There are shocking ramifications, not to mention legal paradoxes, resulting from the 9th circuit court of appeals ruling against Trump’s executive order. To understand these outcomes, I need to provide a little background information.
The district court, directly below the 9th circuit, issued a temporary restraining order, (TRO) halting implementation of Trump’s temporary prohibition on immigration from seven nations. To issue a TRO, the court determined the challengers were likely correct, the travel ban is unconstitutional. The 9th circuit determined this ruling was not erroneous.
How does it violate the constitution? The court says it violates both the establishment clause, and the due process rights of foreigners.
For a government action to violate the establishment clause, favoritism must be shown to one religion over another. So the court believed the order has a bias against Islam. Keep in mind two things: (1) everyone is prohibited from traveling from the seven nations regardless of religion, and (2) 90% of the world’s Muslims are not impacted. Yet, somehow favoritism for religions other than Islam is being shown. Got it? I sure don’t.
What is due process? Due process means your property, liberty, and life cannot be taken away until you have notice and a hearing. Due process also means your ability to obtain a property interest, such as a driver’s license, cannot be denied on arbitrary grounds. So long as you meet the requirements, such as passing the driver’s test, you get your license. You have an equal chance of obtaining one as anyone else.
Let’s turn to foreigners. Keep in mind; we are examining foreigners without visas or green cards. Having a visa or a green card gives you due process rights, because they are types of permits or licenses. Instead, we are talking about random foreigners who wish to apply for entrance.
The court says they have due process rights. Really? What property interest do they have? For the due process clause to apply there must be a property or liberty interest threatened by government action. The only possible conclusion is, foreigners, all foreigners, have a right to apply for entrance into the US.
As I mentioned earlier, due process requires: (1) you get timely notice of any adverse action, (2) you have an ability to attend a hearing to tell your side, and (3) you’re not denied for arbitrary reasons.
This means anyone whose application for entrance into the US is denied, will be required to receive a mailed notice. I sure hope we know where their house is, or which tent in a refugee camp to send the notice to. After all, failure to give proper notice is fertile ground to finding a person’s due process rights are violated.
Now, we will have to provide hearings for anyone who wishes to challenge a refusal to allow them entrance into the US. These hearings will have to be held in the applicants home country; how would it be fair if it was held here thousands of miles away from the denied applicant. Guess who pays for all those new hearing examiners and their travel expenses? congratulations! YOU GUEST IT! You do.
One final ramification of the ruling is, immigration quotas, which congress has passed, must now all be unconstitutional. Think about it. Your state cannot refuse to provide you a driver’s license on the grounds that they don’t want to issue anymore licenses for a given year. likewise, denying someone’s ability to apply for entrance cannot be based on some arbitrary number.
You might scoff at these alleged outcomes. But, if or when I have a client challenging his or her denial to enter the US, these are the arguments I will likely raise.
Anyone who thinks Trump did not have the constitutional authority to issue his executive order, should read section 212F of the immigration naturalization act. Provided you are literate, and your ability to see the text is not blocked from having your head up your ass over hatred for our 45th president, it’s clear he did in fact follow the law.
Here’s the problem. According to the court, Trump’s executive order is unconstitutional. Thus, a congressional statute authorizing him to take that action must also be unconstitutional, right? No. The court never mentioned section 212F; not one time.
So according to the court, it is constitutional for congress to give the President the power to limit immigration. But, it’s unconstitutional for the President to exercise that power.
Got it? Good. Remember, the media says it’s unpatriotic to question the courts. Have a greatday!