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Courts shouldn't enter into political questions

By: Scott Weiser
June 29, 2017 Updated: July 31, 2017 at 8:51 am
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The Supreme Court largely vindicated President Donald Trump's executive orders - temporarily suspending immigration from some specific countries this week. The court continued the injunctions with respect to aliens seeking to immigrate "who have a credible claim of a bona fide relationship with a person or entity in the United States" while allowing the temporary ban on immigration for those who do not to proceed. This compromise will hold until the Supreme Court hears the case in October.

What's important is the court's rationale. "The Government's interest in enforcing §2(c) (the executive order), and the Executive's authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States," says the unsigned and unanimous opinion released Monday.

President Trump's statutory authority to impose such bans has been upheld. The correctness or wisdom of doing so is a political question. If any action by a president pursuant to constitutional or statutory authority is seen as unpopular or unwise then the resolution is a political, not a judicial decision. It is not within the discretion of the courts to meddle in purely political questions. To permit the Judicial branch to rule on the political or social correctness of an executive action as the lower courts did in this case, is to unconstitutionally elevate it above both the Executive and Legislative branches by granting it the power to make or unmake law as it deems necessary or desirable. As Justice Neil Gorsuch wrote in his first (and unanimous) Supreme Court opinion, "the proper role of the judiciary. (is to) to apply, not amend, the work of the people's representatives."

The wisdom, probity or fairness of a presidential determination that this or that person or group is ineligible to be admitted to the United States isn't related to the legality of doing so. The same was true of FDR's executive order 9066 of 1942 commanding all persons of Japanese ancestry to evacuate the West Coast, which today is seen as unconscionable and unfair.

But at the time, the refusal of the Supreme Court to overturn the Japanese internment orders was based on the urgency of the war with Japan. In that case FDR's order was ratified and confirmed after the fact by an Act of Congress and the Court held that "It was within the constitutional authority of Congress and the Executive, acting together, to prescribe this curfew order as an emergency war measure."

President Trump's orders, unlike FDR's, did not precede an Act of Congress they followed one that was enacted more than 65 years earlier, in 1952, which explicitly vested that authority in the president. That statute gave President Truman authority to bar the admission of Communists seeking to overthrow our government. Truman vetoed the statute but Congress overrode his veto, making it available to every subsequent president.

A February, 2017 Time Magazine article lists recent instances of invocation of the statute by other presidents: "In 1981, President Ronald Reagan used it to bar "any undocumented aliens arriving at the borders of the United States from the high seas," while in 1986, he used it to bar Cuban nationals, with some exceptions. In 1994, Bill Clinton used it to bar anyone in the Haitian military or government affiliated with the 1991 coup d'état that overthrew the democratically-elected president. Ten years later, George W. Bush used it to bar corrupt members of the government of Zimbabwe from entering the U.S. And in 2012, Barack Obama used it to bar hackers aiding Iran and Syria. Trump, however, appears to be the first president to apply a blanket ban to everyone from a specific country since President Jimmy Carter used the provision to keep out Iranians during the Iran hostage crisis."

In it's opinion upholding the statutory authority of the president to bar immigration the Supreme Court correctly reasoned that, "To prevent the Government from pursuing (a national security) objective by enforcing §2(c) (the executive order) against foreign nationals unconnected to the United States would appreciably injure its interests."

Whether his decision was politically or socially acceptable or not is a matter of political opinion, and a matter for political resolution . in three and a half years.

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Readers can contact Scott Weiser at scott.weiser@altnews.us.

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