The Supreme Court is one vote short of limiting a President’s power to protect the homeland by subjugating his Constitutional authority as Commander-in-Chief and vitiating his statutory authority over entry of foreign nationals. That’s bad, but if the Court strikes down the travel ban, as it appears it might, the effect could be legally and socially calamitous. You can thank Justice Kennedy and his ironic dark heart doctrine.
Imagine a Country in which the political free speech of a Presidential candidate is converted by a co-equal branch of the government … the courts … into a weapon to subdue and weaken the Presidency should such a candidate win. Justice Kennedy, the swing vote on the court in what is called Travel Ban 3.0 essentially came out in oral argument today and said a candidate’s pre-election speech is a relevant judicial inquiry to attack his or her actions in Court.
Those Mr. Justice … are fighting words. They might be civil war fighting words, that’s how calamitous such a ruling would be.
What the High Court wants to do is convert the legal analysis of the facially legitimate actions of a President into an examination of his or her motivations for issuing an Executive Order that is otherwise, on its face, as written, Constitutional.
We might wind up referring to this ruling as the “Kennedy dark heart” doctrine. America will no longer be guided by law or reason, but our legal decisions will turn on whether a court thinks a President passed an otherwise valid law for the best of intentions.
By every Constitutional analysis, the only job of the High Court is to determine if a law, regulation, or executive order that is passed, as written, is a proper Constitutional exercise of authority. If it is, then a Court does also have the right to see if the government is applying the law in a Constitutional fashion.
In the travel ban case, proponents of foreigners’ rights to enter the United States without interference of the Chief Executive have two attacks on the President’s Travel Ban. The first attack suggests that the President’s authority is not plenary under the Constitution and that the specific federal statute that grants him the right to deny entry to certain foreigners has been vitiated by later legislation.
No federal law may vitiate the plenary powers of the Commander-in-Chief. Thus, when the President acts to bar foreigners deemed a potential threat to the homeland, no other law trumps that power. Thanks for coming.
Likewise, under 1182(f), the President has an unfettered right to block and suspend the entry of any foreigner or class of foreigners. No subsequent legislation ever addressed that duly passed law, let alone attempted to modify or supersede it. Still, the radical left claims that a later statute concerning national origin discrimination now modifies or vitiates that law.
That legal argument is completely without foundation.
For those reasons, the open migration, foreigners’ first lobby, is arguing that the President’s Executive Order “E.O.” relying on 1182(f) must be overturned because the President has a dark heart and ill intention that motivated his otherwise completely valid action.
That’s frightening stuff.
The opinion on this case will not come out until June, but the oral argument was heard today. There, Justice Kennedy, a Justice who stayed on this last year hoping the Democrats would retake the Senate in 2018 so he could retire without being replaced by a Constitutional Conservative, decided that looking at the motivations of a President as deduced by his campaign speeches makes any law he pass or action he takes free game for re-examination. Isn’t that rich?
Perhaps we should have a dark heart doctrine to examine why a Supreme Court justice really stays on the Court?
Nearly a year ago, when the High Court vitiated only part of a lower court’s injunction on the original travel ban, I wrote a piece warning celebrating “conservatives” and strong Trump supporters that the trained eye of a thoughtful legal observer and expert could see that the Court’s ruling at that time was a harbinger of bad things to come.
I took a beating from people who listen to Hannity and Rush and others who have no idea about the law or legal issues, let alone how to read a Supreme Court case. Yet, here we are just months away from a 5-4 decision that will not only change the powers of every Presidency, it will forever change the balance of power among the formerly co-equal branches.
The Kennedy Dark Heart doctrine will result in innumerable, politically motivated lawsuits, looking to overturn valid legislative and executive action because those who passed the otherwise valid laws didn’t do so for sufficiently pure reasons in the mind of critics.
That would be calamitous.
It would destroy further the structure of the republic, and place in the hands of judge’s powers and decisions never granted onto them. It will draw this country one step closer to a set of ingredients necessary for dissolution or civil war.
In an emotion-driven system of policy making, the emergence of a Kennedy dark heart doctrine may have been inevitable. However, until we return to a Constitutional system based on logic and reason, the Republic is hurtling toward trouble.
Author: Richard Kelsey
Richard Kelsey is the Editor-in-Chief of Committed Conservative.
He is an Attorney, a former Assistant Law School Dean, Law Professor, and Virginia state court law clerk. Dean Kelsey was also the CEO of a technology company specializing in combating cyber-fraud. He is a regular commentator on legal and political issues in print, radio and on TV.
Rich graduated from George Mason law school, clerked for the Arlington Circuit Court, and later joined an AM LAW top 10 law firm practicing commercial litigation. He left the firm to be counsel and CEO to a consulting firm, rising to CEO of Turiss, LLC, a technology firm specializing in computer forensics, digital investigations, and fighting cyber-fraud through civil intel services and new technologies. Upon the sale of the company, Kelsey returned to Mason Law, where in the years before his return, he both taught at the school and served as President of the Law Alumni Association. Kelsey was the Assistant Dean for Management and Planning.
At Mason, Dean Kelsey taught legal writing and analysis and an advanced litigation seminar. In 2014 he was elected by the graduating class as the faculty speaker at their graduation. While serving the former George Mason Law, Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP.
Rich has appeared on radio, TV, and in print hundreds of times as both a legal expert and political and legal commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL. He writes on occasion for the American Spectator and CNSNews.com. He returned to private practice in September of 2016, and he is working on a book/expose on legal education.
In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.
Rich has many opinions, and they are his own. His Twitter handle is @richkelsey.