel ban as a slightly less drastic, slightly more implicit fulfillment of that campaign promise. According to CNN, Trump might also be in violation of a clause of the Immigration and Nationality Act (INA) — the law from which the president derives his broad powers over immigration policy — that states “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” This is a concern both because of the ban’s apparent targeting of Muslim immigrants as well as Trump’s explicit promises to prioritize Christian refugees once the refugee program is reinstated. Additionally, the apparent Muslim ban might be found to violate the 14th Amendment’s Equal Protection Clause.
The executive order was also challenged in the 9th Circuit Court to be unconstitutional on the grounds of violating the 5th Amendment’s Due Process Clause. As the court’s decision states, “The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.”
In short, the substantial legal challenges to the ban demonstrate that it is far from obvious that the order does not violate the Constitution. This fact makes it all the more astonishing that Trump publicly undermined the court system’s place in reviewing the executive order. As the 9th Circuit Court’s opinion put it, “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.”
It may come out that, if the case is further appealed and argued on its merits, the federal government will secure the right to reinstate the travel ban. The 9th Circuit Court made a decision based only on the government’s failure to justify the need for an “emergency stay” of the temporary restraining order, and did not debate at length the constitutionality of the executive order. That is not the point. Trump’s criticisms of the judiciary have had little to do with legal disagreements and a lot more to do with the president’s fury that the courts have done their job in reviewing the actions of the other branches of government. This complete disregard for the importance of the court system is deeply worrying. Americans of every political stripe should recognize the danger of Trump’s stance on the judiciary and stand up in support of the courts.
Contrary to Trump’s suggestions, the judiciary is well-equipped to deal with this case. Judges recognize the heightened deference that issues of national security typically prompt, and if the case is brought to the Supreme Court, justices will surely take that principle into account when coming to a decision. But as the per curiam opinion of the 9th Circuit Court elucidated, “The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches … Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.” This supposition holds no legal ground, and blatantly flouts our nation’s commitment to ensuring checks and balances in the government. If Trump’s legal team wants to win the court’s favor in further appeals, it must demonstrate the merits of its case beyond unsubstantiated insistence that the courts should not dare question the president.