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Sunday, May 14, 2017

Looking at The Executive Order Restricting Entry from Some Countries

In the first weeks of the new administration President Trump issued an executive order barring entry temporarily for people from seven predominantly countries that had problems with terrorism.  A federal judge in Washington issued a TRO enjoining enforcement temporarily and the Ninth Circuit upheld that move.  Rather than continue the fight, the President had the EO redrafted and he issued a new one in place of the first.  This modified the coverage to just six countries, but it still was a temporary ban on entry from six countries.  This time a different federal court issued a TRO.  There are two appeals pending with regard to the EO.  One was just heard en banc in the 4th Circuit.  The 9th Circuit will hear an appeal next week.  Ultimately, the issue will get to the Supreme Court where President Trump is likely to prevail.  SCOTUS is not a place where arguments about the "real reason" for federal orders or statutes prevail over the clear wording of such an order or statute.  The presence of Justice Gorsuch makes that even more likely.

The real question regarding the EO, however, is this:  Why is the appeal continuing?  Remember, the original EO was for a short ban so as to give the government time to put in place a better vetting system.  That was Trump's so called "extreme vetting" regimen for those seeking entry to the USA.  We are fast approaching the date on which the ban on entry in the original EO would have expired.  What then is the reason for pursuing an appeal that will never be completed before that original expiration date?  Has a new vetting system been put in place?  Is there any reason for the ban if we have the new system?

Sadly, there is a good reason for the appeal to continue.  The district court judges in the two decisions thus far have given themselves the power to decide on the intent of what the President has ordered wholly apart from what the Executive Orders themselves say.  In other words, these unelected judges have decided that a ban on entry from six countries is actually a Muslim ban even though nearly 90% of the world's Muslims live in other countries and remain unaffected.  There is nothing in American jurisprudence that gives a federal district court the right or the power to ignore the language of a statute or order and to conclude for itself what is "really" happening and why.  A Supreme Court decision is needed to put the prior clear rules on that subject back into place.

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