By Joe Guzzardi
March 16, 2017
Predictably, an unelected federal court judge in Hawaii blocked President Donald Trump’s revised temporary travel ban on some Middle Eastern nations. Even though the Constitution gives the president the authority to suspend immigration as he deems necessary, a federal court usurped the chief executive’s power.
Reviewing: President Trump wants to pause refugee resettlement for 120 days and suspend new visa issuance for 90 days from six failed nations that support terrorism. The six, which the Department of Homeland Security has identified as “countries of concern” because of their terrorism ties, are Iran, Syria, Somalia, Sudan, Yemen and Libya.
During the proposed hiatus, the State Department will tighten vetting procedures which FBI Director James Comey has repeatedly said are ineffective. None of the six countries can provide enough valid background information to allow for a meaningful check. The FBI is currently investigating 300 U.S. residents who arrived as refugees that may have terrorism ties.
But U.S. District Judge Derrick Watson, an Obama appointee, ruled that the temporary ban could hurt the efforts of Hawaii’s businesses and universities to recruit top talent and could slow the state’s thriving tourism industry – a theater of the absurd decision. During the few days that President Trump’s first executive order was in effect, Middle Eastern tourism to Hawaii fell from 348 in January 2016 to 278 in January 2017.
Justice Department lawyers argued correctly, but unsuccessfully, that the challenges to the president’s executive order are speculative, as indeed they are, and don’t represent irreparable harm. Acting U.S. Solicitor General Jeffrey Wall said “there’s no harm at all.” According to Judge Watson’s decision, Hawaii’s tourism industry – 70 fewer tourists – is more important than national security, a ruling that President Trump called “terrible,” as he promised if necessary to take his case to the Supreme Court.
The executive order is on firm ground. Lawyer, immigration expert and Conservative Review Senior Editor Daniel Horowitz cited seven statues that support President Trump but which Judge Watson ignored. According to the Immigration and Nationality Act, the president has the absolute authority to suspend immigration at any time that he feels it’s in the nation’s best interests. Such a decision isn’t subject to review. The president also has the right to cap refugee resettlement, and existing federal law already requires the State Department to cut off visas to countries that refuse to repatriate aliens. Judge Watson’s ruling is unprecedented in its overreach, and threatens national security and constitutional government.
President Trump has other options to achieve his goal beyond a Supreme Court appeal. Elected because of his promise to create an immigration system that works for Americans, President Trump should demand that congressional Republicans work together to defund refugee resettlement.
Another route is quietly underway – slowing refugee resettlement by delaying booking their travel from the Middle East. The Wall Street Journal reported that the State Department sent out directives to Middle Eastern U.S. Embassies ordering them to slow resettlement, since the annual total to date, 35,000, is quickly approaching President Trump’s proposed 50,000 cap. A State Department representative confirmed that it will limit refugee resettlement to no more than 50,000 by the end of fiscal year 2017.
Whether President Trump prevails through the Supreme Court or through a State Department decelerating resettlement from abroad, he’ll win. The president has plenary power over immigration. Rogue judges can stall President Trump, but not beat him. The executive order may be down, but not for the ten-count.
Joe Guzzardi is a Senior Writing Fellow with Californians for Population Stabilization. Contact Joe via email at [email protected]apsweb.org or find him on Twitter @joeguzzardi19.