RUTHFULLY YOURS

The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.

Under normal rules of standing, the states of Washington and Minnesota should never have been allowed to bring this suit. All litigants, including states, must meet fundamental standing requirements: an injury to a legally protected interest, caused by the challenged action, that can be remedied by a federal court acting within its constitutional power. This suit fails on every count.

The plaintiff states assert that their public universities are injured because the order affects travel by certain foreign students and faculty. But that claim involved no legally protected interest. The granting of visas and the decision to admit aliens into the country are discretionary powers of the federal government. Unadmitted aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. 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.

It is also settled law that a state can seek to vindicate only its own rights, not those of third parties, against the national government. The U.S. Supreme Court held in Massachusetts v. Mellon (1923) that it is not within a state’s duty or power to protect its citizens’ “rights in respect of their relations with the Federal Government.” Thus the plaintiffs’ claims that the executive order violates various constitutional rights, such as equal protection, due process and religious freedom, are insufficient because these are individual and not states’ rights.

Even if states could articulate a concrete injury, this is not a case in which the courts ultimately can offer redress. 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.

Further, as the Supreme Court explained in Knauff v. Shaughnessy (1950), 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.” 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 point the Ninth Circuit ignored entirely.

The order, frequently mischaracterized as a “Muslim ban,” is actually directed at seven countries that the president believes present a particular threat to U.S. security—a view with which Congress agreed in 2015. All are beset by terrorists and so uncertain and chaotic that proper vetting of potential refugees and immigrants is virtually impossible. CONTINUE AT SITE

‘Do you think Islam needs reform?”

Wouldn’t it be interesting, wouldn’t it get us to the crux of the immigration debate, if our best news anchors — I’m looking at you, Chris Wallace and Bret Baier — would put that question to every major politician in Washington?

Instead, the press is asking not just the wrong question but one that utterly misses the point, namely: “How many terrorist attacks have been committed by immigrants from this handful of Muslim-majority countries?” It is the same wrong question posed by the imperious federal judge in Seattle who suspended President Trump’s temporary travel ban on aliens from those countries — seven of them. It is the same wrong question that animated the incorrigible Ninth Circuit appeals court in upholding this suspension — and intimating along the way that Trump, and by implication all who fear for the future of our country, are anti-Muslim bigots crusading against religious liberty (the Ninth Circuit being notoriously selective when it comes to protecting religious traditions).

Does the Trump administration realize it’s the wrong question? I wonder. Instead of attacking the question’s premise, the administration undertakes to answer it. It seems not to grasp that the security argument is not advanced, much less won, by compiling a list of terrorist plots.

Let’s try this again.

Islam does need reform. This is critical to our national security for two reasons that bear directly on the question of which aliens should, and which should not, be allowed into our country.

First, reform is essential because the broader Islamic religion includes a significant subset of Muslims who adhere to an anti-American totalitarian political ideology that demands implementation of sharia — Islamic law. This ideology and the repressive legal code on which it rests are not religion. We are not talking about the undeniably theological tenets of Islam (e.g., the oneness of Allah, the acceptance of Mohamed as the final prophet, and the Koran as Allah’s revelation). We are talking about a framework for the political organization of the state, and about the implementation of a legal corpus that is blatantly discriminatory, hostile to liberty, and — in its prescriptions of crime and punishment — cruel.

The Ninth Circuit’s decision against President Trump’s immigration order is worse than wrong. It is dangerous.

To review, Trump issued an executive order blocking entry by refugees and aliens from seven Muslim-majority countries. The travel restriction is to be short-lived: a period of months while better vetting procedures are developed. The administration, moreover, did not pluck the seven countries from its allegedly anti-Muslim imagination. They were cited in a statute enacted by Congress and signed by President Obama, based on the richly supported conclusion that these countries — Iran, Iraq, Syria, Yemen, Libya, Somalia, and Sudan — are riven by anti-American jihadism, besides having governments that are either non-functional or implacably hostile to the U.S., rendering any efforts to screen their citizens uniquely difficult.

A federal judge in Seattle, James Robart, issued a temporary restraining order against the travel ban at the behest of two states, Washington and Minnesota, run by Democratic governors. Now, the Ninth Circuit has upheld this single, unelected jurist’s usurpation of the power to make American national-security policy.

According to the three-judge panel, even illegal aliens, to say nothing of aliens holding non-immigrant visas or permanent-resident status, have due-process rights against government actions to protect Americans from foreign threats. Therefore, the president and Congress (i.e., the branches of government constitutionally responsible for national security) may not take such actions unless and until the judiciary (the branch with no such responsibility) has approved those actions.

That aliens are not citizens and have no constitutional right to come to the United States is apparently superseded by their newfangled “right” to be welcomed into the United States courts. And even if they are not here already, even if they remain in the far reaches of the globe, this alien “right” may be asserted by state governments. The states’ interest in having foreign students and scholars at their public universities, we are told, outweighs the public’s interest in excluding aliens who may be terrorists, law-breakers, public charges, or hostile to our Constitution and culture.

The unanimous ruling is the type of lunacy with which the Ninth Circuit has become synonymous. It is also the inevitable result of a turn-of-the-century judicial power grab in the realm of national security.