As most Americans know all too well, since the media has covered the so-called “Muslim ban” obsessively, if disingenuously, most of the elements of President Trump’s travel bans (issued in January and in March) were blocked by left-leaning federal judges. On June 26th, we learned that the Supreme Court unanimously swept aside most of these injunctions. In addition, the Court signaled that it will decide the underlying issues in October – although several justices have already tipped their hand, indicating that they are very likely to support the President’s position. All this is outstandingly good news, not only for President Trump, for conservatives, and for national security, but also for the constitution itself, as I will explain.
The travel bans in essence block refugees, visitors, and immigrants from six countries that the Trump administration believes are particularly infested with terrorists who wish to do harm to the people of the United States: Iran, Libya, Somalia, Sudan, Syria, and Yemen. This action is intended to be temporary, and it allows for exceptions. Moreover, the President’s authority over the admission of foreigners into the U.S. is well-established, by precedent and by statute. U.S. Code, Title 8, Section 1182, states: “Whenever the President finds that the entry of any 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 impose on the entry of aliens any restrictions he may deem to be appropriate.” In short, the President has very broad authority over immigration matters. So why, then, would any federal judge even consider inteferring with the travel bans?
The injunctions issued by leftist judges rely on three primary assumptions: one, that the travel bans are not justified by any definable threat; two, that the remarks of President Trump and some members of his team indicate that the real motivation for the bans is religious prejudice; and, three, that the bans, in targeting people from the six countries already named, discriminate on the basis of nationality. All of these arguments have one thing in common: they are exceptionally weak.
First, it is absurd to suggest that federal judges, who do not have the requisite security clearances and who do not receive intelligence briefings, would be in a better position to judge matters of national security than the President of the United States. In addition, the list of six countries affected by the ban is a veritable terroristic rogue’s gallery. No one in his or her right mind could deny that refugees, visitors, and immigrants from these countries are more likely to represent a threat to Americans than people from, say, Australia or Norway. Numerous recent terrorist attacks in Europe perpetrated by migrants from the Middle East help to prove this point. Moreover, do we really want unelected judges meddling in any policy, agency, or law when they feel that their judgment is sounder than that of elected officials? No! Such judicial overreach simply must not stand.
Second, with respect to the charge that the travel bans are essentially based on religious prejudice, we must admit that Donald Trump, as a Presidential candidate, made some foolish statements along these lines. Nonetheless, he has also long since ceased to speak in those terms, and he has explicitly stated that the travel bans do not constitute “Muslim bans”. It is also abundantly obvious that, if the intention of the bans is to prevent Muslims from coming into the country, they are monstrously ineffective means of achieving that objective, since the vast majority of Muslims live in countries unaffected by the bans.
But the more fundamental question that Americans ought to be asking is this: why are only the most incendiary words ever spoken (or tweeted) by President Trump ever accorded any weight by the mainstream media and leftist judges? Why are his innumerable condemnations of discrimination, by contrast, not taken seriously? Let us be honest: President Trump says a lot of things, some of them intemperate and unwise, and some of them mutually contradictory, and that is certainly not to his credit, but it is grossly unfair to him to assume that only the most egregious things that he says (and usually only a twisted version thereof) represent his real thinking. What would happen if the same “logic” was applied to the utterances of liberals and Democrats? Presumably, the courts would disallow any leftist who has ever said an unkind word about men, or whites, or police officers, or Christians (i.e. virtually every leftist alive) from ever executing policies, or voting on legislation, that could in any way be perceived as prejudicial towards those groups. Government would grind to a halt! Needless to say, however, such a nonsensical standard would never be applied to liberals. It apparently only applies to Beelzebub himself: President Trump. Ridiculous.
Lastly, with respect to the baseless charge that the travel bans constitute discrimination on the basis of nationality, the simple truth is that every country on earth uses nationality as a partial test to determine whether or not to permit entry to aliens. That is why visas exist: they grant special permission to foreigners to enter a country, when presumptively this permission would be denied, based more often than not on the person’s nationality. Thus, for instance, a Canadian requires no visa to visit the U.S., but a Ukrainian, or an Afghan, or a Congolese does, and rightly so. To deny President Trump the authority to make such determinations in the interests of U.S. national security would be extremely dangerous, since it might create a new standard (and perhaps one secretly desired by liberals) that would allow access to our country to virtually anyone, at any time, and for any reason, since to deny them such entry would be “discrimination”. The Supreme Court is right: this is flawed reasoning.
In the end, therefore, while Americans are welcome to debate the wisdom of President Trump’s travel bans, they are also obliged to accept the fact that Donald Trump is the President, and thus he has broad authority over immigration. The injunctions conjured up by activist judges represent, in effect, an effort to negate the results of the 2016 Presidential election, and to wrest control over immigration from the Executive Branch and place it in the hands of unelected (and on national security matters uninformed) leftist judges. As conservatives, but more so as Americans, we cannot allow this to happen. The separation of powers lies at the heart of the U.S. Constitution, and so it should remain.
Dr. Nicholas L. Waddy, Associate Professor of History, SUNY Alfred, blogs at waddyisright.com.