The legal arm of the Federation for American Immigration Reform weighed in Thursday in favor of President Donald Trump’s temporary travel ban as the case before the Supreme Court moves toward oral arguments.
The Immigration Reform Law Institute (IRLI) filed a friend-of-the-court brief arguing the president has wide authority to determine which foreigners to admit into the United States and which to exclude. The legal argument takes particular issue with the implicit conclusion of lower courts — which heavily cited the president’s campaign statements — that a facially neutral executive order is unconstitutional when issued by Trump but would be OK if issued by a different president.
“The president has the powers he has based on his office, not based on his campaign statements,” said Christopher Hajec, director of litigation at the immigration law group. “A president who says things that liberal judges don’t like does not have any less power that other presidents … It leads to an absurd result.”
IRLI joins the Justice Department and several other outside organizations who have submitted arguments in the case this week.
Trump ordered a 90-day pause of travelers from six majority-Muslim nations and a 120-day pause on refugee resettlements to give the government time to implement “extreme vetting” procedures. But appeals courts in Richmond, Virginia, and San Francisco both ruled the executive order unconstitutional and blocked it from taking effect.
The Supreme Court partially reversed that, allowing portions of the ban to take effect. The court has set oral arguments for Oct 10 to consider the underlying merits of the case.
Other briefs filed this month include:
- Arguments by the government that a president’s decision to exclude foreigners is not even something the courts can second-guess: “It is a fundamental separation-of-powers principle, long recognized by Congress and this Court, that the political branches’ decisions to exclude aliens abroad generally are not judicially reviewable. That firmly established principle bars any review of respondents’ statutory claims.”
- A friend-of-the-court brief by two organizations, the Public Policy Legal Institute and Center for Competitive Politics. They object to the appeals courts assessing motive based on campaign statements: “A judicial review of campaign speech — even speech that sheds light on the reasons for later official action — chills expression and conflicts with numerous long-standing protections for campaign speech.”
Hajec, the IRLI attorney, argued that the power of the presidency must be assessed regardless of who the individual president is. He said by the logic of the lower courts, former President Barack Obama could have signed an identical executive order without arousing scrutiny.
“This argument would never have gotten off the ground,” he said.
Hajec said a finding that a president’s religious motivation could limit his foreign policy actions could lead to rulings affecting his ability to, for instance, take military action against the Islamic State terrorist group.
Ultimately, Hajec said, a president is accountable to voters.
“His only judges here are the people,” he said. “And that’s a good check … It’s a political question whether this order is in the national interest.”