Trump’s election seems to have brought out the worst in everyone. Our colleges have fallen to the heckler’s veto, the Senate has killed the filibuster over a patently moderate Supreme Court nominee, and the news media no longer even attempt to distinguish between meaningless political provocation and genuine constitutional crisis. But most disappointing has been what the Trump presidency has done to the judiciary. With populism on the rise and an aspiring authoritarian in the White House, there’s arguably never been a time when it was more important for our institutions to exhibit a deep respect for constitutional norms. That’s why it’s so maddening that the courts have allowed Trump’s antagonism to provoke exactly the opposite response.
The “travel ban” cases exemplify the trend. Three courts to consider Trump’s revised executive order suspending immigration from a handful of countries have held it unconstitutional and halted its continued operation. In each opinion, the court cites Trump’s provocative campaign promise to end Muslim immigration as evidence that the order was in fact a “Muslim ban” and therefore constituted religious discrimination in violation of the First Amendment’s Establishment Clause.
These courts might be right that Trump’s immigration order was a de facto Muslim ban. I share the skepticism Judge Kozinski and others have expressed about relying on campaign statements to evaluate the constitutionality of subsequent executive actions, but I’m also aware that this was an unusually clear-cut case. The thing is, it doesn’t matter whether Trump’s order was in reality an attempt to exclude some Muslims from the United States. Because whatever one’s view on whether such a ban would be sound policy, it shouldn’t present a tough constitutional question.
You May Oppose the Ban, But It Isn’t Unconstitutional
To understand why, imagine a foreign person—someone from, say, Russia—who hates the United States and everything it stands for. He openly condemns the country, praises its enemies, and loudly cheers any attack that befalls it. He’s also virulently intolerant of gays and racial minorities, and the idea of religious freedom is anathema to him. Now imagine that the reason for his views is his religious faith.
It would be the rare person who said the U.S. government shouldn’t be able to prevent this bigot from immigrating to the country, and it wouldn’t matter if he and others like him affixed the label “religion” to their particular set of toxic beliefs. The health of our republic demands a culturally tolerant populous with a strong respect for individual rights. Excluding those with antithetical values, whether held as part of a religion or otherwise, is an important part of how we achieve that.
Our constitutional jurisprudence reflects this basic intuition. As rigorously as we protect the fundamental rights to free speech and religious practice for the members of our political community, our tradition is to accord the government wide berth in deciding who will become part of that community. And within the government, it’s the elected, policymaking branches—not the judiciary—that the Constitution entrusts with that decision.
The travel-ban decisions subvert this principle. If Trump’s immigration order really does reflect his administration’s view that all Muslims hold beliefs rendering them unfit to be part of our polity, I think it’s profoundly wrong. But it’s still the Trump administration’s call to make within the strictures Congress has provided, and calling it “discrimination” doesn’t change that.
All immigration restrictions by their very existence discriminate based on nationality, and our government routinely looks to what people have said and done in deciding whom to admit or deny. Why should it make a constitutional difference if the discrimination in Trump’s travel ban is based on religion rather than nationality, speech, or anything else that would be protected in the domestic context? It shouldn’t, and it doesn’t. Wherever the policy lines are drawn, it’s up to Congress and the executive alone to draw them.
‘Sanctuary City’ Decision Demonstrates Same Flaw
A recent decision invalidating the administration’s “sanctuary city” order presents another example of the judiciary letting Trump goad it into overreaching. Certainly, when Congress passes a measure to fund a particular activity, the president doesn’t have the power to withhold that funding for any reason he wants. So when administration officials made public statements suggesting that the government would withhold funds from any local jurisdiction that didn’t cooperate with immigration enforcement, it seemed like the administration was taking a clearly unconstitutional position with regard to its executive order. Only as it turned out, it was all talk. When two localities brought a legal challenge against the order, the administration unequivocally denied any intention to withhold funds that the law otherwise required it to spend.
That should’ve spelled the end to any constitutional challenge. Another fundamental principle of constitutional adjudication is that federal courts won’t decide a case that doesn’t involve a bona fide dispute. The rule is important to the separation of powers. It ensures that the judiciary doesn’t become embroiled in political battles unless someone’s rights are truly at stake.
But a federal judge in California nonetheless waded into the fray to pronounce the order unconstitutional. Worse, the judge went beyond the obvious, holding that the executive can’t withhold federal funds in violation of law to embrace a variety of dubious constitutional theories for invalidating the Trump order, even to the point of endorsing the novel idea that governmental entities are persons with due process rights.
If the Judiciary Wars Against the Presidency, We All Lose
The judges in these cases are smart people. But they’re also people who read the news and who often exist in relatively insulated intellectual circles. And even a sophisticated jurist can hear different versions of “this is not normal!” only so many times before it starts to affect the way he or she views the constitutional landscape.
That’s a serious problem for the rule of law. I know it’s tempting to disregard what probably seems like a few harmless efforts to foil an administration that warrants close judicial scrutiny anyway. But it’s exactly because we need a strong judiciary to serve as a check on our current executive that the courts have to be most scrupulous about maintaining their legitimacy. Judges are not the heads of rival factions in a feudal game of thrones. They have no military to enforce their orders when they clash with the other branches. Their power lies solely in being part of a broader constitutional order in which respect for the rule of law is the norm. Exceeding their role in that order, even to demonstrate vigilance before a potentially dangerous president, erodes that respect with disastrous consequences over time.
When Trump was first elected, the ACLU ran a funding campaign that featured a picture of the new president with the caption “See You in Court.” Having seen that Trump seemed to lack even an elementary understanding of the Constitution, I regarded the campaign at the time as a healthy statement about checks and balances. But now I fear that it represented the opening shot in a war pitting the courts against the president in a grand, misguided struggle of political might. That, more than any fleeting executive policy, is the real danger to our republic. Because if our system of government devolves into a political tug-of-war in which the side with the loudest voice and biggest cheerleading section wins, we all lose.