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Why the courts are wrong about Trump's travel ban

  • Liberal lower courts have effectively rewritten the Constitution in their Trump immigration ban rulings.
  • But the answer is not simply sending the case to more conservative federal courts.
  • For a case of this serious magnitude, only the Supreme Court has the authority to decide.
People take part in a rally called 'I Am A Muslim Too' in a show of solidarity with American Muslims at Times Square on February 19, 2017 in New York City.
Volkan Furuncu | Anadolu Agency | Getty Images
People take part in a rally called 'I Am A Muslim Too' in a show of solidarity with American Muslims at Times Square on February 19, 2017 in New York City.

President Donald Trump's travel and immigration ban is back in court this week. The only trouble is the case is still in the wrong court. The American people need to get the clarity on this issue, and only the U.S. Supreme Court can provide it.

Right now, the case is before a 13-judge panel of the 4th Circuit Court of Appeals in Richmond, Virginia. (The full circuit is actually 15 judges, but 2 judges have recused themselves.) Ten of the judges were appointed by Democrats and three by Republicans. Next week it will be heard in the very liberal 9th Circuit Court in Seattle. Both the 4th and 9th Circuit Courts are either the most liberal, or among the most liberal courts in the country.

That's the first part of the problem. It's not so much that these courts are so liberal, it's the accepted fact that they're so easily identifiable along ideological lines. But it would be no better for a deeply divided America if this case was heard before a court with a very conservative bent.

The second part of the problem is that cases like this need to be held up to the most scrutiny and be heard by the most accountable judges in the legal system. With all due respect to the fame and accountability lower federal court judges have in the legal community, they are relatively anonymous in the wider sphere of American public life.

And that brings us to the highest court of the land. On both of the above criteria, the U.S. Supreme Court passes the test. On partisanship, the high court is much more balanced than the 4th, 9th or any other circuit court in America.

Even with the recent confirmation of decidedly conservative Justice Neil Gorsuch, the Supreme Court is only weighted in favor of conservatives by a razor thin 5-4 margin. And that number isn't ironclad, as we all learned in 2012 when the supposedly conservative-tipped court upheld Obamacare in the famed decision by Chief Justice John Roberts. This is probably the hardest major court in America to definitively label along partisan lines.

"Now that the 4-4 ideological tie in the Supreme Court has been resolved with the confirmation of Neil Gorsuch, the Trump administration is more likely to appeal a possible loss in the 4th and/or 9th Circuits to the high court."

The fame, or notoriety, criterion is just as important in this case. It's true that Supreme Court justices have life terms, but they remain the most well known legal figures in America and perhaps the world. That notoriety has traditionally bred more responsibility. And that's important because this case has far reaching effects that go beyond even the Obamacare decision.

Here's how. In essence, the 9th Circuit and other lower courts who have struck down the Trump ban have made an unprecedented foray into national security and foreign policy. And with the assertion that then-candidate Trump's statements about Muslim immigrants and tourists violates the 1st Amendment, these courts have now effectively extended Constitutional rights to non-citizens.

The left's argument is that the 1st Amendment's prohibition against the making of "any law" respecting the establishment of a religion is being violated by Trump's ban. Whether that "any law" part extends to non-citizens is the crux of the matter here. Whether you're a conservative strict constructionist who is appalled at these courts' seeming violation of the separation of powers, or a liberal who believes the judiciary is simply defining a Constitutional edict more specifically, you cannot deny that nothing less than a Supreme Court review is called for here.

That's most likely what we're going to get. Now that the 4-4 ideological tie in the Supreme Court has been resolved with the confirmation of Neil Gorsuch, the Trump administration is more likely to appeal a possible loss in the 4th and/or 9th Circuits to the high court. No matter how these cases are decided in the lower courts, I suspect enough of the Supreme Court justices will want to hear this case to secure its chances for a hearing before the full court.

And that's what America needs. No matter how you feel about President Trump, any move by the courts to severely increase their power and effectively rewrite the Constitution needs to be done on the grandest and most public stage possible. And if sunlight really is the best disinfectant, the most public setting should produce the fairest result.

Commentary by Jake Novak, CNBC.com senior columnist. Follow him on Twitter @jakejakeny.

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.