A serious question must be posed: Precisely who is responsible for protecting America from terrorists—the president, as the law seems to clearly say? Or is it activist federal judges like Hawaii’s Derrick Watson, who recently blocked the president’s immigration proclamation, issued September 24th?
It’s titled, “ENHANCING VETTING CAPABILITIES AND PROCESSES FOR DETECTING ATTEMPTED ENTRY INTO THE UNITED STATES BY TERRORISTS OR OTHER PUBLIC-SAFETY THREATS.” To us, that may seem a vital priority, but to Judge Watson, other things are manifestly more important. We’ll try to uncover what is more important to Watson.
In the proclamation, the president asserted that “vetting is less reliable when the country from which someone seeks to emigrate exhibits significant gaps in its identity-management or information-sharing policies, or presents risks to the national security of the United States.” For one or more of these reasons, the proclamation suspended entry to immigrants and nonimmigrants from Chad, Iran, Libya, Syria, Yemen, Somalia (immigrants only), Venezuela (officials & their families only) and North Korea. It also supplies the rationale for these decisions. The first six are Muslim-majority countries.
You may recall that the same judge blocked, on a nationwide basis, the essential parts of the president’s immigration Executive Order 13780, issued March 6, 2017 (his second EO on the subject). EO-2 had set up temporary travel bans on six Muslim-majority nations, pending a worldwide review to determine if there’s any additional info our authorities need from countries around the world, to keep out terrorists and others inimical to America.
In the president’s judgment, the ban was necessary while better vetting techniques are developed, because “the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high,” he said in the order.
Evidently, Judge Watson and other judges believe that their judgment on these matters supersedes the president’s. Also, while Trump states in EO-2 and in the proclamation that his motivation is national security, they believe otherwise. In Watson’s decision to impose a temporary restraining order on EO-2, he said:
Any reasonable, objective observer would conclude, as does the Court…, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims. [Emphasis added.]
Absurdly, Watson and other rogue circuit judges divined what the president’s true motive was for the EO, from his campaign statements.
Watson substitutes his judgment for the president’s in his block of the recent proclamation, which he dubbed “EO-3”:
EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be “detrimental to the interests of the United States,” a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f).… And EO-3 plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) and the founding principles of this Nation.
Yes, that precondition must be determined—but it’s the president who makes that determination—not the courts.
Watson ignores Supreme Court decisions holding that the courts lack the power to second-guess the president’s decisions under Section 1182(f), or look for hidden motives behind them. Five judges from the Ninth (including the highly-respected Alex Kozinski) ripped, in a scathing March 15th dissent, the Ninth Circuit’s embarrassing affirmation of a similar decision by Washington State Judge Robart.
The dissent includes a detailed history of “the source of Congress’s and the President’s authority to exclude aliens.” It reveals just how extreme are the rationales used by these leftist courts to thwart that authority:
When we are reviewing decisions about who may be admitted into the United States, we must defer to the judgment of the political [elected] branches. That does not mean that we have no power of judicial review at all, but it does mean that our authority to second guess or to probe the decisions of those branches is carefully circumscribed.
It is … an “uncontroversial principle” that courts must defer to the political judgment of the President and Congress in matters of immigration policy. The Supreme Court has said so, plainly and often. [For examples, see page 9 of the dissent.]
Also, the five judges cite precedents dictating that courts may not peek behind the facial (on its face) meaning of the president’s executive orders and proclamations under the Immigration and Naturalization Act. This was established in the Supreme Court decision Kleindeinst v Mandel and reaffirmed by Justice Kennedy in Kerry v Din:
Once the executive makes a decision “on the basis of a facially legitimate and bona fide reason,” the courts may “‘neither look behind the exercise of that discretion, nor test it by balancing its justification against’ the constitutional interests of citizens the visa denial might implicate.”
The conclusions of Watson and the Ninth Circuit themselves suffer from two maladies. First, the sections Watson cited do not support his decision: §1182(f) of the Immigration and Naturalization Act unquestionably dictates that only the president decides what constitutes “sufficient findings” that the entry of any aliens would be “detrimental to the interests of the United 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.
There’s no slack whatever in that.
Section 1152(a) is often brought up by the Left, claiming it supersedes 1182(f). 1152 does bar discrimination by nationality, but it deals only with issuance of immigrant visas; 1182 deals with entry of aliens.
Congress gave the president plenary power over which aliens can enter the United States and which cannot. According to the blog of Josh Blackman, Associate Professor of Law at the South Texas College of Law and a specialist in constitutional law, writing about the legality of Trump’s first immigration EO:
A few important points about [1182(f)]. First, the provision affects “the entry of any aliens.” During debates about the executive order, pundits have conflated two issues: the granting of visas and the decision to allow someone to enter the United States. These are distinct questions. Even if an alien arrives at an airport with a valid visa, he may not be permitted entry to the United States.… Even though he is literally on U.S. soil, and has valid papers, until he crosses the check point, he is not actually within the legal boundaries of the United States.
Second, the provision delegates virtually unfettered discretion for the President to determine what is “detrimental to the interests of the United States.”
Third, the provision gives the President wide, wide latitude. His proclamation can last “for such period as he shall deem necessary.” In other words, there is no temporal limitation.
This issue was litigated, extensively, and the courts held that determinations under 1182(f) were not subject to judicial review…. By all accounts, 1182(f) provides all of the authority the President needs to exclude classes of migrants based on their nationality.
Blackman cites some of these findings, regarding challenges to actions taken by President Reagan. Then he goes on, to Section 1152(a):
S.C. § 1152(a)(1) provides:
Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence. [Emphasis added.]
As noted earlier, Section 1182(f) concerns the “entry of any aliens.” Section 1152(a)(1), in contrast, concerns only the issuance of “immigrant visas.” These are different concerns.
Since these concepts are far from murky, why are these leftist judges ignoring them, and blocking the president’s orders? Watson is the best example. It’s palpably obvious that his decision was meant to do more than just block a temporary travel ban of Muslims. That’s apparent because he also blocked the president’s order of a worldwide review of necessary vetting information, which was in that EO too, and refused to narrow his decision when AG Sessions requested it. Even the Ninth Circuit—the most leftward court in the land—reversed that:
The district court did err in enjoining the entirety of Sections 2 and 6, particularly the portions that pertain to interagency review, despite the Government’s requests for clarification and requests to narrow the injunction to enjoin conduct that actually harms Plaintiffs.
The Supreme court stayed Watson’s injunction in part, allowing only individuals to come in who “have a credible claim of a bona fide relationship with a person or entity in the United States.… For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship.”
The Trump Administration then set up this guideline:
The Government’s guidance defines “close familial relationship” as including a parent, parent-in-law, spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, sibling (whether whole or half), and step relationships.
Judge Watson ruled, at the plaintiffs’ request, that the list of relatives who can come in must also include: “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.” His order did not specify that only first cousins are acceptable. Obviously, this will result in far more people entering from the countries on the suspended entry list.
Watson’s recent decision to block the implementation of the results of the worldwide review is telling: he blocked the proclamation that barred entry from Muslim-majority nations, but left in place the bar of entry of North Koreans and Venezuelan officials.
We must look behind Judge Watson’s stated purpose, to decide his true purpose. Reworking some of the language he used in his decision seems appropriate: “Any reasonable, objective observer would conclude that the stated purpose is, at the very least, ‘secondary to a religious objective’ of increasing the number of Muslims who enter America.”