Wednesday, February 8, 2017

Trump, the Absolute?

Trump on Immigration Power: I Can Do Whatever I Want

Immigration law prohibits discrimination by race or religion.

But federal law also says the president can temporarily ban any class of people whatever if he views their admission as detrimental to the interests of the United States.

Trump seems to think the claim that it's being done for reasons of national security is unreviewable, and that whether reasons of national security justify the move is also unreviewable.

Totally his call, in other words, so long as he, the president, says it's about national security.

On that point, in fact, law and precedent seem to be on Trump's side, given that exclusion for national security reasons counts as exclusion on the grounds that admission would be detrimental to the interests of the United States.

Was the district court in Seattle already wrong to stop execution of the executive order?

Maybe.

“The exclusion of aliens is a fundamental act of sovereignty,” the Supreme Court held in the 1950 Knauff case, “inherent in the executive power to control the foreign affairs of the nation.” 

The courts are not meant to second guess the executive’s conduct of foreign affairs, or intrude on its plenary power in this area. 

“It is not within the province of any court,” the court noted in that decision, “unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.”

Can the president, completely on his own, unreviewable determination, temporarily ban for as long as he wishes entry to the US of any aliens or class of aliens?

Looks it.

Second, it’s hard to get around the relevant federal immigration law, which says, “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.”

Does the constitution forbid the president to temporarily stop entry by nationality or religion, or the Congress to make an immigration law that so discriminates?

Not according to a recent, relevant case.

Finally, aliens residing outside the United States have no right to come here. 

The Supreme Court held in the 1982 Landon case, “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.”

But in any case a law cannot permit what the constitution forbids.

And whether a law does that is not his call, but a call for the courts, which are totally free to disagree with rulings of earlier courts.

So these questions can be raised.

Does the constitution forbid the president, even in the name of national security, to temporarily ban openly by race or nationality?

If not quite openly then de facto?

And does it forbid the Congress to write an immigration law that does either?

Those questions are for judges, and we know where the liberals want the judges to go.

But be careful what you wish for.

It is not difficult to conceive dozens of scenarios in which the president can prevent grave harm to the Unites States, even a nuclear detonation, only by immediately interrupting some or all travel to the US by some or all aliens - or even citizens! - for some period of time, determinable only by him.

It would not be good for a judge to try to suspend such a determination merely because it was costly to a lot of American interests.

And there might be terrifyingly good reason why the reasons for the decision ought not to be bandied about in even a secure court, or even shared among enough people to make that possible.

Still, under the statute, the discretionary power of the president over travel into the US is startlingly sweeping. 

A thought.

Does Bozo, at some point, just decide to ignore what a court says?

At which point or points?

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