Why the Supreme Court May Deliver a Pyrrhic Victory on Travel Ban

New speculation justices may punt on presidential immigration authority after 90-day window

by Matt O’Brien | Updated 13 Jul 2017 at 11:35 AM

The Supreme Court’s recent decision to reinstate parts of President Trump’s travel ban” has been correctly heralded as a triumph. Nevertheless, while the decision advances the cause of immigration enforcement, those concerned about activist courts rewriting immigration policy should not be too quick to declare a total legal victory.

Judicial analysts have suggested that the court is hoping to avoid questions regarding the nature and limits of the president’s immigration powers. Therefore, it may choose to run out the clock and, after the 90-day ban has expired, declare the issue moot because the President’s objectives have been achieved.

This approach would be disastrous. For the past 150 years, federal policy on immigration has been guided by one remarkably simple legal principle: As a sovereign nation, the United States has the power to determine the conditions upon which it will admit foreigners. This is an unfettered power deriving from the fact that we are an independent, self-governing nation. The American people and the territory we occupy are the United States.

The Constitution explicitly grants Congress the power to establish a uniform rule of naturalization. Implicit in that grant is the power to establish rules governing more temporary visits. Therefore, Congress has virtually limitless power to pass laws excluding anyone, for almost any reason. The only exception applies to U.S. citizens who have an enforceable right to leave and re-enter their nation.

At an operational level, determinations regarding who may come to the U.S., when they may do so, and how long they may remain belong to the executive branch. Moreover, such decisions are intimately tied to the president's powers to conduct foreign relations and make national security decisions. As a result, the courts have traditionally declined to review immigration policy decisions made by the political branches of government: the legislature and the executive.

The distinction between the political (e.g., popularly elected) and the judicial branches of government is an important one that must be preserved. An elected Congress makes the laws. An elected president sets policy (how the laws will be implemented). The unelected courts, staffed by legal experts, lack the information and expertise necessary to perform legislative and executive functions. Therefore, appointed judges should not be acting as a supra-legislature, second-guessing Congress and the president. Judicial overreach inevitably leads to bad policy.

The decisions by lower federal courts blocking the implementation of the travel ban radically departed from existing legal precedent. Almost without exception, the subordinate tribunals reviewing the ban ignored the relevant statute, considered irrelevant evidence, and issued decisions based on preposterous legal theories. In so doing, they showed a frightening willingness to legislate from the bench, saying what they believe the law should be, rather than pursuing their constitutionally assigned task of interpreting existing law.

Had the Supreme Court reversed the lower court decisions this case, it would have confirmed the president's authority to exclude aliens from the United States — a power that was, in this case, explicitly authorized by Congress. More importantly, however, it would have sent a clear message to the federal courts to stay in their constitutional lane and stop attempting to usurp functions assigned to Congress and the president.

The efforts to undermine the travel ban have consisted of raw appeals to emotion, rather than the application of sound legal reasoning. And they never should have been entertained by any American court. As such, the fact that the Supreme Court declined an opportunity to dismiss them out of hand is troubling.

The American Civil Liberties Union (ACLU) and its affiliates are attempting to erase all distinctions between U.S. citizens and foreigners, thereby creating a legally enforceable "right" to be admitted to the U.S. Should the Supreme Court issue a decision that gives even superficial legitimacy to such absurdity, America will lose all meaningful control of its borders. Citizens of foreign countries, with no connection to the U.S., will be treated in exactly the same manner as native-born Americans. National security and public safety will be seriously at risk.

Let's hope that the court recognizes the larger question confronting it and comes down squarely in favor of preserving our borders and the president's authority to protect them.

Matt O'Brien is the former chief of the National Security Division within the Fraud Detection and National Security Directorate at U.S. Citizenship and Immigration Services. He has also served as assistant chief counsel in U.S. Immigration and Customs Enforcement's New York district. He is currently the director of research at the Federation for American Immigration Reform (FAIR).

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