Nine former high-ranking government officials filed an affidavit with the 9th Circuit Court of Appeal to urge that the temporary restraining order on Donald Trump’s “travel ban” executive order remain in place. Seven of the nine served in previous Democratic administrations, but two served in the administration of George W. Bush. The brief argues that the policy is misguided and poorly constructed to protect the US from external threats. However, should that be the question that the appellate court should decide?
In a brief filed Monday the officials slammed Trump’s order as “ill-conceived, poorly implemented and ill-explained.”
The brief was written jointly by two former Secretaries of State, two former heads of the CIA, a former Secretary of Defense, a former Secretary of Homeland Security, and senior officials of the National Security Council.
“This order cannot be justified on national security or foreign policy grounds. It does not perform its declared task of ‘protecting the nation from foreign terrorist entry into the United States.'” the co-authors — John Kerry, Madeleine Albright, Janet Napolitano, Susan Rice, Leon Panetta, John McLaughlin, Avril Haines, Michael Hayden, Lisa Monaco and Michael Morell — wrote in the filing.
The co-authors of the affidavit are mostly Democrats, but notably, Hayden is a retired U.S. Air Force four-star general who served as the Director of the CIA under President George W. Bush. And McLaughlin served as Deputy Director of the CIA under both Clinton and Bush.
That may or may not be a sustainable argument, but …. it’s a political judgment, not a matter of law. The question for courts in this situation is not whether the policy implemented by Donald Trump through this EO is wise, but whether it fits within his legal authority. We have elections to deal with wisdom or lack thereof on policy, and Congress to work with the president on statutory obligations and boundaries on policy (as well as the Constitution).
Both statute and the Constitution allow for a great deal of executive-branch discretion on the operation of entry into the US as a matter of national security, and it seems clear that a temporary program suspending entry from a handful of nations while the vetting program gets revamped fits well within that authority. The Obama administration used the same authority the exact same way in 2011 with Iraq. Critics contend that the circumstances were different — and they were somewhat different — but this is not a circumstantial jurisdiction.
However, Washington state AG Bob Ferguson argues that the executive branch does not have plenary authority on entry policy:
It’s true that presidents do not have “unfettered” authority to do anything, but that’s as meaningless as saying that neither do judges. Ferguson ends up arguing what the affidavit does — that it’s bad policy, specifically because it has an adverse impact on the states. (Other states are making that same argument.) That may be true but it doesn’t make the policy or the exercise of authority behind it unconstitutional or illegal, even if the first few days of its rollout were bungled in execution. The ability to craft policy on visa and refugee entry falls within the constitutional authority given to the executive for national defense, and within statute specifically dealing with those issues. As such, it falls easily within Youngstown‘s Zone 1 of presidential authority.
These are largely irrelevant arguments, legally speaking, with the caveat that the courts have a funny way of determining the limits of their own jurisdiction on policy matters. But what about the policy? Is it really all that irrational? Not according to a study from the moderate-Muslim think tank Quilliam, which reports that ISIS and Boko Haram are spending heavily on recruiting refugees for attacks on the West, including children:
Islamic State is paying the smugglers’ fees of child refugees in a desperate attempt to attract new recruits, according to a report highlighting the potential vulnerability of unaccompanied minors to radicalisation.
The report, from counter-extremism thinktank Quilliam, also says that an estimated 88,300 unaccompanied children – identified by the European Union’s police agency Europol as having gone missing – were at risk of being radicalised.
Citing failures in the approach of Europe, particularly the UK, towards protecting child refugees travelling alone, the report, published on Monday, warns that jihadi groups, including Isis and Boko Haram, have attempted to recruit within refugee camps using financial incentives, as well as working with the people smugglers.
Quilliam said that Isis had offered up to $2,000 (£1,600) to recruit within camps in Lebanon and Jordan. Last year, Jordanian special forces reportedly found what they described as an Isis sleeper cell inside a refugee camp near Irbid, north Jordan. Additional reports indicated that Isis had tried to recruit refugees by supplying food previously withheld from camp residents.
That comes from The Guardian, not exactly known as a right-wing news source in the UK. Now, perhaps that doesn’t represent a huge threat, but it certainly should prompt some revisions in screening to attempt to weed out those infiltrators in the refugee streams. That does not seem like an irrational response to a potential threat, and a 90-day pause to work on those issues does not seem like a disproportionate burden — even if the courts were inclined to intrude on presidential jurisdiction and policy.
Addendum: One of my colleagues may address Byron York’s report on the Trump administration’s legal response in more detail, but I’ll include it here too:
Now the government has answered Robart, and unlike the judge, Justice Department lawyers have produced a point-by-point demolition of Washington State’s claims. Indeed, for all except the most partisan, it is likely impossible to read the Washington State lawsuit, plus Robart’s brief comments and writing on the matter, plus the Justice Department’s response, and not come away with the conclusion that the Trump order is on sound legal and constitutional ground.
Beginning with the big picture, the Justice Department argued that Robart’s restraining order violates the separation of powers, encroaches on the president’s constitutional and legal authority in the areas of foreign affairs, national security, and immigration, and “second-guesses the president’s national security judgment” about risks faced by the United States. …
In fact, while Judge Robart decreed that the interests of Washington State would be harmed by the Trump order, the government argued that the interests of the presidency, and of the Constitution, would be harmed by Judge Robart’s decision. “Judicial intrusion on the political branches’ exclusive authority over the admission of aliens, by violating the separation of powers, in itself constitutes irreparable injury,” the Department argued.
By the end of the Justice Department’s 24-page brief, Judge Robart’s, and the state of Washington’s, argument lay in tatters.
As Byron notes at the end, however, that doesn’t mean that the 9th Circuit will find in favor of the White House. It just means that it should.