Opinion

Hawaii V. Trump: A Legal Nothing-Burger

On March 6, 2017 President Trump signed EO 13780:PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES.”

This replaced his order from January which was challenged in courts everywhere.  The 9th Circuit Court of Appeals ruled the January order should be stayed indefinitely rendering the order unenforceable while in litigation.  The court got it wrong — completely. Rather than fighting in the liberal 9th Circuit which has a staggering 80% reversal rate — the second highest in the nation – the Administration issued a new more narrow order and avoided the confusing implementation of the January order.

Now we are back in court – the 9th Circuit naturally. That’s where the activist judges are. 72% of the judges in the 9th Circuit Court of Appeals were appointed by democrats. Hawaii along with Ismail Elshikh — Imam of the Muslim Association of Hawaii sued to block the revised order. The 38 page lawsuit is assigned to US District Judge Derrick Watson — a 2013 appointee of former President Obama.  It was no accident it was brought in Hawaii where two of the three federal judges are Obama appointees.

Let’s discuss Hawaii’s verbose-yet-meritless lawsuit. There’s 29 pages of “policy” arguments – not legal ones.

It’s a litany of reasons why Hawaii and the Imam think the order is a big scary monster that’s embarrassing and keeps the Imam’s Syrian mother-in-law from visiting even though she hasn’t come to visit since 2005.There’s only 7 pages of legal claims. Let’s look at the 29 pages of irrelevant material first. They lay out some policy reasons why the executive order, they say, isn’t a good idea.

Lead counsel is Neal Katyal — former Solicitor General of the US. Professor Katyal is a brilliant lawyer whom I have met several times and is as nice a guy as you could ever meet. Reasonable minds can disagree and we disagree.

Pages 1-2. Hawaiians can’t receive visits from or be reunited with people affected by the order. Universities can’t recruit as well. The Imam has to live in a country where people think the government disfavors a religion. The order hurts Hawaii’s economy.

Response: There’s no constitutional right to receive visits from foreigners. Those words aren’t in the Constitution. So what if universities can’t recruit from 6 nations for a while. National security is more important. What would a terrorist attack do to recruiting? If the Imam thinks the government has established a disfavored religion he’s entitled to his opinion but this order affects ANYONE of any religion from a mere six nations. Muslims from every other country remain unaffected by the order. The Hawaiian economy is booming and it’s speculative at best to think a handful of affected people will change that.

Pages 7-10. These are campaign speeches and other cherry-picked remarks where Trump advocated ideas about immigration and a relationship between terrorism and immigration.

Response: His campaign remarks aren’t relevant. He wasn’t President, the order doesn’t mention Muslims and doesn’t apply to any single religion.

Pages 11-15. These describe the January Order.

Response: That’s irrelevant. This is a new order. We aren’t litigating the first.

Pages 16-19. These describe the rollout of the first order, chaos at airports, and confusion in its implementation.

Response: It’s true that the “rollout” could’ve been smoother but this is a new order. We aren’t litigating the first.

Pages 20-25. These quote and describe the new order.

Response: Miller’s comments are irrelevant because the new order didn’t exist then. It doesn’t matter what Miller says. It matters what the order says.

Pages 25-30. These rehash in more detail the initial claims. The Imam’s mother-in-law can’t visit, other residents can’t receive certain visitors, it makes people feel bad, it harms the economy etc. This is a policy debate. If the Imam’s mother-in-law can’t visit Hawaii for now and her last visit was in 2005 one wonders if this is a real or pretend problem.

Pages 31-37. The legal arguments. They are legally incorrect for astonishingly simple reasons:

COUNT 1. First Amendment-Establishment Clause

Hawaii and the Imam allege “The Establishment Clause of the First Amendment prohibits the Federal Government from Officially preferring one religion over another.” They also allege the order has “the effect of disfavoring Islam.”

Here’s what the Constitution actually says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” I’ve given you both the “Establishment Clause” AND the “Free Exercise Clause.” Read them together. Executive orders are not acts of Congress. There’s no language in the order that mentions Islam. The order does disfavor unfettered entry into the US from the six nations (temporarily) — regardless of religion. Muslims from around the globe enter the US daily and will continue to despite the order. The Establishment Clause claim is laughable.

COUNT 2: Fifth Amendment-Equal Protection

Hawaii and the Imam allege “The Due Process Clause of the Fifth Amendment prohibits the Federal Government from denying equal protection of the laws, including on the basis of religion and/or national origin, nationality, or alienage.”

The Fifth Amendment does not mention the words “Equal Protection.” That’s the Fourteenth Amendment. I agree that all people who have rights under the Constitution are entitled to equal protection. That’s simple. But here’s the big problem for the plaintiffs: Non-citizens outside of the US have no constitutional rights whatsoeverThe “people” to who have constitutional rights are the people of the US or those present within the US. We don’t export US Constitutional Rights. Otherwise, the Navy Seals would’ve needed a search warrant to enter Bin Laden’s house. There is no constitutional right that belongs to any alien to enter the US. Permanent residents and visa holders have statutory and other permissions.

COUNT 3: Fifth Amendment Substantive Due Process

Plaintiffs claim “The right to international travel is covered by the Due Process Clause of the Fifth Amendment.”

Really? Let’s look. “No person shall be held to answer for a capital…crime, unless on a presentment or indictment of a Grand Jury, …nor shall any person be subject for the same offence to be twice put in jeopardy… nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…”

I don’t see any mention of international travel there. Maybe Hawaii has special reading glasses and can see it.

COUNT 4: Fifth Amendment-Procedural Due Process

Plaintiffs claim “citizens may assert … liberty interests with respect to noncitizen relatives who are deprived of due process”

Wrong. It isn’t possible to deprive someone of something they don’t already possess — due process rights.

COUNT 5: Immigration and Nationality Act

Plaintiff’s claim the order exceeds the President’s authority under 8 U.S.C 1182(f) and 1185(a).

Wrong. Article 1, section 8, clause 4 gives plenary (absolute) power over immigration to Congress. Congress has delegated that authority broadly to the President. Section 1182(f), states: “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 nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate”

Click here to read 1185(a). It begins with “Unless otherwise ordered by the President ….”

COUNT 6: Religious Freedom Restoration Act

Who knew the left liked RFRA? They claim RFRA grants citizens the right to welcome visitors from anywhere in the world. It does not.

Count 7: Substantive Violation of the Administrative Procedure Act through Violations of the Constitution, Immigration and Nationality Act, and Arbitrary and Capricious Action

That’s the “run everything up the flagpole and see if someone salutes” approach. This fails for the same reason: Non-citizens outside the United States have no US constitutional rights. That’s why we have borders and why Article 1 specifically grants plenary power to the Federal government over immigration.

The line must be drawn somewhere and it’s at the border. We know where it is. That’s where US constitutional rights evaporate. This is common sense stuff that shouldn’t stand a chance in court. But it’s the 9th Circuit. If Hawaii wins it will land in the full US Supreme Court and the 9th Circuit should get reversed — again.