In April 2016, I wrote an article entitled, “If he is elected to the presidency, Donald Trump will have statutory authority to suspend the entry of all Muslim aliens.”
The article included a successful prediction of Trump’s temporary travel ban. But I failed to foresee that it would be rejected on the basis of his campaign statements, or that using campaign statements that way would put our country on the brink of a constitutional crisis.
History of the travel ban.
In December 2015, Donald Trump made a campaign statement “calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
This was several weeks after a report from the Homeland Security Committee had revealed our government’s difficulty obtaining information about Syrian refugees from within Syria.
For instance, the report quotes former FBI Director James Comey as saying, “We can query our databases until the cows come home, but nothing will show up because we have no record of that person...You can only query what you have collected.”
Similar problems restricted information from other Muslim countries as well.
Trump, therefore, seemed to me to be saying that until we can do adequate background investigations, we should suspend the entry of Muslim aliens.
President’s authority to exclude aliens.
Section 212(f) of the Immigration and Nationality Act (INA) provides that, “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, ... suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.”
According to the Congressional Research Service, when I wrote my article, “Neither the text of Section 212(f) nor the case law to date suggests any firm legal limits upon the president’s exercise of his authority to exclude aliens under this provision.”
I predicted that Trump would establish a temporary suspension on the basis of a criterion similar to the one established by the overwhelmingly bipartisan Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which was enacted to prevent terrorists from using the Visa Waiver Program (VWP). Nationals who enter under the VWP are not subjected to the scrutiny of the visa application process.
The Visa Waiver Program Improvement and Terrorist Travel Prevention Act prohibits travelers who are in one of the following categories from using the VWP:
- Nationals of VWP countries who have been present in Iraq, Syria, or countries listed under specified designation lists at any time on or after March 1, 2011 (with limited government/military exceptions); and
- Nationals of VWP countries who are also nationals of Iraq, Syria, Iran, or Sudan.
The Homeland Security Secretary of the Obama Administration added Sudan, Syria, Libya, Somalia, and Yemen to the list on the basis of a finding with respect to each country that:
- The presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;
- A foreign terrorist organization has a significant presence in the country or area; and
- The country or area is a safe haven for terrorists.
President Donald Trump created the initial version of the Travel Ban on January 27, 2017, with Executive Order, “Protecting the Nation from Foreign Terrorist Entry Into the United States. The ban applied to the countries on the list created for the Visa Waiver Program.
Federal court intervention.
Although he followed the course I had predicted, a federal judge granted an emergency stay request, which blocked implementation of the order.
He issued a revised version on March 6, 2017, which addressed the judge’s concerns about the initial version.
Notwithstanding these changes, a Temporary Restraining Order was issued to block implementation of the revised travel ban also. Trump appealed this decision to the Fourth Circuit Court of Appeals.
The Supreme Court’s Mandel decision.
In Kleindienst v. Mandel, the Supreme Court held that the courts should not interfere with the Executive Branch’s “facially legitimate and bona fide” exercise of its immigration authority.”
Circuit Court Chief Judge Roger L. Gregory, an appointee of President William J. Clinton, found that the stated national security interest in the order was, on its face, a valid reason for the travel ban and, therefore, that it satisfied Mandel’s first requirement. He observed, therefore, that, “Absent allegations of bad faith, our analysis would end here in favor of the Government.”
Judge Gregory found on the basis of Trump’s campaign statements that the national security justification for the order was just a pretext to hide his anti-Muslim religious purpose. Accordingly, he affirmed the lower court’s restraining order on the travel ban.
According to Professor Eugene Kontorovich, “there is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive.”
Where does this leave President Trump?
He issued a facially legitimate, national security order pursuant to explicit statutory authority that has not been challenged, and nothing in his revised order indicates bad faith.
The campaign statements that Judge Gregory uses to justify his decision can be used again and again to attack anything Trump does that has a negative impact on a country with a large Muslim population.
If the Supreme Court does not reverse Judge Gregory’s decision, other courts will follow suit and President Trump ultimately will be faced with the constitutional crisis of not being able to meet his national security responsibilities as the Chief of the Executive Branch with respect to terrorism coming from Muslim countries unless he defies the orders of the Judicial Branch.