On Monday, the U.S. Supreme Court agreed to hear the government’s appeal of the so-called travel ban shortly after it reconvenes on Oct. 2.
The court tipped its hand, indicating that it is likely to side with the administration and uphold the traditional deference that it has accorded the other branches of government when it comes to immigration and national security issues.
That should be welcome news for those who value the rule of law and separation of powers.
In Section 212(f) of the Immigration and Nationality Act, Congress explicitly granted the president the authority to “suspend the entry of all aliens or any class of aliens … for such period as he shall deem necessary” when he “finds that the entry of any aliens or of any class of aliens … would be detrimental to the interests of the United States.”
Acting on this authority, President Donald Trump issued an executive order on Jan. 27 titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”
On March 6, after a district court judge in Hawaii entered a nationwide restraining order against implementation of that executive order, Trump issued a revised executive order:
- Directing the secretary of homeland security to conduct a global review to determine whether foreign governments provide adequate information about nationals applying for visas to enter the United States.
- Entering a temporary 90-day suspension on the entry of nationals from six countries—Sudan, Syria, Iran, Libya, Somalia, and Yemen—that had previously been designated as state sponsors of terrorism or “countries of concern” by Congress and by officials in the Obama administration (subject to waivers on a case-by-case basis).
- Suspending decisions on pending applications and all travel by refugees under the United States Refugee Admissions Program for a period of 120 days, during which time the secretary of state is to review the adequacy of current procedures.
- Capping the number of refugees admitted to this country at 50,000 during fiscal year 2017.
Lawsuits were immediately filed in Hawaii and Maryland challenging the legality of the revised executive order.
Courts have traditionally accorded great deference to the executive branch when it comes to national security issues. After all, the president—our commander in chief—receives daily classified intelligence briefings about the many threats we face. Federal judges do not.
Presidents are given primary responsibility for protecting our homeland. Again, federal judges are not.
Moreover, in Kleindienst v. Mandel (1972), the Supreme Court held that when the executive branch makes a decision to exclude an alien from admission into the country “on the basis of a facially legitimate and bona fide reason,” the courts may “neither look behind the exercise of that discretion, nor test it by balancing its justification against the constitutional interests of citizens the visa denial might implicate.”
The court reiterated this conclusion just two years ago in Kerry v. Din.
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Undeterred by binding precedent, the 4th U.S. Circuit Court of Appeals and the 9th U.S. Circuit Court of Appeals entered the “Resist” movement and upheld nationwide injunctions that district court judges had entered against implementation of the revised executive order.
The 4th Circuit did so on the grounds that it could discern—primarily from a handful of tweets and statements by campaign surrogates—that the president’s order was motivated primarily by a desire to exclude Muslims from the United States, not national security concerns, thus violating the First Amendment.
The 9th Circuit did so on the grounds that the president exceeded his authority under the Immigration and Nationality Act by not entering, in the court’s opinion, sufficient findings that entry into this country by those temporarily excluded under the order would be detrimental to the interests of the United States.
Now, the Supreme Court has entered the fray and decided to resolve this critical issue. In doing so, the court in a per curiam decision (meaning it was an unsigned order which, in this case, was joined by all the justices) lifted most of the nationwide injunctions that had been entered by the lower courts.
The plaintiffs in the Hawaii case consisted of individuals who were seeking the admission of close family members, and the state of Hawaii, which was seeking the admission of students who had been admitted to the University of Hawaii.
The court let the injunction stand as it pertained only to those plaintiffs and those who are “similarly situated” to them—meaning individuals seeking admission from the designated countries who have “a close family relationship,” or who have been admitted as a student or lecturer at a university, or accepted an offer of employment by an American company.
The court made clear that this should be narrowly construed, stating that such a relationship “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading” the revised executive order.
As to foreign nationals lacking such a connection to the United States—which is the vast majority of people covered by the executive order—the court acknowledged that the government’s “interest in preserving national security is an urgent objective of the highest order” and that the government should be permitted to pursue its objectives by implementing the travel order.
While today’s order was not a decision on the merits, at least three justices indicated how they are likely to come out on the issue once the case is argued in October.
Justice Clarence Thomas wrote a brief opinion, joined by Justices Samuel Alito and Neil Gorsuch, stating that the lower court injunctions should have been lifted in their entirety.
In doing so, he stated that the government “has made a strong showing that it is likely to succeed on the merits” and that the “failure to stay the injunctions will cause irreparable harm by interfering with its compelling need to provide for the Nation’s security.”
Presidential authority to protect our homeland should not be second-guessed by courts of law on the basis of some hidden intent divined from tweets and statements made by surrogates in the heat of a presidential campaign.
The Supreme Court should reverse the lower court decisions and uphold the president’s authority to implement his revised executive order. A contrary result would needlessly imperil our national security and do great damage to the structure of our Constitution.