Executive Orders on Alien Restrictions

Executive Orders on Alien Restrictions

I’ve not been a big supporter of either EO-1 or EO-2 concerning restricted entry to the U.S. of aliens of certain countries.  EO-1 was admittedly ill-conceived even by Trump’s minions.  EO-2 was more legalistically robust and established the principle that the executive branch had the constitutional right to exclude aliens from this country that they considered terrorists, or dangerous or inimical to the country.

The countries involved in EO-2 are Somalia, Yemen, Syria, Iran, Libya, and Sudan. Practically speaking, there were no deaths resulting from terrorist activities by citizens of the six countries involved, and only 28 peripheral , non U.S. terrorist related activities since 9/11.  The above does not include the recent Manchester, England suicide bomber with ties to Libya who killed 22 and injured 120, mostly young girls.  This has introduced an emotional component into the mix, but does not alter the main points questioning the efficacy of EO-2 on statistical and pragmatic grounds.

Notwithstanding the efficacy, the Fourth Circuit Court immediately negated EO-2 based on their interpretation of Trump’s anecdotal statements during his candidacy, and the full Fourth Circuit Court of Appeals upheld the action, 10 democrats to 3 republicans, illustrating the political nature of the decision. 

The Congress has given the president of the United States “very broad discretion” when it comes to immigration.  Section 212(f) of the immigration law, states: "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." 

So the question is: Can the federal circuit courts, particularly the fourth and ninth circuits, legislate and interpret from the bench in spite of existing law and precedents, based on anecdotal and non-legal pronouncements, and based on the politics of the judges?  Or will constitutional and congressional law pertain?  SCOTUS may or may not hear this issue, and not until October, 2017 unless it gets accelerated.  The issue has gone way past the efficacy and practicality of EO-2.  It has now become the delineation powers among the three branches of government.

A recent development – a request for emergency action by the Supreme Court.  http://www.foxnews.com/politics/2017/06/02/supreme-court-could-rule-within-days-on-lifting-temporary-stay-on-travel-ban.html

Ray Gruszecki

June 2, 2017