C. Mitchell Shaw
Other presidents
have suspended immigration without having their orders derailed by the courts.
Why is Trump's executive order being treated differently?
On Thursday, the 9th Circuit
Court of Appeals kept to its activist ways by refusing to allow President
Trump’s executive order suspending the controversial U.S. refugee program to be
in effect as it continues to wind its way through the courts. The three-judge
panel that denied the administration’s request to lift the temporary
restraining order on the executive order was unanimous in its decision.
The judges — William Canby
Jr., a Jimmy Carter appointee; Richard Clifton, a George W. Bush appointee; and
Michelle Friedland, a Barack Obama appointee — wrote in their decision that the
executive order likely violates “what due process requires, such as notice and
a hearing prior to restricting an individual’s ability to travel.” The decision
also says the “it is the Government’s burden to make ‘a strong showing that
[it] is likely to’ prevail against the States’ procedural due process claims”
and that the court is “not persuaded that the Government has carried its burden
for a staying appeal.”
In plain English, that means
that the three-judge panel decided that the restraining order against Trump’s
executive order is unlikely to be overturned by a higher court, so it sees no
reason to lift the restraining order as this case works its way through the
labyrinth of legal red tape it faces.
Of course, the point that is
largely overlooked in all of this is that each of these judges was appointed by
presidents who also had policies “restricting an individual’s ability to
travel.” Let’s just spend a few minutes unpacking that as we work our way
backward through the timeline.
As The New American reported in
a previous article:
In 2015, Obama signed H.R.
158, the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of
2015. That bill clarified “the grounds for ineligibility for travel to the
United States regarding terrorism risk, to expand the criteria by which a
country may be removed from the Visa Waiver Program, to require the Secretary
of Homeland Security to submit a report on strengthening the Electronic System
for Travel Authorization to better secure the international borders of the
United States and prevent terrorists and instruments of terrorism from entering
the United States, and for other purposes.”
The Huffington Post reported at the time of that bill's passage:
In what could be a sign the
administration is moving away from a policy seen as discriminatory, the Obama
administration announced Thursday that it is restricting visa-free travel to
the U.S. for recent visitors to three additional countries — but not for dual
nationals with those passports.
Under the new restrictions,
citizens of the 38 countries that are part of the reciprocal visa-waiver
program will lose their visa-free travel status if they have traveled to Libya,
Somalia or Yemen within the past five years. Thursday’s announcement is an
expansion of a law passed late last year, which revoked the visa-waiver status
of people who had recently traveled to Iraq, Syria, Iran or Sudan, and who hold
dual citizenship with any of those four countries.
Interestingly, not only did
the liberal mainstream media celebrate those restrictions (as the example from
the Huffington Post shows), but there were no legal challenges
brought against H.R. 158, either. Also, to put in the
for-what-its-worth-column, that bill — signed into law by Obama and allowed to
stand without being issued a restraining order — is one part of the legal
framework on which President Trump’s executive order rests.
Before that, though, in 2011,
Obama’s State Department quietly halted all refugees from Iraq for a period of six months after
it was discovered (to the surprise of no one paying attention) that terrorists
who had actually fought against U.S. soldiers in Iraq had gained entry in the
United States as “refugees” and were planning attacks here. It seemed that
reason dictated a more stringent vetting process. Now where has this writer
heard that recently?
Going a little further back,
in 2002 — in the wake of 9/11 —
both houses of Congress unamimously passed, and President Bush signed — H.R.
3525, the Enhanced Border Security and Visa Entry Reform Act,
restricting travel to the United States “from countries that are state sponsors
of international terrorism” and creating a vetting process so extreme that any
process Trump comes up with would have difficulty appearing anything but
moderate by comparison. Of course, it was reasonable then and it is reasonable
now. But to those looking to attack Trump’s policy on this issue so critical to
national security, reason is a stranger. Evidence of that can be seen in the
fact that 73 Democrats who voted to pass that law in 2002 are still sitting in
office and are among those decrying the suppposed evils of Trump’s executive
order which rests as much on the legal framework of H.R. 3525 as it does on
Obama’s H.R. 158.
H.R.3525 is still on the books
and in effect, granting the president the authority to stop the issuance of
non-immigrant visas from the very countries Trump’s executive order names. And
as Conservative Review noted, Trump merely applied that law in conjunction with
his authority under The Immigration and Nationality Act (§ 212(f)) which grants
the president plenary power to “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.”
The next stop on our trip in
the Wayback Machine is to April 7, 1980. America was in the midst of the Iranian hostage crisis. Five months into the 444-day-long ordeal, President Carter
responded by issuing a series of proclamations under his executive authority.
Here, in his own words, is the one that is germane to this issue:
Fourth, the Secretary of
Treasury [State] and the Attorney General will invalidate all visas issued to
Iranian citizens for future entry into the United States, effective today. We
will not reissue visas, nor will we issue new visas, except for compelling and
proven humanitarian reasons or where the national interest of our own country
requires. This directive will be interpreted very strictly.
Now, here — in the present —
three judges (appointed by presidents who not only did essentially the same
thing Trump is doing, but laid the legal foundation and set the precedent for
his actions) have the nerve to pretend that while it was fine and dandy when
their presidents did it, it is somehow unconstitutional when Trump does it.
And there’s the rub.
Constitutionality is not a matter of who (or which party) holds the office and
issues the directives; it is a matter of what the Constitution allows and
requires. In this case, Article IV, Sec. 4 of that Constitution seems apropos:
The United States shall
guarantee to every State in this Union a Republican Form of Government, and
shall protect each of them against Invasion; and on Application of the
Legislature, or of the Executive (when the Legislature cannot be convened)
against domestic Violence.
President Trump’s executive
order is a balanced attempt to secure the borders of this nation against a terrorist invasion under the guise of a refugee program. The alternative is an
open-door policy that allowed Iraqi terrorists to enter this country in the
wake of 9/11. President Obama blocked those “refugees” then and if his actions
lacked prudence it was that they did not go far enough. The salient point,
though, is that no one accused him of overstepping his Constitutional
boundaries in taking the action he did. Or Bush before him. Or Carter before
him. Why is this any different?
C. Mitchell Shaw, The New American, 10-2-2017
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