Should the lawfulness of a police command rise or fall on who the officer is?
Should the legitimacy of a doctor’s written prescription be weighed against his political views?
And should the constitutionality of an executive order be determined by a president’s campaign rhetoric?
That’s apparently the pivot point in a lawsuit against President Trump’s temporary travel moratorium from six terror-prone nations.
Critics of the moratorium make two principal arguments: 1) that it is a “ban” based on religion, in violation of the First Amendment; and 2) that Mr. Trump’s campaign statements about protecting the nation from Islamic radicals is proof that it’s based on religion.
Both are pure poppycock.
But the very existence of such a lawsuit is evidence of a third unspoken argument: that the courts have the right, in the first place, to substitute their own judgment for that of the chief executive.
We reject that premise on its face. It’s not only clear in the Constitution that the powers to direct both foreign policy and national security reside with the Executive Branch – but it’s also a logistical and public safety nightmare to suppose that thousands of judges have a blanket veto power over the president.
As for the moratorium being based on religion, it’s not. The countries involved – Iran, Somalia, Sudan, Yemen, Syria and Libya – were, in fact, cited as security concerns under the Muslim-friendly Obama administration.
Moreover, everyone involved in this case seems to forget one important fact: As plied internationally, especially, Islam is more than a religion; it’s also a political system, with its own political positions and aims – some of them fatal to others – and, in fact, its own set of laws, known as sharia.
As for Trump’s campaign statements being the litmus test for his actions as president: If that’s to be the barometer for constitutionality, then perhaps presidential actions that are contrary to one’s campaign pronouncements ought to be in question. Fans of President Obama should be the last ones to be for that, considering all the promises broken during his eight years.
And, as Fourth Circuit Judge Paul Niemeyer noted during oral arguments in the lawsuit Monday, if campaign rhetoric has become some sort of gauge of the constitutionality of executive orders, then what else is? “Can we look at his college speeches? How about his speeches to businessmen 20 years ago?” the judge asked.
Niemeyer asked another pointed, telling question of the American Civil Liberties Union lawyer in the case, Omar Jadwat: What if another candidate – presumably Hillary Clinton – had won the presidency last November; would the same executive order be constitutional?
“Yes, your honor, I think in that case, it could be constitutional,” Jadwat acknowledged.
There you have it. The ACLU believes the moratorium is unconstitutional because of who ordered it – not whether the president has such authority. What hopeless nonsense.
This, almost unique among nations, is a country based on the rule of law, not the whim of man. Either the travel moratorium is constitutional – which we firmly believe it is – or it isn’t.
Whoever implemented it is immaterial.
In contrast, the power of the president to do it is not only material, but essential.