Wall Street Journal (Editorial)
April 23, 2018
Alexander Hamilton wrote that “energy in the executive” is “essential to the protection of the community against foreign attacks,” which is why the Constitution grants the President broad authority over national security. The question for the Supreme Court on Wednesday in Trump v. Hawaii is whether judges can usurp this core executive power.
President Trump has issued three orders suspending admission into the U.S. from certain countries to protect national security. The first two were enjoined by lower courts. Hawaii is now challenging the latest version that Mr. Trump issued last September, which limited admissions from eight countries (Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen and Somalia).
We’ve disagreed with the need for the sweeping travel restrictions. The post 9/11 screening process for the most part has been effective in keeping out foreigners with jihadist links and sympathies. Most immigrants who have committed terrorist acts in the U.S. were radicalized after admission.
But limiting admissions is a President’s prerogative under the Constitution that Congress has reinforced with the Immigration and Nationality Act. The law says that “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 law also authorizes the President to adopt “reasonable rules, regulations, and orders” related to entry of foreign nationals “subject to such limitations and exceptions as [he] may prescribe.” These grants by Congress of executive discretion were intended to allow the President to balance foreign policy and national security considerations.
While Mr. Trump’s first order was haphazardly applied, his September order was based on a multi-faceted review by the State and Homeland Security departments that tailored travel restrictions based on countries’ level of terrorism risk, information sharing and national-security cooperation. Exceptions were made for some non-immigrant visas from Chad, Libya and Yemen because they provide valuable counter-terrorism assistance.
The order also allows case-by-case waivers for foreign nationals who can demonstrate that they don’t pose a threat to national security and that their admission would be in the national interest. The State Department has issued more than 430 applicant waivers since December.
Hawaii cites a clause in the Immigration and Nationality Act that says “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
But this provision merely bars the State Department from discriminating among visa-eligible applicants—i.e., restricting H-1B visas to Indians. Mr. Trump’s order limits admissions by making foreigners from the eight countries ineligible for visas. This distinction is crucial. Presidents Jimmy Carter and Ronald Reagan invoked the law to suspend admissions from Iran (1979) and Cuba (1986). Until the Hawaii challenge, a court had never gainsaid the President’s authority to deny admissions to broad classes of foreigners.
Hawaii also argues that Mr. Trump’s national security justifications are mere pretext for excluding Muslims. The state thus claims that the order violates the Establishment Clause of the Constitution, which forbids the government from favoring one religion over another.
Hawaii cites Mr. Trump’s campaign statements calling for a ban on Muslim immigration, but candidates don’t make law. If judges can inspect every campaign comment by a President to decipher legal intent, we are in a new and dangerous era of judicial power. If the voters elect anyone who is politically incorrect, judges will have ultimate sway over his decisions.
The order itself makes no mention of religion. Christians and Jews from the eight countries would be treated the same as Muslims, and many majority-Muslim countries aren’t on the list. Six of the eight countries were tagged by Congress and the Obama Administration as a national security “country or area of concern” in the visa-waiver program, which allows nationals of certain countries temporary admission without a visa.
In the landmark case Kleindienst v. Mandel (1972), the Supreme Court held that when Congress has delegated conditional authority over immigration to the President, judges cannot second guess the executive’s exercise of this power “on the basis of a facially legitimate and bona fide reason.”
As Chief Justice John Roberts explained in Holder v. Humanitarian Law Project (2010), the judiciary is ill-suited to make national security judgments since “information can be difficult to obtain and the impact of certain conduct difficult to assess.” The Chief added for the 6-3 majority: “When it comes to collecting evidence and drawing factual inferences in this area, ‘the lack of competence on the part of the courts is marked, and respect for the Government’s conclusions is appropriate.’”
The lower courts ignored or misread these precedents in such a cavalier and political fashion that the Supreme Court needs to step in for the sake of the judiciary. As a stunning headline in Monday’s Washington Post put it, “A supreme quandary: Look at law, not Trump.” A quandary? Isn’t that the Court’s duty?
Lower-court judges ignored the law to punish a President they loathe, but down that path is lawlessness and politicization of the judiciary. Even if his travel ban is bad policy, the Justices need to make clear that Mr. Trump is acting well within his constitutional authority.
For more information, go to: www.beverlyhillsimmigrationlaw.com