According to Eric Posner, a professor at the University of Chicago Law School, the lower U.S. courts have created a “Trump exception” to settled law on presidential powers with their travel ban decisions. They have ignored the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason for an executive order, which in these cases was a national security interest in stricter vetting.
Trump appealed to the Supreme Court, but his case became moot when he replaced the temporary travel ban with a permanent program with the Presidential Proclamation he issued on September 24, 2017, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.”
{mosads}When fourth and ninth circuit courts enjoined implementation of his proclamation, he went back to the Supreme Court. On December 4, 2017, the Court ordered stays of the fourth circuit and the ninth circuit injunctions.
The Court did not state its basis for granting Trump’s stay request in either decision, but stays are not granted for meritless cases. I expect Trump to prevail on the merits of his case.
According to Trump’s memorandum in support of a stay, the proclamation is the culmination of an extensive, worldwide review process, which was conducted by multiple government agencies to determine what information is needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the Immigration and Nationality Act.
Elaine Duke, the Acting Secretary of Homeland Security, submitted a report to Trump on the results of that review which included a baseline for the kinds of information that is needed from each country.
The baseline incorporates three categories of criteria:
- Identity-management information. The United States expects foreign governments to provide information needed to determine whether individuals seeking benefits under our immigration laws are who they claim to be. The criteria in this category include whether a country issues electronic passports embedded with identity data, and whether it reports lost and stolen passports to appropriate entities.
- National security and public-safety information. The United States expects foreign governments to provide information about whether nationals of their countries who seek entry into United States pose national security or public-safety risks. This includes such things as whether the country releases suspected terrorist and criminal-history information when it is requested.
- National security and public-safety risk assessment. This includes an evaluation of national security risk indicators, such as whether the country provides a safe haven for terrorists, and whether it regularly fails to accept back its nationals who are subject to final orders of removal from the United States.
DHS contacted almost 200 foreign governments to determine which ones were willing to comply with the baseline standard. When the process was completed, Duke recommended restrictions on the entry of certain nationals from countries that were unwilling to meet the standard.
Trump also consulted with the secretaries of State, the Defense Department, and the Attorney General; considered foreign-policy, national-security, and counterterrorism goals; and assessed each country’s individual circumstances.
Then he issued a proclamation that restricts the entry of certain nationals from eight countries with governments that were not willing to meet the baseline standard.
The following State Department table outlines the restrictions imposed by the proclamation. They are subject to exceptions and waivers, which are set forth in the proclamation.
The fact that the fourth and ninth circuit courts are blocking the implementation of this proclamation indicates to me that their problem is with Trump, not with his travel ban executive orders or with his proclamation.
In fact, a judge for the federal district of Hawaii admitted that his objection to the second travel ban executive order was that Trump wrote it. He made the following comments in his decision:
“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.
“There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”
He goes on to say that nevertheless “any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” This “assessment rests on the specific historical record,” which “focuses on the president’s statements about a ‘Muslim ban,’” including on the campaign trail.
If the Supreme Court allows the courts to continue to do this to Trump, they will interfere with any national security decision he makes that impacts a country with a large Muslim population, regardless of the circumstances.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.