March 1, 2018
Ensuring the safety and security of our communities
WASHINGTON – In a strongly-worded friend-of-the-court brief filed Wednesday in the United States Supreme Court, the Immigration Reform Law Institute (IRLI) argues that to treat President Trump’s so-called “Muslim travel ban” as anything other than a legitimate political decision by America’s elected Commander in Chief to invoke the sovereign power of the nation would violate the constitutional separation of powers among the executive, legislative, and judicial branches of government.
The Supreme Court has agreed to hear the Administration’s appeal of Trump v. Hawaii, a 2017 decision by the Ninth Circuit Court of Appeals. The Ninth Circuit had enjoined the President’s September 24, 2017, executive order restricting the immigration of aliens whose home countries were unable to ensure American consulates abroad that they would not become terrorists or security risks if admitted to the United States.
That order was the third to be issued by the President and then blocked by activist district judges in 2017. Based on a sweeping security review ordered by the President of how foreign visa applicants were screened abroad, the September 2017 order suspended the entry of nationals from eight countries. Six of those nations are predominantly Muslim in population. The Ninth Circuit found that no federal statute granted the President power to issue the order, and also that it violated the Immigration and Nationality Act (INA) by discriminating against immigrants based on their national origin.
In its brief, IRLI argues that federal courts lack jurisdiction to hear the statutory challenges to the President’s order. IRLI also takes issue with the Ninth Circuit’s conclusion that the President exceeded his authority under the INA, which in fact codifies the President’s inherent, sweeping power to exclude aliens in the national interest.
“Unless Congress provides otherwise, no one can enforce a federal law except the federal government,” explained Christopher Hajec, IRLI’s director of litigation. “That includes U.S. relatives of the aliens affected. This is especially true for presidential orders like this one. Congress made the President immune from claims by plaintiffs that they were injured by a federal agency action related to foreigners and foreign affairs.”
When it accepted review of this case, the Supreme Court specifically asked the parties to brief another issue: whether the President’s order violates the Constitution’s Establishment Clause, which bans discrimination based on religion. The Ninth Circuit had not ruled on this question.
In its brief, IRLI contends that Trump’s order does not violate the Establishment Clause. Rather, whether and how to consider religion in immigration decisions is entrusted by the Constitution exclusively to the political branches — Congress and the President — who are accountable to the people. If it were otherwise, many absurd consequences would follow. For example, the Islamic State is indisputably a religious movement as well as a terrorist organization, and under the definition of “religion” the federal courts use, it clearly qualifies as one. Yet no one believes that we may not block members of the Islamic State from entering the country.
“What aliens to exclude, like other foreign policy judgments, is a political question, for the people to decide through their elected representatives,” explained Christopher Hajec, IRLI’s director of litigation. “It is not a question for the courts. And the Supreme Court has so held, again and again. Plaintiffs, as part of a movement by activist attorneys, are trying to pry open that settled consensus, and move off in a new direction of diminished national sovereignty for the United States and every other country.”
“The Constitution is crystal clear that the defense of the nation lies with the President and Congress,” commented Dale L. Wilcox, IRLI’s executive director and general counsel. “And the courts are woefully Ill-equipped to involve themselves in such matters, partly because federal judges are not accountable to the people. If a court gets an exclusion decision wrong and people die in a terrorist attack as a result, nothing happens to the judge,” Wilcox added. “But politicians risk the wrath of the people.”
The case is Donald J. Trump, et al. v. State of Hawaii, et al., No. 17-965 (U.S. Supreme Court).
For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]
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