2 judges find ban discriminatory
SEATTLE – Federal law gives the president broad authority over immigration. Jimmy Carter used it to deny some Iranians entry to the U.S. during the hostage crisis, Ronald Reagan to bar Cubans who didn’t already have relatives here and President Obama to keep out North Korean officials.
So why does President Donald Trump keep running into legal trouble with his efforts to freeze immigration by refugees and citizens of some predominantly Muslim nations?
When federal courts in Hawaii and Maryland blocked Trump’s revised travel ban from taking effect, the judges spelled out their major concern: the unusual record of statements by the president and his advisers suggesting the executive order’s real purpose was to discriminate against Muslims, in violation of the Constitution’s ban on officially favoring or disfavoring any religion.
Neither U.S. District Judge Theodore Chuang in Maryland nor Judge Derrick Watson bought the administration’s reasoning that the travel ban is about national security.
“The history of public statements continues to provide a convincing case that the purpose of the second executive order remains the realization of the long-envisioned Muslim ban,” Chuang wrote.
Watson criticized what he called the “illogic” of the government’s arguments and cited “significant and unrebutted evidence of religious animus” behind the ban. He also noted that while courts should not examine the “veiled psyche” and “secret motives” of government decision-makers, “the remarkable facts at issue here require no such impermissible inquiry.”
But the scope of the rulings differed. In a challenge brought by Hawaii, Watson blocked the federal government from enforcing its ban on travel from six mostly Muslim countries and its suspension of the nation’s refugee program. Chuang only blocked the six-nation travel ban, saying it wasn’t clear that the suspension of the refugee program was similarly motivated by religious bias.
Speaking Wednesday evening at a rally in Nashville, Tenn., Trump called the ruling in Hawaii an example of “unprecedented judicial overreach” and said his administration would appeal it to the U.S. Supreme Court.
“We’re going to win. We’re going to keep our citizens safe,” the president said. “The danger is clear. The law is clear. The need for my executive order is clear.”
White House spokesman Sean Spicer said Thursday that the Justice Department was exploring its options, but that it expected to file an appeal of the Maryland ruling with the 4th U.S. Circuit Court of Appeals and to seek clarification of the Hawaii order before appealing to the 9th Circuit. That circuit is where a three-judge panel unanimously declined to reinstate Trump’s original travel ban when it was put on hold by a Seattle Judge last month.
The president’s authority
In 1952, with the nation fearful of communist infiltration, Congress gave the president the authority under the Immigration and Nationality Act to take action:
“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 … suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,” the law says.
That power has been invoked dozens of times. But legal experts say those examples were more limited than what Trump has sought.
Citing a report that reviewed White House administrations going back to Reagan, Chuang noted in his ruling that no president has issued a ban on the entry “of all citizens from more than one country at the same time, much less six nations all at once.”
Chuang found that the travel ban likely violated another aspect of federal immigration law, barring discrimination on the basis of nationality in the issuance of immigrant visas.
Ultimately, the cases will come down to the ways in which that law and the Constitution constrain the president’s authority.