The Courts Have Chosen Aliens Over Citizens (Updated)

       As many of you know, Trump's temporary ban against Muslims entering the United States from a limited number of terrorist states was suspended after the federal court for the Western District of Washington issued a temporary restraining order (TRO). The district court decision has been upheld, at least temporarily, by the Ninth Circuit Court of Appeals. In reviewing the district court decision, one is immediately struck by the lack of legal reasoning to support several of the primary elements underlying the issuance of a TRO.

       The district court acknowledged that the test for issuing a TRO or preliminary injunction requires four elements: (1) that the petitioner will likely succeed on the merits, (2) that the petitioner will suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tip in favor of the petitioner, and (4) that an injunction would be in the public interest.

       Yet, the court made no analysis of the first point: success on the merits. The sum total of the court's reasoning on that point is the petitioners (the states of Washington and Minnesota) "have shown that they are likely to succeed on the merits of the claims that would entitle them to relief." Absent is any discussion of the fact that this is a political question, and that decisions regarding immigration are reserved to the Congress and the President. For instance, no mention is made of 8 U.S.C. Sec. 1182(f), part of the Immigration and Nationality Act (INA), that specifically provides:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. 

Moreover, under Sec. 1187(a)(12), the INA also provides the prohibition without a valid immigration visa or border crossing card, of the entrance into the United States of any alien that has been in Syria or Iraq at any time after March 1, 2011, or are from other countries of concern (which were established by the Obama Administration) which include Iran, Libya, Somalia, Sudan, and Yemen. Having a non-immigration visa only gets you to the front door:

Having a U.S. visa allows you to travel to a port of entry, airport or land border crossing, and request permission of the Department of Homeland Security (DHS), Customs and Border Protection (CBP) inspector to enter the United States. While having a visa does not guarantee entry to the United States, it does indicate a consular officer at a U.S. Embassy or Consulate abroad has determined you are eligible to seek entry for that specific purpose.

Thus, in the face of specific statutory provisions authorizing the bans, the court simply ignored what it did not like and remained silent.

        The court also did not discuss its reasoning on why the balance of equities favored the States (i.e., why concern over stopping the entry of potential terrorists was outweighed by the inconvenience to certain travelers), or why the injunction was in the interest of the public (who surely would be more interested in not being killed by terrorists than whether certain Middle-Eastern students weren't able to attend their university classes). In fact, the court's only remarks had to do with the supposed irreparable harm to "the States' residents in areas of employment, education, business, family relations, and freedom to travel," and "the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States' operations, tax bases, and public funds." None of which is relevant to the issue of whether the admission of any aliens or class or aliens "would be detrimental to the interests of the United States."

       Also note the implicit rejection and out-grouping of the majority of Americans. The judges involved in this decision will likely never suffer any negative consequences by overturning the executive order. (Rather, it will likely gain them favor among friends and associates). They are safely ensconced in lavish offices in buildings with truck bomb barriers all around and bullet proof glass in the windows, guarded by U.S. Marshals and court security officers. They live in well-healed neighborhoods and gated communities, with a SWAT team on speed dial. Thus it costs them nothing to sacrifice your safety. And that is what this is: a deliberate trade of the safety of American citizens in favor of the well-being of aliens. Aliens that, moreover, accede to certain Constitutional safeguards against deportation merely from being on American soil; impediments that would not exist if they were simply not admitted in the first place. See Leng May Ma v. Barber, 357 U.S. 185, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958).

Update (Feb. 9, 2017): The judges and lawyers are plain wrong in stating that no one has been arrested on terrorism charges from the 7 countries mentioned in the order: "Last year the Senate Judiciary Subcommittee on Immigration and the National Interest released information showing that at least 60 people born in the seven countries had been convicted — not just arrested, but convicted — of terror-related offenses in the United States since Sept. 11, 2001. And that number did not include more recent cases like Abdul Artan, a Somali refugee who wounded 11 people during a machete attack on the campus of Ohio State University last November."