This past Friday, Hon. James Robart, a Republican-appointed federal district court judge, declared unconstitutional the presidential immigration ban, allowing immigration travel to resume without delay.
The Justice Department filed an appeal with the United States Court of Appeals for the Ninth Circuit and asked the court to stay the Judge Robart’s decision striking the executive order until the appeal is heard, meaning that the ban should stay in effect until there has been a final decision on the appeal. The Court of Appeals turned down the Justice Department plea, permitting flights into the United States to resume for the time being. At the same time, the Court of Appeals set a very rapid schedule for the parties to file their briefs, signifying that a decision would be made rapidly.
What It Means
The Circuit Court decision represents a minor victory for the anti-administration position. It suggests, at most, that the court expects to uphold Judge Robart’s decision. At the least, it means that, given the short briefing schedule, no real harm will be done by allowing flights to be rescheduled. Judges frequently it will overcome a request for temporary relief by shortening the time involved.
In part, it is a reflection that the court expects to rule against the executive order. It doesn’t represent an in qualified victory for the anti-administration position. Only after the case is briefed, argued and decided will we know what this appellate court thinks about the executive order.
The administration has several problems with its position. The first is that it is well known now that it was conceived as a means to stop entry of Muslims into the United States. It was so declared by its conceiver, Rudolph Giuliani, the former mayor of New York and currently the reincarnation of Heath Ledger’s Joker. Giuliani proudly admits taking the idea of a Muslim ban and couching it in terms of banning entry by nationals of certain Muslim-majority countries.
However, those countries do not account for an imminent threat or a single act of terrorism on United States soil. Moreover, the executive order also exempted religious minorities from those countries. It reads like a ban against all people of Islam. Oops!
The administration’s second problem is that it relies entirely on the President’s motivation on the need of national security, which in turn is based on his belief, as opposed to evidence. No doubt, there is an underlying national security need to exclude potential terrorists. By declaring everyone (except Christians) from certain Muslim-majority countries to be excluded, the administration painted with a broad and religiously discriminatory brush.
Second, the administration has offered no proof of a national security risk if the immigration ban is not enforced. There is no publicly available information suggesting a threat of terrorism by one or more individuals emigrating from the targeted countries. Addition, there is no explanation why other Muslim-majority countries are not included in the executive order-such as Saudi Arabia. If there is information and it’s confidential, the Justice Department could offer to show the courts the information on a confidential basis, so that the classified nature is not destroyed. The Justice Department has not offered to do that.
There is a third factor, and it is important. The attacks within the United States and in Western Europe over the last couple of years were thought to be Lone-wolf actions or the act of ISIS sympathizers. The people carrying out the attacks were lawfully in the countries where the attacks took place. Most recently, investigation suggests that these were not Lone-wolf attacks but in fact were directed by ISIS through instant messaging via the Internet. The domestic terrorism issue is as much an issue of cyber security as it is about admitting potential terrorists into the country.
In addition to being unconstitutional for a variety of reasons, the executive order may be ineffectual in stopping domestic terrorism.
What else can the Justice Department say? It will probably argue that the executive order is an exercise of the presidential prerogative to maintain national security. This argument is not persuasive. It is too easy for the administration to assert a national security pretext to cover otherwise unjustifiable actions.
If the administration is able to present some tangible evidence of an imminent risk, no doubt the court would take such evidence very seriously and would uphold the ban in some modified form that would address the potential danger. But the court cannot grant blanket use of a national security exception without creating an opportunity for abuse by the administration.
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