Class News

Gene Van Loan '64: Sour Lemons

Claremont Review of Books

May 25, 2017

On March 15, 2017, two federal district court judges — one in Hawaii, the other in Maryland — each issued an injunction halting President Trump’s revised executive order, which temporarily banned the admission into America of aliens from Iran, Libya, Somalia, Sudan, Syria, and Yemen. Though these judges presumably have jurisdiction only over the states in which they sit, both of their injunctions purported to extend nationwide. Less than two weeks later a federal district court judge in Virginia upheld the legality of the executive order. Does that mean that the Hawaii and Maryland injunctions no longer apply in Virginia? Does the Virginia district court's power to nullify Hawaii and Maryland's injunctions extend to nullifying such orders nationally — including in Hawaii and Maryland?

Conventional legal wisdom holds that the Virginia court ruling has no effect whatsoever upon the continued viability of the nationwide injunctions by its supposedly co-equal, and not superior, sister courts in Hawaii and Maryland. Further complicating matters, both the Hawaii and Maryland cases are being appealed. If either of these federal appellate courts reverses the decision of its subordinate district court and upholds the President's executive order, this will have no effect on the nationwide injunction issued by the district court in the other federal circuit, even including within the states located in the circuit of the reversing court of appeals.

If a plaintiff loses one of these lawsuits, that doesn’t mean that the Government wins. A second plaintiff can bring an identical lawsuit in another state. If that plaintiff wins, the Government loses — even in the jurisdiction where it supposedly just won. This bizarre situation brings to mind M.C. Escher’s famous lithograph where people walking on the same stairway appear to be ascending and descending at the same time.

Both the Hawaii and Maryland district court opinions assert that an injunction is warranted because the plaintiffs are likely to succeed on the merits of their claim that the revised executive order violates the Establishment Clause, specifically by means of the “Lemon test,” formulated in Lemon v. Kurtzman (1971). It requires that any Government action that arguably involves religion:

Must have a primarily secular purpose;
May not have the principal effect of advancing or inhibiting religion; and
May not foster excessive entanglement with religion.

The two district courts claimed Trump's order was animated by anti-Muslim animus and thereby failed the Lemon test, rendering it likely to be struck down as an unconstitutional violation of the Establishment Clause.

But even before a court employs the Lemon test, it should ask: who has rights under the Establishment Clause? Suppose the President or the Congress declared that America is henceforth to be a Christian nation. Obviously, non-Christian Americans would have standing to make a claim that such a declaration is unconstitutional. But can non-Christians in France, Russia, China, India, Iran, Kenya, Borneo or wherever challenge this decision as violating the Establishment Clause? Of course not. Being neither U.S. citizens nor physically present in the country, they have no rights under our Constitution.

The decisions of the Hawaii and Maryland courts do not technically rely upon the alleged rights of non-U.S. citizens to establish standing. Instead, the courts circumvented this problem by ruling that plaintiff U.S. citizens with alien family members residing outside our borders have a right to have their family enter America. In effect, citizen plaintiffs can challenge the executive order's constitutionality as a violation of their rights. Suffice it to say that this is nowhere in the Constitution.

The 14th Amendment, according to the Supreme Court, grants citizenship to anyone born in the United States, even children of illegal immigrants. Their citizenship mystically conveys a preferential status upon their non-citizen parents (and, arguably, their siblings, grandparents, etc.) to be admitted to, or to remain in, the United States, simply because of their familial relationship. The federal district courts of Hawaii and Maryland have in effect constitutionalized the “anchor-baby” paradigm: U.S. citizens with non-citizen, non-resident alien family members now have a constitutional right to have their family members admitted to the U.S. Besides the fact that this development has no basis in the Constitution, the concept has no limiting principle. By granting standing, the Hawaii and Maryland courts invented a new right, consequences be damned.

Their reading of the Establishment Clause is no less tortured. The courts ― applying the Lemon test ― argued that the President’s executive order did not have a primarily secular purpose. They quoted statements by the President, and by those they claim speak for him, which purport to show Trump’s order is anti-Muslim. Ignoring for the moment whether courts should go behind the text of a facially non-religious executive order to divine some non-expressed religious purpose, or whether courts should second-guess a president's policy justifications for issuing an executive order — the Supreme Court has said that lower courts shouldn't do either — are the Hawaii and Maryland courts correct that the executive order violated the Establishment Clause?

The Lemon test requires that the president’s order be for a primarily secular purpose. President Trump claimed his orders concerned the vetting of potential admittees to the U.S. who might be “radical Islamic terrorists.” To the extent that certain radical Islamists claim that their religion sanctions the murder, torture, or denigration of non-believers, and they continue to encourage believers to act upon these tenets, an executive order which regulates the admission of “radical Islamic terrorists” has a clearly secular purpose. A Muslim who believes that his religion requires or authorizes the killing of those who do not subscribe to Islam is indeed a radical Islamic terrorist who can, at a minimum, be constitutionally targeted for exclusion from our country.

Moreover, executive orders are within the President’s authority regarding foreign affairs. In a separation of powers system, the judiciary’s role is to judge according to what the laws say, not what judges think the Lawgivers really meant. The Supreme Court has repeatedly held that executive orders directing foreign affairs enjoy a "presumption of regularity" which dictates that the President’s actions are essentially immune from judicial review. The Hawaii and Maryland district courts failed to accord President Trump this deference.

The Constitution cannot insure domestic tranquility and secure the blessings of liberty if it allows believers to immunize their otherwise prohibitable misconduct simply because they allege it to be required by their religion. In the words of Supreme Court Justice Robert Jackson: "[I]f the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Eugene Van Loan is a semi-retired attorney from Manchester NH and past chairman of the Josiah Bartlett Center for Public Policy.