As oral arguments unfolded Monday in the Richmond, Virginia en banc courtroom of the Fourth Circuit, even the 10-3 Democratic nominee advantage on the bench couldn’t foreclose the obvious: the better arguments, and the better law, was on the side of the new acting Solicitor General Jeffrey Wall, whose advocacy far exceeded that of reluctant prior DOJ counsel, and frankly the stammering, stuttering ACLU counsel. By contrast, the ACLU counsel reminded young law students why stammering and stuttering is not a useful skill set in oral argument, especially when induced by questions appellate counsel failed to have direct and evident answers for, despite how obvious it was those questions would be asked. Clearly, ACLU counsel had been reading too much of their own press. Bubbles affect everybody, including lawyers.
A recurrent question of the travel ban supporters from the bench was a simple one: if any other President had signed this exact same order, everyone would recognize it was legal, wouldn’t they? This is also the Dershowitz criticism of the various judicial interventions against the President’s immigration authority: it is a personal vendetta by justices who want to forever tar and feather any Trump action in certain areas of law based solely on Trump being Trump. About a dozen times during the judges’ cross-examination of the ACLU counsel, they kept repeating a line to the ACLU counsel: “you’re not answering my question.” This is because the ACLU counsel knew he could not both a) maintain credibility with his current position; and b) conform the logic of the district court’s decision to prior precedent at the same time. But to admit this — as the ACLU counsel had to in order to explain away the 200+ years of contrary precedent on the power of the Presidency over entry into the country by non-citizen aliens — is to concede the main point of the Trump travel ban legal defenders: Trump’s order is perfectly presidential and perfectly precedential.
On the flip side, led by liberal women judges appointed by Obama, the questioning focused on the various legal loopholes the heavily Democratic court could use to excuse the precedent-less actions of the district court, which a fellow Virginia federal court disagreed with just a month ago, a fellow Boston federal court disagreed with two months ago, and five Ninth Circuit judges disagreed with in a blistering dissent from en banc denial a month back, as well. Indeed, by count, the current executive order earned rebuke from only two federal judges — both judicially-young, liberal Obama appointees, while seven judges have upheld the President’s power and the Seattle judge who initially enjoined Trump reversed himself, and refused to extend that order to the second executive order. The loopholes sought by the liberal judges tried to convert “bona fide” review within rational basis to mean evidence extrinsic to the document itself could be considered, though not one judge tried to defend the full-scale, wholesale psychoanalysis the Virginia judge applied to Trump by internet-shopping for evidence as the district court judge did. The simple problem is what the sage and Oliver Drake-like Solicitor General repeated: the Supreme Court already rejected that review in the context of immigration when they affirmed alien exclusions based on any basis given, even if an alternative basis was suspected as the real “reason” for an immigration-based order. Equally, Wall, and fellow jurists, excellently exposed the consequential flaw to such campaign-as-evidence, subjective-intent-is-relevant standards: the Washington plaintiffs want 30+ depositions and massive discovery of otherwise privileged information and material to psychoanalyze the entire decision-making apparatus for an area of law in which the Supreme Court said the executive branch has the most discretion of any.
The liberal judges then wandered afar from rational basis review when they applied civil rights employment lawsuit standards to establishment clause standards, a too-common flaw amongst the results-oriented judges of the Obama liberal era. It is always a bit embarrassing when a federal appeals court jurist in the most listened-to oral argument of the year isn’t prepared enough to know the difference between disparate impact in employment discrimination or voting rights cases and neutral operational effect in establishment clause cases. To put it simply, many laws have a disparate impact on members of various religions (drug laws being one of many examples), but First Amendment jurisprudence does not measure its neutrality in operation by its impact, but rather by whether it is truly targeted to harass a particular religious constituency because of their religion. The Solicitor General calmly explicated this very point without undue embarrassment to the liberal-inquesting court. Newsflash to liberals: Trump picked the Middle East, and not Indonesia, for a reason: Muslim identity doesn’t explain that difference.
Conservatives see the case as judicial interventionism of the kind that led to extraordinary public rebukes by Presidents in past eras, such as Lincoln, Jackson, and Roosevelt, all of whom condemned the court so harshly they limited its political power for decades. Liberals see the case as a chance to “right” the wrongs of the past, so brought up the Japanese detainment camps (forgetting that was citizens, not aliens) or Jewish migrants (forgetting that is an example where we used Jewish religion to favor Jewish migrants fleeing antisemitism in the Cold War era, something that could not be done today based on the liberals’ theory that an immigration order that “disparately impacts” people of a certain religion constitutes “the establishment of a church in America”).
Both sides pushed alternative quick-fixes to the decision before them, with moderate-minded jurists noting the deep issues with standing, and liberal judges looking for more limited ways to circumscribe Trump without circumscribing the Presidency itself, such as possibly removing the “taint” from Trump’s decision as time passes and future executive orders limit their immigration impact.
In the end, the professional class bias against Trump, especially manifest in upper-middle-class liberal professionals that predominate in the Obama-appointee judiciary, makes them anxious for any excuse to attack Trump, and that motivation dominates over law or logic, precedent or policy, in their decision here. But as the case rises, and able jurists of the classical liberal and conservative persuasions get their opportunity, even the liberal judges know which side the better logic and actual law side with: President Trump.
Robert Barnes is a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law. You can follow him at @Barnes_Law.
This is an opinion piece. The views expressed in this article are those of just the author.