A liberal friend on Facebook was decrying the right wing, and it occurred to me that some of her liberal friends might like to know why conservatives think the way we do, and as an example, I offered this regarding the recent controversial executive order on immigration.
Let’s talk about Trumps recent executive order halting visas from 7 majority Muslim nations. First, does the US have an absolute right to control its own borders, and determine who, if anyone, may gain entry? Per common law, predating even our founding, that is not just a given, but a sine qua non, a definitional characteristic of a nation state.
Our Constitution has placed the power over immigration wholly into the hands of the Congress. Congress in turn has passed laws detailing such. Much of what they passed was legislation that left the actual decision making process in the hands of the President, so as to address changing priorities in a more timely manner.
So far, so good. Congress clearly has constitutional authority to pass immigration law. And delegating the specifics of the execution of that law to the Executive in Chief is also constitutional. In this case, the the relevant statute grants authority to the President to exclude persons or classes of persons deemed by the President, in his sole judgment, to be national security risks from entry into the US. And judicial precedent has long held that the right to refuse entry is pretty much absolute.
Of those 7 nations listed in the EO, six are failed states where it is effectively impossible to truly determine whether visa applicants are who they indeed say they are, or if they are or are not radicalized threats. The seventh nation has as its de facto national motto “Death to America.” Instituting a pause to review our vetting procedures in these cases is well within the scope of the statute the EO references as its authority to implement the pause.
Note, to this point, I’ve been discussing whether or not Trump’s EO is constitutional and lawful. In my opinion, it is. Whether or not is is a good policy is another question. I tend to think it is, with some reservations. As to whether legal permanent residents (Green Card holders) can or should be subject to it is a bit more beyond my understanding. I’m not well informed on the jurisprudence on the matter. My understanding is that there is a tension in current law between “LPRs are different” and “still aliens, still can be denied.”
And springing it on a Friday night was probably pretty politically stupid. But stupid doesn’t amount to unconstitutional or illegal. And let’s not forget, for a large swath of the population who consider immigration an important political issue, and who feel their concerns have been ignored or ridiculed by both parties for three decades, any action is going to be something they will celebrate. You can say they are backwards, or they are mistaken, or they lack compassion. Maybe, maybe not. What they don’t lack is numbers, and they were a large part of how Donald Trump wound up in the Oval Office.
Let’s move on to the so-called Monday Night Massacre of Acting Attorney General Sally Yates. Lawyers for some aliens denied entry (or held for additional screening) obtained preliminary injunctions against the EO in some very limited cases. Fair enough. That’s what courts are for.* Acting AG Yates, a holdover from the Obama administration who was asked to stay on until the next AG is confirmed, issued an order to the DoJ to not defend the EO in the courts. Here’s the problem with that. She did not make an argument that the EO is unconstitutional, or that no good faith defense of its legality could be mounted. If she believed that to be the case, she should have resigned. The AG, acting or otherwise, is the head of the Department of Justice. And the department heads of all executive departments only enjoys authority as derived from the executive authority held solely by the President. There is no inherent authority in the office Ms. Yates held. Not only was President Trump well within his authority to dismiss her, he was practically obligated to do so.
As to the supposed hypocrisy of the Right suddenly celebrating EOs after condemning them for 8 years of the Obama administration, well, here’s the thing. It’s not the fact that EOs were issued. It’s that so often the EOs issued by the Obama administration clearly went beyond the authority delegated by the underlying authorizing statute passed by Congress. President Obama’s EOs had a terrible track record in federal courts, with more unanimous rulings by the Supreme Court against his policies than any other president.
So, from where I sit, I do not see the Constitution being trampled by an out of control executive. I see a president who is implementing policies that he promised, within the authority delegated to him by law. Again, whether those policies are wise or unwise, is, and forever will, be a matter of perspective.
*Though I could make a case that as the aliens have not been granted entry into the US (that is, until you clear immigration, you technically are not under the jurisdiction of the United States), they have no standing to sue in US courts.