Supreme Court Gets It Right in Upholding Presidential Perogative

There is little question that President Donald Trump won office by successfully employing a strategy of running against the political establishment of both major political parties (he ran as a Republican). And a major element of this strategy involved pandering to the xenophobic far-right of the Republican party, as well to isolationists regardless of party affiliation. Thus a major platform of the Trump campaign was a sharp curtailing of immigration, which largely meant those who crossed the US’ southern border (mostly Hispanic) and those who were fleeing war-torn Middle Eastern countries (mostly Muslim). To this end, “Build a wall” and “keep out the Muslims” became the well worn slogans of Trump and his allies.

So it was no surprise that attorney generals from liberal states stepped in quickly to sue to overturn the now President Trump’s executive order banning travel from mostly Muslim countries (North Korea excepted). Suits were filed in California and Hawaii in front of left-sympathizing judges, who quickly issued injunctions against the order on the grounds of discrimination. Trump withdrew the initial ban and issued a more carefully worded one, and the courts again acted quickly to post injunctions against it.

The problem is that the executive orders said nothing about banning Muslims (or Koreans, for that matter). Only a few countries out of several dozen Muslim-majority states were identified, and only on the grounds of terrorism risk (e. g., national security). And in fact terrorism has been a major aspect of every one of the countries listed. Thus the courts were issuing injunctions not on the basis of the law, but rather on the basis of what the president had said on his political campaign before he had assumed office.

This week the conservative majority of the Supreme Court reinstated the orders, emphasizing that the courts had no right to overturn executive privilege just because they might be upset over the politics involved. Noting in its opinion that the court was not ruling on the wisdom of the ban, but rather its legality, the majority warned the president that in upholding his executive order did not mean he could write executive orders trampling on the rights enshrined in the Constitution, and thus should tread carefully. This was not good enough for the court minority, whose opinion (written by Obama-appointee Justice Sotomayor) was a shrill political screed with little grounding in constitutional law.

After the ruling leftist activists railed against the executive order and the court majority, drawing comparisons to an earlier court’s justification of government internments of citizens of Japanese-descent during World War II on the grounds of national security. This of course was missing the point entirely. In fact a better analogy would have been the executive branch’s rejection prior to WWII of travel to the US of Jews fleeing persecution by Nazi Germany. Most of those seeking entry and turned back were eventually murdered by the German government and its allies. But even in that case the circumstances were different in that the travel ban was against Jews, not a more broadly based ban against travel from the countries of Germany, Italy, Austria, and Poland.

No, the point is whether the president can issued lawful executive orders restricting travel between the US and other countries, and whether “lawful” includes reasons of national security standing on the concerns of terrorism. Love him or hate him, President Trump has that right and responsibility. There is no question that as soon as the president tramples on the rights of citizens, he should be slapped down in the courts. But until then our system of checks and balances demands that we let the president do his job.

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