Two federal appeals courts have now held that Trump’s Executive Order temporarily banning immigration from certain countries is unconstitutional. The 4th Circuit thought that the EO was discriminatory, while the 9th Circuit opined that the President had exceeded the congressional mandate (recall that immigration has always been the province of Congress, not the Executive, so the President’s authority in this field is delegated authority.) It is unclear what will happen if the case goes to the Supreme Court.
I was and continue to be of the opinion that:
1) The EO is wrong and counterproductive.
2) The legal precedents, however, support the constitutionality of the order (I also think these legal precedents are dangerous and should be overturned.)
In these pages I suggested that those who purported to rely on precedent to invalidate the order were just doing advocacy, and that the public would be better served if courts and commentators candidly admitted that they were making up new law, that is, trying to overturn the applicable precedents.
Today I’d like to suggest a new angle. Whether the EO order is constitutional depends on your theory of law. If you are a positivist, then you cannot honestly argue that the EO is unconstitutional, because precedent strongly indicates the opposite. Herbert Hart, a leading positivist, argued that legal propositions derive in one way or another from the legal materials as created by lawmakers. Moral reasoning, while important, is separate from legal reasoning. Hart, therefore, would have said that the EO is lawful but immoral, and that perhaps immigrants who break the law and sanctuaries who receive them are upholding a moral obligation that prevails over their legal obligation.
But if you are not a positivist, then moral reasoning is part and parcel of the law. Ronald Dworkin famously defended such a view. As against Hart, he argued that legal materials (the Constitution, statutes, judicial precedent) should be read in their best possible light. This means consistency, of course, but it also means making the legal materials be the best they can be. And by “best” he meant “the best they can be under the most plausible moral-political theory that explains he Constitution.” Such theory would then be part and parcel of law, and not, as Hart thought, something separate from it.
So, if you are like me and object to this EO, you are in better shape if you are a Dworkinian rather than a Hartian. If the best available moral-political theory entails the immorality of the EO, then the EO is not just immoral: it is illegal as well. (Of course, some will say that the EO is perfectly moral. For them the problem I identified doesn’t arise.)
The reason why the Dworkinian approach is not prevalent is that most lawyers are anxious to appear as objective positivists, as applying and not inventing law. That leads them to dishonesty, to pretend they are applying and not inventing law when they are, in fact, doing exactly that. I regard this as evidence that some form of natural law theory (Dworkinian or not) is superior to positivism.