THE TEMPORARY IMMIGRATION BAN, LEGALITY, AND THE SUPREME COURT
by Sunil J. Wimalawansa
The government in each country has the right to protect its sovereignty and safety of its people. So as, obliged to take care of social, economic, education and health of its people, assure wellbeing and happiness, and provide equal opportunity for its inhabitants.
Temporary ban on immigration:
( February 9, 2017, Washington DC, Sri Lanka Guardian) Trumps team used an immediately effective, executive order on temporary immigration-ban. This basically comes under the McCarran-Walter Act of – the Immigration and Nationality Act of 1952, and is within the existing laws of the country. These laws (see below) allows the president of United States to suspend entry or impose restrictions for citizens from specific group of countries, as determined to be detrimental to the interests of the United States. The law also allows the president to proclaim a period, deem necessary to suspend the entry of all immigrants and non-immigrants or impose restrictions on the entry of aliens deem to be appropriate.
There is a precedence of using this law. In 1979, president Jimmy Carter used it to keep Iranian nationals out of the United States. This action affected many Iranian students in United States at that time, forcing them to register with the government. This Act also allowed the authorities to deport few thousands of Iranians. A similar series of actions were taken by the president George H. Bush after 9/11.
Existing Immigration and National Security laws:
Under the McCarran-Walter Act, it also requires an applicant for immigration to be of “good moral character and in agreement with the principles of the United States constitution.” The same principles that Mr. Trump adopted. Thus, except for the timing and the mode of implementation, the principles and the legal base of this executive action by president Trump is overwhelmingly similar to that of president Carter in 1979 and should stand the legal scrutiny.
The executive order by president Trump is aligned with the existing laws and identification of the elements that are detrimental to the United States national security, as described in section 212F. The list of seven countries with high security risks to America, where the temporary immigration ban was imposed by the administration was identified not by president Trump, but by president Obama in 2015/16 during his second term. So, this policy and the national security decisions were preexisting to the contested executive order.
Who should make the national security decisions:
Compared to the presidents who gets regular classified security briefing, Judges have no access to relevant intonation on national security threats. As with the ordinary citizens, they have no clue r special knowledge on whether there is an impending national security threat or not. Thus, it is strange and seems the flawed trend that the national security issues are decided by the federal courts of law and not by the president. Judiciary branch interpret laws and the constitution, but do not write laws. Decisions on national security issues should be left to the Congress and the Executive Branch (The President) and not to the judiciary.
Proscription of the executive order on temporary and limited ban of immigration by a federal judge from Washington state has causes chaos across the country and the world yet again; a double jeopardy. Based on the facts, precedence and the laws, it is unlikely that ban will hold by the 9th circuit Appeals Court and most certainly not by the Supreme Court.
Attorneys for the Government will argue that the executive order is legal and completely within the constitutional rights. Whereas, the attorney general from Washington state will argue that it has done irreparably harmed to the state. For ordinary Americans, the latter is clearly just a hype, as delaying people coming to the sate/country by couple of days by vetting, cannot harm the “state entities” irreparably. Moreover, such irreversible harm cannot be done by imposing a temporary ban on Syrian refugees coming to America. This makes no sense.
The opposite is, if even one terrorist could bypass the system and cause problems in the country, due to the verdict of the Washington judge and law suit by its attorney general, how that could compensate for two or three day delays of workers or students coming back to Washington state. Which decision and cause of action would lead to irreparably harm to the United States; Court needs to balance these issues.
Applicability of the Immigration and Nationality Act of 1952 to the temporary, limited immigration ban:
The McCarran, Internal Security Act of 1950 [64 Stat. 987 ; Public Law 81-831)] is also known as the Subversive Activities Control Act of 1950. Many parts of this Act were taken from the earlier Mundt–Ferguson Communist Registration Bill that Congress failed to enact. The Subversive Activities Control Act of 1950 and The Emergency Detention Act of 1950, were amended in 1971 an in 1972, and are United States federal laws.
The original Act required Communist organizations to register with the United States Attorney General and established the Subversive Activities Control Board to investigate persons suspected of engaging in subversive activities or otherwise promoting the establishment of a totalitarianism and dictatorships, either fascist or communist. Consequently, members of these groups were not entitled to become United States citizens, and had restriction from entering or leaving the country.
The Act also encompass an emergency detention statute, giving the President the authority to apprehend and detain, each person as to whom there is a reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or sabotage. It tightened alien exclusion and deportation laws and allowed for the detention of dangerous, disloyal, or subversive persons in times of war or “internal security emergency.
The executive order involves non-resident aliens, and thus, rational basis review applies to this executive order. Moreover, previously, the Supreme Court declared that, “classification is permissible, if there is any reasonably conceivable state of facts that could provide a rational basis.” Government view that the executive order is to protect Americans from terrorism and associated harm and its legitimate. Therefore, the courts should not attempt to intervene on this particular executive order and reinterpret the existing laws liberally. Thus, the department of justice will fight to overturn the temporary hold imposed by one federal judge. Thus, it would not be surprised that this matter ending up at the Supreme Courts.
Supreme Court nomination:
Mr. Trump has already made a good pick, Judge Neil Gorsuch for the Supreme Court, among the list of 21 nominations that he created. He followed the guidance of a conservative legal establishment, accordance with the judicial appointments made since the Reagan administration. The nominee, Judge Neil Gorsuch is a person who will strictly interpret and defend the constitution. Despite Democratic rhetoric and delaying tactics, he will get approved by the Congress.
To be Continued
Professor Sunil J. Wimalawansa MD, PhD, MBA, DSc, is a Physician-Scientist, Social Entrepreneur, Philanthropist, and Educator with strategic long-term vision (LinkedIn-Wimalawansa). The author can be reached via https://wimalawansa.org