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The Good News In The Battle Over President Trump’s Immigration Policies

Despite the pessimism many conservatives feel after the ultra-liberal Ninth Circuit Court of Appeals failed to overturn District Judge James Robart’s plainly extra-constitutional order stopping the President from suspending immigration from seven terrorist hotspots, there is much good news in the immigration battle. 

And, as our friend Ben Weingarten said in a recent column and video, no one is talking about it. 

White HouseWhat Weingarten had in mind is somewhat buried in the president’s Executive Order. If you have not read the order’s text in its entirety, you have likely missed the part that holds the key to American national security and foreign policy in the war against the global jihad.  

Hidden in plain sight in Section One is one of the most consequential paragraphs produced by our nation’s leaders since September 11, 2001, if we will only recognize it.  

The language reads as follows:

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation. 

Weingarten points out that criticism of the executive order in the days following its signing has been devoid of any mention of the imperative to admit solely those who respect our Constitution as the supreme law of the land. 

Nary a peep has been raised by the executive order's opponents about “violent ideology.” 

Nor have we heard even a whimper about the need to prevent those who would subjugate and commit violence against women, gays, and non-believers in a specific faith from coming to our shores observes Ben Weingarten. 

Leftist opponents of the executive order will read into the above paragraph only language meant to discriminate against Muslims, and thus bigotry in the eyes of its drafters and supporters.  

Of course, and this is vitally important, implicit in this assumption is a recognition that such beliefs flourish in the Islamic world. 

Opponents of the order ignore the fact that its purpose is expressly to keep out such bigots.  

Ben Weingarten concludes his analysis of the President Trump’s Executive Order by noting that these opponents choose to be willfully blind to the belief system of the jihadists, peaceful and violent, who wish to undermine and ultimately dominate Western civilization. They miss out on the political ideology that lies at the jihadist core, cloaked in religious garb. 

Now, another unreported bit of good news – there’s a federal judge who actually understands this and upheld President Trump’s Executive Order No. 13,769 pausing immigration from seven terrorist hotspots. 

The news media have not much reported the decision entered last week by a Federal district court in Massachusetts which let a temporary restraining order that had been entered against enforcement of the President's immigration order expire and which denied further injunctive relief. 

Unlike the district court in Washington State who granted a nationwide injunction against the Executive Order, Judge Nathaniel M. Gorton of the United States District Court for the District of Massachusetts, entered a detailed opinion that explained his views and marshaled the applicable precedents and other authorities. 

The case is Louhghalam v. Trump and we will quote just two important sections of Judge Gorton’s opinion which precisely refute the arguments made by the plaintiffs in the case before the Ninth Circuit (italics added for emphasis):

There is a distinction, however, between the constitutional rights enjoyed by aliens who have entered the United States and those who are outside of it. See Zadvydas v. Davis, 533 U.S. 678, 693 (2001). 

The decision to prevent aliens from entering the country is a “fundamental sovereign attribute” realized through the legislative and executive branches that is “largely immune from judicial control.” Chi Thon Ngo v. I.N.S., 192 F.3d 390, 395 (3d Cir. 1999), amended (Dec. 30, 1999) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)).  

Federal classifications based on alien status are evaluated using rational basis review. Mathews v. Diaz, 426 U.S. 67, 83 (1976) (considering whether a law that made distinctions based on alien status was “wholly irrational”); Ruiz-Diaz v. United States, 703 F.3d 483, 486–87 (9th Cir. 2012) (determining that a regulation that treated immigrant religious workers differently than other visa applicants would be evaluated using rational basis review); Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979) (upholding a regulation issued in response to the Iran hostage crisis that required non-immigrant alien Iranian students to provide information to Immigration and Naturalization Services Offices). 

Rational basis review examines whether the “classification at issue bears some fair relationship to a legitimate public purpose.” Plyler, 457 U.S. at 216. It is “not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller v. Doe by Doe, 509 U.S. 312, 319–20 (1993) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)).  

Under rational basis review, a classification is permissible “if there is any reasonably conceivable state of facts that could provide a rational basis.” Id. (quoting Beach Communications, 508 U.S. at 313).  

Because the EO involves federal government categorizations with respect to non-resident aliens, rational basis review applies. According to the EO, its purpose is to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists . . . . 

Exec. Order 13,769 § 3(c). The EO specifically asserts that permitting aliens from the countries identified in section 217(a) of the INA, 8 U.S.C. § 1187(a)(12), to enter “would be detrimental to the United States.” The order provides a reasonably conceivable state of facts [which concerns national security and] that could provide a rational basis for the classification. Heller, 509 U.S. at 319–20. 

Accordingly, this Court declines to encroach upon the “delicate policy judgment” inherent in immigration decisions. Plyler, 457 U.S. at 225.  

Judge Gorton also dismissed the claim that the Executive Order violates the Establishment Clause of the Constitution:

With respect to Count II, plaintiffs allege that the Executive Order violates the Establishment Clause of the United States Constitution. See U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion . . . .”). Specifically, plaintiffs claim that the EO disfavors Islam and favors Christianity.

The Court concludes, however, that the remaining plaintiffs lack standing to raise an Establishment Clause challenge.  The purported harmful disparate treatment of those two faiths arises from Section 5(b) of the EO in which the Secretary of State is directed, upon reinstatement of USRAP,

to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality (emphasis added). 

To have standing, plaintiffs must allege an injury in fact that is “concrete and particularized”. Reddy v. Foster, Docket No. 16-1432, 2017 WL 104825, at *4 (1st Cir. Jan. 11, 2017) (quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)).

Plaintiffs are not, however, refugees seeking admission to the United States and consequently, any future implementation of Section 5(b) would not personally affect them. Although plaintiffs vigorously disagree with such a policy, that sincere disagreement is insufficient injury to confer standing. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 485-86 (1982) (“They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III . . . .” 

The media has wholly ignored Judge Gorton’s precise and well-reasoned decision, while giving all the attention to the anti-constitutional actions of the Ninth Circuit, yet Judge Gorton’s decision may very well provide the road map which a future Supreme Court uses to uphold President Trump’s Executive Order.

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Battle Over President Trump’s Immigration Policies

Everyone would agree that the constitution authorizes President Trump to authorize every word and intent of that EO.
The anti-president Trump forces introduced the visa and legal resident subject which the order did not contain and basically implied that if it address those groups it would be wrong. The ninth greed and passed the ball to the supreme court where a 4-4 split would sustain the lower courts and the EO would be killed.
What is not understood is why President Trump will not issue a replacement (revised) EO that specifically excludes the group that were not part of the original EO (hence already excluded). Then there is no basis to shut-down the ban until the rules for vetting have been established.