After his swearing in Thursday, AG Sessions said he would defend the president “with vigor and determination.” Certainly, this is sorely needed in the travel ban case, because the inept performance by DOJ lawyers so far has painted the president into a legal corner.
In both the district court hearing and the Ninth Circuit telephone hearing, DOJ lawyers were twice unable, when asked, to demonstrate irreparable harm that could result from district court Judge Robart’s restraining order of the travel ban. It’s clear under statute that the president does not have to provide evidence before exercising his power to exclude aliens that he believes threaten the national interest. But hundreds of thousands were listening to the Ninth Circuit hearing, and it’s been endlessly (and falsely) opined on talk shows since that “There’s never been a single terror crime by immigrants from the countries on Trump’s list.”
From the Las Vegas Sun: “[district court] Judge James Robart asked the Justice Department lawyer how many arrests of foreign nationals from the countries have occurred since 9/11. When the lawyer said she didn’t know, Robart answered his own question: ‘Let me tell you, the answer to that is none, as best I can tell. You’re here arguing on behalf of someone that says we have to protect the United States from these individuals coming from these countries and there’s no support for that.’”
Who needs witnesses, when the judge can testify for the plaintiffs?
In the oral arguments at the Ninth Circuit, August Flentje, arguing for the DOJ, didn’t learn from the district court misadventure and also had a problem citing any such arrests. But there’s ample open-source evidence of such crimes.
Here are ten I found in minutes on ResettlementWatch:
- The Somali (Mohamed Osman Mohamud) arrested on charges he planned to blow up a Christmas tree lighting ceremony in Oregon was a refugee. See here in 2010. He was arrested as he planned to detonate a bomb.
- In 2012 Abdullatif Ali Aldosary (an Iraqi refugee) set off a bomb at a Social Security Office in Arizona. Sentenced here.
- In early 2016 an Iraqi refugee (Omar Faraj Saeed Al Hardan) living in Texas was accused of planning to bomb a local popular mall, see story at Newsweek.
- n September 2016, a Somali refugee went on a stabbing spree at a mall in St. Cloud, Minnesota. Learn more here about Dahir Adan. Knife attacks are signature terror acts for devout Muslims.
- the most recent successful attack by Somali refugee slasher, Abdul Razak Ali Artan, at Ohio State, see here.
- The FBI has arrested nine young Minnesota men since 2014 for allegedly plotting to join the terror group ISIS in Syria. See here.
- In 2013 a Somali refugee in North Dakota was sentenced to life in prison for the 2011 murder of a native American family he had become involved with.
- In this case in 2014, an Iraqi refugee murdered his wife … and he penned a fake note trying to pin the murder on Islamophobes in the neighborhood. He was found guilty here and he wasn’t too happy about it! Even CAIR had gotten involved when he tried to pin the murder on Islamophobic Americans.
- This is an awful case from Colorado where a gang of Iraqi refugees brutally raped a local Colorado Springs woman—“the worst case in Colorado history.” Diana West did a great investigative report on the story, here, at Townhall.
- And, if you have never seen the 2009 Roanoke, VA kidnapping story, don’t miss it here.
In an editorial Saturday, the Wall Street Journal said, “Last year the Department of Homeland Security reported that some 60 individuals born in the seven countries on Mr. Trump’s list have been convicted of domestic terror-related crimes since 9/11.”
Surely, the DOJ could somehow have got its hands on the same report the WSJ found. In the oral hearing over the telephone, he could’ve used google on his computer and just read them off from several websites.
Pathetic legal defense of the president
There were numerous other legal arguments that could have been used to defend the president’s longstanding power to bar entry to people from dangerous countries—a power that was used without objection by presidents Obama, Carter and others. (See below.)
Oddly enough, powerful arguments were made in defense of the president’s order, not by the DOJ attorneys, but by the district court Judge Nathaniel M. Gorton in Boston, who had issued a temporary restraining order on January 29th.
The allegations of those seeking to limit the president’s power to protect the nation were summarily demolished by his decision on February 3rd, declining to renew his TRO. His opinion handily opposed the decisions of the other courts, citing legal precedent throughout.
First, it rejects the equal protection argument (page 8), stating the obvious: “There is a distinction … between the constitutional rights enjoyed by aliens who have entered the United States and those who are outside of it.” The decision dispatches the complaint that the EO favors Christians on page 13. Also on the same page and the next, he shreds the due process claim of the plaintiffs, giving references:
“The power to admit or exclude aliens is a ‘sovereign prerogative’ and aliens seeking admission to the United States request a ‘privilege.’…. “It is ‘beyond peradventure’ that ‘unadmitted and non-resident aliens’ have no right to be admitted to the United States.’” Furthermore:
“There is no constitutionally protected interest in either obtaining or continuing to possess a visa. The due process guaranteed by the Fifth Amendment ‘attaches only when the federal government seeks to deny a liberty or property interest.’… A non-citizen has no ‘inherent property right in an immigrant visa.’ … Thus, because an alien does not enjoy a property right in a visa, he has no due process right that protects the manner in which a visa is revoked.”
He adds: “Conversely, because the Due Process Clause safeguards all “persons” in the United States, once an alien is in this country, that alien is entitled to Fifth Amendment protection.”
Most notably, the judge declares on page 9 that:
“The decision to prevent aliens from entering the country is a ‘fundamental sovereign attribute’ realized through the legislative and executive branches that is ‘largely immune from judicial control.’” And on page 19: “In light of the ‘plenary congressional power to make policies and rules for exclusion of aliens,’ Kleindienst, 408 U.S. at 769, which pursuant to 8 U.S.C. § 1182(f), has been delegated to the President, the Court concludes that the government’s reasons, as provided in the EO, are facially legitimate and bona fide.”
One can only wonder why the DOJ attorneys were unable to make these arguments, or why Mr. Flentje didn’t simply take this decision along to refer to at the oral appeal hearing.
David Rivkin, Jr. and Lee Casey, constitutional and appellate lawyers who served in the White House Counsel’s Office and U.S. Justice Department during the Reagan and George H.W. Bush administrations, penned an op-ed in Saturday’s Wall Street Journal titled, “The Ninth Circuit Ignores Precedent and Threatens National Security.”
They go even further than the Boston judge:
The Constitution grants Congress plenary power over immigration, and Congress has vested the president by statute with broad, nonreviewable discretionary authority to “suspend the entry of all aliens or any class of aliens . . . he may deem to be appropriate” to protect “the interest of the United States. Numerous presidents have used this authority to suspend entry of aliens from specific countries.”
They cite the Supreme Court in in Knauff v. Shaughnessy (1950), that the authority to exclude aliens “stems not alone from the legislative power but is inherent in the executive power to control the foreign affairs of the nation.”
Strikingly, they write that: “In issuing the order, the president was acting at the apex of his authority. As Justice Robert Jackson noted in Youngstown v. Sawyer (1952): ‘When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.’”
That authorization stems from 8 U.S.C. 1182(f) [212(f) of the INA]:
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.
Other sections of the INA also confer on the president the power to restrict aliens’ entry, according to the Congressional Research Service:
Section 214(a)(1) prescribes that the “admission of any alien to the United States as a nonimmigrant shall be for such time and under such conditions as [the Executive] may by regulations prescribe.” Section 215(a)(1) similarly provides that “it shall be unlawful for any alien” to enter or depart the United States “except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”
The CRS notes that President Carter relied upon 215(a) “when authorizing the revocation of immigrant and nonimmigrant visas issued to Iranian citizens during the Iran Hostage Crisis.”
Messrs Rivkin and Casey declare that:
The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.
It’s obvious the whole episode in Washington State was planned in order to set up a non-removable precedent, since SCOTUS is divided right now. With some 47 lawsuits on the EO in various states, and a threat that Virginia will join them, the president’s power to oversee immigration could be impaired for the next four years, unless the Supreme Court consolidates these cases and renders an honest decision—unlikely without Gorsuch on the Court.
One of the tasks called for in the executive order: to compile a list of countries whose people cannot be properly vetted, would be successfully attacked in the courts as soon as it’s issued. Perhaps extreme vetting itself will be attacked.
Moreover, the power of the Presidency to protect the nation from threats abroad and to act on illegal immigration could forever be subject to judicial advice and consent. The Ninth Circuit’s warped view of standing also would persist. Rivkin and Casey say that “Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.”
Considering universities’ penchant for hiring radical professors, Washington State University could hire a known terrorist to teach Middle Eastern Studies, and the president would have to take the case all the way to the Supreme Court to exclude him. Perhaps Islamic State fighters could finally get those jobs Marie Harf cited as a root cause of their joining ISIS.