Council American-Islamic Relations announced an intention to sue President Donald Trump over his executive order banning most immigrants from Syria, and other countries that lack certain vetting standards and have issues with terrorism. Overnight, refugees who were in the air on the way to the United States are now being detained, and have also filed legal actions. The ban is perceived by some as a partial Muslim ban. Either way, at any trial, the law supports Trump’s order, and CAIR or others are likely to lose, completely, conclusively and quickly.
Liberal lawyer critics of Trump are making a habit of losing in their appeal to any branch other than elections — lost recount lawsuits, lost elector lawsuits, lost Russia-conspiracy derived lawsuits. Now, get ready to add lost emolument lawsuits and lost immigration lawsuits.
The Constitution gives Congress and the President exclusive, plenary control over immigration. This is how both Carter and Obama could single out various states or beliefs to exclude migrants on that basis, as both did.
First, the Constitution gives Congress the right to determine naturalization, and Congress gives the President express power to do as he did. Section 1182 of Title 8 directs the President can “by proclamation” suspend entry of “all aliens or any class of aliens” as the President “may deem appropriate” whenever the President merely “finds” any such alien group “would be detrimental” to the interests of the United States.
This extraordinarily broad power finds direct and clear affirmation by the Supreme Court in a sequence of decisions. As the court explained in the Valenzuela-Bernal case:
“The power to regulate immigration—an attribute of sovereignty essential to the preservation of any nation—has been entrusted by the Constitution to the political branches of the Federal Government.”
The Court, “without exception”, called this power “plenary,” empowering the Presidential prerogative as expressly delegated by Congress, with the right to “make rules for the admission of aliens.”
The Congress carved out protection only for a limited class of aliens: those who qualify for an immigrant visa. Even here, the only limits are race, sex, nationality, but no limits on the presidential power to exclude based on religion, terror designations, poor vetting documentation or anything that can be called a matter of “procedure.” All refugees can be legally excluded. All Muslims can be legally excluded. All Sharia law supporters can be legally excluded.
Thus, the federal court is likely to dismiss the CAIR case, as the issues raised go mostly beyond the jurisdiction of the court, a political question in which the Court is the wrong venue for CAIR’s complaints.
Another liberal lawsuit loss likely awaits. Maybe the lawsuit lovers would benefit from what former President Obama once reminded us all: elections have consequences.
Robert Barnes is a California -based attorney whose practice focuses on tax defense and First Amendment law. He is a LawNewz contributor.
[image via screengrab NY Times]
This is an opinion piece. The views expressed in this article are those of just the author.