Published by The Lawfare Institute
in Cooperation With
Lawfare readers are by now no-doubt familiar with my unflinching criticisms of the opinions that have enjoined President Donald Trump’s travel bans. The statutory claims are unreviewable, and even if they were, the president has the inherent executive power, combined with expressly delegated statutory authority, to deny entry to classes of aliens—this is separate from the issuance of visas. With respect to the constitutional claims, domestic Establishment Clause precedents are simply inapplicable in the immigration context, and even if they were applicable, the proclamation is facially neutral, and easily survives rational basis review.
Such is the “legality” of the policy. Others take a different view of its legality, using legal tools and legal arguments. But for at least one of the member of the Fourth Circuit Court of Appeals, the “legality” of the policy is apparently irrelevant. During the en banc proceeding in Richmond on Friday, which I attended, Judge James A. Wynn Jr. asked Department of Justice lawyer Hashim Mooppan about the relevance of the president’s inflammatory tweets to the Establishment Clause analysis. (The exchange begins at 24:20.) “What do we do with that,” he asked referring to the tweets. “Do we just ignore reality and look at the legality to determine how to handle this case?” Though the framing of his question was somewhat unclear, the premise was pellucid: What should a judge do if the law cuts one way, but reality cuts the other?
Allow me to provide the answer that Mooppan was too circumspect to give. A court exists only because of legalities, and is limited by them. Article III jurisdiction is defined by legalities. The Immigration and Nationality Act is constituted by a complicated scheme of legalities. The separation of powers embeds a host of legalities that restrict judicial power. The inherent powers of the president compose a legality that allows him to execute certain legalities that no one else in the republic can execute. The difference between an op-ed and a published judicial opinion is due to several legalities.
As for reality: the very nature of courts of limited jurisdiction requires courts to ignore reality unless the law makes it legally salient. If a fact is not present in the record, appellate courts cannot consider it. (The repeated question about taking judicial notice of tweets at the appellate level was jarring.) If parties are not properly injured and thus do not have standing, courts can take no action. If a case presents a political question, courts must look the other way. If Congress had deprived the court of jurisdiction, the case must be dismissed. Under the state secret privilege, and related doctrines—like the executive deliberative privilege—courts simply cannot inquire into the true reasons behind some actions. Under the rational basis test, which judges have no problem applying, courts are required to imagine reasons why the government could have a rational basis, whether or not that reason has a basis in reality.
And, for the most important reality check, the Supreme Court, with only two dissenting votes, allowed the proclamation to go into effect in full. Contrary to the suggestions of several judges on the panel, that order was the Supreme Court equivalent of shining the Bat-Signal over the Fourth and Ninth Circuits: the government will very likely succeed on the merits. Though the judges of the Ninth Circuit seemed to appreciate this fact, with few exceptions, the judges of the Fourth Circuit looked askance at the Court’s “shadow docket.” Judge Wynn’s question encapsulates what was, to me, the most significant aspect of the proceeding: There was no appreciable recognition that Travel Ban 2.0 had any legal differences from the latest proclamation.
A new collection of speeches by Justice Antonin Scalia includes one entry, titled The Vocation of a Judge. During a 2007 lecture in Peru, Justice Scalia commented on Justice Harry Blackmun’s changed convictions about the death penalty. “From this day forward,” Blackmun famously wrote, “I no longer shall tinker with the machinery of death.” Scalia responded that Blackmun was, “in my view, quite wrong.” But that was only part of the problem. “While the words that I have just quoted from his opinion are quite poetic,” Scalia remarked, “they do not reflect my ideal view of the judge who sets to the side his personal preferences in favor of the law.” Far more poetic than “machinery of death” is Judge Wynn’s limerick: “Do we just ignore reality and look at the legality?” In a judicial clash between reality and legality, the resolution is quite easy: legalities prevail. I would offer Judge Wynn, and any of his colleagues that agree with him, the same advice that Justice Scalia offered to his former colleague: “If he has moral objections to what the law requires him to do, his proper course is to resign from the bench, and perhaps lead a revolution.” For judges, legality is their only reality.