Cutting through the morass of legal arguments for and against the Trump administration’s executive order (EO) instating a so-called travel ban, is no easy task.
The circuit court’s temporary restraining order (TRO), and the appeals court’s argument upholding the restraining order, make much of the harm being caused to various parties – aliens, residents, communities – by the executive order. According to the TRO, this is one of the criteria for granting a stay.
But at the end of the day, it is a question of law, and the merits of the case must be determined by reference to the law.
Many voices are calling out that the suspension of the EO is a “victory for the rule of law.” Obviously, then, this ruling by the courts must be in accordance with the law.
But what is the law?
On the one hand, there is the administration’s argument that, according to the law, the president has the power, for reasons of national security, to determine which foreign nationals are to be allowed into the country. The authorization for this is found in the U.S. Code, Title 8, Chapter 12, Subchapter II, Part II, § 1182, subsection f. It reads like this:
(f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate….
This provision, in turn, is based on Article I, Section 8 of the US Constitution, which gives Congress the power to regulate affairs relating to immigration.
This would seem to be a fairly straightforward case. The statute appears to give the President full authorization to do whatever he thinks fit with regard to the restriction or prohibition of aliens into the US whenever he deems such to be detrimental to US interests. There is no condition here for other powers of government, whether legislative or judicial, to second-guess his judgement on this matter.
But this is what the courts have done. They have required the government to demonstrate the need to take the course of action it has taken, viz., to prohibit the entry of aliens from certain countries. The government has indicated that this action is being taken to ensure the safety of its citizenry, while the courts have, e.g., stated (erroneously, as the government later pointed out) that no citizens of the countries under question have perpetrated acts that infringed that safety.
So it would seem that the courts have arrogated to themselves the authority to second-guess policy regarding national security, not on the basis of law, but on the basis of a judgement regarding the wisdom or lack thereof of policy. But the statute in question, as we have noted, does not give the other branches the authority to conduct such policy reviews.
This is fearful ground upon which the courts are treading. Still, beyond the charge that can be lodged against them that they are opposing the EO because they oppose the policy, is the fact that they are using the law to obstruct that policy. So how does that work, if the statute is so clear?
Essentially, in the name of a higher law. For the courts, there is a law that is transnational, an expression of, in this case, universal human rights. One of these rights is freedom of religion – that people may not be discriminated against on the basis of religion. It is for this, at bottom, that they oppose the EO.
Without referring to a higher law, the Constitution itself could be referenced to bolster this claim. Firstly, there is the religious test clause in Article VI, Section 3: “No religious test shall ever be required as a qualification to any office or public trust under the United States.” But as one can see directly, this test only applies for public office. It does not apply to other areas.
Secondly, there is the establishment clause in the 1st Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Professor Alan Dershowitz has stated (as reported here) that this would ground an objection to the EO: “A good lawyer … can argue that this is a prohibition on not only Congress, but on the president, and here we have a law that establishes religion by preferring Christianity over Islam.”
Actually, an EO is not a law per se. But the law upon which the EO is based is the one referenced above, which states that the president can exclude any class of alien he likes if he deems them to be detrimental to US interests. So apparently what Prof. Dershowitz is saying is that § 1182 of the US Code, not the EO, is unconstitutional because it violates the establishment clause. But that particular law has been on the books for 65 years and adjudicated many times, and it has never been suggested that it is unconstitutional. So it would seem that would be a difficult undertaking, regardless of how good the lawyer might be.
It appears to me that the courts are skirting precisely such questions as this, in order to found and develop within a trajectory of decisions and precedents of US jurisprudence a corpus derived neither from statutory nor constitutional law, but from a form of transnational law that has no real source, nor any sovereign authority, nor any standing within positive law as currently embodied in US law.
Of course, other countries, mainly those within the tradition of the French Revolution and the ensuing Code Civil, enshrine the principle of freedom of religion such as is envisioned by the courts opposing the EO – but that legal tradition is foreign to the common-law tradition and has no standing within the US.
But provisions of international law and foreign civil law nonetheless have been finding their way into jurisprudence through the courts, and this appears to be another attempt at accomplishing this surreptitious legislation from the bench, setting aside the standing law of the polity.
What this means is that the jurisprudence being practiced by the 9th Circuit Court of Appeals is natural-law jurisprudence. Natural law is higher law – it embodies higher principles, the principles which positive law is to reflect, in this case, human rights such as a universal freedom of religion. Positive law is the specific expression in time and place of the natural law.
What we argue here, however, is that natural law cannot take the place of positive law. The latter, being the specific expression of the former, is the law which actually applies in the courtroom. Positive law is the law upon which the sovereign has set its seal, stating that this is the law of the land.
The 19th century statesman and constitutional scholar Friedrich Julius Stahl made these relations very clear. In his treatment of the principles of law, Stahl makes some important distinctions.
He starts by contrasting human (positive) and divine (natural) law, arguing that only the former is law strictly speaking. “Law is human order, albeit for the sake of maintaining God’s world order. It therefore exists as men in a particular time, in a particular country, have established it, and it exists because they have so established it, whether good or bad, and not because they in that manner had so to establish it, in accordance with a necessity in God’s command. This means that law is positive, but that in the concepts and commandments of the world order of God it has a higher law to which it ought to answer, according to which men ought to establish it.”
So there are both natural law and positive law; natural law is higher but therefore also stands at one remove. In fact, it cannot function as law properly speaking. Instead, it functions as the basis and standard of positive law. “Positive law has over against it a God-commanded, just, rational law. Even so, this rational law, the concepts and commandments of God’s world order, are not themselves a law – a so-called natural law or law of reason – since the essence of law is precisely to be an independent human life order, therefore positive law. Even so, they are the determining power in positive law, its original ground and archetype, the standard by which it is measured and judged” (p. 33).
What is it about natural law that renders it unsuitable as law for human order? First, the elements of natural law are “are lacking in a determinate shape, the provision of which is the vocation and the freedom of the people. The people themselves, in accordance with the particularity of their spirit and their conditions and with their own creative power, are to give definitive shape to them, to particularize them and thus also to individualize them; and only then do they become applicable norms, or law” (p. 34).
It is like an artist or a sculptor who takes general ideas of the human form and makes specific application of them in a determinate painting or sculpture.
The foundational concepts and relations of the law are in similar manner grounded in God’s world order, are divinely necessary, but the specific way in which they are implemented is humanly free …. Human freedom is not left simply to sharpen those eternal ideas to a point, so that e.g. positive law need only supply the time interval of prescription or the forms of testament, but it is entrusted with the plan of its realization in general. Thus e.g. … whether the entire institution of property is to be regulated in accordance with the Roman law or with Germanic law, etc., is a free human conception, which although moved and determined by divine commandments nevertheless has its coherence and coordination only in itself. All legal construction therefore has a dual aspect, a divine necessary (natural-law-oriented) and a human free (positive), both permeating each other without dividing line, existing in indissoluble unity (pp. 34-35).
This being the case, positive law is that which the state is to establish and further. It does so more or less in accordance with natural law; but at the end of the day, the product of the legal process by which law is made, and not those transcendent principles, is the law that is to be enforced by the magistrate. Positive law, not natural law, is the law that binds the citizen, the magistrate, the police force, the courtroom.
Underlying the idea of a “natural law” are in fact those concepts and commandments of God’s world order, the law-ideas; the latter, however, have neither the required specificity, nor the binding power of the law. They are grounds for determination of the further development of the common condition, not norms already in force for the common condition. There are therefore rational demands on the law, but there is no law of reason. Subjects may not oppose positive law, either as individuals or in the mass, by leaning on natural law; this is the iniquity of the Revolution (p. 36).
Therefore, “The ruling authorities are to uphold the positive law, not the natural law. In particular, the judge is not to pass judgement in accordance with natural law, be it against the positive law, be it only in addition to positive law (subsidiary).” Natural law lacks the required objectivity and precision, leaving the judge to his own ideas: “The judge would be referred … only to his judgement as to what he regards to be natural law, at best he would speak therefore only as an individual (as a mere arbitrator) rather than as a real judge, i.e., as an organ and a representative of national legal judgement, and even with respect to his own judgement he would only find a general legal maxim and not a specific manner of restoring the wrong, which insofar would be arbitrary or based in vague equity” (pp. 36-37).
But this would violate the rights of those either seeking redress at law or being arraigned. Hence, the application of natural law in the courtroom is legally impermissible as well. “Every man has the right not to be subjected to any other norm than those which are established as the objective order of the common life, which are sanctioned by the ruling authorities, as the norms of positive law.” It is an illusion that we would be better served by a jurisprudence of this sort. “The rule of natural law instead of or in opposition to positive law has the appearance of establishing the order of God over the order of men: but it is precisely the human order, the law, which is consecrated by God; it is the only common public order that He has ordained over men on earth” (pp. 37-38).
The upshot of all of this: “The rule of natural law is … only the establishment of the arbitrariness of every opinion regarding the common public order, it is the establishment of the war of all against all” (p. 38).
In the current situation, the courts need to take a step back and realize what it is they are doing. They are engaging in a practice which can only lead to the chaos of competing laws and competent authorities. By overthrowing positive law through an appeal to “higher principles” – mind you, not the Constitution, but principles standing outside the legal order itself – they are sowing the seeds for the destruction of that legal order.
Regardless of one’s opinion regarding the worthiness or lack thereof of the EO, this is not the way to deal with it. It is a question of policy and thus politics, not of law. The law itself is quite clear on the matter. At least, the positive law, the law as it stands on the books. But the law in the heads of judges who have taken it upon themselves to legislate from the bench is another thing altogether – regardless of the rightness or wrongness of those judges’ ideas.