By Joe Guzzardi
October 18, 2017
The latest trend in immigration law – unelected judges have the last word. The pattern of lower court judges, many of them Obama appointees, blocking President Trump on defunding sanctuary cities and on his refugee resettlement ban has accelerated. The agenda-driven judges are either unschooled on immigration law and the Constitution, unlikely, or, more probable, have such contempt for President Trump that they are determined to undermine him whenever possible.
Hawaii Judge Derrick Kahala Watson, a 2012 Obama appointee, has for the third time struck down President Trump’s travel ban just hours before it was to take effect. The ban would have stopped refugee travel into the United States from six Muslim majority nations, North Korea and some Venezuelans. In his rambling opinion, Watson wrote that the ban is un-American, “plainly discriminates based on nationality,” and that the White House hasn’t shown that U.S. national interests would suffer by admitting refugees.
A few things. First, Watson is still troubled by, and rendered his decision based on, President Trump’s campaign rhetoric. It was a call for closer refugee vetting which then-FBI Director James Comey, former CIA Director John Brennan, and other retired and active national security experts all agreed with in congressional testimony. Take a look at six of the nations the ban would have barred from entry, and consider whether there might be individuals predisposed to terrorism among them: Iran, Libya, Syria, Yemen, Somalia and Chad.
Second, Watson ignored the law. Although I’m not a lawyer, I read and understand English. Summarizing 8 U.S. Code Section 1182 (f), “Suspension of entry or imposition of restrictions by President,” the president may “by proclamation and for such a period as he shall deem necessary” suspend or restrict the entry of all aliens, immigrants, and non-immigrants. In legalese, this is known as the Plenary Power Doctrine.
Third, recent precedent exists for banning Muslim refugees. In 2011, President Obama and then-Secretary of State Hillary Clinton stopped processing Iraqi refugee petitions for six months. The Obama administration had learned that two al Qaeda-Iraq terrorists and trained bomb makers had arrived in the U.S. as refugees and were living in Bowling Green, Kentucky. The ban proceeded without legal challenge.
Watson’s decision is headline news. But in a less publicized and equally troubling ruling, Illinois U.S. District Court Judge Harry Leinenweber and – shocker – Reagan-appointee, ordered that the Department of Justice cannot cut off grants to sanctuary cities, and issued a nationwide injunction to that effect. Leinenweber said that the federal government cannot use its spending power to threaten states. Such an action would be, he asserted, unconstitutional. Then, in a not-so-thinly veiled critique of President Trump, Leinenweber added that the current “state of affairs,” meaning the administration’s commitment to immigration enforcement, required him to take the extreme measure of a ordering a nationwide injunction.
Leinenweber has delivered a green light message to sanctuary states, such as California, and others considering statewide sanctuary status – among them, Illinois, Vermont and New Jersey – that they can protect criminal aliens with maximum latitude and without fear of fiscal consequences.
Since Judges Watson and Leinenweber don’t care about the law, public opinion isn’t going to sway them. But let the record show that American voters want reasonable levels of vetted refugee resettlement, and an end to sanctuary states and cities that harbor criminal aliens.