The main feature of the dustup of Trump and the courts over his temporary immigration ban from 7 shit-hole countries is the philosophy of judicial supremacy, which holds that no action by any branch of government is beyond their reach, as defined by themselves, without any opportunity by those other branches for resistance. In a system of checks and balances, this amounts to a blank check.
What started as a reasonable comparison of the broader Constitution (the supreme law) with a particular law in Marbury v. Madison has morphed into the assumption of the role of Platonic Guardians, who decree what “we the people” can and cannot do in areas over which the courts have no particular authority, expertise, or legitimacy. They are simply making things up based on their own views of good and bad policy and invoke a few hoary sounding legal principles as cover. It’s an insult to a self-governing people who have any pride.
Immigration policy is fundamentally part and parcel of broader foreign policy, and it’s long been outside the reach of the courts. It’s the domain of the executive both through the basic principles of Article II and specific statutory grants. Here, the president can prevent whole classes of aliens from immigrating for any number of reasons, and presidents ranging from Carter to Obama have done so.
The Courts know this, but they don’t like it. They equally don’t like that rednecks get to decide how to run their schools or punish criminals. Thus, the courts have acted sometimes aggressively, sometimes gingerly, for more and more say in what every level of government does since the 1950s.
They decided how schools should be run, police should do their jobs, enemy prisoners of war should be treated, and whether states can outlaw things that have long been outlawed. They do this in a variety of ways, but mostly through “penumbras” and “emanations” of the 14th Amendment and, barring that, through simply waiving a wand called “due process.” And sometimes, as in this case, with no real argument at all. Their legitimacy is founded in their correct opinions, which miraculously happen to be the ever-changing prejudices of elites who went to places like Harvard and Yale.
There’s obviously a place for courts. They’re supposed to decide cases before them in a neutral way, guaranteeing that procedures known in advance are adhered to in our adversary system. The courts, ideally speaking, are a neutral referee. But a referee doesn’t get to call the plays. More so than not, the Constitution is an organization chart. It’s silent on most matters of substance. It’s not a prism through which every matter on which people disagree can be resolved. Since those areas of disagreement are nearly infinite, we have adopted democratic processes. Counting votes is the most fair way to address the vast majority of things–its superior to counting bayonets in most cases–and courts are there simply to implement those decisions as written down in statute books.
The ultimate judicial virtue is humility. Many times they cannot act at all, and those tasks are left to other branches or to individuals themselves. Most judges embrace this; they don’t make the news and quietly perform their mostly technical job with skill and care. But a certain type of judge with a certain type of education and a certain type of viewpoint is anything but humble; he is emboldened by his moral certainty and indifferent to the views of the people, whom he “knows” are wrong-headed and atavistic.
It’s obvious something much more subversive is underway when the following statute is read to include a Court role: : “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.” There is simply no room for the courts to have any say in this matter . . . . and they hate it. On immigration, the legislature has spoken and left the matter to the President; the courts have no more role here than in deciding how many battalions to employ outside of Jalalabad.
Incidentally, the wartime analogy is an apt one, as we saw the courts abandonment of its traditional abstention doctrines during the Hamdan and Rasul cases under the Bush administration. At the time, I wrote the following:
The Court’s decision ultimately betrays three major biases, all of which are very dangerous to our constitutional system and the future success of the war on terror.
First, the Court apparently will countenance no distinction between military and peace-time realities, demanding in effect the same level of US court involvement and scrutiny of decisions involving unlawful combatants that are not (and could never be) signatories to the Geneva Conventions entitled to their protections.
Second, the Court basically shows at every turn, in spite of its lip-service to the destruction of 9/11, that it does not think this is a real war, with a real enemy, where the safety of actual Americans is in grave danger. Why do I know this? Because the Court has resisted every demand to treat these military measures in a military operation against a military organization any differently from ordinary criminal procedures. Here, as in criminal cases, the burdens, procedures, rules of evidence, and likely outcomes are designed to favor defendants heavily under the Court’s recent line of cases.
Finally, the Court does not countenance any other branch of government acting without its ultimate approval and involvement. It simply will not follow its traditional abstention doctrines when that means the Court cannot review decisions of criminal liability, even when those decisions come from military courts in wartime and even when those “criminals” are war criminals from an unlawful military organization.
For a constitutional system that is supposed to embody a balance of powers, in which unreviewable and uncontrolled action by any one branch is suspect, the Court never expresses any doubts about its own rectitude and authority, even when it interferes in traditional executive wartime responsibilities. As always, “Quis custodiet custodes?”