Trump administration unlikely to eliminate judicial imbalance

According to federal law, the Immigration and Nationality Act (8 U.S.C. Section 1182(f)), “whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Presidents Reagan, G.H.W. Bush, Clinton, G.W. Bush and Obama issued executive orders under that unambiguous authority. President Trump also relied on it when he issued Executive Order No. 13780 on March 6, 2017. Section 2(c) of that EO suspends for 90 days entry into the United States by nationals from six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) because the president determined that “unrestricted entry” by nationals from those countries “would be detrimental to the interests of the United States.” The preamble of the EO describes the unstable governments in those countries that make it difficult, if not impossible, to adequately vet their nationals who apply for U.S. visas.

Federal courts have enjoined the Trump administration from enforcing EO No. 13780. Their tortured rationale is that Section 2(c) of the EO would affect Muslims more than practitioners of other religions because most inhabitants of those six countries are Muslims; that the EO’s stated national security interest was provided in bad faith, as a pretext for a religious purpose; that discrimination against Muslims is the true purpose of the EO (even though dozens of other nations with Muslim majorities are not covered by it), as evidenced not by the text of the EO — religion is not mentioned — but by public statements of Donald Trump and his supporters prior to and after his election (e.g., a proposed “Muslim ban” mentioned by candidate Trump); and consequently that Section 2(c) violates the U.S. Constitution’s First Amendment, which prohibits governmental “establishment of religion,” by mandating treatment of alien Muslims that differs from treatment of alien Jews, Christians, Buddhists and so forth.

News media coverage of EO No. 13780 gives short shrift to the extent to which judicial reviews of it are politicized. District Court judges in Maryland and Hawaii who issued a nationwide preliminary injunction and a nationwide temporary restraining order, respectively, against EO No. 13780 soon after its release are Obama appointees. Six of the 10 Fourth Circuit Court judges who affirmed that decision of the Maryland District judge on May 25 are Obama appointees; three are Clinton appointees. Three Ninth Circuit Court judges who are now reviewing that decision of the Hawaii district judge are Clinton appointees; their ultimate endorsement of it is a foregone conclusion.

As the courts’ responses to EO No. 13780 and to other cases about voter photo ID, “gun control”, and licensing for concealed carry of firearms by American citizens make clear, with few exceptions judges appointed by Democrats decide cases in a way that’s consistent with the political agenda of their presidential benefactors. Elected Democrats and their supporters in news media and organizations such as the ACLU, Environmental Defense Fund, Sierra Club, NAACP, etc., understand that and take advantage of it to achieve what cannot be achieved legislatively. As a consequence of Obama’s 329 appointments to the federal judiciary, nine of 13 Circuit Courts are now numerically dominated by Democrat appointees; there were four when Obama took office. It’s unlikely the Trump administration will be able to eliminate that imbalance during its tenure and the imbalance will undoubtedly constrain what the administration is able to accomplish.

Phil Edmunds is a resident of Boalsburg. He can be reached at phedmunds40@gmail.com