Trump, use the travel ban ruling to turn back migrants at the border

Trump, use the travel ban ruling to turn back migrants at the border

Supreme Court Chief Justice Roberts provided a straightforward summary of why President TrumpDonald TrumpSchumer: Impeachment trial will be quick, doesn't need a lot of witnesses Nurse to be tapped by Biden as acting surgeon general: report Schumer calls for Biden to declare climate emergency MORE’s third travel ban was upheld this week, writing that the travel ban “is squarely within the scope of Presidential authority under the (Immigration and Nationality Act). Indeed, neither dissent even attempts any serious argument to the contrary.”

No “serious argument to the contrary,” is a powerful demonstration of an important and ongoing split on the Court that surfaced again in the travel ban case. Specifically, that split between those justices who generally rely on the text of statutes to decide cases, and those who look to outside sources or opinions about the underlying subject matter. In this case, the Chief Justice noted that the four liberal Justices who do not historically hew to the text of statutes at issue made no serious effort to contest the outcome with the majority on the basis of the text of the Immigration and Nationality Act (“INA”).


Instead of attempting to argue the text of the INA, the two dissents by Justices Breyer and Sotomayor argue that President Trump’s “extreme vetting” requirements are a ruse covering for anti-Muslim bias and that President Trump, all the way back in time to when he was a candidate for president, wanted to ban Muslims from entering America, and with the travel ban he has done so in violation of the Establishment Clause of the First Amendment.

The dissents further argued that the anti-Muslim bias overwhelms any apparent national security concerns that appear in the president’s proclamation.

In the final analysis, the Supreme Court held that — consistent with earlier §1182(f) cases — the president gets “double deference” from the Court. Because this is a national security matter, the Courts traditionally give significant deference to presidents in national security matters. Additionally, the INA under §1182(f) demonstrates explicitly that Congress has statutorily granted presidents great deference in making immigration decisions under that statutory provision.

In looking at the words in the president’s proclamation related to the travel ban, there was no mention of Muslims and it was not lost on the Court that North Korea and Venezuela were included in the travel ban, nor that various Muslim countries — notably Chad and Iraq — had successfully changed their systems to provide adequate information to the State Department so proper vetting of their citizens could occur.

As the administration was losing early rounds of this legal fight, I, and others argued against the tide of the mainstream media that a simple reading of the statute involved would decide this case. And that is exactly what happened.

What does this mean for the future?

It means that the current Supreme Court has once again reiterated the expansive power of the president under §1182(f) of the INA to bar the entry of large categories of aliens. Unlike in the past, there is now a president in the White House who might use that power more robustly than any other before him. Consider the actual text of the statute:

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.”

The Court in the travel ban case once again found that these very broad words mean what they say, and that the president has vast and unreviewable discretion to use this power so long as he can make a basic case for why whatever category of “aliens” he chooses to exclude would be “detrimental to the interests of the United States.”

Note that this language does not say “security interests,” it can be any interests.

By way of example, our bureaucratic and law enforcement machinery is being overwhelmed on our Southern border — this situation is clearly “detrimental to the interests of the United States.” A fair reading of the Supreme Court’s travel ban ruling would suggest that the president could use INA §1182(f) authority to indefinitely ban anyone attempting to illegally enter the United States at a location other than an official point of entry. Such illegal aliens could simply be turned back around and marched back into Mexico on the spot by use of this authority.

And that is only one example of just how broadly President Trump’s win on the travel ban could be applied to fight the immigration battle, particularly in the absence of Congressional leadership by the likes of Reps. Paul RyanPaul Davis RyanBiden's inauguration marked by conflict of hope and fear The Hill's 12:30 Report: Sights and sounds from Inauguration Day Revising the pardon power — let the Speaker and Congress have voices MORE (R-Wis.), Kevin McCarthyKevin McCarthyCheney spokesperson on Gaetz: 'In Wyoming, the men don't wear make-up' Biden attends first church service as president in DC, stops at local bagel shop House GOP leader says he has 'concerns' over Cheney's impeachment vote MORE (R-Calif.) and Steve ScaliseStephen (Steve) Joseph ScaliseBoycott sham impeachment The Memo: Biden gambles that he can do it all Biden under pressure to deliver more COVID-19 shots MORE (R-La.) as we have seen over the course of the last few weeks in the House.

The president recently tweeted that he would like to turn illegal aliens away at the border with no legal or bureaucratic process. The travel ban ruling is a green light for President Trump, telling him exactly how to do it.

Ken Cuccinelli is the former attorney general of Virginia and current president of the Senate Conservatives Fund. You can follow him @KenCuccinelli.