The Supreme Court’s majority held correctly on Tuesday in both National Institute of Family and Life Advocates (NIFLA) v. Becerra and Trump v. Hawaii (the “travel ban” case). I don’t say this because of my personal policy opinion. I certainly have strong opinions, but that is irrelevant to this discussion. And that’s precisely what the Supreme Court held in both cases.
Whether or not you would volunteer with a pro-life pregnancy center or whether or not you would deem certain countries a risk to national security if you were president, the Constitution does not provide policy opinions for the Supreme Court to follow—it provides certain limited powers to the government to act. In other words, the rule of law.
The rule of law in the Constitution informs us what the government may do and what it may not do. It may use its delegated authority to determine policy. It may not compel private professional speech for its own political purposes because it does not have that authority.
More specifically to these two cases, the president may use his delegated authority to determine policy under current federal law that Congress established according to its Article 1, Section 8 power. The Constitution provides that power. Government may not compel private professional speech for its own political purposes because the First Amendment protects the freedom of speech. The Constitution does not provide that power.
The Supreme Court does not pick winners and losers based on political preferences or what it wishes the government had power to do, but rather acts like an umpire should in a baseball game—fairly calling balls and strikes without bias toward the teams, players, or reading into or adding to the rules. The rules say one player on each base at a time. The Supreme Court can’t say the Rockies get to have two players on each base just because Gorsuch is a fan.
President Trump rightly remarked with regard to the travel ban decision, “Today’s Supreme Court ruling is a tremendous victory for the American People and the Constitution.” He’s entirely correct. Today was not a win for the president’s policy preferences or discretion regarding national security—that win happened in November of 2016. Today was the faithful adherence by the majority to fairly apply the law.
Writing for the majority, Chief Justice John Roberts said, “The sole prerequisite set forth is that the president find that the entry of the covered aliens would be detrimental to the interests of the United States. The president has undoubtedly fulfilled that requirement here.” No policy opinion, just answering the question of whether the president has the constitutional authority to act in the manner that he did.
But you don’t see this faithfulness to the rule of law discussed in the progressive media. To liberals, the Supreme Court exists to provide political wins, instead of to safeguard the limited powers the Constitution provides each branch of government. Justice Sonia Sotomayor’s dissent read like a political policy white paper at best, and an emotional appeal at worst, discussing basically the reasons she did not like the policy. Not liking the policy does not make it unconstitutional.
In regard to NIFLA, headlines read “Supreme Court sides with free speech over abortion rights” and “The Supreme Court hands a win to the pro-life movement.” Neither of these two statements are accurate. The majority again didn’t decide policy or side with anyone’s views on abortion. In fact, all this case was about was that the government cannot side with one side’s view and compel the other side to advocate for the government’s preferred view.
Imagine if NIFLA had been about an Alcoholics Anonymous group. A law was in place favoring drinking over sobriety, so the AA group had to advise every person coming through its doors where that person could obtain state-sponsored alcohol. This would be problematic for a variety of reasons, but primarily because the rule of law does not give the government authority to compel an AA group to speak against its own views. Imagine if a Democratic speech writer were compelled by the government to write only Republican policy views in speeches.
If we take a moment to take the emotion out of both cases and fairly apply the rules (what can the government do and what can it not do) the outcomes here are very simple. It’s as simple for the Supreme Court as moderating a game of chess. They do not have to figure out the strategy or move the pieces. Those are policy decisions, vested with the political branches’ governmental players who have the authority to make those discretionary decisions. All the Supreme Court may constitutionally do is fairly call whether or not a move by a player is allowed by the rules. That’s why we have elections to determine who gets to move the pieces.
Today was invariably a win for the Constitution in both instances, but the 5-4 majority in each case told us more about the political activist view of the left-leaning justices on the Supreme Court. We need more conservative justices—constitutional umpires that are willing to fairly call balls and strikes. If the liberal left were not trying to play the political game themselves according to their own policy preferences, both cases would have been a 9-0 decision.
Jenna Ellis (@jennaellisJDFI) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is Director of Public Policy at the James Dobson Family Institute. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.
