Where do the courts enter into this debate? (Rainmaker Photo/MediaPunch/IPX)
As federal judges in Hawaii and Maryland blocked key parts of President Trump’s revised executive order banning immigration from six majority-Muslim countries, five judges on the Ninth Circuit Court of Appeals issued a strong dissent to that court’s refusal to reconsider its decision blocking the earlier version of Trump’s order.
The conflict illustrates the deep divide among judges over whether states and U.S. citizens can mount constitutional challenges to presidential orders affecting the rights of non-citizens outside U.S. borders. The states and citizen plaintiffs say yes: Like any law or executive action, the president’s immigration policies are subject to judicial review, especially when they have collateral effects within the U.S. But the Ninth Circuit dissenters argue that when it comes to immigration policy, Congress has given the executive branch broad authority to decide who gets to enter this country and who stays out.
The Immigration and Nationality Act of 1952 gives the President authority to suspend entry of “any class of aliens” he deems appropriate, “by proclamation, and for such period as he shall deem necessary.” And presidents have done just that, whether it was Ronald Reagan with Haitian immigrants or Barrack Obama with Venezuelans and Cubans.
In a ruling yesterday, U.S. District Judge Derrick Watson in Hawaii said President Trump exceeded this authority and issued a temporary restraining order against Sections 2 and 6 of the executive order, restricting entry from six nations for 90 days and the refugee admissions program for 120 days. As with Washington State’s challenge to the previous order, Judge Watson, an Obama appointee, cited the economic effects on the state including impact to state universities and reduced tourism.
The judge also cited the effects on the state’s Muslim residents including plaintiff Ismail Elshikh, imam of the Muslim Society of Hawaii. Elshikh would be injured because of the difficulties he’d encounter obtaining a visa for his Syrian mother-in-law, Watson wrote, as well the discriminatory effects of the executive order which lead Elshikh and other Muslims to believe “he and members of the Mosque will not be able to associate as freely with those of other faiths.”
A federal judge in Maryland issued a narrower order blocking only the travel ban on citizens of six Muslim-majority nations. Both judges cited Trump’s numerous public statements in favor of a “Muslim ban” as justifying challenges on constitutional grounds, including violations of the Establishment Clause prohibiting religious discrimination.
These rulings, like the earlier Ninth Circuit decision, miss a crucial fact, the dissenters said: The U.S. Supreme Court has ruled repeatedly on this exact question and found that courts cannot look behind the “bona fide” reasons for an executive order on immigration to find constitutional violations lurking in the background. The Constitution definitely applies to anyone on U.S. soil, citizen or not, but non-citizens outside the borders face a much higher bar to blocking executive actions.
In his dissent, Judge Jay Bybee, joined by Judge Alex Kosinski and three others, said the 1972 Supreme Court decision Kleindienst v. Mandel clearly states that if the executive branch excludes someone – in Mandel, a Marxist professor seeking to speak at Columbia – “on the basis of a facially legitimate and bona fide reason,” the courts must not balance that against the First Amendment interests of the people who wanted to hear him speak. So long as there is one bona fide reason, he wrote, “our inquiry is at an end.”