Judicial Overreach on National Security

Politics on the bench puts American lives at risk.

A federal district court judge in the state of Washington temporarily blocked the enforcement of President Trump’s “Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017). The executive order had suspended the admission refugees to the United States, including from Syria, and of non-U.S. resident travelers from seven majority Muslim countries considered prone to terrorism. U.S. District Judge James L. Robart, who acted last Friday in a case brought by the states of Washington and Minnesota, specified that his decision is to be implemented nationwide. In issuing his temporary restraining order, the judge found that the states had standing to bring the case, that they were likely to succeed on its merits, and that a temporary restraining order was in “the public interest.” Not surprisingly, President Trump tweeted his displeasure with Judge Robart’s decision.

President Trump has every right to be upset on the merits of Judge Robart’s action, even if his use of the phrase “so-called” in describing the judge may have been a tad over the top. Instead, President Trump might have used the words “irresponsible” or “reckless” in characterizing a decision that is a clear violation of the Constitution’s separation of powers and is potentially detrimental to national security.

Despite the president’s objections, the Trump administration appears to be complying with Judge Robart’s decision to date.  However the Department of Justice appealed to the 9th Circuit Court of Appeals to immediately reverse what Judge Robart had done and restore President Trump’s entry suspension order. The appeals court declined to do so right away. It set forth a briefing schedule calling for the plaintiffs to file their papers by 3am ET on Monday and for the Department of Justice to reply by 6pm ET.  

President Trump acted well within his constitutional and statutory authority to issue his executive order. “The exclusion of aliens is a fundamental act of sovereignty,” the Supreme Court concluded in a 1950 case. “The right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.”

Congress reaffirmed the president’s power with respect to decisions excluding aliens in the Immigration and Nationality Act (“INA”), which was originally enacted in 1952, and has been amended several times, including in 1996. The following language has remained intact: “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.” (8 U.S.C. § 1182(f)).

President Trump’s executive order, in the interest of protecting national security, directed changes to the policy and process of admitting non-citizens into the United States. It was intended to provide a period of review for relevant agencies to evaluate current procedures and to propose and implement new procedures. The purpose falls squarely within the president’s constitutional and statutory authority and responsibility, as stated in the executive order, “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”

In order to allow the opportunity for appropriate review and proposal of changes to procedures for the protection of national security, the executive order suspended for 90 days entry of immigrants and non-immigrants from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. It suspended, for 120 days, the United States Refugee Admission Program, with the exception of Syria where the suspension is indefinite. After the refugee suspension ends, the Secretary of State will have the authority to prioritize applicants on the basis of religious-based persecution provided that the religion of the individual is a minority religion in the individual’s country of nationality.

While the affected countries are all Muslim majority countries, they represent only seven out of the 56 Muslim majority countries that belong to the Organization of Islamic Cooperation. Out of the ten countries with the largest Muslim population, only one country – Iran – is on the executive order’s list of seven. Non-Muslims as well as Muslims from the seven countries would be affected by the executive order. The countries themselves were selected on the basis of their being nurturing grounds for the export of terrorism, a perfectly rational basis to distinguish one country from another for the purposes of national security. No invidious discrimination is involved.

Nevertheless, without any legal analysis and lacking access to the kind of classified information on threats to national security that the president of the United States has at his disposal, Judge Robart took it upon himself to substitute his judgment for the president’s. The judge gave unwarranted deference to the speculative, vague interests asserted by the states of Washington and Minnesota, who claimed without any concrete evidence that the temporary suspension of entry of aliens from the seven countries “adversely affects” their own “States’ residents in areas of employment, education, business, family relations, and freedom to travel.” This preposterous conclusory assertion overlooks the fact that the affected individuals temporarily barred from entering the country are not residents of these states and are not entitled to the states’ protection. Moreover, the states are overlooking their responsibility to protect the safety of their actual residents, which the executive order is designed to assist in doing. The federal executive branch is charged with the responsibility for protecting all of the American people from national security threats, including but not limited to the people of Washington and Minnesota.

Judge Robart goes even further afield in giving deference to the states’ unsupported claim that the executive order would inflict damage on their own operations, tax base and public education system. Under this theory, individual states would have the right to challenge any federal policy decision on the basis of virtually any claim of possible harm to their states’ more parochial interests. The result would be to upend the relationship between the federal and state governments under our constitutional system. In any case, by declaring that his order would have to be implemented nationally, Judge Robart improperly imputed to the other 48 states the claims of the two states before him that are actually within his jurisdiction to adjudicate. Indeed, a federal district court in Massachusetts reached a contrary conclusion on the very same day that Judge Robart issued his decision. In a far more thorough opinion, the federal district court in Massachusetts determined that President Trump’s executive order was a lawful exercise of the political branches’ plenary control over the admission of aliens into the United States. There is no basis for disregarding this opinion and making Judge Robart’s scantily reasoned decision the law of the land nationwide.

During oral argument, Judge Robart said to the Department of Justice attorney, “You’re here arguing on behalf of someone who says we have to protect the US from these individuals coming from these countries, and there’s no support for that.” His observation, which he asserted without any proof on the record, is irrelevant. The countries were selected based on a list of “countries of concern” compiled previously by the Obama administration. They all have been proven unable to control both terrorism within their borders and the export of terrorism outside of their borders. President Trump had a rational basis for the selection of the countries subject to the temporary suspension. It is not within Judge Robart’s constitutional authority to substitute his judgment for the president’s on such matters of national security. He failed to meet the test he himself stated in his decision: “The role assigned to the court is not to create policy, and it is not to judge the wisdom of the policy created by the other two branches.”

As for those objecting to the prioritization of persecuted religious minorities for future refugee status, they may want to read the Convention on the Prevention and Punishment of the Crime of Genocide, which describes exactly what those religious minorities are facing in Syria, Iraq and other parts of the Middle East and Africa today. Genocide is defined as any of a number of acts such as killing, causing serious bodily or mental harm or forcibly transferring children, “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” Persecuted Christians in that part of the world surely fall into that category.

Moreover, a “refugee” is defined in the 1951 Convention Relating to the Status of Refugees as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” Does anyone seriously believe that Christians would be safe to return to countries such as Syria, Iraq or Libya today?

Judge Robart exceeded his judicial authority and has potentially put Americans at needless risk. If the 9th Circuit Court of Appeals does not promptly reverse his reckless decision, the Department of Justice will need to take this case directly to the Supreme Court.