Immigration: Court says Trump can’t do what Carter and Reagan did

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

Protesters opposed Trump travel ban. (LATimes pix)

Judge blocking Trump immigration order can read minds

That federal judge in Hawaii who issued a temporary restraining order blocking President Trump’s latest executive order on immigration from six Middle Eastern countries can read minds and knows Trump is a liar. He is not temporarily barring immigrants from those countries until proper vetting can take place because they might be terrorists. No, he is banning Muslims and that is religious discrimination and contrary the Establishment Clause in the First Amendment.

Judge Derrick Watson writes:

The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” … The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]”… Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order …” (TRO on travel ban)

The judge then quotes Rudolph Giuliani as saying on television that Trump called him and said he wanted a “Muslim” ban and wanted him to help find a way do it legally.

Never mind that Trump and Giuliani may have actually found a way to protect Americans from potential terrorists by avoiding any religious test, it is the ulterior motive that counts and trumps anything else.

Never mind that Giuliani later said he and others focused on “instead of religion, danger. The areas of the world that create danger for us, which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible …” and “not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.”

It was what was in Trump’s heart that counts. Remarks from the campaign trail also were quoted in the ruling.

Never mind that the Establishment Clause was meant to protect Americans from religious discrimination and not everyone in the world, especially where they have a propensity to behead those not of their own religion. Never the fact the immigration order does not affect the countries in which 90 percent of Muslims actually live.

Trump signs new executive order on immigration.

 

If the president had legitimate reasons for ban, ulterior motives don’t matter

Judges shouldn’t try to be mind readers.

One of the arguments used by Washington state attorneys to convince a Seattle federal judge to issue a temporary restraining order blocking Trump’s ban on travel from certain countries was that the order discriminated against certain religions, and this was proven by statements he made during the campaign.

Robert and Trump (ABC)

Robert and Trump (ABC)

As Bryon York points out, Washington state attorneys argued “Trump’s order violates the First Amendment because it is ‘intended to disfavor Islam and favor Christianity,’ and violates the Fifth Amendment because it is ‘motivated by animus and a desire to harm a particular group …'”

The argument appears to be that he has ulterior motives. It makes no difference whether he has ulterior motives, if his stated rationale is legitimate under the law. Trump said his reason was to protect the country from potential terrorists, because these visitors, immigrants and refugees have not and probably cannot be vetted properly.

The judge may have had ulterior motives of his own and placed his own assessment of the facts above those of the president.

Judge James Robart asked an attorney defending the Trump ban: “How many arrests have there been of foreign nationals for those seven countries since 9/11?”

The attorney did not know.

“Let me tell you,” replied Robart. “The answer to that is none, as best I can tell. So, I mean, you’re here arguing on behalf of someone that says: We have to protect the United States from these individuals coming from these countries, and there’s no support for that.”

To which York replies, “Perhaps Robart has been briefed by the intelligence community on conditions in Yemen, Somalia, Libya, and the rest. Perhaps Robart has received the President’s Daily Brief. Perhaps not. In any event, the Justice Department argued — reasonably but not successfully — that it is the president, and not a U.S. District Court judge in the Western District of Washington State, who has the knowledge and the authority to make such decisions.”

Though the law prohibits “discrimination in the issuance of immigrant visas on the basis of race, nationality, place of birth, or place of residence,” not all of those coming to this country are immigrants. Many are coming to visit or work.

 

York also quoted the fed attorney as saying, “Washington State’s interpretation … would lead to the untenable result that the United States could not suspend entry of nationals of a country with which the United States is at war, which would raise a serious constitutional question about Congress’s ability to restrict the President’s Article II authority to ensure the nation’s security.”

The judge’s ruling that residents of Washington and the state itself would suffer irreparable harm if the foreign citizen entry ban were not lifted was vague to point of base speculation. It could as easily have been argued that the citizens and state would benefit by not being burdened with additional mouths to feed.

Just why does a Seattle judge’s order blocking the ban carry more weight than that of a Boston judge who upheld the ban?

York concludes the law appears to be on Trump’s side but that does not mean the courts will abide by the law.

 

Why judge blocked Trump travel ban

Immigrants arrive at Boston airport. (Reuters photo via WSJ)

Immigrants arrive at Boston airport. (Reuters photo via WSJ)

Now, we’ve never been big fans of executive orders and question whether they comport with the law and the leeway any given law grants the executive branch.

But Trump’s order suspending immigration from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for at least 90 days in an effort to block potential terrorists and to give time for vetting sounds much like what Obama did without prompting legal challenges. Without consulting Congress Obama called for allowing 110,000 Syrian refugees into the county. Trump cut that in half.

But a Seattle judge, in his seven-page ruling, granted a temporary restraining order sought by the state of Washington.

 

His rationale seems a bit dubious. How is the state irreparably harmed by a 90-day cessation of immigrants?

This is what he wrote:

robart1

robart2

Sounds more like a savings and potential benefit to taxpayers and the state than an irreparable harm. It might well be the right decision under the law and the Constitution, but is it for the right reason?

 

 

Court leaves in place ruling blocking immigration executive orders

The U.S. Supreme Court has refused to rehear the U.S. 5th Circuit Court of Appeals’ decision over turning Obama’s executive fiats granting de facto permanent residency to about 5 million illegal immigrants.

After Justice Antonin Scalia died earlier this year, the court split 4-4 in June on the case of U.S. vs. Texas, letting stand the lower court’s overturning of Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which let the parents of children born in the U.S. remain, and an expansion of the Deferred Action for Childhood Arrivals program (DACA), which lets illegals brought to this country as children remain legally.

But of course it is a decision written in smoke, since the administration will do nothing about deporting a single one of those millions.

Nevada was one of the states that joined Texas in fighting the immigration executive orders that ignored Congress’ refusal to act on similar proposals.

In his press release announcing the Nevada’s joining the list of plaintiffs, Attorney General Adam Laxalt stated: “Our immigration system is broken and clearly needs to be fixed. But just as clearly, the solution is not for the president to act unilaterally disregarding the U.S. Constitution and laws. The solution must be a permanent, legal result that includes, not ignores, the other branches of government and their constitutional roles. Anything less is a false hope undermining the rule of law that injures millions of people in America, including many in Nevada.”

Is immigration a winning issue for Trump … or not?

Trump talks about immigration in Phoenix (Reuters photo)

Donald Trump zigged when everyone expected him to zag. Instead of softening on illegal immigration, he doubled down.

In a speech in Phoenix Wednesday, after flying to Mexico to visit that country’s president, Trump repeated his promise to build a high-tech wall on the border and have Mexico pay for it — though Mexico’s president says it will not. He said he would begin deporting 2 million criminal aliens on day one. He said there would be no amnesty and those here illegally would have to go home and apply to come here legally. He said he would immediately terminate Obama’s two executive orders granting legal status to 5 million illegal aliens — DACA and DAPA, the first for children brought here illegally and the second for their parents who brought them.

A Washington Post writer called Trump’s strategy a loser. “Republicans facing four more years in the wilderness will long recall the raucous rally in Phoenix as a low point of the Trump campaign, perhaps even as the moment that he definitively extinguished his hopes of becoming president,” James Hohmann writes.

Seemingly buoying Hohmann’s view that no one cares about immigration as an issue, except immigrants who want amnesty and open borders, Rasmussen Reports released a poll Wednesday saying support for amnesty has risen to its highest level since 2008.

“A new Rasmussen Reports national telephone survey finds that 41% of Likely U.S. Voters now think legalizing the status of undocumented workers already living in the United States is more important than gaining control of the border, up from 34% in February,” the company said. “Just over half (51%) still believe gaining control of the border is more important when it comes to immigration reform, but that’s down eight points from 59% six months ago.”

But a year ago Rasmussen was reporting 51 percent of all likely voters favor building a wall on the border, and 80 percent support the deportation of illegal immigrants convicted of a felony, while 54 percent disagree with the current federal policy that says a child born to an illegal immigrant here is automatically a U.S. citizen. Only 34 percent agreed with Obama’s DACA and DAPA orders.

Perhaps views have changed that much that quickly.

The Wall Street Journal also seemed to imply that immigration is a losing issue for Trump, noting that he trails Hillary Clinton in polls in each of the 11 battleground states that will likely decide the election.

“His weakness among Hispanic voters has damaged his standing in Colorado, Nevada and Florida, and made Arizona competitive — a heavily Republican state where the Clinton campaign opened two offices in August and invested more than $100,000 in field staffers to register voters and boost Democratic turnout,” the paper writes.

Nevada Public Radio posted online an annotated copy of the Trump speech. Most of the comments disputed Trump’s major arguments, of course.

A New York Times editorial blustered on Trump’s speech:

In a strident speech given over a steady roar of cheers, he restated his brutally simple message: Criminal aliens were roaming our streets by the millions, killing Americans and stealing our jobs, and he’d kick them all out with a new “deportation force,” build the wall and make America safe again.

The speech was a reverie of immigrant-fearing, police-state bluster, with Mr. Trump gushing about building “an impenetrable, physical, tall, powerful, beautiful southern border wall,” assailing “media elites” and listing his various notions for thwarting evil foreigners.

During his speech Trump actually introduced the parents of some of those killed by illegal alien criminals.

During his speech Trump appealed to those concerned about federal spending and competition for jobs:

President Obama and Hillary Clinton have engaged in gross dereliction of duty by surrendering the safety of the American people to open borders. President Obama and Hillary Clinton support Sanctuary Cities, they support catch-and-release on the border, they support visa overstays, they support the release of dangerous criminals from detention – and they support unconstitutional executive amnesty.

Hillary Clinton has pledged amnesty in her first 100 days, and her plan will provide Obamacare, Social Security and Medicare for illegal immigrants – breaking the federal budget. On top of that, she promises uncontrolled low-skilled immigration that continues to reduce jobs and wages for American workers, especially African-American and Hispanic workers. This includes her plan to bring in 620,000 new refugees in a four-year term.

He emphasized the criminal element:

Since 2013 alone, the Obama Administration has allowed 300,000 criminal aliens to return back into U.S. communities – these are individuals encountered or identified by ICE but who not detained or processed for deportation.

Trump also appealed to those concerned about admitting refugees from countries who might turn out to be terrorists:

As soon as I enter office, I am going to ask the Department of State, Homeland Security and the Department of Justice to begin a comprehensive review of these cases in order to develop a list of regions and countries from which immigration must be suspended until proven and effective vetting mechanisms can be put into place.

Countries from which immigration will be suspended would include places like Syria and Libya.

For the price of resettling 1 refugee in the United States, 12 could be resettled in a safe zone in their home region.

Another reform involves new screening tests for all applicants that include an ideological certification to make sure that those we are admitting to our country share our values and love our people.

For instance, in the last five years, we’ve admitted nearly 100,000 immigrants from Iraq and Afghanistan – in these two countries, according to Pew research, a majority of residents say that the barbaric practice of honor killings against women are often or sometimes justified.

Applicants will be asked for their views about honor killings, about respect for women and gays and minorities, attitudes on Radical Islam, and many other topics as part of the vetting procedure.

Whether he will use a lie detector or truth serum is not stated.

The question now is whether this is a winning issue or losing issue. We shall see.

Speaking of seeing, a Rasmussen Reports poll released today shows Trump with 40 percent backing to Clinton’s 39 percent among likely voters. A week ago, Clinton led 42 percent to 38 percent. Libertarian Gary Johnson now gets 7 percent of the vote, down from 9 percent in recent weeks.

Obama has created amnesty with a stroke of his pen

Border apprehension (Photo by Caroline May via Brietbart)

“They define a republic to be a government of laws, and not of men.” — John Adams

According to laws passed by Congress, those who enter this country without proper authorization have broken the law and are to be deported. Congress has in the past granted amnesty to such people, during the Reagan administration, for example. Congress has debated for years doing so again, but has passed no such law.

But the only people being deported as illegal immigrants in this second Obama administration are criminals, and not many of them. Fox News reports that of the 69,478 deported from the interior — not turned back at the border, which counts as deportation in this administration — 91 percent were previously convicted of a crime. Thus the chance of being deported for merely being in the country illegally is half a percent.

“You have the resources to do it, those resources should be dedicated to not just removing criminal aliens but anyone else,” Claude Arnold, a former Immigration and Customs Enforcement agent for 27 years. “The fact is, someone doesn’t want those laws enforced and it’s plain to see.”

In fact, even criminal illegals are being turned loose. As many as 19,723 were released as of April 2015, about the same as the previous year. Approximately 32 percent of federal prisoners are illegal aliens.

A Border Patrol agent recently testified before Congress that they are not stopping people from crossing the border illegally but are engaged in catch and release.

“We’re releasing basically everybody as long as you’re not from the country of Mexico. And even if you’re from the country of Mexico and you claim that you have a credible fear and you’re asking for asylum for one reason or another — we’re still releasing those individuals,” Brandon Judd, the president of the National Border Patrol Council, testified.

He added, “If I were to guess, I would say that at least 80 percent of the individuals that the United States Border Patrol arrests at the border qualify for this catch and release program and in essence we are just letting them come into the United States.”

Fully 85 percent of those given notices to appear for a hearing never show, and the 15 percent who do are released for further hearings in the future or are given asylum.

Texas Federal Judge Andrew Hanen, who is presiding over a case brought by 26 states over Obama’s de facto amnesty executive orders, recently ordered attorneys for the Justice Department to undergo ethics training after they lied to him.

Hanen wrote:

“The United States Department of Justice (“DOJ” or “Justice Department”) has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements. The DOJ’s only explanation has been that its lawyers either ‘lost focus’ or that the ‘fact[s] receded in memory or awareness.’ … These misrepresentations were made on multiple occasions starting with the very first hearing this Court held. This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed.”

A government of laws?