It is unfortunate that for all the tumult over the controversy playing out between President Trump and several federal courts over the extent of presidential authority in controlling immigration, the actual issue between them is being obscured.
Thus, the current proceedings are not directed at determining whether the president’s executive order is within his authority to promulgate but, rather, whether it should be enforced until such time as a final decision is rendered – after full blown evidentiary hearings – in the matter.
This confusion is in part a function of the courts’ blurring of those two issues by giving short shrift to the reasonable notion that the applicable constitutional and statutory provisions at least mean there exists a presumption – even if rebuttable – that until a final decision is made, a president must be given the benefit of the doubt.
Thus, tellingly, the U.S. Court of Appeals for the Ninth Circuit, the highest court to weigh in to this point, in its upholding a lower court’s prohibition of the implementation of President Trump’s executive order until a final decision is made, did not even refer to the compelling language of the applicable federal law, a section of the Immigration and Nationality Act of 1952:
Wherever 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 by proclamation, and for such period as he shall deem necessary, suspend the entry of al aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem appropriate.
It is hard to conceive of any language that would be more absolute in its granting of power over immigration to a president. Yet the court would not even entertain the existence of an interim presidential presumption.
To be sure, all laws must be consistent with the Constitution, and the Appeals Court did raise issues of unconstitutional infringements on the rights of stranded aliens. But that approach invokes the novel concept that aliens enjoy the same constitutional rights as do American citizens. But unadmitted aliens have never been thought to have a constitutional right to enter the United States.
Moreover, we are unaware of similar concerns having been expressed when President Obama, out of a desire to weed out terrorists, toughened the vetting standards for immigrants from the very same seven countries to which Mr. Trump’s executive order applies.
Is there really a constitutional and principled distinction to be drawn between singling out certain aliens for blanket exclusion and for enhanced vetting? Or is it simply a matter of the political leanings of some judges and activist organizations? Can it be that presidents are not permitted to differ on solutions to commonly perceived problems?
So there are many reasons the executive order should be implemented at least and until the United States Supreme Court provides the final word. Its derailment by lower courts before then would represent a dangerous and unnecessary precedent.