New Legal Challenges to Trump's Travel Ban: Is the Ban Unconstitutional?
Let's begin with a brief summary of the legal rulings surrounding Trump's recent executive order on immigration. Following requests from two states, Washington and Minnesota, Federal Judge James L. Robart of the U.S. District Court for the Western District of Washington state, issued a ruling (June 3, 2017) that temporarily invalidates Trump's effort to block entry into America to citizens of seven Muslim-majority countries targeted by the presidential order. The George W. Bush nominee was confirmed by the U.S. Senate in June 2004.
Next, the Department of Justice, representing Trump, sent a brief stating that Judge Robart had “improperly second-guessed the president’s national security determinations.” The brief said the president had vast power over immigration under the Constitution and federal law. (1) The administration wanted the court to issue a stay pending the results in appeals court. That would mean that the travel ban would be in effect while the appeal played out. However, the United States Court of Appeals for the Ninth Circuit refused the Department of Justice's request for a stay, which means the travel ban will NOT be effect until the appeals court decides, or until further challenges are mounted by the administration and DOJ. Judges Canby, a Jimmy Carter appointee, and Judge Friedland, an Obama appointee issued this order. (2)
Immigration law is controlled by the federal government as stated in the United States Constitution: Article I, Section 8, clause 4 of the Constitution entrusts the federal legislative branch with the power to “establish an uniform Rule of Naturalization." Also, there is a long history of the courts upholding the federal government's authority over immigration and the executive branch's authority to enforce immigration law. Notable cases can be seen here. (3)
If the president and legislative branch have clear constitutional authority over immigration law and enforcement, including extensive legal precedent, then why did Judge Robards issue an order invalidating Trump's travel ban? The reason is the incredibly inept methods of drafting and executing the presidential order. The president, Bannon, and their inner circle wrote the order without consulting any of the executive departments that are needed to enforce such actions. So, without expert input the language of the order is broad and vague, with no data for justifications of the seven banned nations, and with discriminatory preference for Christians. In short, the president could have enacted an order like this much more successfully if he had only consulted experts instead of his ill-informed advisors. Instead, they have gone on record as banning travel from seven nations, but "after sifting through databases, media reports, court documents, and other sources, Alex Nowrasteh, an immigration expert at the libertarian Cato Institute, has arrived at a striking finding: Nationals of the seven countries singled out by Trump have killed zero people in terrorist attacks on U.S. soil between 1975 and 2015." (4) That number again is ZERO. This does not mean that there is no danger from these nations or their nationals, but that there are clearly larger dangers looming in other nations, particularly those that have already killed Americans in terrorist attacks.
Another reason that the order can so easily be challenged is its targeting of green card holders and visa holders, people that have already been vetted, gone through our government's process and been approved. This is a clear violation of the 14th Amendment's equal protection clause, since they are being denied the equal protections that other green card and visa holders receive. The other part of the order that violates the 14th Amendment for the same reasons, is the religious preference for Christians; their vetting will be expedited as compared to Muslims.
So, to answer the question in the title of this blog, the ban is UNCONSTITUTIONAL.
(4) - https://www.theatlantic.com/international/archive/2017/01/trump-immigration-ban-terrorism/514361/
