“In Europe, in the United States, Civil Liberties are Under Attack!” We’ve heard this story before, rehashed every few years since the New York terrorist attacks in 2001. We’ve also heard this one: “Terrorists are among us and immigration laws keep us from keeping them out!” And this one: “Surveillance looks for patterns, and the recognition of patterns keeps us safe!”
But a new component of this story is emerging. While Bush’s Patriot Act and Hollande’s initiation of France’s never-ending ‘state of emergency’ harped on ‘national security’ as a justification for unilateral executive action restricting these liberties, Macron’s proposed ‘police power reforms’ and Trump’s ‘travel ban’ both set dangerous tones of permanence.
The US Supreme Court’s June 26 voluntary deference to Executive definitions of ‘national security’ highlights the extent to which permanent civil liberty infringements hinge on the powers accorded to each country’s judiciary. In France, Macron’s proposed legislative permanence is obvious, since he proposes reforms to the Civil Code, and such overt re-formations would provide France’s judiciary with clear markers by which to measure the constitutional consistency of infringements on civil liberties. But the judiciary can only evaluate consistency after the ‘state of emergency’ enters into the realm of the Civil Code: Macron cannot unilaterally push the ‘state of emergency’ into the realm of permanence, but the Court of Cassation cannot find that the ‘state of emergency’ is unconstitutional because the French Constitution explicitly allows for it in Article 16. Thus, the ‘police power’ elements of the ‘state of emergency’ that Macron proposes to make permanent must first pass through France’s Parliament, and must then survive judicial review independent of Article 16. By contrast, the permanence of Trump’s ban lives or dies through the actions of the US judiciary; no legislative debate or incorporation is required if the ban itself is constitutional because the U.S. Constitution accords the Executive broad plenary powers to unilaterally regulate immigration.
While the French judges’ union actively rejects the prospect that elements of France’s ‘state of emergency’ be incorporated into the status quo via amendments to the Civil Code, the U.S. Supreme Court affectively dodged the issue on Monday by allowing elements of Trump’s 90-day ban to go into effect immediately before the Court embarked on a 90-day recess. The Court set out what essentially amounts to a ‘substantial connection’ test to determine whether the ban should apply in each individual case. In the Court’s words, for the next 90 days, individuals from the six Muslim-majority countries singled out will need to demonstrate some sort of “credible claim to a bona fide relationship with a person or entity in the United States.”
Here’s why the U.S. Supreme Court’s decision is a major cop-out: The lower court decisions that led to the case featured institutional plaintiffs (universities in Hawaii and Washington) who alleged harm on the grounds that university recruiting and diversity would be impaired by the ban. The Hawaii case also featured an Imam who alleged harm on the grounds that non-U.S.-citizen family members would not be able to visit him. The June 26 decision dodges both of those complaints by setting out a temporary standard that eliminates the specific harm alleged only in these cases without addressing the core claims before the lower courts, namely those based on the Establishment Clause (impermissible government entanglement with religion) and the Equal Protection Clause (impermissible discrimination through legal text or application). According to the Court, the core claims to Establishment and Equal Protection harms will be resolved after the Supreme Court’s summer break…except that the ban only lasts 90 days and will therefore be moot after the Court’s summer break. Thus, unless Trump renews the 90-day ban, when the Court reconvenes, it can dismiss the case (unless the International Refugee Assistance Project can convince them that it is capable of repetition but evading review).
Meanwhile, in France, the judiciary has a problem of a different sort: the ‘state of emergency’ is a constitutional element of code that temporarily justifies actions that would be constitutionally impermissible. But the definition of ‘temporarily’ falls to branches of government over which the judiciary has little sway.
In both instances, infringements on civil liberties are touted as temporary, and in both instances the judiciary plays a major role in the potentiality of permanent infringement. The difference is, in France, permanence must pass through a democratically elected legislator before reaching the judiciary, and the French judiciary must then determine legislative consistency with the Code. In the U.S., the infringement need not touch a legislature if it falls within the permissible ‘national security’ powers of the Executive—the Court’s role is to determine whether it does. The content and timing of Monday’s ruling indicate at best the Court’s reluctance to take a stance on whether the whole ban is constitutional; at worst, it indicates a willingness to give the Executive the benefit of the doubt.
Kevin Crow is a Lecturer and Senior Researcher at the Transnational Economic Law Research Centre at the University of Halle-Wittenberg Law School (Germany), and a Research Associate at the Asia School of Business (Kuala Lumpur). His research focuses on international economic law and international humanitarian law, and most recently, on the private sector's authorship of public international law.