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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Tuesday, April 24, 2018

Will the Court Stand Up to Donald Trump?

New York Times (Editorial)
April 23, 2018

The first full term of the Supreme Court in the Trump era is wrapping up with a lawsuit that epitomizes the nature of the person occupying the Oval Office.

On Wednesday the justices will hear oral arguments in the final and perhaps biggest case of the term — Trump v. Hawaii, a challenge to the legality and constitutionality of President Trump’s travel ban, which indefinitely bars 150 million people, a vast majority of them Muslim, from entering the United States.

The ban, now in its third iteration, is ostensibly about protecting national security, but it has been steeped from the start in the reactionary xenophobia at the heart of Mr. Trump’s campaign and presidency. It was issued with a procedural sloppiness and lack of attention to detail that Americans have come to expect from an administration that can’t issue even a news release mourning the death of a former first lady without getting the date wrong. And the limits continue to be hawked as a necessary defense against terrorist attacks despite the lack of any evidence that they would improve on the careful legal framework Congress adopted to handle national security issues related to immigration.

To its credit, the White House has learned from its early missteps. The original order, which landed one week after Mr. Trump took office and barred entry by all citizens of seven majority-Muslim countries, was marked by such haste and dubious reasoning that it ran into immediate trouble with federal judges across the country, not to mention intense public outcry. The White House retracted it and issued a slightly amended version in March 2017, but that one didn’t fare much better. In September, Mr. Trump tried once again, issuing the proclamation that is now before the court.

It bars entry into the United States by most citizens of six countries with “inadequate” security protocols — Iran, Libya, North Korea, Somalia, Syria and Yemen, along with some groups from Venezuela. (Chad was originally on the list but was removed this month.) The administration says it came up with the list after a “worldwide review,” but it has not shared the underlying evidence with any court.

Particularly in the absence of such evidence, it’s worth noting that no citizen of any country on the list has carried out a fatal terrorist attack on American soil in the last two decades. In contrast, Saudi Arabia is not on the list, even though 15 of the 19 Sept. 11 hijackers were Saudi nationals.

Could the president be privy to information the rest of us are not? Of course he could. And yet somehow it’s hard to have confidence that a man who appears to get his daily intelligence briefing from “Fox & Friends” is particularly concerned with the details of the global war on terrorism. Anyway, no matter how much he tries to finesse this order, the underlying question for the court remains the same: Does the president have the legal authority to issue this ban?

He clearly does not, according to the federal appeals court for the Ninth Circuit, which issued the December decision that the Supreme Court is now reviewing. A three-judge panel of the appeals court ruled that while federal immigration law gives the president the authority to temporarily bar certain classes of noncitizens from entering, a sweeping, indefinite ban like Mr. Trump’s exceeds that authority. In addition, a civil-rights-era law prohibits discrimination based on nationality in the issuing of immigrant visas. Finally, the administration has not claimed there is any emergency and has given no rationale for why letting in people from these particular countries would harm the United States.

The government’s response to the courts is, in short, butt out. Mr. Trump can exclude whomever he wants in order to protect the country from attack, and no judge may second-guess him. That’s an astonishing claim of unchecked executive authority. It also contradicts the structure of federal immigration law, which is the province of Congress. No one is saying that the president is powerless to protect the nation from attack. What they are saying is that he must do so without violating the law or the Constitution.

Speaking of the Constitution, and especially of the First Amendment’s establishment clause, anyone with a passing awareness of American politics knows what’s at the root of the travel ban: Mr. Trump’s special animus against Muslims, which he’s been nursing at least since December 2015. That’s when he called for a “total and complete shutdown” of Muslims entering the country until we “can figure out what is going on.” Since then he has given his lawyers a constant headache by tweeting regularly about the ban, saying just days before the latest version that it should be “far larger, tougher and more specific,” but that this would be “politically incorrect.” In case anyone was still unclear about where he stands, last November the president retweeted inflammatory videos from a fringe ultranationalist group in Britain showing Muslims purportedly engaged in violence. (The videos were, as Mr. Trump likes to say, fake news.)

From this angle, the travel ban looks a lot like Mr. Trump’s other attempts to weaponize the federal government in the service of his own personal vendettas. Remember the election integrity commission? An entire operation created solely to justify the president’s false claims that millions of people voted illegally in 2016. The commission folded in January without making any findings of fraud. In the case of the travel ban, Mr. Trump is surrounded by anti-immigrant hard-liners, including his attorney general, Jeff Sessions, who donated one of his favorite staffers, a zealot named Stephen Miller, to help draft the ban.

In truth, the latest proclamation functions as little more than legal backfill “to legitimize a presidential command that was born of animus, persists in animus, and seeks to make animus the law of the land,” as a supporting brief says.

That brief is one of many the court has received arguing against the ban; more than four times as many briefs oppose the ban as support it. They come from immigrants’-rights groups and anti-discrimination advocates, naturally, but also from business and legal leaders, scholars of constitutional and international law, conservatives and liberals and libertarians, cities and states — and, notably, former national security and military officials, who warn that by encouraging the perception that the United States is anti-Muslim, it “jeopardizes the stability of the support that the United States receives from its allies, erodes essential good will, makes it more difficult for the United States to win hearts and minds abroad.”

This leads the justices to a thornier question: What to do with a president like Mr. Trump? Should they simply ignore everything he’s said? Are they holding him to a different standard than previous presidents? That’s hard to answer, because no past president behaved like Mr. Trump. In its brief to the justices, the administration argues that the court must not engage in “judicial psychoanalysis of a drafter’s heart of hearts.” But there’s no need to get Mr. Trump on a couch. He’s said over and over exactly what he thinks.

The Supreme Court has been faced with situations like this before. In World War II, it bowed to claims of unfettered executive authority and allowed American citizens to be locked up for years simply because of their Japanese heritage. It was a shameful moment for the court and for the United States. Today, in the face of an executive order again based on racial animus and unfounded fears, the justices have the chance to deliver a very different message about executive power, and the meaning of America.

For more information, go to: www.beverlyhillsimmigrationlaw.com

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