As our Monday editorial details, there is every reason to believe that the eventual ruling of the Ninth Circuit federal appeals court will control the outcome of litigation over President Trump’s temporary travel ban on both aliens from seven countries and refugees. A three-judge panel of the Ninth Circuit is considering the Justice Department’s appeal of a temporary restraining order issued by Seattle federal district judge James Robart, which suspends the ban. The panel has announced that it will hear oral argument on Tuesday.
The Ninth Circuit’s determination is likely to be dispositive because there are currently only eight justices on the Supreme Court, a situation that will obtain until the vacancy created by Justice Scalia’s death is filled. It is assumed that the four left-wing justices on the Court (Justices Ginsburg, Breyer, Sotomayor, and Kagan) would vote to uphold Judge Robart’s lawless restraining order. I believe that is an entirely reasonable assumption because, as I’ve been arguing for years now, the Supreme Court operates more like an unelected super-legislature than a judicial tribunal. Like Robart, the politically “progressive” justices make decisions based on the desired policy result, not the law.
This proclivity has led to an assumption, oft repeated in the commentariat, that the Supreme Court would deadlock 4–4 on the case, meaning that the decision of the lower court, the Ninth Circuit in this instance, would stand. I suspect that, for conservatives and other defenders of the executive order, that might be overly optimistic. Notwithstanding that the law is clearly on Trump’s side, there is a very good chance that the swing justice, Anthony Kennedy, would vote with the left-wing bloc – meaning that the administration could lose 5–3 in the High Court.
As anyone who was measuring the Atlanta Falcons for Super Bowl rings late in the third quarter will tell you, the prognostication game is an uncertain business. Still, you may get my drift if you think about the legal theory supporting Trump’s order, and then consider Kennedy’s majority opinion in favor of constitutional habeas corpus rights for alien enemy combatants in the controversial 2008 case of Boumediene v. Bush.
The main principle underlying Trump’s executive order is that the political branches of the federal government have plenary authority over border security, particularly as it pertains to aliens who could pose a threat. There is little or no legitimate role for the courts. The Supreme Court has long recognized that “it is undoubtedly within the power of the Federal Government to exclude aliens from the country,” and that even American citizens and their belongings may be searched without judicial warrants due to the sovereign imperative of “national self-protection.” (I’m quoting the Court’s 1973 decision in Almeida-Sanchez v. United States, which cites many of the Court’s relevant precedents.)
To summarize: Since (a) aliens have no enforceable judicial right to enter the U.S.; (b) the president has constitutional authority to act against potential foreign threats to national security; and (c) Congress, which has indisputable power to prescribe the requirements for alien entry into the country, has delegated to the president sweeping power to deny the entry of aliens whose presence – in the president’s judgment – would be detrimental to the U.S., that should be the end of the matter. The matter is outside judicial responsibility and there is therefore nothing for the courts legitimately to review.
