Op-ed originally published in The Daily Signal.
We do not yet know whether the Trump administration will appeal Thursday’s setback in the 9th U.S. Circuit Court of Appeals to the Supreme Court.
Regardless, the challenge to President Donald Trump’s immigration order is but one of what will surely be a long series of pitched legal battles—many reaching the high court—as progressives pursue their promise to fight the president at every turn.
With a war in the courts looming, the confirmation process for Supreme Court nominee Neil Gorsuch takes on added significance.
Democrats, along with much of the mainstream media, assert that this war is inevitable and necessary to restrain an allegedly lawless president.
But that has not been the case so far. Even the 9th Circuit, the nation’s most liberal court, found no constitutional outrages in the president’s immigration order when it refused to lift a district court’s temporary restraining order on Thursday.
Instead, the court found only that the Constitution might require more due process for certain classes of people, such as current visa holders, while implicitly conceding that the plaintiffs’ religious discrimination claims were unconvincing.
If lawlessness is at the center of the coming legal war, it will instead be the lawlessness of judicial activism, which we got a taste of in the 9th Circuit decision.
It will be a war between progressives’ activist vision of the Constitution, which sees a malleable document designed to serve social justice and political correctness, and the conservative view, which emphasizes respect for the rule of law, even when it requires ruling against sympathetic parties, such as people wanting a better life in America.
Thursday’s decision is illustrative of this dichotomy.
Nothing could be clearer than the federal statute that authorizes the president to “by proclamation … suspend the entry of … any class of aliens” whenever he “finds that the entry … would be detrimental to the interests of the United States.”
Moreover, the 9th Circuit concedes that the Constitution and Supreme Court precedent clearly requires courts to defer to the political branches with respect to national security.
Accordingly, under a rule of law approach, the president’s immigration order should be upheld.
However, under progressives’ vision of the Constitution and courts, the rule of law cannot be allowed to stand in the way of the outcome they believe is just and right.
Their constant appeal, since Trump issued his immigration order, to “fundamental American values,” “what is right,” and individual hardships tells you all you need to know about how the left believes its legal challenge would fare under a dispassionate rule of law analysis.
Similarly, the 9th Circuit’s failure to mention the governing federal statute in its 29-page opinion, despite mentioning Trump’s far less relevant campaign comments, serves as a clear indication that its opinion was based on politics and political correctness rather than the rule of law.
Contrast that with the approach of the president, who has made it clear that he will not bow to political correctness or progressive demands.
That contrast ensures that the next four years will see an epic confrontation between judicial activism, the legal handmaid of the progressive agenda, and the rule of law.
It is clear on which side of this battle Gorsuch stands. In his 10 years on the U.S Court of Appeals, he has proven to be a champion of the rule of law and a critic of judicial activism.
That is precisely why Senate Democrats and their allies on the left, with the looming legal war very much in sight, will fiercely oppose Gorsuch’s confirmation.
Because Gorsuch goes where the law leads him, rather than being a results-oriented judge, Trump and the Americans who voted for him will not be happy with all of Gorsuch’s decisions on the Supreme Court. Nor will Gorsuch himself.
As he has noted, “a judge who likes every result he reaches is very likely a bad judge.”
Trump’s frustration with the 9th Circuit’s bad judging is certainly understandable. That frustration may not be quickly remedied by a Supreme Court that is currently split 4-4 along ideological lines.
However, Trump’s best revenge will be seeing the confirmation of Gorsuch and filling future Supreme Court vacancies with equally stellar champions of the rule of law.