Protecting the Nation from Foreign Terrorist Entry into the United States
April 24, 2017
(Washington, D.C.) – The Immigration Reform Law Institute (IRLI) has filed a friend-of-the-court brief (attached here) in an appeal of a federal lawsuit challenging President Trump’s March 6th Executive Order (EO) temporarily freezing the issuance of visas to certain previously designated terror-risk countries.
In the case of State of Hawaii v. Trump, the State of Hawaii and Ismail Elshikh, Imam of the Muslim Association of Hawaii, sought and obtained a nationwide preliminary injunction (PI) against Section 2 of the EO, which temporarily suspends entry for nationals of countries of particular concern during a review period, and Section 6, which halts the refugee program for 120 days for all countries and reduces the refugee intake numbers for 2017 from 110,000 to 50,000. In March, the district court issued the PI, ruling that the EO “runs afoul” of the Establishment Clause of the First Amendment to the U.S. Constitution because it was impermissibly motivated by anti-Muslim animus. The government appealed to the U.S. Court of Appeals for the Ninth Circuit.
In its brief supporting President Trump’s EO, IRLI argued that the district court defied a large body of Supreme Court precedents establishing that, in First Amendment challenges, courts should give no more than limited scrutiny to presidential directives in the area of war, foreign relations, and the admission of aliens. IRLI also argued that the district court’s reasoning entails a train of striking absurdities that unmistakably shows the wisdom of these same precedents. For instance, if calling for a temporary pause in entry of persons from several Muslim-majority countries reveals impermissible animus, surely announcing a war of extermination on a particular religious body, such as the Islamic State of Iraq and Syria (ISIS), does so even more. Under the district court’s reasoning, ISIS family members who reside in the U.S. would possess standing to challenge the war and could likely obtain an injunction against any such action.
Dale L. Wilcox, IRLI’s Executive Director, commented, “In our constitutional system, Congress has been delegated plenary power over immigration. It has enacted many statutes over decades that restrict alien-entry based on nationality, religion, and ideology. Through those statutes, Congress has given the President broad authority to control the entry of aliens into the U.S. who he deems detrimental to our interests.” Wilcox continued, “The EO was clearly designed to protect national security and does not run afoul of the Establishment Clause. The Ninth Circuit should dissolve the injunction.”