On ‘Travel Ban,’ Supreme Court Backs Away from Brink of a Constitutional Crisis

By John Zmirak Published on June 26, 2017

As the AP reports, the U.S. Supreme Court has thrown out most of the lower court decisions that crippled President Trump’s immigration decisions (that is, his “travel ban”). This is good news not just for fighting terrorism. It’s huge for fans of the separation of powers, the rule of law, national security, and democratic lawmaking. Read David French’s excellent legal analysis of why each of those claims is true.

Essentially, the lower courts vastly overreached the legitimate function of jurists. Their job was to scrutinize the laws to see whether President Trump’s decision to restrict travel from terrorist-ridden hellholes was Constitutional. Instead, they regurgitated his campaign rhetoric and pored over his Twitter archive to scrutinize his alleged motives. They invented imaginary rights for foreign residents. They granted legal “standing” to law firms who recruited foreign clients. Attempting to reverse the effects of a presidential election, they usurped the legitimate powers of the president.

Had the Supreme Court followed the lower courts’ lawless precedent on this case, it should have provoked a Constitutional crisis.

The executive branch has broad Constitutional and legislated authority to protect national security. Immigrants have zero presumptive right to enter the United States. It would be perfectly Constitutional, though stupid, to admit them based on aesthetics (that is, a “Melania” standard).  

Avoiding a Constitutional Crisis

Had the Supreme Court followed the lower courts’ lawless precedent on this case, it should have provoked a Constitutional crisis — in the form of GOP-backed bills to challenge courts’ jurisdiction, or term-limit SCOTUS members. I think that even the liberal justices on the Supreme Court saw that, which is why most of them blinked and backed away from the brink.

With many crucial issues on the docket, that crisis still might come. There is just one way to avoid it: If the president stays true to his campaign to appoint only strict constructionists to the courts. Or else if conservatives cravenly surrender.

I wrote before the 2016 election that the race was mostly about the courts. Since Roe v. Wade, the left has relied on the judicial branch to override voters’ will on crucial issues. Progressives wield vast, overweening power. They micromanage the media. They smother and censor the colleges. They terrorize big business via pressure campaigns.

Still, sometimes all that doesn’t turn out to be enough. We saw that in the recent Georgia election: Jon Ossoff called in Planned Parenthood as his Death Star, and still lost to the pro-life Karen Handel.

The Left’s All Purpose Plan for Overriding the Voters

So where they can’t get the votes, as they couldn’t on same-sex marriage, leftists follow this playbook:

  • Pretend that the U.S. Constitution enshrines whatever “basic rights” that academic elites invented five minutes ago — even those that would have horrified every one of the U.S. Founders, down to the last pallid Deist.
  • Claim that “international norms” from foreign courts or the United Nations have binding force in basic American laws.
  • Convince Democrat appointees on lower courts to overturn or stay a democratically enacted law. Or a legitimate use of presidential authority. Because it violates those invented rights.
  • Pretend that each case is the same as Brown v. Board of Education. And each of their opponents is no better than a bigoted Southern sheriff. Imply that those who put up a fight will end up as disgraced and marginalized as white segregationists.
  • Win in the Supreme Court by a narrow margin. Then despite the learned dissents by distinguished jurists…
  • Pretend that anyone who still opposes the decision is an uncivilized Neanderthal. Their organizations are “hate groups.” Except if they’re Muslim. Those groups are exempt, because they’re so peaceful that we don’t want to provoke them.
  • Use this brand-new consensus to browbeat churches into rewriting the Gospel. Then presto-chango, 2000 years of Christian belief and practice is discredited.
  • Rinse and repeat.

This strategy worked amazingly well on same-sex marriage. The narrowly decided and crudely anti-Constitutional Obergefell decision is now being foamed into every nook and corner of the culture like toxic asbestos insulation. “Mainline” churchmen (Catholic and Protestant alike) are falling over themselves to accommodate it. They’re wearing out holes in their clerical shirts from patting themselves on the back for groveling before Caesar.

We Will Fight in the Wedding Chapels

But the same strategy backfired on abortion. The pro-life movement is gaining in power, popularity, and influence. Even the socially laissez faire President Trump seems like a genuine convert on the topic.

We should welcome lawful decisions, and fight lawless ones tooth and nail.

So there’s no need to despair. And no excuse to retreat into some “Benedict Option” ghetto, which would always be just one court decision away from the cops coming to remove Christian kids from their parents’ custody. Which is happening not in North Korea but in Canada.

We should welcome lawful decisions, and fight lawless ones tooth and nail. We cannot even give up on seemingly implausible goals like overturning Obergefell, and returning marriage jurisdiction to the states. That decision, as Justice Roberts (hardly a right-wing extremist) warned, planted religious liberty time bombs throughout our legal system. Christianity cannot coexist with legal same-sex marriage forever. One of them or the other will end up legally hamstrung. America needs to pick between them.  

Yes fixing Obergefell seems out of reach and hopelessly unpopular. But then, in 1973, Roe v. Wade seemed untouchable too.  

Print Friendly, PDF & Email

Like the article? Share it with your friends! And use our social media pages to join or start the conversation! Find us on Facebook, Twitter, Instagram, MeWe and Gab.

The Habit of Nearness
Robert J. Morgan
More from The Stream
Connect with Us