Democrats thought they finally had the upper hand on Donald Trump.
Federal judges blocked part of his executive order to prevent unvetted Islamists from entering the United States.
But they are about to fail in a major way.
The law is on Donald Trump’s side.
The courts have historically given President’s large latitude to manage entry into the United States.
And the law allows the President to suspend the entry of aliens if the President believes that group presents a danger to the United States.
The seven countries Trump restricted travel from were already identified by Barack Obama for visa waiver restrictions.
Trump’s actions easily fall within the law.
Writing on LawNewz, Robert Barnes argues:
“The Constitution gives Congress and the President exclusive, plenary control over immigration. This is how both Carter and Obama could single out various states or beliefs to exclude migrants on that basis, as both did.
First, the Constitution gives Congress the right to determine naturalization, and Congress gives the President express power to do as he did. Section 1182 of Title 8 directs the President can “by proclamation” suspend entry of “all aliens or any class of aliens” as the President “may deem appropriate” whenever the President merely “finds” any such alien group “would be detrimental” to the interests of the United States.
This extraordinarily broad power finds direct and clear affirmation by the Supreme Court in a sequence of decisions. As the court explained in the Valenzuela-Bernal case:
“The power to regulate immigration—an attribute of sovereignty essential to the preservation of any nation—has been entrusted by the Constitution to the political branches of the Federal Government.”
The Court, “without exception”, called this power “plenary,” empowering the Presidential prerogative as expressly delegated by Congress, with the right to “make rules for the admission of aliens.”
And the initial legal victories against the Trump executive order were very narrow.
They concerned green card holders who were detained at airports.
The order did not stop the refugee suspension or the travel ban for noncitizens.
Barnes also argues that while Congress created exceptions for the President’s ability to restrict immigration based on race, sex, national origin, religion or what is described as “procedure”, i.e. lack of vetting documents or national security:
“The Congress carved out protection only for a limited class of aliens: those who qualify for an immigrant visa. Even here, the only limits are race, sex, nationality, but no limits on the presidential power to exclude based on religion, terror designations, poor vetting documentation or anything that can be called a matter of “procedure.” All refugees can be legally excluded. All Muslims can be legally excluded. All Sharia law supporters can be legally excluded.
Thus, the federal court is likely to dismiss the CAIR case, as the issues raised go mostly beyond the jurisdiction of the court, a political question in which the Court is the wrong venue for CAIR’s complaints.”
Leftists in the media were crowing over the initial legal victories against Trump’s executive order.
But those wins are not likely to stand up to further legal scrutiny.