You’re reading a blog post right now, which is a presumptively constitutional act. But what if you’re reading this while dripping with intolerance? That might stain your couch; but does it also place you in legal jeopardy? According to the US Fourth Circuit Court, the answer–by a 10-3 margin–is absolutely yes.
That was the determination on offer in this ruling, which upheld a lower court’s denial of Trump’s executive order temporarily restricting certain Barbary Coast imports. The appeals court upheld the injunction citing IRREPARABLE HARM to the country if it were allowed to proceed. Life is often too hectic to permit our leisurely indulgences. But more people should take a moment to savor the dense and luscious absurdity of that statement. Ceasing the human traffic flow from Libya, Iran, Somalia, Sudan, Syria and Yemen for even just 90 days would cause irreparable harm to an American people whose majority would sigh in gratitude for the respite.
But it wasn’t just the specter of immiseration by insufficient muslims that roused the court to strike. They also didn’t care at all for the cut of Trump’s jib. Not duped by the bland and quite modest language of the actual order, the court peered deeply into Donald’s psyche to mine the nebulous and multifaceted motivations that drive all men to political action. And what they unearthed was horrifying: The travel ban speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination. As you understand, the Constitution conceived of a court that would attend to matters of contextual dripping. Well, actually it didn’t.
Immigrating, or even traveling, to America is not a right conferred by the Constitution. And if so, it wouldn’t apply to those people who have not yet been granted American citizenship–a figure that must surely still be in the high dozens. Furthermore, the extent of executive intolerance is not at all within the court’s jurisdiction to divine. If it were, then the separation of powers would be meaningless in toto given the judiciary’s capacity to nullify any other branch actions by virtue of drip citation. Article One, Section Eight grants Congress the exclusive authority to lay and collect taxes. What if a 28 percent marginal rate was found dripping? Would the court then set rates and schedules more aligned with its own sensibilities? What then is Congress for? And what about military action? Has there ever been a call to arms that was absent some degree of animus? So wouldn’t this ruling find any American use of force to be unconstitutional dripping, QED? I can’t wait to find out.
The fact is the court has no constitutional authority to speak on Trump’s dripping. A policeman has no authority to speak as a CPA. A politician has no authority to speak as a podiatrist. Courts have no authority to speak as personality seers or pronounce on acts of civic apostasy. Thus judicial rulings on Trump’s emotional motivations should carry no more weight than Maxine Waters’ assessment of a tailors bunion.
But that’s not how the Law of Rule works. Institutions, particularly ones so pompous as the court, will always accumulate as much power as inattentive citizens fail to deny them. Obedience inspires tyranny. And so if the people keep obeying, one may be assured the court will keep ruling. That what the court is ruling upon falls completely beyond its purview has become so obvious even some its own members are remarking. Writing in sheepish embarrassment for the majority opinion, Judge Paul V. Niemeyer wrote that Supreme Court precedent required the court to consider the order “on its face.” Looked at that way, the executive order “is entirely without constitutional fault.”
Of course it’s without constitutional fault. Establishing sources and flows of migration is an entirely political exercise under the responsibility of political actors. Libyans have no constitutional right to come here, no matter how irreparably harmful their absence may seem to those ensconced far from their blast radius. At this point the court could just as well cite prospective dripping intolerance as cause to relieve the president of all his executive powers. Otherwise they are implying he’s a kind and considerate man when doing what they like, but suddenly nefarious when he doesn’t. That’s the implicit logic of their stance, but only Anthony Kennedy can make it official. In the meantime I’d try to keep a better attitude while reading here if I were you.