The situation now over President Trump’s messy temporary ban on immigrants from seven dangerous mainly Muslim states is itself a mess. The decision by the Court of Appeals for the Ninth Circuit not to revoke the restraining order against the Trump ban is deeply questionable. So too, though, was Team Trump’s case before it.
Several lawyers have severely criticised the appeal court’s ruling. Harvard Law Professor Emeritus (and lifelong Democrat) Alan Dershowitz told MSNBC’s Hardball show that the ruling had “many, many flaws” because it was “ based more on policy than on constitutionality” and he expected it not to be upheld in the Supreme Court.
On the Lawfare blog Benjamin Wittes, despite endorsing the appeal court’s decision on the grounds that “there is no cause to plunge the country into turmoil again while the courts address the merits of these matters over the next few weeks”, nevertheless points out that the court never even bothered to quote the statute which forms the basis for Trump’s Executive Order. “That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case.”
The court even appeared to mis-state the very basis of the Order. The ruling said: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.”
But the Order did not just cite acts of terrorism in the US. It said “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program” and that it wanted to “ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.
“In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.
“It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.”
Many such cases have occurred. In 2016, Somali refugee Dahir Adan attacked nine Americans with a knife at a mall in Minnesota before an off-duty police officer shot and killed him.
Two months later another Somali refugee, Abdul Razak Ali Artan attacked 11 Americans with a knife and a car on the campus of Ohio State University in Columbus before a campus police officer shot and killed him. Artan posted on Facebook minutes before the attack that he was “willing to kill a billion infidels in retribution for a single DISABLED Muslim.”
No less troubling is the court’s assertion that candidate Trump’s campaign rhetoric before his election – which was widely but wrongly glossed as anti-Muslim when it fact it was aimed to protect against Muslim extremism that might imperil the security of American citizens – meant that his Executive Order must be discriminatory in grounds of religion. The court ruled:
“It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”
This has been roundly criticised by law professor Eugene Kontorovich who wrote in the Washington Post: “There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive….he cases it mentions do nothing more than look at legislative history — the formal process of adopting the relevant measure. That itself goes too far for textualists, but it provides absolutely no support for looking before the start of the formal deliberations on the measure to the political process of electing its proponents.”
“The states’ argument is in essence that Trump is a bigot, and thus his winning presidential campaign in fact impeaches him from exercising key constitutional and statutory powers, such as administering the immigration laws. This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.”
But the Trump administration’s case before the court also seems to have been flawed. It appears to have provided no examples of the attacks by refugees or foreign nationals from the states on its list, nor cases where such immigrants had developed ties to terrorism. A court can only arrive at its decision based on the evidence before it. If there was such an omission, this seems as inexcusable as it is baffling.
Moreover, the administration’s assertion that there can be no judicial challenge to the President over issues of national security seemed to be merely legally illiterate chest-beating and was roundly dismissed by the court which said this:
“The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. ..To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.”
In short, the Trump administration appears to have been as sloppy as it was bombastic in making this case. Nor has it attempted to iron out the glitches which caused unfairness and inconvenience to numerous individuals before the ban was lifted. The administration had better sharpen up and make its case properly before the Supreme Court. And on the basis of the appeal court’s tendentious and alarming reasoning, it is to be hoped the Supreme Court will then uphold a measure legitimately and necessarily aimed at keeping Americans safe.