A few weeks back, this author forecast President Trump would adjust his “travel ban” to explicitly incorporate the empirical basis for his decision into the executive order itself, incorporating relevant facts, policies, and history into President Trump’s rationale for the order. While this has never been compelled before by a court, the dubious 9th Circuit decision, predicated Trump’s action. The 9th Circuit is no Floyd Mayweather, and this Trump executive order is more like a young Mike Tyson: the ACLU and the State of Hawaii await a knockout loss in court.
Section 1182 of Title 8 of the United States Code authorizes the President to “suspend the entry of all aliens or any class of aliens as immigrants” and can “impose on the entry of aliens any restriction” the President deems merely “appropriate.” Section 217(a)(12) of the Immigration and Naturalization Act identifies six countries that pose unique risks of terror entry into the United States. These statutes gird the President’s executive order. After citing the statutory reasons for his order, the President turns to the policy and empirical reasons for the order.
At the outset, President Trump applies the same standards for letting strangers inside the borders of our country that everyday Americans use for letting strangers into the borders of their own home. Nobody invites everybody to just walk on in to their home and sleep next to the daughter’s bedroom, least of all promise to feed them, clothe them, and house them, forever, into perpetuity. We all screen who we let in our homes, and the country is our collective home. Hence, the recurrent overarching goal of Trump’s migration policy expressed explicitly in this executive order: an alien seeking entry into the nation must present no risk to the security of the nation or the safety of its people, and their inclusion in America’s home must be in the interest of the people of the nation.
Predicated thereupon, President Trump’s executive order imposes “a temporary pause on the entry of nations from Iran, Libya, Somalia, Sudan, Syria and Yemen.” As the order itself notes in expressing explicitly its reasons and reasoning, the problem migrants from these nations create is a risk of erroneous entry of a perilous alien that exceeds any perceived benefit of permitting entry. The order exempts: green card holders, valid visa holders, those present in the United States (sorry, ACLU, you are going to need all-new plaintiffs), diplomats, admitted refugees, and asylum grantees, with individualized waivers equally available on a case-by-case basis. The only two-fold requirement for a waiver reaffirms President Trump’s overall premise of immigration and alien entry policy: entry can happen in an individual case where denying entry would be an undue hardship, and, most critically, where a competent consular or customs officer finds the person “would not a pose a threat to national security,” and that their entry would instead “be in the national interest.” The order even details the kind of exculpatory facts that roadmap how a consular or customs officer can make their guided decision.
As to the policy needs for this executive order, the order reminds those courts too lazy to read anything beyond the order, that the United States relies substantially on the government of a foreign nation for “vetting” the security risk of potential migrants to the United States. The nations whose migrants are temporarily excluded share certain traits in common: first, the identified countries originating risky migrants are either identified as state sponsors of terror, significantly compromised by terrorist groups, or currently experience active ongoing internal military conflicts concerning terrorists; second, the identified countries originating risky migrants have a disparate, significant presence of terror organizations and terror supporters amongst their local population, due to terror supporters in their native population or because of porous borders; and third, the identified countries originating risky migrants have inadequate government processes in place to provide accurate information concerning a potential risky migrant, and inadequate means, or motivation, to accept the return of such a risky migrant should that become later necessary.
The empirical basis for the decision is also detailed and cited as to each country. The primary areas of concern were two-fold: first, compromised states who either refuse to, or are unable to, provide reliable secure information and documentation to vet future migrants, including travel documentation, identity authentication, and information sharing; and second, the countries’ current populations, or porous border controls, overpopulates their local population with known terrorists and terror supporters. The Executive Order does not dwell on the big data, but highlights key, immediately relevant and significant information on the risks posed by each nation, risks Democratic congressional leaders and the ex-President Obama (of the “foreigners have a right to be here, but Americans can expect to be spied upon” ex-Presidency) recognized themselves in amending the statute in the first place, a fact the big media tried desperately to hide. The order could have cited the very high support of Sharia law in these same populations as found by surveys conducted by the Pew organization, the frightening level of public opinion backing terrorism in these areas, or the laws in these nations that discriminate against Jews, Christians, and others, based on grounds never lawful in our nation. Instead, the order stays focused on the priority items.
The order highlights the problems with each nation:
•Libya is a war-torn nation whose security apparatus is deeply compromised by armed militants with terror connections, and cannot protect its own borders from dangerous migrants to such a degree we cannot even have an active embassy there;
•Somalia sources leading terror groups, provide those terror groups with safe havens, cannot even protect its own borders, and its identity document program has been so severely compromises that most other nations refuse to authenticate Somalian identity documents;
•Iran is a state sponsor of terror that refuses to cooperate with the United States on counter-terrorisim issues, precluding any adequate vetting on migrants from Iran as to potential terror risks;
•Sudan is a recognized state sponsor of terror, safe havens terror groups, and terror groups maintain a foothold in the nation, compromising its security systems;
•Yemen also features another civil war, with terror groups holding substantial arsenals, cannot protect its own borders, and the US cannot even keep open its embassy there;
•Syria. Really, do we need to discuss why it’s nuts to let in migrants from Syria until far better vetting procedures can be vetted? Syria is in a civil war, with ISIS controlling actual areas of the country, cannot even protect its own borders, and the US cannot even maintain an open embassy there. How can embassy officials vet potential migrants in Syria when they cannot even operate an embassy there?
The order further details and documents the history of risk posed by risky migrants from terror-riddled nations with insecure vetting available. More than 50 prior criminal convictions of terror suspects from the migrants of these region justifies this, of which the executive order details several critical examples. Moreover, this risk poses present dangers, as the FBI disclosed pending terror investigations into 300 suspects, all of whom were admitted into the country as refugees, also included within the order thanks to the good work of Attorney General Sessions.
The law itself is clear, even if the Ninth Circuit tried to muddy it, and liberal lawyers try to invent new law. A quick recap of key Supreme Court decisions explains why. Aliens “outside the country receive no constitutional protection.” Shaughnessy v. United States, 345 U.S. 206 (1953). The Supreme Court repeatedly held an alien seeking initial admission to the United States “requests a privilege, and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” United States v. Valenzuela-Bernal, 458 U.S. 858 (1982); Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). Thus, the President “may shut out aliens” whenever the President determine such “entry would be prejudicial to the interests of the United States.” Shaughnessy v. Mezei, 345 U.S. 206 (1953). Congress expressly authorized this Presidential action in the one statute the Ninth Circuit tried to his in its prior decision, cited above at 8 U.S.C. 1182. The actions of the President in respect of enforcing this law “are largely immune from judicial inquiry or interference.” Harisiades v. Shaughnessy, 342 U.S. 580 (1952). This is because the Constitution entrusts “the power regulate immigration” exclusively “to the political branches of the Federal Government.” United States v. Valenzuela-Bernal, 345 U.S. 206 (1982). As the Supreme Court recently reiterated during Clinton’s presidency: judicial “deference to the Executive Branch is especially appropriate in the immigration context” given the “sensitive political functions that implicate questions of foreign relations.” INS v. Aguirre-Aguirre, 526 U.S. 415 (1999).
Even the Ninth Circuit never challenged the plain logic of the 21-page Boston federal judge’s precedent, which this Trump order mirrors in its clarifications and explications, removing the thin reed of green-card holder access the Ninth implicitly relied upon for its unprecedented prior order. Even the Ninth Circuit, while hiding behind the loser decisions of minority concurrences or dissenting opinions, couldn’t get itself to say the standard of review was any higher than the basement-level “rational basis” review, and this decision better passes that standard than any prior temporary alien ban, ever.
In other words, the ACLU walks into this fight with Trump the way Michael Spinks walked into the ring with Mike Tyson: knowing the Trump-style beat-down is coming.
Robert Barnes is a California-based trial attorney whose practice focuses on tax defense, civil rights and First Amendment law. You can follow him at @Barnes_Law
This is an opinion piece. The views expressed in this article are those of just the author.
