06.19.2017 0

9th Circuit strikes again to keep U.S. borders open

Cartoon c/o Legal Insurrection.

By Natalia Castro

After the 9th Circuit Court has once again decided to delay the implementation of Trump’s travel ban, the Supreme Court is bracing for its first major decision on the issue. It is critical the high Court not only look at the law but also realize the precedent limiting the President’s constitutional powers creates.

The Immigration Act of 1952 specifically gives the president the power to temporarily suspend immigration from the seven countries Trump has justified as terrorist hotspots. A provision, which was carried into the Immigration Act of 1965, now entitled 8 U.S.C. 1182(f) states that, “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.”

Presently, 16 “travel bans” or rather Presidential Proclamations limiting travel, are in effect for various Latin American, Middle Eastern, and African countries.

That same law gives Trump full authority to impose his temporary travel ban on six countries likely to export terror. But the 9th Circuit Court of Appeals felt differently because it wasn’t any other President, this time it was Donald Trump imposing the ban.

The 9th Circuit ruling explained its rationale, “The President first to make sufficient findings that the entry of nationals from the six designated countries and the entry of all refugees would be detrimental to the interests of the United States. We conclude that the President did not satisfy this precondition before exercising his delegated authority.”

But Trump has consistently worked to meet this standard.

The second executive order Trump released, Protecting the Nation from Foreign Terrorist Entry Into the United States, was ultimately an attempt to meet the left’s “PC” requirement. The order expressly addresses this concern, explaining the reason the countries were selected was because “Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States.”

This high presence of terror and close government relations with terrorism provide absolute reason for concern, a concern shared by the American citizens who voted Trump into office, and more than meets the threshold set by law. The President made the determination. It is not up to courts to judge whether that determination was “sufficient,” an arbitrary standard.

Even the court ruling acknowledges that the second order no longer included Iraq on the list because of “Iraq’s ‘close cooperative relationship’ with the United States and its recent efforts to enhance its travel documentation procedures,” showing Trump’s willingness to cooperate when other nations do the same — all setting the stage for his “extreme vetting” policy he wishes to implement for every country.

The reasoning behind Trump decision becomes much clearer when analyzing the sources behind the ruling.

The footnote attached to the conclusive statement on page 39 of the ruling which definitively states, “the Order does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States” does not reference the Executive Order itself, but instead reads, “Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s ‘travel ban’ See Donald J. Trump (@realDonaldTrump).”

Here, the 9th Circuit seems to not wish to make the travel ban itself illegal but instead, Trump’s implementation of the travel ban, because based on their arbitrary assessment of his Twitter page, claiming falsely he has a vendetta against Muslim nations — even though most Muslim-majority countries are not affected by the restrictions.

However, this sets a dangerous precedent regarding the court’s ability to limit the President’s constitutional powers under Article II.

Had a presidential nominee said on the campaign trail “drug addicts must go to jail to rehabilitate, those addicted to drugs should not be allowed in normal society,” no court would then determine that that politician has a vendetta against drug users and would be biased in implementing stricter drug laws — and therefore drug laws could no longer be enforced.

Later, could a judge block Trump’s implementation of a Congressional authorization to use force in a Muslim-majority country under the same pretense?

Similarly, if this ruling stands it would presume that Trump cannot make any policy which affects Muslim nations because of his “bias” against Muslims. As the Immigration Act makes clear, it is the President’s discretion to decide if a country is too dangerous to allow immigration from, as Presidents have done before. Trump should be able to do so now. Never has this been the court’s place to determine, and it is not now simply because liberal judges do not favor Trump.

Finally, the court rests its standing on this case on the affects Trump’s decision would have on people who might want to come to these states, particularly “constraints to recruiting and attracting students and faculty members to the University of Hawaii.”

What these justices fail to realize is Trump is simply working to keep Americans safe from another 9/11. The 9/11 Commission Report proved the terrorists entered the United States using a student visa. The report continues to recommend immigration reforms which include “Both implementing new security measures for U.S. passports and working with the United Nations and foreign governments to raise global security standards for travel documents.”

Judges are bound to the Constitution, not their feelings toward a President. By fighting one of the foundational promises of Trump’s campaign—executing his Article II powers to conduct foreign affairs plus Congress’ Article I delegation over inadmissible aliens under the 1952 statute — the courts are attempting to prevent him from ever being able to pursue national security policy.

That is why the Supreme Court must intervene to stop the lower courts from usurping the President’s Article II responsibilities. They must allow the President to do the President’s job he is entitled to under the Constitution — even if they disagree with it.

Natalia Castro is a contributing editor at Americans for Limited Government.

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