The U.S. Supreme Court has let President Donald Trump’s so called “Muslim Travel Ban” go into effect fully without any of the restrictions imposed earlier by lower courts.
As many are now opining, this suggests that the Court will uphold the ban when it makes its final decision on this action; exactly what at least three well known law professor have long predicted.
Professor Alan Dershowitz of Harvard Law School, as well as Professors Jonathan Turley and John Banzhaf of the George Washington University Law School, have long maintained, contrary to the rulings of many lower court judges, that Trump’s travel ban was constitutional and well within his constitutional and statutory authority regarding national security and immigration.
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They also concluded that it was improper for courts to try to evaluate the extent of the security threat which provided the basis for the order, as well as the motives behind the order, which was actually the work of extensive study by many different federal agencies.
Indeed, Banzhaf also suggested that there is growing concern and recognition – even among supporters, and liberal papers like the New York Times – that the lower court decisions could be based upon a new jurisprudence called “TrumpLaw” aimed uniquely at this President; a method of judging cases which is aimed specifically at countering some of the practices of President Trump, even if this development means creating new legal principles and/or overlooking (or at least minimizing) other established ones.
Even more alarming is that even those in favor of this new approach to deciding cases appear concerned not only that it will extend too far and possibly hobble the new president, but that the new principles being developed will create legal precedents which will carry over and adversely affect other presidents, and even agency heads in the future.
For example, a New York Times piece described this new method of deciding cases as “a set of restrictions on presidential action that only apply to Donald Trump. This president cannot do things that would be perfectly legal if any other president did them, under this standard, because the courts will rule against his past demagogy rather than the policies themselves.”
Likewise, David French of the National Review, who has been described as a NeverTrumper, nevertheless warns about this “strange madness [which] is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump.”
Law Professor Paul Horwitz, who supports some of TrumpLaw to achieve a desired result, and says he could be persuaded to support all of it, defines it as “about lower courts developing a form of what some critics call ‘TrumpLaw,’ law responding to and designed especially for the Trump administration” and “may be seen as a radical departure from existing law and in effect a lawless set of actions.”
Now that the Supreme Court has dropped a strong hint that it will not tolerate unprecedented decisions based not primarily on the law, but rather on a desire to rein in the President, lower courts in ruling on other matters – e.g., sanctuary cities, DACA, etc. – may hew closer to existing law, says Banzhaf.