Like it or not, Donald J. Trump was elected president of the United States on Nov. 8, 2016, and sworn into office on Jan. 20, 2017. He won the election, in significant part, because he promised to enforce our nation’s immigration laws more vigorously and to enhance significantly the vetting of refugees and other aliens seeking admission to the United States, in order to ensure to the extent possible that terrorists were not coming to our shores.
Nevertheless, there is now a concerted effort by many on the left (and even some on the “Never Trump” right) to block President Trump at every turn in order to prevent him from implementing the agenda on which he was elected.
Regrettably, that effort now seems to include using the courts to achieve political ends that could not be achieved through the electoral process.
The 9th Circuit’s order upholding Judge Robart’s nationwide temporary restraining order (TRO) is nearly as bereft of legal analysis as was the original TRO.
For example, in determining whether Trump was likely to succeed on the merits, one might have expected some discussion of the relevant statute that unambiguously gives the president the authority to do what he did here (and what President Carter, in response to the Iranian take-over of our embassy in Tehran, did back in 1979).
That statute, Section 1182(f) of Title 8, provides:
“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 restriction he may deem to be appropriate.”
It does not get much clearer than that, yet the 9th Circuit does not even cite, much less explain away, that statute.
Nor did the 9th Circuit cite the language in controlling Supreme Court precedent that makes unmistakably clear that the decision whether or not to admit aliens or any class of aliens is an inherent aspect of sovereignty vested by our Constitution in the legislative and executive branches of our government that is “largely immune from judicial control.”
Instead, the 9th Circuit held that the denial of visas to foreign nationals from countries that President Obama himself had certified as being hotbeds of terrorism likely violated the Due Process Clause of the Fifth Amendment, despite the fact that another controlling decision of the Supreme Court has quite clearly held that foreign nationals have no right whatsoever to enter the United States, and hence no property or liberty interest that is subject to the Due Process clause.
The 9th Circuit also held that the revocation of existing visas was also a likely violation of the Due Process Clause, but here it was on even shakier ground (if that were even possible).
Section 1201 of Title 8 expressly provides that the secretary of State (who is, of course, accountable directly to the president) “may at any time, in his discretion, revoke” any visa already issued. The statute also provides that “There shall be no means of judicial review of a revocation” of visas under the law, “except in the context of a removal proceeding if such revocation provides the sole ground for removal.”
In other words, Congress has specifically denied to the lower federal courts jurisdiction to even consider claims arising from the revocation of visas, as Article III of the Constitution allows it to do. Yet the 9th Circuit offers not a word of discussion about its lack of jurisdiction to consider those claims, instead chastising the lawyer from the Department of Justice for even suggesting that it had no authority to consider the case.
President Carter utilized this provision when he revoked the visas of numerous Iranian students already in the United States at the time of the embassy take-over. Some of those students were in Canada on a field trip when their visas were revoked, and they were denied re-entry into the United States, the subject of the 1987 movie, “Checkpoint.”
The courts have repeatedly held that no one has a right to be admitted into the United States, or to retain a visa once here. As the Fifth Circuit Court of Appeals has noted, “revocation of a visa has no effect upon the alien’s liberty or property interests.”
There has been a lot of gnashing of teeth in the media and among the legal commentariat about the so-called unconstitutionality of President Trump’s executive order, but the real unconstitutionality on display here is the usurpation of power by courts bent on denying to the duly-elected President the constitutional authority of his office.
The challenge to what has happened here cannot be expressed in strong enough terms, as we are witnessing what amounts to a coup d’etat by some members of the judiciary.
We have for far too long indulged the false claim that whatever a judge does becomes “law,” such that any challenge to it undermines the rule of law. Judges, not less than legislative or executive officials, undermine the rule of law when they exceed their constitutionally-assigned authority. And the Constitution’s assignment of authority here is pretty clear.
As the Supreme Court has itself recognized, “The exclusion of aliens is a fundamental act of sovereignty ... inherent in the executive power to control the foreign affairs of the nation.” When that power is combined with an express delegation of authority from Congress, such as we have here, the president’s authority over foreign affairs is at its zenith.
Temporarily blocking admission into the country of individuals from countries that President Obama himself determined to have “significant presence of terrorist organizations” or which had become “a safe haven for terrorists” until the administration has confirmed that our vetting procedures are adequate to the task of preventing terrorists from coming to our shores is not only well within the president’s power, but quite arguably his duty.
Whether or not a particular judge or panel of judges likes the policy judgment made by the president, it is the president, not the judge, who was elected to make that decision.
Indeed, the notion that a single federal trial court judge can take it upon himself to determine national security and immigration policy, in the face of explicit determinations made by the president with the full support of law actually adopted by Congress, is so far beyond the judicial role as to pose a serious threat, not just to our national security, but to the rule of law.
That a panel of the 9th Circuit affirmed the order does not place it on more solid footing but rather merely expands the lawlessness to a higher court. One can only hope that the Supreme Court will put a stop to this usurpation, and quickly.
Otherwise, we as a nation have a much bigger problem to confront than terrorists seeking entry to the United States.
Dr. John Eastman is the Henry Salvatori Professor of Law & Community Service at Chapman University’s Fowler School of Law, and the founding director of the Claremont Institute’s Center for Constitutional Jurisprudence.
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