The Rule of Law Prevails in the Travel-Ban Case

The judicial “resistance” to President Trump suffered a well-deserved defeat in the Supreme Court’s “travel ban” ruling, Trump v. Hawaii. At issue was Mr. Trump’s order limiting entry to the U.S. of nationals from eight (now seven) countries that are unwilling or unable to cooperate sufficiently in U.S. antiterrorist screening efforts. The plaintiffs challenged the order on several grounds, arguing that it exceeded the president’s authority and was animated by anti-Muslim bias, violating the First Amendment. (Six of the eight covered countries are mostly Muslim.) The court upheld Mr. Trump’s order 5-4.

Whatever one thinks of the travel ban as policy, the ruling is an important victory for the rule of law. Federal trial and appellate courts have persistently enjoined Mr. Trump’s orders, defying clear Supreme Court precedent supporting his power to limit the entry of aliens. The decision has removed all doubt that the president’s orders are lawful under both the Immigration and Nationality Act and the Constitution.

The justices made short work of the plaintiffs’ statutory claims, affirming that the Immigration and Nationality Act’s plain language gives the president the power to deny “any aliens or any class of aliens” entry to the U.S. whenever he finds that letting them in “would be detrimental” to U.S. interests. This provision, Chief Justice John Roberts wrote, “exudes deference to the President in every clause.” Mr. Trump’s proclamation, the justices concluded, was “well within this comprehensive delegation.” The court also concluded that a “searching inquiry” into the president’s justifications for the order, such as the lower courts in this case conducted, is inconsistent with both the statute and “the deference traditionally accorded the President in this sphere”—namely “international affairs and national security.”

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Trump Is Right on Nord Stream 2

President Trump was right to criticize Chancellor Angela Merkel’s plan for a new pipeline carrying Russian natural gas to Germany. This project threatens European independence and the North Atlantic Treaty Organization, and it was opposed by the Obama administration and many Senate Democrats, although not much was done to stop the pipeline’s construction. Numerous European countries have also been sharply critical of Mrs. Merkel’s energy plans. Mr. Trump has correctly sought to diminish Moscow’s European energy footprint, belying claims he is a stooge of Vladimir Putin.

In 2015 the European Commission cited Russia’s politically motivated disruptions of energy exports as one of the main causes of Europe’s energy insecurity. Moscow is the largest energy exporter to Europe; Gazprom alone supplied almost 40% of Europe’s natural gas in 2017. According to World Bank data, Gazprom’s European gas prices last year were more than double the U.S. domestic price. Russia has also repeatedly used its gas to blackmail Europe, cutting off the supply in 2006, 2009 and 2014, and causing severe shortages in Eastern Europe.

Germany has sought for years to maintain a special energy relationship with Moscow as a means of securing its own energy-supply predominance in Europe. Once the Nord Steam expansion is completed, it will account for 80% of Russian gas imported to Europe, making Germany the Continent’s major gas-distribution hub.

The Nord Stream 2 project has received particularly strong support from the center-left Social Democratic Party, a key member of Mrs. Merkel’s shaky governing coalition. Gerhard Schröder, a former SPD chancellor, has served as chairman of Nord Stream 2 AG, a Gazprom-owned consortium.

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A Champion of Constitutional Safeguards

Days before President Trump announced his choice of Judge Brett Kavanaugh for the Supreme Court, Senate Democrats had vowed to oppose any nominee. Backed by an activist-fueled propaganda machine, they now will unleash relentless personal attacks—on Judge Kavanaugh’s Catholic faith, his “elitist” Yale degrees, his service in the George W. Bush administration.

As with the attacks last year on Justice Neil Gorsuch, they should be unavailing. Over Judge Kavanaugh’s 12 years on the U.S. Circuit Court of Appeals for the District of Columbia, he has developed an impressive record as a legal thinker and a champion of the Constitution’s structural safeguards against overweening government.

Typical is a 2008 dissent in which Judge Kavanaugh concluded that the Public Company Accounting Oversight Board was unconstitutionally structured because it improperly insulated the agency from political accountability. The opinion was a tour de force of historical exposition and originalist methodology—that is, interpreting the Constitution’s text as it was originally understood. The Supreme Court ultimately agreed, adopting the reasoning of Judge Kavanaugh’s dissent.

Yet he is equally wary of unbridled executive authority, as a 2013 case shows. When the Nuclear Regulatory Commission declined to proceed with licensing the proposed waste repository at Yucca Mountain, Nev., which the agency appeared to oppose on policy grounds, he wrote: “The President may not decline to follow a statutory mandate or prohibition simply because of policy objections.”

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Mueller’s Fruit of the Poisonous Tree

Special counsel Robert Mueller’s investigation may face a serious legal obstacle: It is tainted by antecedent political bias. The June 14 report from Michael Horowitz, the Justice Department’s inspector general, unearthed a pattern of anti-Trump bias by high-ranking officials at the Federal Bureau of Investigation. Some of their communications, the report says, were “not only indicative of a biased state of mind but imply a willingness to take action to impact a presidential candidate’s electoral prospects.” Although Mr. Horowitz could not definitively ascertain whether this bias “directly affected” specific FBI actions in the Hillary Clinton email investigation, it nonetheless affects the legality of the Trump-Russia collusion inquiry, code-named Crossfire Hurricane.

Crossfire was launched only months before the 2016 election. Its FBI progenitors—the same ones who had investigated Mrs. Clinton—deployed at least one informant to probe Trump campaign advisers, obtained Foreign Intelligence Surveillance Court wiretap warrants, issued national security letters to gather records, and unmasked the identities of campaign officials who were surveilled. They also repeatedly leaked investigative information.

Mr. Horowitz is separately scrutinizing Crossfire and isn’t expected to finish for months. But the current report reveals that FBI officials displayed not merely an appearance of bias against Donald Trump, but animus bordering on hatred. Peter Strzok, who led both the Clinton and Trump investigations, confidently assuaged a colleague’s fear that Mr. Trump would become president: “No he won’t. We’ll stop it.” An unnamed FBI lawyer assigned to Crossfire told a colleague he was “devastated” and “numb” after Mr. Trump won, while declaring to another FBI attorney: “Viva le resistance.”

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What’s at Stake in the Attack on Haspel

Unappointed ‘Judges’ Shouldn’t Be Trying Cases

President Trump promised to nominate judges in the mold of Antonin Scalia, and that thought was no doubt foremost in his mind when he chose Neil Gorsuch to fill Scalia’s vacant seat. On Monday Justice Gorsuch and his colleagues will consider whether the hiring of adjudicators deciding cases within federal agencies will also be subject to the kind of accountability that making an appointment entails.

So-called administrative law judges are not “principal officers,” so they are not subject to Senate confirmation under the Constitution’s Appointments Clause. The question in Lucia v. Securities and Exchange Commission is whether they are “inferior officers.” In that case, the clause requires them to be appointed by principal officers, such as commissioners acting collectively or a cabinet secretary, themselves appointed by the president. The alternative is that they are mere employees, who can be hired by lower-level managers with no presidential responsibility.

The dividing line, the Supreme Court has explained, is whether the position entails the exercise of “significant authority.” There shouldn’t be much doubt on which side of that line the SEC’s judges fall.

In this case, the commission’s Enforcement Division decided to bring fraud charges against investment adviser Raymond Lucia in its own administrative court instead of a judicial court. The SEC alleged that Mr. Lucia misled participants in his “Buckets of Money” seminars when he used slides showing hypothetical returns based in part, rather than in whole, on historical data (as the slides themselves disclosed). The SEC assigned the case to an administrative law judge, Cameron Elliot. According to the record, Mr. Elliot sided with the SEC’s Enforcement Division in every one of his first 50 cases. Read more »