Im­mi­gra­tion pol­icy by body count

The 9th Cir­cuit Court of Ap­peals ob­structs the pres­i­dent’s duty to pro­tect the na­tion

The Washington Times Daily - - EDITORIAL -

Cer­tain black-robed sen­tinels of the law have taken up the task of de­fend­ing the na­tion from its ene­mies, de­clared and oth­er­wise. This is a re­spon­si­bil­ity pre­vi­ously left to the pres­i­dent of the United States. If a wooden gavel is all that stands in the way of evil­do­ers, Amer­i­cans should be afraid, very afraid.

A three-judge panel of a 9th U.S. Cir­cuit Court of Ap­peals, based in San Fran­cisco, agreed unan­i­mously Mon­day that Pres­i­dent Trump’s ex­ec­u­tive or­der im­pos­ing a tem­po­rary ban on trav­el­ers from six ter­ror­ex­port­ing na­tions is un­con­sti­tu­tional. Trump-averse courts are tak­ing turns knock­ing down ver­sions of the or­der.

Re­ject­ing ad­min­is­tra­tion ar­gu­ments, the judges ob­vi­ously think the pres­i­dent is the chief ex­ec­u­tive of the land in name only: “We con­clude that the pres­i­dent, in is­su­ing the ex­ec­u­tive or­der, ex­ceeded the scope of the au­thor­ity del­e­gated to him by Congress. Im­mi­gra­tion, even for the Pres­i­dent, is not a one-per­son show.”

In their three-per­son show, the judges wrote that the Im­mi­gra­tion and Na­tion­al­ity Act law “re­quires that the Pres­i­dent ex­er­cise his au­thor­ity only af­ter meet­ing the pre­con­di­tion of find­ing that en­try of an alien or class of aliens would be detri­men­tal to the in­ter­ests of the United States. Here, the Pres­i­dent has not done so.”

Vis­i­tors from the six sub­ject na­tions — Iran, Libya, So­ma­lia, Su­dan, Syria and Ye­men — have been con­victed of ter­ror­ism-re­lated crimes on only 26 oc­ca­sions dur­ing the past 15 years and none of those killed any­one, the judges ob­served. By that mea­sure­ment, how­ever, the 19 air­line hi­jack­ers who mur­dered nearly 3,000 Amer­i­cans in lower Man­hat­tan would not have been judged “detri­men­tal to the in­ter­ests of the United States” be­fore ex­e­cut­ing the tragedy of Sept. 11, 2001.

The point of the pres­i­dent’s au­thor­ity to ad­min­is­ter im­mi­gra­tion law, as it re­lates to na­tional se­cu­rity, is to fore­see and fore­stall ter­ror­ism be­fore it hap­pens, not af­ter. Even on the left coast the idea of em­ploy­ing body counts to gauge the ef­fec­tive­ness of im­mi­gra­tion pol­icy should raise a ju­di­cial eye­brow.

But the jurists were not done. They dis­cov­ered in a Trump tweet of June 5 an added rea­son to knock down his or­der. The pres­i­dent wrote, “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!”

The court’s de­ci­sion flies in the face of com­mon sense as well as the Con­sti­tu­tion. “The pace of ter­ror­ist at­tacks, cer­tainly in Europe, has been in­creas­ing,” says for­mer New York Po­lice Com­mis­sioner Wil­liam Brat­ton. “That type of at­tack is quite likely to oc­cur in the United States at some point in time.”

The ad­min­is­tra­tion is ex­pected to ap­peal the de­ci­sion to the Supreme Court, where a sep­a­rate case awaits on ap­peal of a sim­i­lar rul­ing against the pres­i­dent’s tem­po­rary travel ban by the 4th U.S. Cir­cuit Court of Ap­peals in Rich­mond. Or­di­nary Amer­i­cans must brace them­selves for a fi­nal judg­ment over whether the pres­i­dent is al­lowed to ex­er­cise his con­sti­tu­tional au­thor­ity over im­mi­gra­tion be­fore the next ma­jor at­tack, which ev­ery­one — even ap­peals court judges — know is com­ing.

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