Indeed, as the Ninth Circuit (which includes Seattle) has held, “that statute specifically grants the President, where it is in the national interest to do so, the extreme power to prevent the entry of any alien or groups of aliens into this country as well as the lesser power to grant entry to such person or persons WITH ANY RESTRICTION on their entry as he may deem to be appropriate.” [emphasis added]
FIRST, it’s doubtful that a state (in this case Washington) has standing to raise legal and other constitutional claims on behalf of its own citizens (parens patriae), much less on behalf of non-citizens in other countries seeking to enter the U.S.
Its claim of “injury in fact,” required by the Constitution for legal standing, is highly speculative and far from direct, and in part involves the actions of third parties which make achieving legal standing even more problematic.
Arguing that the EO is “separating Washington families, harming thousands of Washington residents, damaging Washington’s economy, hurting Washington-based companies, and undermining Washington’s sovereign interest in remaining a welcoming place for immigrants and refugees” sounds quite conjectural, and contrary to established precedent for establishing legal standing.
By the way, I know something about legal standing, since I put together one of the leading Supreme Court cases on environmental standing [SCRAP], was granted standing to force an attorney general to seek a special prosecutor, achieved standing to force broadcasters to provide free time for antismoking messages, was able to bring a law suit – over the objections of the state of Maryland – which forced Spiro T. Agnew to repay the money he took in bribes, etc.
SECOND, a long line of cases, under what is called the Plenary Power Doctrine, makes it plain that many constitutional protections do not apply to foreign citizens outside our boarders.
That’s in large part why my detailed legal analysis concluded that even a complete and total ban on admitting any and all Muslims would be constitutional, since they do not enjoy the protection of the Equal Protection Clause which generally prohibits discrimination on the basis of religion.
THIRD, the U.S. has banned – or at least delayed the entry of – foreigners on the basis of nationality many times, including decisions by President Jimmy Carter and others. It would be hard to conclude that all of these prior actions were unconstitutional.
FOURTH, the President has clear statutory authority under 8 USC 1182(f) which provides 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 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.” [emphasis added]
Indeed, as the Ninth Circuit (which includes Seattle) has held, “that statute specifically grants the President, where it is in the national interest to do so, the extreme power to prevent the entry of any alien or groups of aliens into this country as well as the lesser power to grant entry to such person or persons WITH ANY RESTRICTION on their entry as he may deem to be appropriate.” [emphasis added]
BY THE WAY, since the president, instead of simply banning entry, may in the alternative impose “any restrictions he may deem to be appropriate,” Trump may want to consider doing what Germany is about to do, and Norway is considering: instead of banning people who cannot be completely vetted, he could simply require them, as a condition of entry, to wear ankle bracelets to permit them to be inexpensively and effectively monitored around the clock by using GPS.
Glad the 9th has already ruled on it
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The 9th has ruled on this judge’s restraining order? I have not seen that reported anywhere. Am I misreading this?