On June 26, the Supreme Court announced its decision in the combined cases of Trump v. International Refugee Assistance Project and Trump v. Hawaii, which involved challenges to Executive Order 13780. This order concerns the entry of foreign nationals into the United States, and is best known for suspending entry of nationals from six designated countries for 90 days.

The defendants challenged the order in two separate lawsuits, obtaining preliminary injunctions barring enforcement of several of its provisions, including the 90-day suspension of entry. The injunctions were upheld in large measure by the Courts of Appeals in the Fourth and Ninth Circuits. The Justices decided by a 9-0 vote that the defendants in both cases lack standing and that the injunctions against the 90-day suspension are partially removed, allowing the ban to take effect against “foreign nationals who do not have a credible claim of a bona fide relationship with a person or entity in the United States.”

Supporters of President Trump’s travel ban were predictably elated by the decision, even though the cases will not be heard in full until the next Supreme Court session in October. Detractors of Trump’s immigration policies were disappointed, calling it discriminatory, hateful, and Islamophobic. But there is a greater concern than public opinion of the preliminary ruling or the eventual outcome of the case. Regardless of this result or the next, Trump has largely squandered an opportunity to act against a much greater problem: that of judicial activism.

The Past Is Prologue

The judicial branch in the United States has a long history of overstepping its constitutional role. In Marbury v. Madison (1803), the Court invented for itself the power of judicial review, which is nowhere to be found in the Constitution. Because Congress and the state legislatures did not act to reverse this usurpation of power, it remains the statement of ultimate sovereignty in American law. Since Marbury, Supreme Court decisions usually have been the final say in a dispute, unless a Constitutional amendment or future Supreme Court reverses a decision. Furthermore, the Supreme Court regularly issues writs commanding action or inaction from the legislative and executive branches. In various decisions that “find” new rights imbedded within the Constitution and/or determine the winners and losers in society, the Court acts as a political branch of government that masquerades as an impartial arbiter. This is to be expected, as the judicial branch is not truly independent, being part of the same state apparatus of the other branches and thus subject to many of the same perverse incentives. The end result is judicial activism, in which the courts are used to advance a progressive socioeconomic agenda.

Three Presidents stand out in American history for their ability to defy the will of the courts and advance their agendas despite judicial opposition: Thomas Jefferson, Andrew Jackson, and Franklin Delano Roosevelt. These administrations shared several characteristics; all had a strong executive, an agenda at odds with previous administrations, majorities in both houses of Congress to assist them, an appeal to the common man, flawed and/or weak political candidates opposing them, and were on the left side of the politics of their day. Interestingly, historians look upon these three Presidents as being among the best. The Trump administration has almost all of these characteristics, lacking perhaps the leftism and Congressional assistance that the others had.

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