Late last week, a district court judge in Massachusetts may have shown where all of the flurry of cases against the Trump “Muslim ban” will end up: straight out the door.
In deciding to let expire a previously ordered temporary injunction against the Executive’s visa-halt, which two Iranian plaintiffs on temporary visas alleged was discriminatory, Judge Nathaniel Gorton showed the kind of understanding of immigration law that’s apparently been lost on the dozen or so of his colleagues across the country who’ve ordered numerous snap, detail-free injunctions over the last ten days.
Gorton’s lucid, workmanlike order affirmed that immigration is indeed distinct from other policy areas and that the courts aren’t supposed to have a whole lot of authority in questioning the political branches over it.
Much of last Friday’s order focused on a distinct power of the Executive’s in this area; namely his ‘suspension of alien-entry’ powers under the INA. That authority, delegated to him by Congress, is firmly entrenched in our constitution and is backed by historical precedent going back centuries.
As Gorton’s order reads, the president has broad authority under our immigration laws to “suspend entry of certain aliens” and that such an authority need only a “facially legitimate” reason to support its application (the so-called “rational basis” test).
Because of this lax standard, the Executive, as the judge put it, can even make “federal categorizations with respect to non-resident aliens.” In other words, aliens do not enjoy the same constitutional rights as citizens and the president has the authority to treat them differently.
According to INA §212(f) the president may “suspend the entry of all aliens or any class of aliens” outside this country or he may “impose on the entry of aliens any restrictions he ma- deem to be appropriate.” Supported by two very similar provisions, §214(a)(1) and §215(a), this broad power is routinely exercised by the executive.
During his tenure, President Obama implemented bans under this authority 19 times, mostly to members of corrupt and undemocratic governments (along with their relatives) both on and off his seven-nation terror-list.
And many of Obama’s applications were done under the same reasoning Judge Gorton attributed to President Trump’s Executive Order: “to review screening procedures and that adequate standards are in place to protect against terrorist attacks.”
Where the Supreme Court’s opined on the legitimacy of this power, they’ve been highly deferential. It’s been applied in a case, brought in part by the ACLU, involving the Executive Branch’s interdiction of incoming boat people from Haiti.
The policy behind allowing the government to stop foreign nationals from entering the country is not only based on the inherent right of national self-preservation, but also on simple deterrence of dangerous behavior. When Australia began to toughen up that country’s stance on boat people in the early 2000s, the numbers dropped considerably (no doubt saving thousands of lives in the process). But when a new government came into power in 2010 and the policy was dropped, the numbers predictably jumped right back up.
These same provisions of the INA have likewise been cited by the courts when they’ve held it to be absolutely constitutional for certain nationalities to undergo special registration requirements.
When President Carter was challenged on equal protection grounds for imposing special registration mandates on Iranian student-visa-holders, the court found that “classifications among aliens based upon nationality are consistent with due process and equal protection if supported by a rational basis.” There, the basis was held to be the enhancement of our national security.
That opinion was applied to another registration program in 2008 when it was alleged by Lutheran Social Services of New York to have been “motivated by an improper animus towards Muslims.” In rejecting that claim, the court relied on the fact that the requirement applied to non-Muslims from the covered countries and also didn’t apply to Muslims from countries outside the list. The same is true of the Obama/Trump seven-nation terror-list.
Although Judge Gorton delve into the plaintiffs’ claims that the visa-halt discriminated based on religion (he simply found that they failed to point to an injury and therefore lacked legal standing), it must be pointed out that the INA does contain an explicit religion-test for exclusion in the form of the Lautenberg Program as well as similar ideological tests, including for anarchism, totalitarianism, communism, and terrorism.
From the mid-16th Century onward, England, our common law forbearers, barred entry to the French, then to Catholics, then to proponents of the French Revolution. As one Member of Parliament stated when the latter ban was put in place, “safety of the state was not to be sacrificed to hospitality; and whatever was necessary to that safety, was not to be blamed.”
Whether it’s used to pressure foreign corrupt elite or to ensure the nation’s security, the president’s broad power to regulate who can come here and when is a legitimate and time-honored authority and is essential to America’s independence as a nation.
As these cases progress and cooler heads prevail, we’ll likely see more of this kind of sober reasoning coming out from the shadows.
Article also published at: Dale Wilcox, Trump’s win against activist judges proves immigration order on solid ground, The Hill, Feb. 7, 2017