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Call it 'Trumplaw.'
A strange madness is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump. We'll call this new jurisprudence "Trumplaw," and its latest victim is once again the so-called Trump travel ban. The perpetrator is the Fourth Circuit Court of Appeals.
The Fourth Circuit recently upheld a nationwide injunction on Trump's temporary halt on immigration from six majority-Muslim countries — each of which is either a state sponsor of terrorism (Sudan and Iran) or overrun with terrorist violence, with entire regions under jihadist control (Libya, Yemen, Syria, and Somalia). Indeed, some of these countries no longer have a recognizably functional government.
Here is the essence of the court's ruling: Trump's campaign statements were so grotesque that they not only (1) hurt the feelings of a Muslim resident so much that he was granted standing to challenge an executive order that did not apply to him, but also (2) rendered an otherwise lawful executive order so damaging that the harm to the plaintiff's feelings (and his wife's possibly delayed entry into the United States) outweigh the government's asserted national-security interest in pausing to reexamine foreign entry from hostile and war-torn countries.
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Since Trumplaw is such a novel form of jurisprudence, it's exceedingly hard to square with existing precedent. So, when existing precedent either doesn't apply or cuts against the overriding demand to stop Trump, then it's up to the court to yank that law out of context, misinterpret it, and then functionally rewrite it to reach the "right" result.
Take, for example, the Fourth Circuit's reading of a Supreme Court case called Kleindienst v. Mandel. In Mandel, a collection of scholars demanded that the U.S. grant a non-immigrant visa to Belgian Marxist journalist. The government had denied him entry under provisions of American law excluding those who advocated or published "the economic, international, and governmental doctrines of world communism." Make no mistake, the First Amendment protects the right to advocate or publish Marxist doctrines every bit as much as it protects the free exercise of the Islamic faith. Yet the Supreme Court still ruled against the Belgian journalist:
We hold that, when the Executive exercises [its] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
The meaning is clear. If the order is supported by legitimate and bona fide reasons on its face, you simply don't go beyond the document. By that standard, the executive order is easily and clearly lawful. On its face, the order asserts a legitimate and bona fide national-security justification. On its face, the order isn't remotely a Muslim ban. On its face it doesn't target the Muslim faith in any way, shape, or form. On its face it describes exactly why each nation is included. The Fourth Circuit, however, interpreted Mandel to argue that the Court looked only at the face of the document to determine whether its supporting reasons were legitimate, not whether they were "bona fide." It could go "behind" the document to determine "good faith."
Yet, as the dissent notes, this approach would have altered the outcome not only in Mandel itself, but also in other key Supreme Court cases. Indeed, in those cases the Court expressly declined to look behind notices and documents to explore the subjective motivations of relevant government officials. Judge Paul Niemeyer's dissent is stinging, and correct:
In looking behind the face of the government's action for facts to show the alleged bad faith, rather than looking for bad faith on the face of the executive action itself, the majority grants itself the power to conduct an extratextual search for evidence suggesting bad faith, which is exactly what three Supreme Court opinions have prohibited. Mandel, Fiallo, and Din have for decades been entirely clear that courts are not free to look behind these sorts of exercises of executive discretion in search of circumstantial evidence of alleged bad faith. The majority, now for the first time, rejects these holdings in favor of its politically desired outcome.
Thus, we are left with a majority holding that a document that unquestionably does not exclude Muslims from the United States is the means of, you guessed it, excluding Muslims from the United States. We are left with a majority holding that cements the idea that an otherwise lawful order is unlawful only because Donald Trump issued it. We are further left with a majority holding that a court may — in its sole discretion — determine when campaign statements (or any other political statements, really) can affect the constitutionality of a government action and trump even the text of the document itself.
All this adds up to Trumplaw, the assertion by the federal judiciary of the legal authority to stop Trump. But don't think Trumplaw will end when Trump himself leaves office. The principle is now established: When a judge doesn't like a politician's campaign statements, those statements can taint even actions that clearly contradict those statements. In other words, Trump can even change his mind — as he so plainly did — and not even his changed mind can be cleansed of its original sin.
The sad reality is that this takes place in the aftermath of an event — the Manchester bombing — that demonstrates that one of the countries on the list, Libya, is in fact a hotbed of terrorist activity. The bomber traveled to Libya and allegedly had help there. He was a British citizen and not subject to the travel pause, but his journey illustrates the very real dangers of lawless regions gripped by jihad. Is it unconstitutional to pause entry from that nation to make sure that we can properly vet and screen for ISIS sympathizers? The Supreme Court has always said no. Today, the Fourth Circuit says yes. Today, the Fourth Circuit has chosen to distort the law and risk our national security to stop Donald Trump. — David French is a senior writer for National Review, a senior fellow at the National Review Institute, an attorney, and a veteran of Operation Iraqi Freedom.
Commentary by David French, a senior writer for National Review, a senior fellow at the National Review Institute, an attorney, and a veteran of Operation Iraqi Freedom. Follow him on Twitter @DavidAFrench.
For more insight from CNBC contributors, follow @CNBCopinion on Twitter.
©2017 National Review. Used with permission.