The whole controversy turns on this law. It’s hard to see how any Presidential action restricting immigration can be overruled in light of it, as it specifies that “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 can “suspend the entry of all aliens or any class of aliens.” President Trump knows this, and tweeted about it this morning:
Benjamin Wittes of the Brookings Institution, who wrote the article below, also notes that on the vital question of the ban being necessary for national security, the decision spends “spends only one sentence and one brief footnote.” Nonetheless, Wittes tweeted: “You decide whether the POTUS is quoting me in context. Here’s the article. For the record, I support the decision.”
Very well. Let’s decide. In the first place, Wittes’ affiliation with Brookings calls his motives into question, as Brookings’ funding from Qatar has turned it into an apologist for jihad terror, with jihadi preachers and Islamic supremacists frequently featured and lauded at its events.
Second, Wittes notes that the decision omitted all discussion of the relevant law, but then brushes that aside not on legal, but on pragmatic grounds: “The Ninth Circuit is correct to leave the TRO in place, in my view, for the simple reason that there is no cause to plunge the country into turmoil again while the courts address the merits of these matters over the next few weeks.” He also opposes Trump’s executive order because he attributes malign motives to the President himself, referring to the “incompetent malevolence with which this order was promulgated.”
Incompetent is arguable, but malevolence? President Trump and everyone around him has been consistent: this ban is, from first to last, about national security. For the Left, apparently now even any concern for national security is inherently malevolent.
“How to Read (and How Not to Read) Today’s 9th Circuit Opinion,” by Benjamin Wittes, Lawfare, February 9, 2017:
…This case is about two big questions, only one of which the panel’s per curiam today even mentions. The first question is how broad the president’s authority is to limit admissions from the relevant seven countries—and to what extent that authority is limited by constitutional law—under a statute that gives him the sweeping power to do this:
(f) Suspension of entry or imposition of restrictions by President
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.
Remarkably, in the entire opinion, the panel did not bother even to cite this statute, which forms the principal statutory basis for the executive order (see Sections 3(c), 5(c), and 5(d) of the order). That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case.
The other question, one the panel does discuss, is the extent to which the repeated and overt invocations of the most invidious motivations on the part of the President himself, his campaign, his adviser, and his Twitter feed will render an otherwise valid exercise of this power invalid….
The Ninth Circuit is correct to leave the TRO in place, in my view, for the simple reason that there is no cause to plunge the country into turmoil again while the courts address the merits of these matters over the next few weeks. Are there tea leaves to read in this opinion? There sure are, particularly with respect to the judges’ analysis of the government’s likelihood of prevailing on the merits and its blithe dismissal of the government’s claims of national security necessity on pages 26-27—a matter on which the per curiam spends only one sentence and one brief footnote.
But it’s worth emphasizing that the grounds on which this order was fought are not the grounds on which the merits fight will happen. Eventually, the court has to confront the clash between a broad delegation of power to the President—a delegation which gives him a lot of authority to do a lot of not-nice stuff to refugees and visa holders—in a context in which judges normally defer to the president, and the incompetent malevolence with which this order was promulgated.