I have been asked to comment on the Constitutional arguments made and the likelihood that the courts will ultimately uphold President Trump’s executive action involving what has been termed the “travel ban.”
I am not a fan of the Executive Order that issued because I believe that ample evidence exists to support the assertion that its original design was to discriminate against people of the Muslim faith.
Considering the fact that Trump touted his “extreme vetting” and other indicia of discrimination throughout his successful bid to win the White House, it makes perfect sense that he would craft an E.O. that made good on his promises. Indeed, the attorneys offering their futile arguments that the E.O. was discriminatory at the outset will rely on both Trump’s words and those of his advisors like Rudy Giuliani who admitted that he had helped re-craft Trump’s desired Muslim ban into something that would pass judicial scrutiny. And indeed, he has.
As a Constitutional scholar and civil rights advocate, I am troubled by the seemingly haphazard manner in which this president seems to be conducting himself. I’m bothered by the fact that Trump managed to avoid any substantive discussion throughout his campaign to outline a cogent foreign policy . . . or any strategy whatsoever. I was flabbergasted by the “trust me” mentality he callously flaunted like a used-car salesman.
But I’m here to share with you that his latest effort to effect a travel ban will likely succeed because the courts will ultimately determine that they are ill-equipped to second-guess the President’s determinations about “national security.” That catch-phrase serves as the lynch-pin (pun-intended) to ensure against excess judicial scrutiny given the cornerstone concept: Separation of Powers.
Courts are obliged to avoid considering cases and controversies in which the issues before them are political questions more appropriately determined by the other (political) branches of government (the executive and the legislative). Indeed, our own Supreme Court has determined that federal courts should not hear cases in which our Constitution has deemed the sole responsibility of another branch of government.
As difficult as this is to say, there can be little doubt that the conduct of foreign relations is uniquely the job of the executive branch and our President. This is so because, as a country, we decided that our chief-executive will serve to speak with one-voice on behalf of our nation. This is precisely why the several states do not have ambassadors; and why treaties are signed by nations and not states.
The question the Trump Administration is facing today is whether the E.O. is political in nature. If it is, the courts have no jurisdiction over the matter and must respectfully defer to the executive branch. If the lawyers fighting the E.O. can successfully argue that the E.O. is inherently a legal question, game on.
Lawyers like to cite cases in support of their positions and argue to compare (or distinguish) the current facts at issue to a case that has served as the stalwart of legal interpretation through the ages. We call it stare decisis.
Again, while I am no fan of the travel ban, I must offer to you, my readers, the determinative case that will be that lynch-pin to solving this present dilemma. It’s the case of Baker v. Carr. The 1962 case outlines the limits on judicial scrutiny over the decisions of the executive branch.
Here’s the analysis under Baker to watch out for:
- Is there language in the Constitution that affords the executive branch exclusive or almost exclusive power over the issue at stake? Arguably, yes. The President’s power to make treaties and his war powers are delimited succinctly in the Constitution. In addition, a plethora of laws passed by Congress has extended to the President additional power to unilaterally make determinations about immigration policy and policies related to national security;
- Is there a standard in which the courts can resolve the debate about whether the President’s E.O. can be determined to be lawful or unlawful? Arguably, no. Here, whatever the suspected reason for the travel ban may be (and I suspect I know what it is). . . Trump has framed the E.O. as an effort in furtherance of his national security policy. Are we to take him at his word? As troublesome as it seems. . . I suspect yes. That’s what a political question is. Arguments by opponents of Trump’s travel ban will likely echo those made in connection with the internment of Japanese citizen during WWII, Guantanamo Bay detainees, foreign combatants held in violation of due process, and the countless cases involving illegal immigrants that are captured and detained within the borders of the U.S. And they may ultimately prevail. But I’m guessing that a conservative-leaning Supreme Court will likely lean in favor of the government’s arguments in support of the Separation of Powers guarantees found in our Constitution.
- Can the court issue a ruling that respects a co-equal branch of the government? I suspect, not here. Any court decision will necessarily denote a policy determination about the travel ban. This is dangerous territory for our courts because judges are insular and not subject to being voted out of office. We want to encourage political issues to be resolved by the men and women who are responsible to constituents and can be voted out of office if their policies are too extreme.
- Can the several district and other courts disagree about the same issue applying the same set of facts, laws and stare decisis? Probably. And so we look to the probability that judges on the west coast may determine that the Trump’s E.O. was unconstitutional because it seeks to discriminate against a religion and thereby violates the Establishment Clause of the First Amendment. And we may see that our southern district courts may see the entire quandary in terms of the President doing his job as the Commander-in-Chief addressing national security and the invasion of potential terrorists.
Given the likely make-up of the Supreme Court in the coming months, it is likely that the conservative view of Trump’s travel ban will likely result in a determination that the lower courts had no business meddling in a political question. It will likely determine that the President made a political determination about how to protect the U.S. and that Trump was textually empowered by the Constitution to make the political decision about how best to protect our citizens.
If liberals and likeminded citizens are concerned about the travel ban, they should put pressure on Congress to vote on the issues surrounding the travel ban. They are the only government body who can ratify the E.O. or strike it down. Our courts are probably powerless on this one — albeit it may take a few more months for my calculus to prove itself.
I predict the following: I believe that President Trump will be hard-pressed to admit that the original E.O. was violative of due process principles and will ultimately (quietly) re-craft an E.O. that effectively accomplishes his ultimate goals. I would suspect that rather than suffer a significant loss named as a “defendant” in a case that will be rushed to the Supreme Court in the next few months, he will make this fracas go away with a revised version of his E.O.
Sean Erenstoft is a civil rights advocate in Los Angeles and hosts a blog at http://www.superiorcourtblog.com