Immigration is complicated. Suffering is not. I’m a student with more questions than answers on issues of immigration and terrorism. But I know enough to know that the Establishment Clause of the First Amendment prohibits the government from favoring or disfavoring one religion among others, and that’s precisely what President Trump’s Muslim ban does. The excruciating pain and suffering of being a refugee from Chad, Iran, Libya, Somalia, Syria, or Yemen, in particular from the conflicts in Syria and Yemen (conflicts which US and European foreign policies helped to fuel) demand the minimal relief of immigration rights. The government’s justification for revoking those very rights rests on the notion that the screening mechanisms of these nations are weak and allow terrorists to get through undetected. Yet the US government sets no standard by which these mechanisms can be proven adequate and the ban undone. More importantly, the US failed to offer evidence that our own screening of incoming applicants has not been effective.
I went to the federal court appeals hearing on December 6, in Hawaii v. Trump, Executive Order 3, known by many, including the ACLU, as the Muslim ban, and it does in fact stop immigration from seven nations, the six aforementioned Muslim-majority nations, and North Korea. Some of the technicalities were beyond me, but I learned a lot, and here is something I picked up on:
The US Government [Executive Branch, represented by a single lawyer] justified Executive Order 3, but also made the point that they do not believe that the President’s executive power to direct the INS (Immigration and Naturalization Service) is even subject to judicial review. One judge responded with the hypothetical, asking that, if the President’s power is fully unilateral, could he ban all immigration from all nations? Gibberish ensued from the government’s lawyer.
The plaintiffs [The State of Hawaii and amicus plaintiffs] were represented at the podium by two lawyers, with a team behind them. They pointed out that the court had directed* the Administration to show that the current system of vetting applicants for visas and immigration status was in fact letting terrorists, or other agents whose actions were detrimental to the security of the United States, into the country. The Administration, according to the plaintiffs, failed, neglected, and/or refused to provide any such evidence.
The Case: The Precedent It Could Set, The President It Could Get
I can’t help but connect the dots. I get the impression that the Administration, [our Executive Branch, Trump] is telling the Judicial Branch a) that this case doesn’t call for them sending more than a single lawyer who thinks that the faster he talks, the smarter he’ll appear, b) said lawyer will impudently argue that the courts have no purview in this case and are going to be ignored, and c) thus, court orders will be ignored.
At least one, perhaps two of the three judges commented that there could be a separation of powers issue emerging. This would seem to echo events recounted in a May 8 (2017) New Yorker article delving into the history of impeachment. Regarding the Presidential resignation of 1974: …Nixon made his second mistake: he flouted the authority of a coequal branch of government. In October 1973, Nixon refused to obey a federal appellate-court ruling that ordered him to turn over tapes of conversations in the Oval Office, and he forced out the investigation’s special prosecutor, Archibald Cox. For nine months, Nixon continued to resist—in effect threatening the basic constitutional system—until, in July 1974, the Supreme Court ruled that he had to comply. By then, the damage was done, and the House Judiciary Committee launched impeachment hearings. By thwarting other branches, Nixon weakened his support in Congress and convinced the country that he had something to hide (p 41). And in commenting on our current situation, Senator Richard Blumenthal, a Connecticut Democrat who is on the Judiciary Committee, believes that the Administration’s actions denigrating or denying the power of equal branches of government portend a ‘constitutional crisis’ akin to Nixon’s refusal to accept the appellate-court judgment regarding the White House tapes….lawmakers from both parties announced that White House officials had refused a request from an oversight committee to turn over internal documents related to the hiring and resignation of Michael Flynn (p 43).”
That’s my read. That out of these appeals that challenge Trump’s anti-immigration / anti-Muslim policies could come a constitutional crisis whereby the Judicial Branch of our government is stifled and dismissed. I imagine that a possible scenario is one where senior management of the INS is caught in the crossfire of orders from their boss that go against the court orders of a federal court.
I don’t know if I got it right, but I encourage you to keep informed on this vital issue, here are a few links for you:
* In the course of the appeal on the previous Executive Order