By Joseph Klein
The Supreme Court has restored a measure of sanity to the judiciary. On Monday, it overruled significant portions of the decisions of two of the country’s most liberal federal appeals courts, enjoining the implementation of President Donald Trump’s 90 day suspension of travel from six terrorist prone countries and 120 day suspension on the entry of all refugees.
The Supreme Court handed the president a partial victory, but a victory nonetheless. His second executive order temporarily suspending travel from Somalia, Yemen, Iran, Sudan, Libya and Syria, pending an executive department review of current vetting procedures, has now been cleared to go into effect immediately, except as to visitors with “a credible claim of a bona fide relationship with a person or entity in the United States.” It is expected to actually take effect within 72 hours from the date of the Supreme Court’s decision.
The “bona fide relationship” caveat raises some concerns about potential loopholes. For example, the Supreme Court indicated in its ruling that a “foreign national who wishes to enter the United States to live with or visit a family member, clearly has such a relationship.” The Court also stated that an individual with a documented job offer from an American company, a student accepted by an American university or a lecturer invited to address an American audience would presumably qualify as having “a credible claim of a bona fide relationship with a person or entity in the United States.” Jihadists could exploit such pathways to entry. On the other hand, a non-profit organization in the United States devoted to immigration issues cannot simply contact an individual in one of the designated countries, add that person to its client list and then try to create the appearance of a bona fide relationship after the fact. Despite the inherent difficulties in distinguishing legitimate claims from false ones and opening the door potentially to the entry of some jihadists in the process, the practical likelihood of harm is small in the time remaining during which the suspension will still be in effect. And despite the caveat, the Supreme Court has still set an important precedent for establishing the legal scope of broad presidential powers in controlling the influx of refugees and other migrants into the country in the interest of national security. The message to the lower courts so quick to strike down whatever President Trump proposed is not to so injudiciously overstep their bounds in the future.
The Supreme Court will hear oral arguments on the merits of the case this October, assuming it does not regard the case as moot because the suspension period will likely be over by then.
President Trump issued a statement declaring that the Supreme Court’s decision “allows the travel suspension for the six terror-prone countries and the refugee suspension to become largely effective. My number one responsibility as Commander in Chief is to keep the American people safe. Today’s ruling allows me to use an important tool for protecting our Nation’s homeland.”
This case never should have had to go to the Supreme Court in the first place. The pretexts used by the lower courts to block President Trump’s executive orders, both the original one and a modified version tailored to meet certain objections from the 9thCircuit Court of Appeals, were completely bogus.
President Trump acted well within his constitutional and statutory authority to issue both of his executive orders. “The exclusion of aliens is a fundamental act of sovereignty,” the Supreme Court concluded in a 1950 case. “The right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.”
Congress reaffirmed the president’s power with respect to decisions excluding aliens in the Immigration and Nationality Act (“INA”), which was originally enacted in 1952, and has been amended several times, including in 1996. The following language has remained intact: “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.” (8 U.S.C. § 1182(f)).
Both of President Trump’s executive orders, in the interest of protecting national security, directed changes to the policy and process of admitting non-citizens into the United States, particularly from countries known to be havens for terrorists. They were intended to provide a period of review for relevant agencies to evaluate current procedures and to propose and implement new procedures.
The lower courts that blocked President Trump’s executive orders from going into effect replaced his judgment with their own, despite lacking access to the kind of classified information on threats to national security that the president of the United States has at his disposal. The president has great latitude in this area and does not have to satisfy a burden of proof to the courts that his policy judgment is correct. The lower courts demanding such proof violated the separation of powers by intruding into areas that are clearly within the president’s domain. They did so on the spurious grounds that President Trump’s orders discriminated against Muslims and were motivated by his alleged anti-Muslim animus.
While the six affected countries in the second executive order are all Muslim majority countries, they represent only six out of the 56 Muslim majority countries that belong to the Organization of Islamic Cooperation. The vast majority of the world’s Muslim population are not at all affected. Non-Muslims as well as Muslims in the six designated countries would be affected by the travel suspension, however. The countries themselves were selected on the basis of their being nurturing grounds for the export of terrorism, a perfectly rational basis to distinguish one country from another for the purposes of national security.
As Professor Alan Dershowitz wrote, while commenting on the Supreme Court’s decision allowing parts of President Trump’s second executive travel suspension order to go forward now pending further consideration on the merits, “a ban that applies to countries that have a serious problem vetting potential terrorists would be valid even if all of those countries had Muslim majorities. The president has a right to focus on Islamic terrorism as a primary source of danger to Americans, and Islamic terrorism comes disproportionately from Muslim majority countries.”
President Trump’s travel suspension orders evidenced no invidious discrimination on their face. Moreover, whatever the president said as a candidate regarding his thinking about Muslims is irrelevant when determining the legality of what he actually did as president. According to Professor Dershowitz, who predicts that the Supreme Court will ultimately decide for the most part in President Trump’s favor on the merits of the case, at least with respect to persons with no existing connection to the United States, “The high court will recognize the implications of striking an otherwise legitimate ban because of what a president said when he was a candidate. To follow the lower court reasoning, the very same ban could be constitutional if issued by one president and unconstitutional if issued by another. That is not the way the law generally operates in this country.”
All in all, the Supreme Court’s decision to allow President Trump’s travel suspension order to go forward immediately for the most part vindicated the principle of separation of powers and served the best interests of the nation in helping to protect the country’s security.