Trump and that Nuisance of a Judge

Judge James Robart of the U.S. District Court for the Western District of Washington.

By far the most controversial of President Trump’s many official actions so far is his executive order temporarily suspending entry into the United States of travelers from seven specified Muslim-majority countries. So much fake news is swirling around this order that clarification is necessary.

Critics of President Trump will have to swallow this: constitutionally and statutorily, it is up to the American people to decide who enters the United States—either permanently or temporarily. Legally speaking, there is no legitimate “First Amendment” or “equal protection” guarantee of entry into the United States for anyone who is not already legally “in” the United States. The Constitution simply does not protect the whole world. It protects Americans, primarily, and also persons permitted to live in the United States. The question of who is allowed in—and therefore granted the benefit of constitutional protections—is consummately a political or prudential one.

Further, Congress has already explicitly delegated authority to the president to make determinations limiting the admissibility of people whose entry would be detrimental to the security of the United States.

Again, this is a prudential judgment. Trump’s order specifies countries with dysfunctional governments and/or governments that have shown particular hostility toward the United States. But it’s worth emphasizing that the American people could bar entry of Canadians if they chose to do so. Our plenary sovereign authority over borders would extend to rejecting those whose mores we cannot countenance, even if those mores amount to nothing more than wearing hockey jerseys and polyester leisure shorts at Disney World. A fortiori, we can certainly choose not to admit those whom we have good reason to believe cannot be reliably vetted on national security grounds—and this would be true even if our belief is mistaken.

On the other hand, those sympathetic to the administration’s efforts will have to swallow this:  any attempt by executive order to go beyond existing law and remove or bar reentry to those who already enjoy an established legal status is far more problematic. In fact, barring entry of legal permanent residents—“green card” holders—is doomed to fail on genuine due process grounds, i.e., “procedural” due process, as opposed to phony “substantive” due process. This is in accordance with longstanding constitutional and common law principles. And Trump’s order did initially bar legal immigrants—which points to the fact that its rollout was clumsy, at best.

Anyone with a green card has already undergone vetting—usually years of it—and often has years of residence in the United States under his belt to boot. Further, green card holders must be able to rely on  the word of Uncle Sam: specifically, they must be able to assume that they are on the road to citizenship, and that they are legally entitled to live and work in the United States subject only to exclusion for specified crimes or behaviors.

Anyone who has a green card probably has a job or a business, a house, and often a family in the United States, and doesn’t have anywhere else in the world to go. A green card, therefore, isn’t anything like a temporary or tourist visa, much less an illegal entry. What’s more, green card holders enjoy—and bear the burden of—many of the incidents of citizenship, including the right to keep and bear arms and the duty to register for the draft and pay taxes. In addition to all that, they are expected to live in the United States or face consequences. Applying a new exclusionary standard to them would therefore be a Catch-22, the capriciousness of which boggles the mind. It would also be the very definition of an ex post facto decree, and an obvious injustice in the absence of specific findings justifying exclusion.

An argument could also be made—though maybe not as strong as the case for green card holders—for refugees or others who had already obtained their visas before the executive order was issued. In many cases, those people would have reached the end of a long, cumbersome, highly bureaucratic process spread out not over days or months, but years. To deal with them reasonably, the executive order should have been drafted with the input of someone who understands the nitty-gritty details of the U.S. visa granting process, and who could have picked a logical cut-off point for future admissions. Acting prospectively rather than retrospectively would have avoided unnecessary legal and political problems for the administration. Dismissing the complaints of people who, in some instances, have spent well more than a decade in bureaucratic purgatory seems not only cruel, but also imprudent from the point of view of solidifying public opinion behind a policy of secure borders.

Perhaps realizing the inevitable legal challenges that would be launched by sympathetic petitioners, the administration quickly altered course on the admissibility of green card holders, as Homeland Security Secretary John Kelly granted a blanket waiver to them. This is a good sign: the administration shouldn’t pick battles it can’t win, and which would prove to be a distraction from its important agenda.

Unforced errors can be attributed to the youthful exuberance of the administration, but they shouldn’t be repeated. There are many dragons to slay in Washington, and if President Trump is to be the knight in shining armor that his supporters pray for, he needs to keep public opinion decisively on his side.

In general, the president will need to surround himself with people who have an equal grip on the legal, constitutional, and political landscapes. Striking such a balance need not mean weakness.

The president will—if not now, then soon—need to push back against an imperial judiciary. The Ninth Circuit is currently considering an appeal from the order of U.S. district judge James Robart that halted enforcement of President Trump’s executive order in its entirety. Should the appeals court go beyond legitimate due process concerns by sustaining Robart’s order, President Trump will, with justice, be able to point to more “so-called” judges. And that will be the beginning of a fight worth having.

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