Trumps Executive Order on Immigration Is Both Legal and Constitutional,
WASHINGTON, D.C. — Trumps Executive Order on Immigration Is Both Legal and Constitutional, U.S. judge who stayed President Trump’s immigration order abused his judicial power.
The Federal statute gives the president wide latitude to control immigration when he believes U.S. national interests are at stake.
On Feb. 3, Robart placed a nationwide hold on President Donald Trumps executive order banning travel to the United States by migrants from seven Muslim-majority countries. Robart let personal opinions cloud his judgment in a case in which presidential prerogatives concerning important national security issues are at stake.
If you want to see the difference between a federal judge who follows the rule of law and a federal judge who ignores laws he doesn’t like an order to reach a preferred public policy outcome, just compare the two district court decisions issued in Washington state and Massachusetts over President Donald Trump’s immigration executive order.
Contrary to the “travel ban” label, the executive order temporarily suspended the granting of visas from seven failed and failing countries that are supplying many of the terrorists plaguing the world.
Trump acted completely within the law
Despite what Judge James Robart of the Western District of Washington says, Trump acted fully within the statutory authority granted to him by Congress. The temporary restraining order issued by Robart on Feb. 3 is unjustified and has no basis in the law or the Constitution.
This fact is obvious from an examination of his seven-page order, which contains absolutely no discussion whatsoever of what law or constitutional provision the president has supposedly violated. That temporary restraining order is now on an emergency appeal before a panel of the 9th U.S. Circuit Court of Appeals.
Contrast that with the 21-page opinion issued by Massachusetts District Court Judge Nathaniel Gorton that was also issued on Feb. 3.
Unlike Robart, who totally ignored the federal statute (8 U.S.C. §1182(f)) cited by Trump in his executive order, Gorton bases his decision denying the temporary restraining order on an examination of the extensive power given to the president under that statute, which gives the president the authority to suspend the entry of any aliens or class of aliens into the U.S. if he believes it “would be detrimental to the interests of the United States.” And he can do so “for such period as he shall deem necessary.”
That is exactly what the president has done. The order signed on Jan. 27 on “Protecting the Nation From Foreign Terrorist Entry Into the United States” suspends for 90 days the issuance of visas to anyone trying to enter the U.S. from seven countries that even the Obama administration identified as “countries of concern” because of their terrorist histories.
This has been done, as Gorton explains and as the administration has made clear, in order to “ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks.”
As Gorton notes, “the decision to prevent aliens from entering the country is a ‘fundamental sovereign attribute’ realized through the legislative and executive branches that is ‘largely immune from judicial control.’”
As the U.S. Supreme Court said in 2004 in U.S. v. Flores-Montano, “The government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.”
In this case, Congress—which under the Constitution has complete authority over immigration—passed a statute providing the president the authority to suspend the entry of aliens into the country.
According to Gorton, in “light of the ‘plenary congressional power to make policies and rules for exclusion of aliens … which pursuant to 8 U.S.C. 1182(f), has been delegated to the president, the court concludes that the government’s reasons, as provided in the [executive order], are facially legitimate and bona fide.”
No federal judge, including Robart, has the authority to substitute his judgment for that of the president when it comes to making a decision on what is detrimental to the national security and foreign policy interests of the nation.
But that is exactly what he did.
Robart’s opinion ends with a claim that seems like a joke.
He says that “fundamental” to his work is “a vigilant recognition that [the court] is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches.”
Instead, says Robart, his job is “limited” to “ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution.”
Yet Robart provides no discussion of the Constitution or the federal statute that applies to this executive order and the actions of the president.
Given that there is no legal basis for his decision and the issuance of a temporary restraining order, the only basis for his decision is his judgment on the “wisdom” of Trump’s executive order.
Gorton recognized the public policy choices being made with this executive order. He discussed the “considerations of both sides with respect to a balancing of the hardships” involved.
On one side, the government is trying to implement “an effective immigration regime that ensures the safety of all Americans,” something that is “undoubtedly difficult.” On the other side, there is a “hardship to the professional and personal lives” of aliens trying to enter the country.
But it is not up to a judge to make that policy choice. The judge’s only role is to review whether the president’s action is authorized by the Constitution and federal law.
There is no question that the executive order meets both of those requirements. We can only hope that the 9th Circuit Court of Appeals follows the law and does not make the same mistake that Robart made.
It was no accident that the case somehow ended up in the hands of this particular judge. Add to that the fact that the U.S. appellate court with authority over that particular federal district court is easily the most politically liberal in the U.S. federal judicial system.
Robart’s ruling reads as if he is writing as the plaintiffs’ lawyer rather than an unbiased judge in a critical dispute. Reading his ruling, it struck me that Robart was advocating on behalf of the states and doing his best to finesse the very high standards for temporary restraining orders through the use of conclusions rather than honest analysis.
The standards Robart purported to be applying are high enough in ordinary cases. Given the fact that the issue at stake involved the scope of a president’s national security and immigration powers, we should expect that only the most severe and egregious situations would ever be determined to limit the power of the executive branch in these special areas.
In looking at Robart’s background, it leaps from the page that he is extremely sympathetic to special interest groups and refugees. He allows his compassion and bias to intrude on his judicial decision-making rather than his personal preferences and conversations.
I cannot really imagine a judge on any level, not to mention a federal judge with lifetime tenure and enormous power, allowing his personal opinions and biases to cloud his judgment concerning appropriate judicial behavior. And, if the reports are accurate that he said “Black Lives Matter” from the bench following a case involving the Seattle Police Department, his behavior strongly suggests that he is not in full control of his emotions.
What Robart did is not balanced judicial reasoning. It is clear that he chose what he wanted to decide and then attempted to “reason backward” by a kind of judicial “reverse engineering” beginning with his conclusion, in an effort to justify that conclusion in ways that he hopes will insulate his ruling from appellate courts who apply weak standards on review that favor the decisions of their lower court judicial colleagues.
Robart’s ruling, however, is little more than slightly veiled advocacy of his personal preferences, and that is not consistent with how a judge is supposed to act.
His weak “findings” and flawed logic — premised on harm to the states, universities, businesses and others — would prevent any U.S. president from doing almost anything in the area of immigration, because not allowing illegal or undocumented people who sneaked across borders to work in the United States would cause harm to farmers and the construction industry. It would also reduce tax payments from those workers who had no right to be here in the first place and create problems for colleges and universities who have increasingly depended on uncontrolled immigration for students.
Perhaps Mexico would have the standing to sue in Robart’s court under Robart’s analysis. This is because the loss of financial payments (remittances) sent back to Mexico by Mexican workers in the United States, whether here legally or illegally, would cause irreparable financial harm to Mexico because those payments are a very significant part of the Mexican economy. Yeah, he’s that kind of judge!
These are the kinds of conclusions Robart reached in his order, a ruling that irresponsibly and illegally intruded on a president’s powers to temporarily suspend immigration from dangerous zones where we have good reason to believe that groups such as the Islamic State are using the large-scale migrant surge to infiltrate jihadists into Western Europe and the United States under cover of asylum and immigration policies.
The fact is that what Trump did was not a “ban.” It was a 90-day suspension and review (120 days for the Syrian “hot spot”) of how we are handling people coming from dangerous territories.
The Islamic State (IS), al-Qaeda, al-Qaeda in the Arabian Peninsula and so forth have explicitly stated they are sending people into Western Europe and the United States under cover of refugee and migrant entry. Many border agents and U.S. Immigration and Customs Enforcement employees have questioned the prior administration’s approach to immigration as being lax and politicized.
Intelligence agencies have stated concerns that (ISIS) has gained access to Syrian government passport machinery and identity files that allow the manufacturing of false but “perfect” passports from areas that make it difficult to “vet” the people using the fake documents.
For Robart to conclude that the Trump administration did not have an overriding national security duty to review entry processes and determine the best strategies for detecting jihadists and their supporters prior to their entering the United States is irresponsible at best, as well as biased and an abuse of his judicial power.
According to Article I of the Constitution, the power of impeachment is vested in the Legislative branch.*
The House of Representatives brings charges, called “articles of impeachment,” against officials it considers guilty of criminal or ethical violations. If a simple majority of the House finds sufficient evidence to support impeachment, the official proceeds to trial in the Senate.
Impeachment only serves to remove a judge or other official from office; there are no other penalties associated with this process.
Article I, Section 3, Clause 7: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
The constitutional language is vague enough to allow the House of Representatives to bring Articles of Impeachment for any form of impropriety, from the commission of a crime to obstructing justice to ethics violations. The House may also impeach for abuse of public office (e.g., profiting from, or helping someone else to profit from, confidential information; failing to disclose a conflict of interest, accepting payment for speaking engagements, etc.) or any action considered detrimental to the government’s interest.