A federal judge in Hawaii has temporarily blocked the government’s revised Executive Order on immigration. I‘m glad he did this, because I regard the EO as wrong and counterproductive. But I am worried about a larger issue. I have taught Foreign Relations law for many years (even though it is not one my research areas). There is little question in my mind that legal precedent supports the constitutionality of this order. I will not bore readers with legal technicalities, but it is clear to me that, under those precedents, many equal-protection restraints that apply to governmental acts in most areas do not apply to immigration. The government may target groups if doing so responds to a genuine national security concern. Moreover, courts traditionally have refused to second-guess the Executive on areas where the President, implementing a congressional statute, has well-established discretion. Immigration is one of those areas (see a summary here, chapter 3). Please understand me: I don’t support these precedents either; on the contrary, I support virtually open borders. But the precedents are well established.
My constitutional law colleagues tell me that law is a tool, not an end in itself, and it really doesn’t matter how sound the decision is, as long as it achieves the worthy goal of stopping this bad order, or the worthy goal of resisting this bad president. Maybe so. But then I have no reason to listen to these same colleagues’ ponderous doctrinal analyses where they pretend that precedents support their chosen outcomes.
I conclude that there is no constitutional law. It is all fancy, adorned, jargonistic advocacy. Lawyers and judges mislead the public into believing that there is such thing as legally-binding precedent that does not depend on the desirability of the outcome. There is no such thing. Lawyers merely reverse-engineer their arguments in order to tailor them to predetermined outcomes and then pretend that the reasoning was objective.
At the sunset of my career, I must confess that, at least with regard to constitutional law, the nihilists, the Critical Legal Studies folk, who long argued that law is an illusion (only to be laughed off by us, the rationalists), were essentially right.