People who opposed Donald Trump’s immigration enforcement measures are about to learn the meaning of the idiom, “what goes around comes around.”

Trump opponents were able to prevent or delay the implementation of his enforcement measures by seeking injunctions from liberal federal judges who shared their negative opinion of Trump. For instance, when Trump issued Executive Order 13780 to establish a travel ban for countries that were refusing to provide information needed to screen and vet their nationals who wanted to come to the United States, Trump’s opponents sought an injunction to prevent the order from being implemented. They claimed that Trump didn’t have the authority to establish such a travel ban and that it violated the Establishment Clause of the First Amendment by discriminating against Muslims on the basis of their religion.

In a decision issued nine days after Trump signed Executive Order 13780, a federal judge for the district of Hawaii acknowledged that Trump’s order did not say anything about religion:

“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”

But on the basis of the statements Trump made about a Muslim ban when he was campaigning for the presidency, the judge went on to find that “any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.”

Therefore, the judge issued the Temporary Restraining Order.

According to Eric Posner, a professor at the University of Chicago Law School, the courts created a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason — which in this case, is the national security interest in stricter vetting — when a president exercises his immigration authority.

The Supreme Court, in a decision issued on June 26, 2018, rejected the religious discrimination argument at the heart of the Hawaii judge’s restraining order, finding that the travel ban was expressly premised on facially legitimate purposes and said nothing about religion.

The Supreme Court concluded that it was a lawful exercise of the broad discretion congress granted to presidents under section §1182(f) of the Immigration and Nationality Act (INA) to suspend the entry of aliens into the United States.

Apparently, President Joseph Biden disagrees. On Jan. 20, 2021, he issued a proclamation that terminated Trump’s “discriminatory” travel ban.

But for 15 months, Trump opponents — with the help of like-minded judges — stymied Trump’s policy.

What goes around comes around

The genie is out of the bottle. The Democrats demonstrated the effectiveness of court challenges to Trump’s immigration measures. Now the Republicans are going to use the courts to challenge Biden’s immigration measures. In fact, this has already started.


Published originally on The Hill.