National Security

A Lawful Order and a Lawless Judiciary

Trump's executive order is perfectly justified. The judge's restraining order is not.

Paul Albaugh · Feb. 7, 2017

It hasn’t even been three weeks since Donald Trump was sworn in as president, but the executive orders he has issued have caused quite a stir. Leftmedia talkingheads, still unable to come to grips with the reality that Trump is president, have replaced their desks with fainting couches. Trump’s order on refugees naturally has leftists outraged, but that only serves to highlight their hypocrisy because there have been Democrat presidents who have issued similar orders with little or no outcry.

The controversy over Trump’s order on refugees reached a whole new level on Friday, when U.S. District Court Judge James Robart issued a temporary restraining order to stop it from taking effect. Robart’s decision has effectively halted all of the states, not just plaintiffs Washington and Minnesota, from complying with Trump’s order.

Robart reached his decision because he believes that the states of Washington and Minnesota had legal standing to challenge Trump’s order. His argument is based on the legal concept that the state can sue as if it is essentially the guardian of its citizens — or, in this case, merely residents or would-be residents. Robart allowed the states to sue on behalf of groups of refugees, residents who currently hold visas or green cards, businesses who might want to employ refugees, and possibly the refugees themselves.

His decision temporarily blocks the Trump administration from enforcing Sections 3(c) and 5(a)-(c) of the order, which puts a 90 day halt on immigration from seven specific countries, a 120 day suspension on the refugee admission program and an indefinite suspension of refugees from Syria, who are particularly difficult to vet.

It also temporarily enjoins Section 5(e) of the order “to the extent section 5(e) purports to prioritize refugee claims of certain religious minorities.” This is the only part of Trump’s order that makes any reference to religion and it specifically allows for the secretaries of State and Homeland Security to jointly agree to admit refugees on a case-by-case basis if it is in the national interest.

On what grounds does Robart make such a decision? None. He simply declared that the two states were right and that Trump’s order is both illegal and unconstitutional. Except that it’s not. Not at all, as a matter of fact, and here’s why: Writing for the Washington Examiner, Byron York notes how the Justice Department has completely demolished Robart’s case against Trump’s order.

York writes, “Robart’s restraining order violates the separation of powers, encroaches on the president’s constitutional and legal authority in the areas of foreign affairs, national security, and immigration, and ‘second-guesses the president’s national security judgment’ about risks faced by the United States.”

Michelle Bennett, a lawyer with the Justice Department, was quick and correct to point out that in matters of foreign affairs and national security, “Congress has delegated authority to the president to make these determinations.” As a U.S. District Court judge, Bennett argues, Robart “doesn’t have authority to look behind those determinations.”

Or as National Review’s editorial board puts it, “In our system, border security is a plenary power of the political branches; the judiciary has almost no authority over it.”

The courts, including Robart, do not receive classified information on threats posed by terrorists from particular nations, nor do they receive information about organizations trying to infiltrate the United States. Further, the courts do not have information about potential gaps in the vetting process for refugees. Despite Robart’s claim that no one has been arrested for being associated with terrorism, there have been 60 convictions of terror-related offenses from the seven countries mentioned in Trump’s order.

Trump’s executive order has plenty of legal ground to stand on. The Immigration and Nationality Act of 1952 states: “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.”

Washington State also claims that Trump’s order prohibits the state from hiring migrant workers, which it asserts is a driver for the state’s economy. However, the vast majority of people affected by Trump’s order are foreign nationals who reside outside of the United States. Further, a state or a judge cannot block a president’s order involving national security simply because it’s not in the best economic interests of a state.

The Ninth Circuit Court of Appeals is set to take up this case later today. The law is certainly on Trump’s side — if only he’d make that case instead of getting embroiled in foolish and irrelevant Twitter rants. But the Ninth Circuit is heavily skewed left, so this case may very well reach the Supreme Court, where former federal prosecutor Andrew McCarthy warns Anthony Kennedy may very well vote with the Court’s four leftists. If Robart and company prevail, it will set a dangerous precedent. And we will once again become firsthand witnesses of the “despotic branch” of government of which Thomas Jefferson warned.

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