President Trump could use a good lawyer or two.
His Executive Order on the Travel Ban was written in the way a business man might write a directive to employees. As “the boss” he never thinks he might have to justify to others what he is actually doing. So he sets out procedures and directs they be carried out. But that is not the way governments work, and it certainly is not how courts work.
As a general rule everything President Trump writes from this point forward is going to have to be written as though it will be examined by the Supreme Court. This because if the snowflake liberals have any say in the matter, it will be.
Lawyers are taught to write in a particular way: issue, rule, analysis, conclusion, or IRAC. Some attention to this process would have gone a long way toward getting his EO approved in any other court except the Ninth Circuit. All Ninth Circuit judges, irrespective of which president signs their appointment, are appointed by Democrats, which explains why it is reversed about 80% of the time when things go up to the Supreme Court on a writ of certiorari.
First, Mr. Trump should make plain that the order applies only to extraterritorial aliens and visa holders from the seven affected countries. Then he should make factual findings with respect to each of the countries he wanted affected by the ban. This because without some evidence in the EO, the courts are free to substitute their views for that of the Chief Executive. But with evidence in the document, and with specific presidential findings that carry legal weight, courts are more constrained. With regard to Somalia, for example, he could have shown:
- There is no effective central government in Somalia
- There is an abundance of radical terrorists in Somalia (yes, I know, they are all radical muslim terrorists, but we don’t want to use the “M” word because the media changed it from a travel ban to a Muslim ban).
- The Minnesota Mall Shooter was Somali.
- The Ohio State University Machete Monster was Somali.
- A federal appeals court upheld the conviction of Mohamed Mohamud, the Somali American sentenced to 30 years in prison for plotting to bomb downtown Portland during the annual lighting of a Christmas tree.
At the end of the factual findings he could have included the more generic information from The Center for Immigration Studies:
- Since 9/11 72 terrorists incidents or prosecutions have arisen from people coming into the country from these seven countries.
All of these events support the imposition of a ban on travel from these countries. Then the EO should repeat the language of the statute in full. 8 USC § 1182:
(f) Suspension of entry or imposition of restrictions by President
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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
Next, the president should make findings specific to the vetting process, what needs to be improved, how it can be improved, and the like. At the same time, outside the executive order, the Secretary of State should issue orders that anyone who fails vetting should be denied a visa. Irrespective of the ban on the 7 countries, any alien seeking admission or a visa for entry, from any country, of any religion, and who has any potential link to terror should be considered guilty until proved innocent. Yes, I realize that’s not “the American Way” but right now the American Way is getting people killed. And, aliens have no constitutional right to come here, no matter what the 9th U.S. Circuit Court of Appeals says, now or in the future.
Next, the ban should set out the parameters of the ban and be extended to 120 days, and it should contain the following language:
The source of the President’s authority to restrict immigration is statutory, and the statute does not provide for judicial review of his actions. Thus judicial review is not permitted. The determinative consideration with respect to judicial review is whether this action involves a discretionary (as opposed to a ministerial or ceremonial) exercise of authority committed to the President by the Constitution or by Congress. See Dalton, 511 U.S. at 470, 114 S.Ct. 1719 (noting the “importance of [the President’s] role in the base closure process” because “[w]ithout the President’s approval, no bases [would be] closed under the Act” and the statute did “not by its terms circumscribe the President’s discretion to approve or disapprove [BRAC’s] report”); Franklin, 505 U.S. at 800, 112 S.Ct. 2767 (“That the final act is that of the President is important to the integrity of the process and bolsters our conclusion that his duties are not merely ceremonial or ministerial.”). In both cases, Congress did not require the President “to adhere to the policy decisions” of an agency. Franklin, 505 U.S. at 799, 112 S.Ct. 2767.
Under such circumstances, judicial review is not available to second-guess presidential actions—i.e., actions involving the exercise of discretionary authority vested in the President by law. See, e.g., Franklin, 505 U.S. at 800–01, 112 S.Ct. 2767 (“We would require an express statement by Congress before assuming it intended the President’s performance of his statutory duties to be reviewed for abuse of discretion.”); Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1136 (D.C.Cir.2002) (noting that the Supreme Court “has directly addressed the nature of review of discretionary Presidential decisionmaking, … has highlighted the separation of powers concerns that inhere in such circumstances and has cautioned that these concerns bar review for abuse of discretion altogether”); Public Citizen v. U.S. Trade Representative, 5 F.3d 549, 553 (D.C.Cir.1993) (holding that since the challenged action vests discretionary authority in the President it is not subject to review).
Given this language it would be very hard for any court to dance around both the factual and legal basis for the ban. Given that it does not apply to permanent legal residents, and only to extraterritorial parties, the ban could not be challenged because no one has the ability to advocate on behalf of non-citizens outside the United States. They have no Article III standing in our courts.
President Trump, I spent almost an hour doing this for you. I’m available when RBG keels over, even though I am not on your list.