The federal courts have now declared themselves fit and capable of deciding when and from where terrorism endangers our country.

In continuing the decision of a lower federal court to enjoin and suspend President Trump’s executive order of January 27, 2017, "protecting the nation from foreign terrorist entry into the United States," a three-judge panel of the Ninth Circuit has broken new ground in judicial activism.  The court decided that the sensitivities of the states of Washington and Minnesota, the plaintiffs in the lawsuit, were more important than the legal authority of the President and the Congress over terrorism and international relations.

Among the several provisions of the executive order was the one suspending entry into the United States of "immigrants and nonimmigrants" from the Middle East countries of Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen.  That was President Trump’s extension of 2015’s Visa Waiver Improvement Act, passed by Congress and signed into law by President Obama, that included new entry restrictions on nationals from Iran, Iraq, Sudan, and Syria.  In its decision, the appeals court made no mention of that Act as a legal basis or precedent for either presidential or Congressional authority supporting Trump’s executive order.

Ignored by the court as well was the historic discretion allowed the president on immigration matters as the Obama White House explained in 2014, "For more than a half century, every president—Democratic or Republican—has used his legal authority to act on immigration."  Likewise, the court made no reference to Section 212(f) of the Immigration and Nationality Act, 8 U.S.C. 1182(f), specifically cited by Trump in the executive order, which gives a president wide and unusual authority to "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." That is, the danger need only be "detrimental;" it need not approach actual terrorism.

The court said that the two states had offered evidence that the purpose of the executive order was to "disfavor Muslims" and in fact to enact a "Muslim ban."  That "evidence" was "numerous statements by the President about his intent to implement a ‘Muslim ban’" in the 2016 election campaign.  In accepting this extra-legal "evidence," the court ignored the fact that the executive order contains no such stated motivation and, in fact, nowhere mentions the words Muslim, Islam, jihad, or jihadi.  The court did not seem to notice that by going outside the record that it had refuted itself about the religious-bias basis for its decision.  The executive order does not include any reference to or hint of Trump’s statements during the campaign, thereby showing the deliberate purpose of excluding such motivations.  In addition, the order applies only to seven specifically designated countries where the Muslim religion predominates, and so it excludes several dozen similar countries.  The largest Muslim countries are Indonesia, Pakistan, and India, in that order.

In addition to the purported "Muslim ban," the other major complaint by the two suing states concerned the "teaching and research mission of their universities." Indeed, since the word "university" occurs 20 times in a 29-page decision, the "particularized injury to their public universities" may be said to be the primary rationale for the case in the view of the two states.  For, if foreign nationals from the seven countries were to remain subject to the executive order "some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave."  Has any person or entity, public or private, ever previously made such an unblushing public argument about the primacy of their miniature and parochial interests over such national and international concerns as international relations and terrorism?

"The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States," the court held.  Why didn’t the court use the same method of citing "evidence" about the dangers of terrorism as it did for its supposed proof of the bias against the Muslim religion?  For looking outside the record of the case, the court could have noticed that terrorism occurs regularly in the seven affected countries – as well as in this country, Canada, and Europe. In particular, Iran, Sudan, and Syria are currently designated as "state sponsors of terrorism" by the United States Department of State. Iraq and Libya were formerly so designated.

Overall, then, it seems that the fortunes of "two medicine and science interns" at the University of Washington and the "global engagement" programs at both the Universities of Washington and Minnesota are more important than what a president of the United States has decided pursuant to law and long-standing presidential practice about terrorism in the Age of Terrorism.

Thomas Ascik recently retired as an assistant United States attorney.

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