When the Constitution is "anti-Trump"

By A.J. Liebling
Meta-Content Generator with
Scott V. Sandiford, Justice Correspondent

Another Sunday and those wacky out-of-touch liberals are playing on the New York Times News of the Week in Review!  (Just kidding about the name – the Times stopped summarizing the week's news a while back and now just stuffs the section with columnists and freelance memoirists who thrill us with tales usually along the lines of How I Found My Wonderful Husband).

Nick Kristof, last heard from bemoaning how mean those liberals are to the salt-of-the-earth Trump voters, tells us about a posse of religious nut jobs in Florida who forced an 11-year-old girl to marry her rapist.  Boy those liberals have a lot to answer for!

Further along, Maureen Dowd, not the author of the piece about finding the Wonderful Husband, sadly for journalism, today rubbishes the Grifter-in-Chief after first snarking about how dare Barack Obama enjoy his well-earned retirement.  Points for filing an entire column without smearing Hillary Clinton.

But enough with the Usual Suspects.  Today we'll spend some quality time with one Ross Douthat, who apparently is regarded as a brainy conservative because (1) he can write a sentence and (2) he understands that the Grifter-in-Chief is a corrupt catastrophe.  Doesn't take much, does it?  Today, he's branching out into Constitutional Law.

How'd it go?  He's criticizing the ratio decendi of International Refugee Assistance Project v. Trump, No. 17-1351 (4th Cir. May 25, 2017), the en banc decision of the Fourth Circuit Court of Appeals holding that the Grifter-in-Chief's Muslim ban violated the First Amendment because, um, it was designed to ban Muslims.   

His Lordship the Rt. Hon. Ross Douthat is not amused
by the temerity of the Fourth Circuit

Apparently the holding on the merits isn't what chapping Justice Douthat.  Based on his many, many years of studying jurisprudence, he's upset that plaintiffs were allowed to bring the case in the first place.  That the Fourth Circuit found the plaintiffs to have suffered a legally cognizable injury (or “standing”) as a result of the Grifter-in-Chief's poorly-disguised Muslim ban, is, according to Chancellor Douthat, nothing more than unprincipled “Trump law.”

Now we all remember Mr. Justice Douthat's stirring attack on the Supreme Court's partisan Voting Rights Act decision as similarly unprincipled, so let no one say his current concern is based on anything other than his heartfelt fealty to The Law.

In support of his view he cites not only the dissent, joined by three members of the 13-judge circuit, but the notorious jurisprudes at the National Review, last heard from opposing the Civil Rights Act of 1964.  So you know that publication's views of what constitutes justice are entitled to a great deal of . . . deference.

To paraphrase that great legal mind Warner Wolf, let's go to the words!  The Fourth Circuit noted the following injuries that conferred standing on plaintiffs:

Doe #1— who is a lawful permanent resident of the United States, Muslim, and originally from Iran— filed a visa application on behalf of his wife, an Iranian national. Her application has been approved, and she is currently awaiting her consular interview. J.A. 305. If it took effect, EO-2 [the Grifter-in-Chief's Muslim Ban #2] would bar the entry of Doe #1’s wife. Doe #1 explains that because EO-2 bars his wife’s entry, it “forces [him] to choose between [his] career and being with [his] wife,” and he is unsure “whether to keep working here” as a scientist or to return to Iran. J.A. 306. Doe #1 adds that EO-2 has “created significant fear, anxiety, and insecurity” for him and his wife. He highlights the “statements that have been made about banning Muslims from entering, and the broader context,” and states, “I worry that I may not be safe in this country.” J.A. 306; see also J.A. 314 (Plaintiff Meteab describing how the “anti-Muslim sentiment motivating” EO- 2 has led him to feel “isolated and disparaged in [his] community”)

IRAP, slip op. at 34 (emphasis supplied).  Breaking up families to sate his supporters' lust for anti-Muslim discrimination sounds like a cognizable injury to us, if not to Ross Douthat, Q.C.  It also sounds like a legally cognizable injury to someone else: “The Government does not contest that, in some circumstances, the prolonged separation of family members can constitute an injury-in-fact.”  Id. at 35.

In fairness to m'lord Douthat, the jurisprudence relating to First Amendment standing is complex.  Maybe that's why the Fourth Circuit spent 12 pages discussing it and found a whole bunch of cases decided before the election of the Grifter-in-Chief that supported its position:

Plaintiffs’ injuries are also consistent with the injuries that other courts have recognized in Establishment Clause cases that do not involve religious displays or prayer. See Awad v. Ziriax, 670 F.3d 1111, 1122 (10th Cir. 2012) (recognizing injury stemming from amendment that “condemn[ed] [plaintiff’s] religious faith and expose[d] him to disfavored treatment”); Catholic League for Religious & Civil Rights v. City & County of San Francisco, 624 F.3d 1043, 1052 (9th Cir. 2010) (en banc) (finding “exclusion or denigration on a religious basis within the political community” to be sufficiently concrete injury)

Id. at 39 n. 10.

Now reasonable white Republican men can differ, we suppose, as to whether the President's power over admission of aliens allows him to discriminate against particular religions in the issuance of visas.  What can't be maintained by anyone who has read the opinion and any other case regarding First Amendment standing is that the IRAP majority opinion was decided on an unprincipled partisan basis.  If you're looking for an opinion like that, try Bush v. Gore.

There was a time when the Times employed a columnist who had studied and thought hard about Constitutional Law, a gentleman by the name of Anthony Lewis. That was a long time ago.