New York Times (Op-Ed)
By Thomas H. Kean, John Danforth and Carter Phillips
April 23, 2018
On Wednesday, the Supreme Court will hear arguments on whether President Trump’s nationality-based travel ban may continue. The case is important to every American and, indeed, the integrity of the republic, because the ban threatens a cornerstone of our system of government: the constitutionally mandated separation of powers.
All presidents push the limits of the separation of powers between the executive, legislative and judicial branches. President Trump’s travel ban tears the fabric.
The legal question before the court is this: Does a president have the authority to ban immigration and travel, based on nationality, in ways that contradict limits set by Congress?
The framers and ratifiers of the Constitution have answered that question. They revolted against the autocracy of a king whose offenses, as cataloged in the Declaration of Independence, included restricting “migrations” and “obstructing the laws for naturalization of foreigners.” This mattered because, as James Madison told the Constitutional Convention, “America was indebted to emigration for her settlement and prosperity.” Accordingly, Article I of the Constitution gives the power over immigration and travel to America by foreigners to Congress, not to the president.
President Trump’s unilateral executive order restricting travel from seven nations, five of them predominantly Muslim, shows how far the presidency has strayed from the role the founders envisioned. One reason is that Congress is deliberative and often divided, while presidents frequently act decisively. Over time, presidents have assumed more and more unilateral power over immigration and travel by foreigners.
This is part of a larger pattern, and a larger problem. Presidents have asserted unilateral authority over many other areas where Article I also expressly gave the power to Congress — including tariffs, commerce and starting wars. Some in Congress may be quietly contented with this pattern. The more presidents do unilaterally, the fewer votes that members of Congress need to cast that may be fodder for political opposition.
It isn’t, though, the system our Constitution established. And it is the Supreme Court’s responsibility to uphold that system.
The Trump administration argues that its travel ban is lawful because Congress has given the president the power to ban any nationality or all foreigners for any reason, for as long as he sees fit. Under that thinking, a president in effect would have a line-item veto over the immigration statutes with which he disagrees. But the Supreme Court decided 20 years ago that line-item vetoes violate the separation of powers.
The separation of powers is not about the wisdom or popularity of any president or policy but speaks to the very foundations of our republic. As Alexander Hamilton warned in the first Federalist Paper: “Of those men who have overturned the liberties of republics, the greatest number have begun their career by paying obsequious court to the people; commencing demagogues, and ending tyrants.”
As George Washington cautioned in his Farewell Address, violating the separation of powers “is the customary weapon by which free governments are destroyed.” He added, “The precedent must always greatly overbalance in permanent evil any partial or transient benefit.” The court must be vigilant against permitting any violation of separation of powers, regardless of the practical justifications that are offered in any given instance.
The Trump administration asserts in its opening brief that separation of powers is at its “nadir”when foreign affairs and national security are invoked. This argument reprises the justification for the infamous Alien Act of 1798 that allowed the president to remove any alien that he determined was dangerous to the country. James Madison showed that the Alien Act violated the separation of powers, and President John Adams never enforced it.
President Trump’s travel ban is far broader than that act. He is claiming the power to make immigration and foreign travel laws, but the Constitution grants that power to Congress. Congress cannot give any president the power to dismantle our immigration statutes.
We have joined in an amicus brief asking the Supreme Court to restore the separation of powers and place limits on Mr. Trump’s assertion of unilateral executive power. In 1965, 2002 and 2015, Congress addressed the appropriate requirements for immigration and travel by citizens of numerous countries, including the very countries later included in Mr. Trump’s travel ban. Each time, Congress rejected the kind of nationality ban Mr. Trump has now imposed.
Mr. Trump has every right to propose that Congress change the law. After 15 months in office, he has had ample time to try to persuade Congress to adopt his travel ban. Yet he has not proposed to Congress anything like that ban. The Supreme Court should embrace the coequal footing our founders gave it, restore the separation of powers and end the president’s unilateral nationality ban.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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