Trump Travel Ban Unconstitutional, Really? Why Were MB Obama, Bush, Carter Travel Bans Constitutional?
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 Americanreported 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 Postreported 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. This legislation restricted travel to the United States “from countries that are state sponsors of international terrorism” and created a vetting process so extreme that any vetting 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 Reviewnoted, 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?
Friday at the White House, during a joint press conference with Japanese Prime Minister Shinzo Abe, when asked about the 9th Circuit Court ruling upholding the blocking of his executive order banning immigrants from seven Muslim-majority countries from entering the United States, President Donald Trump said new steps would be forthcoming next week.
Trump said, “We are going to keep our country safe. We are going to do whatever is necessary to keep our country safe. We had a decision which we think we will be very successful with. It shouldn’t have taken this much time because safety is a primary reason, one of the reasons I’m standing here today, the security of our country, the voters felt that I would give it the best security. So we’ll be doing something very rapidly, having to do with additional security for our country. You’ll be seeing that sometime next week. In addition, we will continue to go through the court process, and ultimately I have no doubt that we’ll win that particular case.”
Trump vows more ‘security’ action next week, amid immigration court fight
Feb 10, 2017
President Trump vowed Friday to take “additional security” steps next week to keep the country safe while his administration fights in court to reinstate the controversial travel ban for residents of seven mostly Muslim countries – a case he voiced confidence the U.S. government will win.
“I have no doubt that we’ll win that particular case,” Trump said at the White House, during a press conference alongside visiting Japanese Prime Minister Shinzo Abe.
Without going into detail, Trump previewed additional measures he apparently plans to announce next week.
“We’ll be doing something very rapidly having to do with additional security for our country,” Trump said.
After the administration’s latest court defeat late Thursday, some have urged Trump to simply rescind and rewrite the executive order at the center of the case. The controversial measure suspended the U.S. refugee program as well as travel and immigration for residents of seven countries in the Middle East and Africa.
Trump gave no indication at Friday’s press conference whether he was considering this step, saying only that they’d continue to work through the court process – and do “whatever is necessary” to protect the country.
The Justice Department is weighing its options, which also include appealing to a broader panel of judges or the Supreme Court.
The decision Thursday was made by a panel of three judges with the 9th Circuit Court of Appeals based in San Francisco.
In their unanimous decision, the judges refused to reinstate Trump’s immigration order and rejected the government’s position that such presidential decisions on immigration policy are “unreviewable.”
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the judges wrote. “…Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.”
The decision does not end the court fight, but marked another setback in the president’s bid to suspend certain programs to examine how the U.S. can better vet those seeking admission to the country.
Trump and Abe left Washington on Air Force One Friday afternoon for a trip to Trump’s Mar-a-Lago Club in Florida. Trump and Abe are scheduled to play golf in south Florida on Saturday.
Earlier Friday, Abe touted the role of Japanese businesses in supporting thousands of jobs in the U.S. Speaking at the Chamber of Commerce, Abe said that “a whopping majority” of the Japanese cars running on American roads are manufactured in the U.S. by American workers.
Trump has criticized Toyota Motor Corp. for planning to build an assembly plant in Mexico and complained that Japanese consumers don’t buy enough U.S.-made cars. Abe said it was an honor to be meeting Trump less than a month after his inauguration, showing the “unwavering alliance” between the two countries.
Trump also affirmed the U.S.-Japan alliance in his opening remarks Friday, calling it the “cornerstone of peace and stability” in the Pacific region. He stressed the importance of investing “heavily” in their defensive capabilities.
The Associated Press contributed to this report.
U.S. Immigration and Customs Enforcement (ICE) agents detained scores of immigrants across the Los Angeles area in a massive deportation operation on Thursday, following President Donald Trump’s harsh executive order stepping up the crackdown of immigrants with criminal offenses living in the country illegally.
Advocates and lawyers said that ICE Enforcement and Removal Operations agents detained 134 immigrants at their workplaces and homes in a series of raids. They said that some people were picked up as “collateral arrest” after they opened their doors to agents who were not there to specifically arrest them. ICE agents allegedly requested to see identification from everyone and took in family members who were undocumented.
From Think Progress
The immigration sweeps are believed to have taken place across Southern California in Santa Paula, Oxnard, Van Nuys, San Bernardino, and Downey.
As of Thursday night, the ICE agency denied that it had detained 100 immigrants, the original figure given by lawyers who said that the number comes from a list of immigrants apprehended at the ICE office in Los Angeles.
“Our operations are targeted and lead driven, prioritizing individuals who pose a risk to our communities,” ICE spokeswoman Virginia Kice wrote in an email to ThinkProgress. She said officers conduct “routine” enforcement actions to arrest “known street gang members, child sex offenders, and deportable foreign nationals with significant drug trafficking convictions.”
Kice added that the agency prioritizes cases based on factors such as the person’s criminal and immigration history, “as well as the viability of the leads we have on the individual’s possible whereabouts.”
But advocates disagree. They say that this particular raid was not “routine” and that the immigrants detained did not pose a risk to their communities.
Routine immigration operations typically detain three to five people — but a sweep across seven counties to round up people appears to be a direct consequence of Trump’s recent executive order that gives broad power for agents to detain immigrants, advocates said.
Trump’s order gave agents greater authority to arrest “removable aliens” who “have been convicted of any criminal offense,” may not have left the country after receiving a final order of removal, or can pose a public safety or national security risk as determined by an immigration officer.
Jorge-Mario Cabrera, the Director of Communications at the immigrant advocacy group Coalition for Humane Immigrant Rights (CHIRLA), told ThinkProgress that the immigrants arrested this week were “low-priority.”
Cabrera said that, by late Thursday evening, lawyers were able to consult 16 people detained in the raids who do not in fact have criminal records. One of those detainees has two U.S.-born children, no criminal background, and has spent years living in the United States. Another one was considered a “gang member” simply because of old speeding tickets and tattoos.
Karla Navarrete, an attorney who was at the ICE office in Los Angeles to represent detained immigrants, told ThinkProgress that some of the immigrants were likely immediately deported.
An ICE officer told her that one of the people she represents — a father to three children who are U.S. citizens who was likely eligible for a green card — had been deported. But Navarrete couldn’t confirm that because she was denied entry to physically see him. “We don’t know because we don’t believe them,” she said. She is now working to file a stay for the man.
Read Full Story At Think Progress
AUSTIN, Texas — Enforcement actions underway in Texas as part of the nationwide Operation Cross Check have landed 44 criminal aliens in federal detention this week.
Following news about criminal aliens being arrested in Austin, Texas, by U.S. Immigration and Customs Enforcement (ICE) agents, Breitbart Texas reached out to the local ICE spokesperson to learn if the arrests were part of an ongoing operation. While the ICE spokesperson would not confirm or deny the operation, U.S. Representative Joaquin Castro confirmed the arrests underway in Austin and throughout South and Central Texas are part of Operation Crosscheck.
“I have been informed by ICE that the agency’s San Antonio field office has launched a targeted operation in South and Central Texas as part of Operation Cross Check,” Castro said in a written statement obtained by Breitbart Texas. “I am asking ICE to clarify whether these individuals are in fact dangerous, violent threats to our communities, and not people who are here peacefully raising families and contributing to our state. I will continue to monitor this situation.”
ICE Spokesperson Adelina Pruneda would not release any details about the criminal aliens being arrested, or any possible operation in progress when contacted by Breitbart Texas.
She did confirm that one ICE officer was injured in Austin while attempting to take a criminal alien into custody. The alien’s family allegedly attempted to intervene in the arrest. The officer received minor injuries in the scuffle. He was transported to a local emergency clinic where he was treated and released.
The roundup of criminal aliens has sparked protests in the Capital City. One twitter user posted a video from an overnight protest march:
More than 2,000 criminal aliens were rounded up during Operation Crosscheck in 2015. 1,000 of the captured criminal aliens were targeted because they had felony convictions. Those range from voluntary manslaughter, child pornography, robbery, kidnapping and rape. Fifty-eight of those captured were known gang members, while eighty-nine were convicted sex offenders.
President Donald Trump stated, during his campaign for president, that he would prioritize the arrest and deportation of criminal aliens. However, ICE roundup operations of this nature are regularly scheduled during the first part of the year.
The Mexican consul general in San Antonio claimed that Operation Crosscheck is underway in six different states, the Austin American-Statesman reported. ICE agents have arrested 44 criminal aliens in the past two days.
Gowdy Slams 9th Circuit Opinion: No Right For Non-Citizens To Come To US