Trump, Gorsuch, & The Travel Ban Executive Orders

After the pathetic attempt to repeal ObamaCare ten days ago Trump needs a win in the worst kind of way.

 

It is bad enough to wonder how Trump was mislead by Ryan to fall for the ObamaCare Lite healthcare reform approach (AHCA bill) that miserably failed to repeal or replace ObamaCare – but the one that worries me even more is the handful of no-name statist judges who blocked Trump's two temporary travel bans that sought to suspend the entry of all refugees to the United States for 120 days, anyone from Iran, Libya, Somalia, Sudan, Yemen, & originally Iraq, for 90 days as well as anyone from Syria indefinitely (later revised to 120 days) – these seven (now six with the revised second travel ban) countries were previously identified by BO as countries of concern to our safety & national security.  Trump agreed that the travel ban did not apply to green card holders & people who had received valid State Department issued visas (i.e., these people had been vetted) – this is why a second travel ban was issued, the principles of which should be followed.

 

The idea of the travel bans was to provide time for stronger vetting procedures to be put in place so that true refugees could be separated from terrorists – i.e., what Trump calls extreme vetting.  People from the above six countries who had never set foot in America & had not previously been vetted were the ones affected by the second travel ban.

 

The judges who have ruled against Trump on the two travel bans ruled that he likely engaged in religious discrimination in writing the travel ban executive orders (EOs) that temporarily barred people from six countries that are considered Muslim-majority nations.  Instead of relying on the facts in front of them the judges cited Trump's statement during the political campaign, when he was a private citizen, that he wanted to ban Muslims from entering the U.S. & a TV appearance by Rudy Giuliani who has never been a member of the Trump administration.  The judges were not concerned @ all about national security, safety, or terrorism.  The WSJ editorial of March 17 says "That's a dubious – & dangerous – legal standard.  By that reasoning, courts can reject any law not based on what it says but by parsing TV transcripts & divining the motives of public officials."

 

As far as the claim that the travel bans target Muslims – 93% of the world's Muslims are not affected so this claim is another bogus argument.

 

There also is the point that the case should not have been allowed by the courts because the states (Washington & Minnesota) that brought the suit do not have standing – i.e., to have standing a litigant (including states) must have an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power.  Source David Rivkin & Lee Casey, constitutional & appellate attorneys who served in the White House Council's Office & the U.S. Justice Department during the Reagan & Bush 41 administrations.

 

The win Trump is looking for should be forthcoming with the confirmation of Judge Neil Gorsuch to the Supreme Court.  Actually Gorsuch's confirmation will be a double header win in that just having Gorsuch confirmed is a win in & of itself that will be refreshing & then Trump can appeal the lower court stays of the travel bans to the Supreme Court. 

 

Make no mistake about it - if Trump accepts the rulings of these mealy-mouthed judges who have ruled to date or a Supreme Court decision that plays games with national security it is a sign of weakness.

 

The judiciary's performance in such a clear matter is a real shame that every American should be infuriated about – these judges just made-up whatever they wanted to stop Trump & this time they were not concerned @ all about the safety of our own citizens or the national security of our country.  Without Gorsuch as the ninth Supreme Court Justice, Trump feared a biased court & four to four tie that would leave the lower court decisions in place.  An impartial Supreme Court would reach a unanimous 9 to 0 decision when the appeal is filed but I will have to see it to believe it.

 

Background -  on Friday January 27 Trump issued the first EO @ the Pentagon entitled Protecting The Nation From Foreign Terrorist Entry Into The United States.  This EO portrayed the travel bans as having such urgency that it was issued in the middle of the day with people actually on flights in the air who were affected resulting in airport turmoil & outrage over that weekend.  Now, over two months later, the travel bans have not taken effect because of the judges' rulings & we don't know whether or not sleeper cell terrorists have entered the country during this period.

 

The Constitution vests all executive power in the President. 

 

In the 1936 United States v. Curtiss-Wright case the Supreme Court wrote of "the very delicate, plenary & exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress."

 

In the 1950 Knauff v. Shaughnessy case the Supreme Court wrote that the President's authority to exclude aliens "stems not alone from the legislative power but is inherent in the executive power to control the foreign affairs of the nation" & in the 1952 Youngstown v. Sawyer case Justice Robert Jackson wrote "when the President acts pursuant to an express or implied authorization of Congress, his authority is @ its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."

 

Section 212(f) of the Immigration & Nationality Act of 1952 (INA) states: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

 

This act is important because it shows one branch (Congress) of the federal government delegating power to another (the President).

 

The above section of the INA has been relied on by presidents summarized as follows: 1) Carter in 1979 to bar anyone from Iran from entering the country until the hostage crisis was resolved, 2) Reagan in 1981 to bar any undocumented aliens "arriving @ the borders of the U.S. from the high seas", 3) Reagan in 1986 to bar Cuban nationals, with some exceptions, 4) Clinton in 1994 to bar anyone in the Haitian military or government affiliated with the 1991 coup d'état that overthrew the democratically elected president, 5) GW Bush in 2004 to bar corrupt members of the government of Zimbabwe from entering the U.S., 6) BO in 2011 to bar anyone from Iraq for six months, & 7) BO in 2012 to bar hackers aiding Iran & Syria.  Sources Olivia B. Waxman writing for Time & Judge Napolitano.

 

Based on the above it is obvious that Trump's EO temporarily banning entry to America of people from the specified countries who have no functioning governments that should be relied upon to vet travelers to America & are hot beds of terrorism is well within President Trump's constitutional authority, consistent with statutory law, & Supreme Court case law.

 

In addition, the travel ban provides a vivid example of the importance of the Supreme Court in the lives of ordinary Americans.  Just imagine if Hillary Clinton would have won the presidency & made the selection of the next Supreme Court justice – or worse yet the next several justices.  The law of the land would change so that we would not recognize the rules & laws we live under.  The importance of a Republican majority in the Senate is also revealed by this example.

 

Fortunately, the Supreme Court is not the final word on such matters – "the power of the people is superior to both" the judicial & legislative powers.  Source: The Federalist No. 78: Hamilton.

 

Like the justices & members of Congress, Trump also takes an oath to preserve, protect, & defend the Constitution – but in his case Trump also swears to "faithfully execute the Office of President of the United States."  To let the rulings of kangaroo-court-like justices stand that blatantly disregard the recognized standards of law & justice, especially when national security is involved is a violation of that oath.  Trump either works to overturn the rulings through the judicial system as described above or ignores the rulings & proceeds with the travel bans & lets the people decide if his action is correct – much like Jefferson, Jackson, Lincoln, & FDR did in ignoring or criticizing the judiciary from time to time – source John Yoo & Sai Prakash, Law Professors @ Cal-Berkeley & Virginia respectively.  Working through the judiciary system has the impracticality to our safety that over 60 days of jeopardy has already elapsed with incomplete vetting of foreign nationals who are possible terrorists.

 

Now long time readers of this blog know the correct role of the Supreme Court - there were a series of posts in March 2012 during the oral arguments of the ObamaCare case & various posts from time to time where Mike Huckabee & Newt Gingrich explain the proper role of the judiciary.

 

In this regard, click here to hear Robert George, Professor of Jurisprudence @ Princeton University, give a short tutorial that traces how the principles of the Founders, who thought of the judiciary as "the least dangerous (branch of government) to the political rights of the Constitution," has given way to the acceptance that the judiciary is the branch of government that can take away our liberties one after another – if we let them.

 

Reference post:  Huckabee Provides Ninth Grade Civics Lesson To Fox News Sunday Viewers