Cartoon c/o Legal Insurrection.
By Robert Romano
Under the ridiculous ruling from U.S. District Court Judge Derrick Watson of the District of Hawaii, temporary travel restrictions on immigration — grants of power to the president enacted by Congress decades ago — from any Muslim-majority countries somehow violate the First Amendment.
But only if the restrictions are issued by President Donald Trump.
Citing “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order,” including Trump campaign statements purported to be discriminatory of Islam, the court found special First Amendment rights to immigrate to the U.S. to Muslims throughout the world who neither live here nor have any protections under the Constitution.
But not for Jews, Christians, Hindus or anyone else, apparently, because Trump had not promised announce to block immigration from Israel, Europe or India on the campaign trail. Presumably, Trump could restrict immigration from any country that is not predominantly Muslim, since there were no statements from the Trump campaign in 2016 about doing so.
And, under the ruling, any other president besides Trump might be able to exercise these same powers against predominantly Muslim countries, delegated to the president under the 1952 immigration statute.
There’s only one problem. That is not what the law says, which is a broad grant of power to the president. Not certain presidents based upon a judicially ascertained motive determined by what might have been said on the campaign trail.
Under 8 U.S.C. 1182(f), enacted in 1952, “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.”
In other words, the law is blind to motive. It does not matter why Trump wants the travel restrictions, just that he finds certain immigrant entries would be “detrimental to the interests of the United States.” It is a subjective determination, a political question with which the executive has discretion.
Discretion is the key component there. Congress has authorized the president to close down the entire border if he feels it is necessary. It does not matter why. The court has overstepped its bounds.
Americans for Limited Government President in a statement noted the absurdity of the ruling, saying, “If it would be constitutional if issued by former President Obama, then it must then be constitutional under President Trump. The rule of law means equal application of the law and by the judge’s own words, that is not what we have here.”
The judge even acknowledged that “the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.” But never mind what the order actually said. Or that other presidents could issue the order under Judge Watson’s precedent.
And never mind the fact that the government had narrowly tailored the order to apply to just six countries, Iran, Libya, Somalia, Sudan, Syria, and Yemen, thought to be of higher risk of exporting terrorism — leaving the vast majority of Muslim-majority countries unaffected by the order.
Not finding any evidence of any actual religious discrimination in Trump’s order, the court decided to invent some out of whole cloth, ruling against the order the court wished Trump had issued so that it could overturn it, relying on statements from the president on the 2016 campaign trail to somehow deduce a discriminatory motive by President Trump.
Which, by the way, even if Trump had issued an order barring new non-citizen Muslim entry into the U.S., as he had proposed on the campaign trail, it still would not have violated the Constitution or the statute, because those constitutional protections do not extend overseas.
As Manning concluded in his statement, “It is now clear that federal courts do not intend to hold the acts of President Trump to the same standards as other presidents past or future, instead imposing a separate body of law simply for his administration. In essence, by denying the powers of the president to Trump, the courts are attempting to render their verdict on the outcome of the 2016 election, an intolerable abuse by the judicial branch that Congress must now rein in.”
That is, the exercise of executive power in the conduct of foreign relations — in this case in the area of immigration — under the Constitution and as authorized by Congress, has absolutely zero recourse in courts of law. And it is time Congress said so, by limiting the jurisdiction of federal courts not to examine travel restrictions or any other executive functions where the rights of foreigners who have never set foot on U.S. soil are being invoked.
Robert Romano is the senior editor of Americans for Limited Government.