Article 1, Section 8 of the Constitution gives Congress the power to regulate immigration. In 1952, Congress passed a law empowering the president to deny entry into the U.S. to “any class of aliens” considered to be “detrimental to the interests of the United States.” In other words, a threat to America and in the interests of national security. Read Smith Act.
As I have pointed out on countless radio shows and on social media, The Supreme Court has repeatedly ruled that Congress and the president have “plenary power” to regulate immigration. For more than a century, the high court has consistently upheld such authority and rejected constitutional challenges to presidential action banning entire groups of foreigners. Even the 9th Circuit has endorsed this legal principle. Past presidents, including Carter and Obama, have issued orders similar to Trump’s.
It is true that a subsequent 1965 immigration law prohibits discrimination based on race, sex, nationality, place of birth or place of residence. But that law says nothing about religion. And, more importantly, it applies only to the issuance of visas. The president’s authority to deny entry to a large class of aliens is a broader power which supersedes individual visa considerations.
Trump’s Executive Order Is Temporary
Lost in all the legal tumult is the fact that President Trump’s executive order is only temporary: It applies for just 90 days for people in the seven designated countries that are sources of terrorism and 120 days for “refugees.” (The Syrian ban is “indefinite,” but that could change, too.)
By the time each side has had the opportunity to fully litigate the merits of the various cases and undertaken the usual course of appeals, the executive order will likely have expired. That may render most of the cases moot. Absent a legal controversy, there would be nothing for judges to resolve. The petitions and lawsuits would probably be dismissed.
For now, however, the Seattle case may head to a hearing before the full complement of judges on the 9th Circuit Court, known as an “en banc” session. Or, the Department of Justice may seek an emergency application to the U.S. Supreme Court.
The latter action might be imprudent, since the current court has only eight sitting justices. A 4-4 tie would allow the 9th Circuit’s decision to stand. It would make more sense to wait for the confirmation of Neil Gorsuch to cast the ninth, and perhaps deciding, vote. Given the great weight of the law in favor of the president, the decision should be unanimous.