As this is published The U.S. Court of Appeals for the Ninth Circuit is reviewing and will either nullify or affirm a Temporary Restraining Order (TRO) granted by a lower court that blocks enforcement of the President’s Executive Order.
The opposition media have established their hostile Trump narrative. In it they characterize President Trump as an unstable bigot lurching from boorish tweets to ill-considered executive orders, causing misery, outrage and turmoil. Aided by hysterical attacks from Democrats and entrenched special interests, the media twist and bend every Presidential speech, comment, tweet into consistency with the narrative.
Thus, Trump’s Executive Order (EO) to temporarily suspend the refugee program and to block visitors and immigrants from seven nations that are beset by terrorism has met a tsunami of media venom. It has been widely portrayed as thoughtlessly thrown together, and as either illegal or Unconstitutional or both because, according to hysterical Trump critics…
- it’s a “Muslim ban”
- it “helps our enemies,”
- “it’s in conflict with our values as a nation,”
- “it’s heartless,”
- it “caused chaos at airports,”
- it “scares immigrant families and children,”
- it provoked mass protests in several cities,
- it may block people who have helped US troops and have thus been promised an opportunity to immigrate to America.
If any of the President’s virulent critics had stopped yelling long enough to actually read the executive order which is here on the White House website for all the world to see, they would they would have discovered that it was actually pretty modest in scope.
The EO was carefully, even meticulously prepared, and fully supported by the Constitution and existing law. In fact the laws that support it are cited within the EO. It includes processes that enable the Department of Homeland Security to grant exceptions in individual cases, including people who have helped our troops, when doing so is in the national interest. It exempts people who have already been granted permanent resident status (green card.)
The Constitutional and legal support for the EO are rock solid. Article I Section 8 of the Constitution grants to Congress the authority to pass laws regulating immigration. Exercising that authority Congress granted to the President via a 1952 law the following authority – exact quote from the law (8 USC 1182)
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 law does not require the President to satisfy any court or any media personality or any political adversary that his finding that a particular class of alien – in this case people from the seven designated nations – is detrimental to the interests of the United States. Congress delegated the decision only to the President with no review or veto from anyone else, including the courts. Period.
The Courts can not find the EO violates the Constitution, because the authority was delegated to the President by Congress who, under the Constitution are empowered to regulate immigration.
That some people are unhappy, for any reason, with the President’s finding is irrelevant. That this EO may provoke outrage among citizens of the seven countries is irrelevant. That one or more of the objections listed above may be valid is simply irrelevant. Under the Constitution and the law The President has been granted sole authority and Trump has lawfully exercised that authority.
The only recourse for those who oppose the EO would be to pass new legislation that changed the law quoted above.
Let’s deal specifically with the “Muslim ban” allegation. Unfortunately, Trump himself provided an opening for this objection when, during his campaign, he issued a written press release calling for such a ban. But the EO is not a campaign announcement and it is not Muslim ban, not even close. There are 44 Muslim majority nations. Trump’s EO affects only seven of them, where 205.4 million or approximately 12.1 percent of the 1.7 billion Muslims worldwide reside. Thus 88% of the world’s Muslims are unaffected by the E.O. Calling it a Muslim ban is a deliberate act of deception, designed to inflame Islam’s believers worldwide.
The EO is the subject of a court battle because the Attorney General of Washington State asked Judge James Robart of the US District Court in Seattle to issue a Temporary Restraining Order (TRO) to stop enforcement. His request was based entirely on arguments like those listed above and on speculation as to future “damage” to Washington’s businesses, colleges, and tax revenue that excluding visitors and immigrants from these seven countries might cause. But the court does not have the authority to assess and judge such matters. In fact, in his final paragraphs Judge Robart did a fine job of describing the limited, legitimate power of the court under the Constitution [emphasis added]
“Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimate exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws and more importantly, our Constitution.”
If Judge Robart believed these words he would have denied the request for a TRO. Instead, his ruling is exactly what he says is not the work of the court! Washington State’s Attorney General did NOT argue that the law empowering the President to determine a certain class of aliens is detrimental to the interests of the United States is Unconstitutional. He didn’t argue that Executive orders limiting certain classes of aliens are illegal or Unconstitutional. Instead he asked the court to find fault with the wisdom of this specific EO. Yet astoundingly, Judge Robart issued the TRO without citing any statute or case law precedent. He did say “the State is likely to succeed on the merits,” apparently based on considerations other than the law and the Constitution.