"The Congress shall have power ... to establish a uniform rule of naturalization ... throughout the United States." -- U.S. Constitution, Article 1.
The Appellate Courts of the 4th and 9th circuits had affirmed most of the Preliminary Injunctive Relief granted against President Trump's Executive Order No 2 by lower district courts. The U.S. Supreme Court has now unanimously stayed those appellate court orders -- except as to those "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." (i.e., "the exception")
The court has set hearing on the merits of all issues of the consolidated cases for October 2017.
Were I writing the President's Supreme Court brief on the main issue (note: not on "the exception"], appealing from the 9th Circuit's Immigration rulings, my brief would go something like this:
The U.S. Supreme Court, in Galvan v. Press, stated that under Article I of the Constitution, the power to make immigration laws “is entrusted exclusively to Congress.”
In Fiallo v. Bell, the Supreme Court stated, "Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. ... The conditions of entry for every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification ... have been recognized as matters solely for the responsibility of the Congress.”
So, what if Congress, in an exercise of exclusive power to make immigration laws, were to make the following hypothetical findings and law?
"The unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States and directs that the entry of nationals from those designated countries be barred for 90 days."
Would the 9th Circuit Court of Appeals, or any other federal court have power to enjoin that exercise of congressional power?
What is the meaning of the word "exclusive?" Does Congress have "exclusive" power, if a court can enjoin exercise of that power?
If the power to make immigration laws “is entrusted exclusively to Congress,” and is "solely the responsibility of the Congress," that power is neither "exclusive" or "sole" if any court can bar Congress from exercising that power.
But what if Congress delegates its power to control immigration to the president -- the chief executive? Indeed, in the Immigration and Naturalization Act of 1952, Section 212(f), that is precisely what Congress did.
"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."
In writing that law, Congress exercised its "EXCLUSIVE" power over immigration. It delegated its "exclusive" power to make "findings" [president finds] to the president. It also delegated to the president, its "exclusive" power to "deem what is appropriate" [he "may deem to be appropriate"].
So, if the president "deems it appropriate" to bar entry by nationals from six countries where Muslims are slaughtering Muslims for 90 days because he fears that at least some of those immigrants or refugees will bring their "holy wars" here, and that that would be detrimental to our security, can any court second-guess him? Make its own determination of what is detrimental? What vetting is appropriate and required for our national security?
Under Section 212(f), the president alone, as chief executive, has been designated by Congress as Congress' agent. Pursuant to that delegation, President Trump has made his executive order.
(The "hypothetical legislation" set out above is a verbatim excerpt lifted from President Trump's Revised Immigration Executive Order, EO No. 2.)
The main question which the Supreme Court will decide in October is who decides whether the president's finding is legally sufficient? Who decides whether immigration from a particular country will be detrimental to the U.S.? The president, or 700 federal court judges? Will we have one immigration policy, or 700?
If you think the latter, what competence does any judge have to manage immigration?
National security? The answer is obvious: NONE.
Posted: QCOline.com July 3, 2017
Copyright 2017, John Donald O'Shea
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