In the travel-ban case, a high-court ‘compromise’ delivers a unanimous rebuke to political judges.
By David B. Rivkin Jr. and Lee A. Casey
June 27, 2017, in the Wall Street Journal
In one of the last decisions of its term, the U.S. Supreme Court dealt a clear rebuke to politicized lower courts. The justices’ unanimous ruling in Trump v. International Refugee Assistance Project upholds both the integrity of the judiciary and the Supreme Court’s own authority.
The case came to the justices from two federal appellate courts. They had upheld trial judges’ orders halting enforcement of President Trump’s “travel ban” executive order, which temporarily limits entry to the U.S. by nationals from six countries. The court will hear the appeal on the merits in October. On Tuesday it held unanimously that the executive order can be immediately enforced, with narrow exceptions, until they address the merits of these cases in the fall.
The challenges to the order claimed it violated the First Amendment’s protection of religious freedom and exceeded the president’s authority under immigration law. Both the substance and tone of these decisions created an unmistakable impression that a portion of the judiciary has joined the anti-Trump “resistance.” Not only did the lower-court judges defy clear and binding Supreme Court precedent, they based much of their legal analysis, incredibly, on Candidate Trump’s campaign rhetoric.
The high court didn’t rule entirely in the administration’s favor. By a 6-3 vote, with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting, it held that the individuals who originally challenged the order could continue to do so, as could a carefully defined class of “similarly situated” persons with “close familial” relationships to individuals in the United States, along with institutions that can show a “formal, documented, and formed in the ordinary course” relationship to a U.S. entity. Read more »