TEMPORARY RESTRAINING ORDER ON TRUMP’S EXECUTIVE ORDER – IMMIGRATION BAN

The States have no national security or immigration authority and therefore should not having standing to file suit to suspend or litigate immigration or national security policy set by Congress or the President.  History has shown that immigration policy can be extremely selective and arguably discriminatory.  A ship loaded with Jews from Germany were denied entry to the US before World War II (because spies may be among them).  The President’s Order is not discriminatory because immigration is a “sovereign prerogative.” Constitutional rights, including freedom of religion, are enjoyed only by US Citizens, not aliens outside our borders.  Due process of the law is another right reserved only to US citizens and those permanent resident aliens who legally entered the US and have continuously resided in the US.  Decision of US immigration officials, abroad or at US ports of entry, are solely between two interested parties – the US Government and the alien seeking a visa or entry into the US.  The authoritative decisions by US immigration officials (to grant or deny a visa or to allow or exclude an alien’s entry into the US) have long been considered that alien’s due process of law.  The only flaw in the Order – the potential denial of due process to permanent resident aliens – was subsequently identified and corrected by the President’s legal counsel on his behalf.  No standing and no Constitutional grounds existed to impose the temporary restraining order on the President’s temporary immigration ban and temporary suspension of the refugee program.

Background of the Temporary Restraining Order

Washington and Minnesota (the “States”) filed a lawsuit in federal district court and successfully received a temporary restraining order (“TRO”) to enjoin the enforcement of a Presidential Executive Order (the “Order”).  The Order temporarily bans the entry of individuals into the US from seven predominantly Muslim countries and temporarily suspends the U.S. Refugee Admissions Program (“USRAP”).  After finding that the States had standing to sue, the 9th Circuit Court of Appeals upheld the lower court’s TRO based primarily on two beliefs held by the Court.  First, the Order is likely a discriminatory “Muslim Ban” based primarily on the President’s pre-election rhetoric with little or no consideration given to the actual language of the Order.  Second, it is like that the States will successfully claim that certain persons subjected to the Order are unconstitutionally denied Due Process rights.  The 9th Circuit believes that Due Process rights belong to certain nonimmigrant aliens (including those who have never entered the country), illegal aliens, and even US citizens or US institutions that have an interest in securing the initial entry of a specific alien.  The States’ standing to sue and their religious discrimination and denied due process claims are addressed later, but first let’s look at:

The Big Picture

For centuries, it has been accepted in the international community that every nation has the inherent power, essential to self-preservation, to forbid the entrance of foreigners or to admit them only in certain cases or under certain conditions as that nation sees fit.[1]  In the United States, Congress and the President have substantial powers to make decisions deemed necessary (that they or he sees fit) for national security interests.

Supervision of the admission of aliens is entrusted by Congress to the Executive Branch.  Congress has given the President the specific power, by proclamation, to restrict or delay the entry of all aliens or any class of aliens that he finds detrimental to the interests of the United States for any period of time he deems necessary.[2]

The Supreme Court has consistently recognized, in cases involving “[immigration] policy questions entrusted exclusively to the political branches of our Government, [that it has] no judicial authority to substitute [its] political judgment for that of Congress.”[3]  There exists an uncontroversial and well-grounded principle that the Courts owe substantial deference to the immigration and national security policy determinations of the legislative and executive branches.[4]  This legislative and executive power is “largely immune from judicial control.”[5]

The Constitution does not extend to foreigners (non-citizens) beyond our borders.  Foreigners who are denied entry to the US are considered held at the border, never to have resided in the US.  This is true even if the foreigner is released to supervised custody in the US while awaiting deportation that may take years to complete.[6]  Detained aliens only due process rights are (1) to receive, in certain cases, an explanation for denied entry and (2) to obtain a hearing on alleged “indefinite detention.”

Legal standing of the States to Sue the President on his Immigration Policy

Do States have a standing to sue the President for his immigration policies?  I believe the answer is, “No,” meaning the States’ motion for a TRO should not have been considered by the federal district court.

Let’s look at the powers of the federal government.  Congress has the power, among others, to levy tariffs on imports; to regulate commerce with foreign nations; to establish rules of naturalization; to declare war; to raise and support armies; and to provide and maintain a navy.[7]  Clearly, the federal government has exclusive authority over immigration and foreign policy.

Now, let’s look at the rights granted to and withheld from the States by the Constitution.  States were allowed to admit immigrants, at their discretion, but only for a limited time during this nation’s early years (until 1808).[8]  After 1808, the States lost immigration power; that power was thereafter held exclusively by the federal government.  No State shall levy a tariff on imports or exports.[9]  No State shall, without the consent of Congress, keep troops or ships of war; enter into any Agreement or Compact with a foreign power; or engage in war. [10]  It is equally clear that the States have no power over immigration and no power over foreign policy emanating from the Constitution.

Based solely on the States’ lack of immigration authority, it seems the States would have no standing to bring suit against the federal government in matters of immigration or foreign policy.  In addition, it seems the interests of the States would be inferior to the rights of those US citizens and US institutions who have an interest in attaining entry of an alien into the US.  Those citizens and institutions have no rights to interfere with immigration official decisions (see category 6 below); neither should the States.

[The] power to admit or exclude aliens is a sovereign prerogative[11] and “largely immune from judicial control.” [12]  The federal government’s sovereign prerogative suggest that States have no standing to bring suit challenging immigration policy.  As discussed later, the power to challenge immigration policy or decisions appears to rest solely in the hands of the aliens excluded or denied admission.  The rights of those aliens are extremely limited in scope.

Alleged discrimination against Muslims

Once again, the power to admit or exclude aliens is a sovereign prerogative.  Based on past immigration policy and actions, this power clearly allows the US to be extremely selective if not outright discriminatory in selecting persons it allows to enter the US.  The US has a clear history of using this prerogative to establish arguably discriminatory immigration quotas and outright bans.  In the 1930s and 1940s it has been argued that some of these quotas were motivated by heightened anti-Semitism as much as they were by national security concerns.[13]  Today, some may argue that this is an ugly part of our history, but it remains a constitutional prerogative for the nation to be extremely selective, if not discriminatory, in admitting foreigners into the US.

The States claim the Order violates the Establishment (of religion) and the Equal Protection clauses of the Constitution.  Clearly, the Order does not “Establish” a national religion within the boundaries of the US.  In addition, “Equal Protection” is a right conveyed only to US citizens.  More importantly, the Constitution does not grant its rights and protections to foreigners outside the US.  The TRO does not cite any case law that changes alleged religiously discriminatory immigration procedures or practices.  The likely reason may be that no cases exist because prior Courts have recognized this “sovereign prerogative” that can exclude anyone from entry into the US.  In fact, the only discrimination cases involving national security cited in the TRO relate to unconstitutional discrimination against US citizens of certain ancestry (Japanese) or ideologies (Communists) during times of elevated national security concerns.[14]

Finally, the word “Muslim” cannot be found in the Order.  How can the Order discriminate against Muslims when Muslims are not mentioned in the Order?  In fact, the words “religion” and “religious” only appear in four sentences in the Order and refer solely to the persecution of religious minorities (by terrorists).  On a current case-by-case basis and upon resumption of the USRAP, the Order merely gives admission priority to persons of a religious minority in their country who are facing persecution.  Admitting the persecuted is a positive aspect of immigration policy.

Alleged denial of “Due Process of Law” to certain categories of aliens

(1) lawful permanent residents (“immigrants” who legally entered the US), and

(2) holders of valid temporary “nonimmigrant” visas who legally entered the US.

(Those above who have temporarily departed or wish to temporarily depart the US)

The first two categories involve persons who have valid visas and have legally set foot in the United States through immigration checkpoints (including international airports).  These aliens do have limited due process rights regarding subsequent exclusion or deportation hearings.

“[Once] an alien gains admission to our country and begins to develop ties that go with permanent residence, his constitutional status changes accordingly.  [Supreme Court] cases have frequently suggested that a continuously present alien is entitled to a fair hearing when threatened with deportation.”[15]

The key difference in due process rights between these two categories of aliens lie in who has the “burden of proof.”  For those aliens with temporary non-immigrant visas, the burden of proof is on the alien.  However, the Board of Immigration Appeals has followed the practice of placing the burden of proof on the Government when the alien is a permanent resident alien (an “immigrant”) when that immigrant has continuously resided in the US.

The 9th Circuit’s only justifiable Due Process concern involves continuously present permanent residents.  However, the President recognized and subsequently corrected this oversight eliminating this concern.

(3) refugees (who by definition have never entered the US), and

(4) visa applicants or holders of valid nonimmigrant visas who have never entered the US.

The next two categories are persons who have never set foot in the United States.  Admission to the US is a privilege and the alien has no constitutional rights to enter the US.  The 9th Circuit’s concern for the Due Process rights of this group is totally unjustifiable.

“[The Supreme Court] has long held that an alien seeking initial admission to the United States requests a privilege, and has no constitutional rights regarding his application[16] and “the decisions of executive or administrative officers . . are due process of law.” [17]  Based on this due process, it is not within the authority of the courts to order entry of a such a foreigner in opposition to this constitutional and lawful administrative process.[18]

(5) persons unlawfully in the US (illegal aliens).

The 9th Circuit’s concern for the Due Process rights of illegal aliens is also totally unjustifiable.  Any deportation decision by immigration officials, upon the capture of illegal aliens in the US, should be their only due process of law, similar to aliens who have never entered the US [categories (3) and (4) above].

The President’s Order essentially would not impact illegal aliens.  You ask, “Why?”  If a person is in the US illegally, they are not going to leave the US unless compelled by a personal situation abroad.  If they do leave and wish to return to the US, they will, once again, attempt re-entry illegally since they do not possess a valid visa.  As explained earlier, constitutional rights that may be available to aliens, if any, can be claimed only by those who have legally entered the US.  Persons who have illegally crossed our borders and are later found and detained in the US should be considered detained at the border, as never (legally) entering the US.  Any continuous presence of an illegal alien in the US should be irrelevant since they have never entered the US legally.  (Similar to Kaplan v Tod, see footnote 6.)

(6) US citizens or US institutions that have an interest in securing the initial entry of an alien.

The 9th Circuit’s concern for the Due Process rights of this category is equally unjustifiable.  This last category includes citizen spouses as well as universities and employers located in the US who have an interest in securing the entry of certain aliens.  Courts have consistently found that these citizens and organizations have no say in the admission of aliens.  The admission decision is solely between immigration officials and the alien following the prerogative of Congress or the Administration.

The Supreme Court has declined to balance interests of parties seeking the admission of an alien (i.e. spouses, universities, and employers) against the government’s powers to make rules for the admission of aliens and to exclude those who possess forbidden characteristics.  “To do so would require ‘courts in each case . . .  to weigh the strength of the audience’s interests against that of the Government in refusing a [visa] to the particular applicant,’ a nuanced and difficult decision Congress had ‘properly . . . placed in the hands of the Executive.’”[19]

The 9th Circuit apparently ignored the US Supreme Court opinion in one case it cited in support of a spouse’s due process rights.  (Kerry v Din, 135 S. Ct. 2128 (2016)).  In that case, the Supreme Court overturned the 9th Circuit’s faulty ruling that a spouse had a protected liberty interest in her marriage that entitled her to review the denial of her alien husband’s visa.

Finally

The 9th Circuit Court of Appeals is known as one of the most liberal courts in the nation.  A significant number of its decisions have been overturned by the U.S. Supreme Court.  That reason alone suggests that overturning the TRO is justified.

[1] Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) “It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe.  In the United States, this power is vested in the national government to which the Constitution has committed the entire control of international relations, in peace as well as in war.”

[2] 8 USC 1182(f) – 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 to nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

[3] Opinion of Justice Scalia in Kerry v. Din, 135 S. Ct. 2128 (2015) citing Fiallo v. Bell, 430 US 787, at 798 (1977).

[4] Acknowledged in the TRO holding from the 9th Circuit in State of Washington v Trump No. 17-35105.

[5] Fiallo v. Bell, 430 US 787 at 792 (1977) quoting Shaughnessy v. Mezei 345 US 206 at 210 (1953).

[6] In Kaplan v. Tod, 267 US 228 (1925), a thirteen-year-old girl from Russia, sent to the US by her mother, was ordered excluded as a “feeble minded” person and not allowed to enter the US.  Before the deportation order could be carried out, war began in Europe and the deportation process was suspended.  She was held on Ellis Island for nearly a year and later released to the supervised custody of a US institution to prevent her from becoming a public charge and to be returned to US officials when required.  The institutional custodian allowed her to live with her father.  Although she was an otherwise eligible minor, the Court ruled she did not become a naturalized citizen when her father was later naturalized because she did not “reside” with her father as required by law.  At all times since her arrival, she was considered “held at the border” because she was never allowed to legally enter the US and therefore could not have “resided” with her father in the US.  She was ordered deported 9 years after arriving.

[7] Various Clauses of Article I, Section 8 of the United States Constitution.

[8] Article I, Section 9, Clause 1 of the United States Constitution.

[9] Article I, Section 10, Clause 2 of the United States Constitution.

[10] Article I, Section 10, Clause 3 of the United States Constitution.

[11] Landon v. Plasencia, 459 US 21 at 32 (1982).

[12] Fiallo v. Bell, 430 US 787 at 792 (1977) quoting Shaughnessy v. Mezei 345 US 206 at 210 (1953).

[13] The Immigration Act of 1924 controlled undesirable immigration by establishing quotas and outright banned immigration from the countries of the Asian/Pacific triangle.  In 1939, the US had an established quota for accepting Jewish immigrants and, arguably fueled growing by anti-Semitism, refused to increase that quota to admit 20,000 Jewish children fleeing Nazi oppression.  In fact, the US actively attempted to persuade Latin American countries and Great Britain to take Jewish refugees.  On June 4, 1939, President Roosevelt refused to allow the German ship, SS St. Louis, to unload its 907 Jewish immigrants in Miami citing a nation security concern that German spies may be among them.  The ship and its 907 passengers returned to Europe.

[14] Aptheker v Sec’y of State, 378 US 500 (1964) holding unconstitutional a statute denying passports to US citizens who are members of the Communist Party despite national security concerns.  Ex parte Endo, 323 US 283 (1944) holding unconstitutional the detention of law-abiding and loyal US citizens of Japanese ancestry during World War II.

[15] Supra, Landon v. Plasencia, at 32.

[16] Ibid, at 32.

[17] Supra, Nishimura Ekiu v. United States, at 660 (1892).  “[The] decisions of executive or administrative officers, acting within the powers expressly conferred by Congress, are due process of law.”

[18] Supra, Nishimura Ekiu v. United States, at 660 (1892).  “It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law shall be permitted to enter in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government.”

[19] Concurring Opinion of Justices Kennedy and Alito in Kerry v. Din 135 S. Ct. 2128 at 2139 and2140 (9th Cir., 2016) citing Kleindienst v Mandel, 408 US 753 at 769 (1972).

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