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SERVING THE FILIPINO COMMUNITY SINCE 1993
JULY 7, 2018

WHAT'S UP, ATTORNEY?

Trump Triumphs on Travel Ban – Supreme Court Upholds Its Validity

by Atty. Emmanuel S. TIPON

As we had confidently predicted on our radio show in Honolulu, President Trump won the case filed by the State of Hawaii et al. against him challenging the legality of his proclamation placing entry restrictions on nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate (“travel ban”). On June 26, 2018, the Supreme Court held, 5-4, that the President had lawfully exercised the broad discretion granted him under 8 USC 1182(f) to suspend the entry of aliens into the United States. Trump v Hawaii, No. 17-965, June 26, 2018. https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf

What was the basis of our confidence? Our knowledge of the Constitution and the laws of the United States, especially immigration law.

The Constitution provides: The President “shall take care that the laws be faithfully executed.” Art. II, Sec. 3, Constitution of the United States.

The Immigration and Nationality Act provides:

“(f) 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. . . . .” INA § 212(f) [8 USC § 1182(f)]

“(a) Restrictions and prohibitions. Unless otherwise ordered by the President, it shall be unlawful—

(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” INA § 215(a) [8 USC § 1185((a)]

Proclamation 9645

In September 2017, the President issued Proclamation No. 9645, placing entry restrictions on nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. Foreign states were selected for inclusion based on a review undertaken by the Department of Homeland Security and the Department of State. The eight countries originally selected were Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen. Subsequently, Chad and Iraq were excluded from the entry restrictions. The Proclamation exempted lawful permanent residents and provided for case-by-case waivers under certain circumstances.

The Case

The State of Hawaii, three individuals with foreign relatives in the affected countries, and the Muslim Association of Hawaii, sued the President, alleging that the Proclamation violates the Immigration and Nationality Act and the Establishment clause of the United States Constitution, Amendment 1 (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof).

The U.S. District Court in Hawaii granted a nationwide preliminary injunction barring enforcement of the proclamation. The President appealed to the Ninth Circuit which affirmed the District Court, concluding that the Proclamation contravened 8 USC § 1182(f) which authorizes the President to suspend the entry of aliens whenever he finds that their entry would be detrimental to the interests of the United States and 8 USC § 1152(a)(1)(A) which provides that no person shall be discriminated against in the issuance of an immigration visa because of the person’s race, sex, nationality, place of birth, or place of residence. The President filed a petition for certiorari with the Supreme Court.

President Has Power to Restrict Entry of Aliens

The Supreme Court held: The President has lawfully exercised the broad discretion granted him under §1182(f) to suspend the entry of aliens into the United States. By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in § 1182(f) is that the President “find” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here.

The Court rejected the plaintiffs’ argument that the Proclamation violates § 1152(a)(1)(A), saying that there is a basic distinction between admissibility and visa issuance, and that if Congress had intended to constrain the President’s power to determine who may enter the country, it could have chosen language directed to that end.

Proclamation Premised on Legitimate Purpose Not Religion

The Court said that the plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment clause. The Court rejected the plaintiffs’ argument that the primary purpose of the Proclamation was religious animus because of the President’s campaign statements about Muslims, saying that the issue is the significance of the President’s statements in light of a Proclamation neutral on its face, addressing a matter within the core of executive responsibility. The Court noted that the Proclamation said nothing about religion and is premised on a legitimate purpose. The court said that the countries were previously designated by Congress or prior administrations as posing national security risks.

The court ruled that the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Although foreign nationals seeking admission have no constitutional right of entry, the Court has engaged in circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights of a U. S. citizen. That review is limited to whether the Executive gives a “facially legitimate and bonafide” reason for its action.

The Court concluded that the Government set forth a sufficient national security justification to survive rational basis review.

COMMENT: Did the State of Hawaii and the official who brought suit against President Trump act reasonably in light of what the Supreme Court said that President Trump had lawfully exercised the broad discretion granted him under 8 USC 1182(f) to suspend the entry of aliens into the United States and that the plaintiffs had not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establishment clause?

Would the thousands of tax dollars of the hard-working people of Hawaii that was spent in hiring a lawyer to handle the case against President Trump have been better spent in caring for the poor and the homeless? If you want to fight President Trump, please use your own money, not other people’s money.

If you want to argue in the Supreme Court against President Trump, do it yourself, not hire another attorney to argue for you, using the people of Hawaii’s money to pay him.

The alleged anti-Muslim animus of the Proclamation falls flat on its face. If there was any, why were not all Muslim majority countries included in the restrictions? Why were North Korea and Venezuela included in the Proclamation? They are non-Muslim majority countries.

The Supreme Court should have thrown out the case for lack of standing of the plaintiffs. “To meet the minimal constitutional mandate for Article III standing Plaintiffs must show (1) an “injury in fact,” (2) “a causal connection between the injury and the conduct complained of,” and (3) that the injury will “likely” be “redressed by a favorable decision.” An “injury in fact” is defined as “an invasion of a legally protected interest which is (a) concrete and particularized... and (b) actual or imminent, not conjectural or hypothetical.” Kerchner v. Obama, 669 F. Supp. 2d 477 (D.N.J. Oct. 20, 2009).

What is the injury in fact to the State of Hawaii which is not a foreign state whose citizens are restricted from entry to the United States? What is the injury in fact to the son in law of a Muslim who has not been restricted in her entry? A son in law cannot petition a mother in law.

Why are those objecting to President Trump’s “travel ban” more concerned with the welfare of illegal aliens instead of legal immigrants who are following the law and patiently awaiting their turn to get a visa?

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ATTY. TIPON has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites: www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice.

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