RUTHFULLY YOURS

Another court has weighed in against President Trump’s executive order temporarily limiting entry to the U.S. of aliens from six terrorist hotspot countries in Africa and the Middle East. In ruling against the order last week, the Fourth U.S. Circuit Court of Appeals defied Supreme Court precedent and engaged the judicial branch in areas of policy that the Constitution plainly reserves to the president and Congress. The high court should reverse the decision.

In International Refugee Assistance Project v. Trump, the Fourth Circuit affirmed a Maryland district judge’s nationwide injunction halting enforcement of the president’s order. Chief Judge Roger Gregory, writing for the 10-3 majority, acknowledged that the “stated national security interest is, on its face, a valid reason” for the order. But he went on to conclude that the administration acted in bad faith based on, among other things, “then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith.”

Whatever one may think of that conclusion as a political matter, as a legal matter the judges overstepped their bounds. The controlling case is Kleindienst v. Mandel (1972), in which the Supreme Court rejected a petition from American scholars seeking admission to the country on behalf of a foreign colleague who had been kept out because he advocated communism. The plaintiffs argued that the government’s refusal to admit their colleague on account of his views violated their First Amendment rights. The justices upheld his exclusion and made three things clear: first, aliens have no constitutional right to enter the U.S.; second, American citizens have no constitutional right to demand entry for aliens; and third, the decision to deny admission to an alien must be upheld if it is based on “a facially legitimate and bona fide reason.”

The high court has repeatedly reaffirmed and followed Mandel. Fiallo v. Bell (1977) rejected a challenge to immigration preferences that openly favored legitimate over illegitimate children and female U.S. nationals over male—distinctions that almost certainly would have been found unconstitutional in a domestic-policy context. In Kerry v. Din (2015), the justices upheld visa denial for the complainant’s husband, who had been a member of the Taliban. When the executive branch makes a decision “on the basis of a facially legitimate and bona fide reason,” Justice Anthony Kennedy wrote, quoting Mandel, the judiciary can “ ‘neither look behind the exercise of that discretion, nor test it by balancing its justification against’ the constitutional interests of the citizens the visa denial might implicate.”

In holding that Mr. Trump acted in bad faith, the Fourth Circuit fundamentally misconstrued Justice Kennedy’s opinion in Din, which nowhere suggested that, once the government had articulated a facially legitimate purpose, the courts could weigh whether there might have been an additional, improper purpose. As the Fourth Circuit dissenters explained, Mandel requires only a facially legitimate and facially bona fide reason.

Any other standard would constitute an invitation to the judiciary to direct the nation’s foreign and defense policies. Having misapplied Din, the Fourth Circuit went on to apply a standard domestic case-law analysis, under which the existence of a discriminatory purpose essentially dooms the exercise of governmental authority irrespective of other justifications. Under that approach, the government would have lost in Mandel, Fiallo and Din.

If the Fourth Circuit’s reasoning were to stand, it could cripple the president’s ability to defend the country. The judges claim Mr. Trump’s campaign statements, supposedly hostile to Islam rather than Islamist terror, transform his order into an “establishment” of religion in violation of the First Amendment. If the president is forbidden to impose temporary limitations on immigration from any Muslim-majority nations, it would follow that he is prohibited from taking any hostile or unfavorable actions, including the use of economic sanctions or military force, toward any Muslim-majority nation.CONTINUE AT SITE

The Putin regime is hostile to the United States. Donald Trump’s infatuation with forging an alliance with Russia (much like his infatuation with crafting a peace deal between Israel and the Palestinians whose objective is to destroy Israel) has always struck me as reckless, occasionally repugnant, and always hopelessly naïve. Similarly naïve, and obnoxious to the American tradition of resisting royalty, is President Trump’s reliance in major matters of policy on his son-in-law and daughter, two young people who have little if any experience in many of their swelling areas of responsibility.

Put another way, would Jared Kushner be a key senior policy adviser to any president of the United States other than his father-in-law?

The two streams of naïveté collided in December 2016.

Kushner, then 36 and the scion of a wealthy family, is well educated and acquainted with the hardball ways of the New York real-estate business and newspaper publishing. He has no national-security or diplomatic experience, however, but was nonetheless chosen to represent the then-president-elect at a Trump Tower meeting with Russia’s ambassador the United States. That would be Sergey Kislyak, a wily Soviet-apparatchik-turned-Putin-operative, who has been at the game of picking America’s pocket for longer than Kushner has been alive. Retired general Michael Flynn, who was slated to become Trump’s national-security adviser, was also at the meeting. On the agenda was the establishment of a back channel for Trump-administration dealings with the Kremlin. In particular, according to the New York Times, the Trump transition team wanted Flynn to have access to a Russian counterpart to discuss Syria and other issues of mutual interest.

In principle, as stressed by Trump national-security adviser H. R. McMaster, there is nothing wrong with the concept of back channels. All administrations use them. See, for instance, John Hinderaker’s report on President Obama’s establishment of a back channel with the Iranian regime in 2008, when it was already clear Obama would be the next president and when his pre-inauguration signaling to the mullahs undermined the Bush administration, just as the Obama administration no doubt felt undermined by Trump’s transition outreach to Putin. The United States and Russia are global competitors with large nuclear arsenals and some important mutual interests. It is often desirable for adversaries to maintain open lines for frank communication beneath all of their public posturing. Obama certainly seemed to think so when, in his infamous hot-mic mishap, he beseeched Putin factotum Dmitry Medvedev to let Vlad know he’d have “more flexibility” to accommodate Russia on missile defense after the 2012 election was over.

Until last fall, national-security conservatives were ridiculed for agitating about Russia. So it is with back channels, which the media-Democrat complex were not bothered by until a Republican was elected president. To be sure, the structure of the back channel that Kushner undertook to forge is troubling — if, that is, the reporting about it is accurate. That reporting, it must be noted,is based on anonymous Washington Post sources, whom the New York Times has said its own anonymous sources have not been able to corroborate.