A difference without a distinction?
The 9th U.S. Circuit Court of Appeals has refused to reinstate President Trump’s executive order restricting immigration from six majority Muslim nations.
“In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be ‘detrimental to the interests of the United States,’” the three-judge panel wrote.
The also stated that the order “runs afoul of other provisions of the INA (Immigration and Naturalization Act) that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees.”
But about halfway through the 86-page ruling the judges seemed to condense the nationality discrimination engaged in by Presidents Carter and Reagan (cites deleted):
“In two instances, former Presidents have distinguished classes of aliens on the basis of nationality. But these distinctions were made not because of a particular concern that entry of the individuals themselves would be detrimental, but rather, as retaliatory diplomatic measures responsive to government conduct directed at the United States. For example, President Carter’s proclamation barring the future entry of Iranians occurred during the exigent circumstance of the Iranian hostage crisis. This was one of many sanctions imposed to increase political pressure on the Iranian government to ensure the safe return of American hostages. … President Reagan’s suspension of entry of certain Cuban nationals as immigrants came as a response to the Cuban government’s own suspension of “all types of procedures regarding the execution” of an immigration agreement between the United States and Cuba, which had “disrupt[ed] normal migration procedures between the two countries.”
Then in head scratching turn the judges declared: “Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s ‘travel ban,’” noting a tweet in which Trump stated: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”
In fact, the order states that Trump’s executive order explains:
Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States.
So, Carter and Reagan can bar immigration from Iran and Cuba, based on what the government did nor did not do, but Trump can’t do the same with the six rouge countries identified in his order, which explains specifically that those countries can’t or won’t help vet travelers?
Sounds like a distinction without a difference. In fact, Trump offered specific rationale for his actions, which amounted to “retaliatory diplomatic measures responsive to government conduct directed at the United States.”
The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function. — F. Scott Fitzgerald