On Trump's Immigration Executive Order, Wrong Question

Ever since a federal judge, James L. Robart, issued a temporary restraining order (TRO) against President Trump's executive order (EO) temporarily suspending admissions of aliens from seven Middle Eastern countries, the question whether the President's EO was lawful or not has reached a heated national debate. Experts, pundits, and analysts, as well as civic organizations and governmental bodies, brought many arguments in favor and against the said EO. Some have tried to provide clarity to the context in which the question arose, while others tried to obfuscate it. What virtually all of them have missed is this simple fact: They have been debating the wrong question.

That's right, the question of whether the President's EO was lawful or not is a wrong question.

Trump's authority comes from Section (f) of 8 U.S. Code § 1182 - Inadmissible aliens, which states in unambiguous language 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."

The right question that should have been asked was whether Judge Robart had the authority to issue the TRO and whether the said TRO was legally binding to the President. Neither answer is clear nor are they settled by a sound basis or valid legal reasoning (as opposed to, say, legalistic sophistry, court-approved or not).

I am going to present arguments that the answer to both questions (of the Judge's authority and the TRO's legality) is a resounding "No!"

Bingo.

The hearing for the restraining order should ONLY have been about the merits of issuing a restraining order, NOT the merits of the EO. And there was NO merit to issuing the restraining order because the plaintiffs could hardly prove standing and didn’t at all prove irreparable harm. Talk about a circus featuring kangaroos in the court. The whole thing is wrong.

The big issue here is the Constitution mandates the feds prevent invasion (Art IV, Sec 4) and that mandate trumps a restraining order, regardless of its validity.

Trump should cite the constitutional mandate (and the errors in this proceeding) in a notification that he will proceed with the EO pursuant to Constitutional law and federal statute.

Short answer: The constitutional crisis we’ve have for decades is finally coming to a head and it will take guts to see it through.

Long answer:

The statute on which Trump based his EO, U.S. Code Title 8, Chapter 12, appears to be contradictory. The clause from which Trump derives his EO, U.S.C. 1182(f)), appears to contradict another clause, U.S.C. 1152 (a)(1)(a) which is an anti-discrimination clause and being used in these challenges.

Not sure how Trump’s writing a new EO will get around this anti-discrimination clause. The DOJ argued very well that the anti-discrimination 1152 (a)(1)(a) clause should not apply to 1182(f) authorizing the President to act at his discretion. The fact is the hearing should never have been about the merits of the EO only the merits of a restraining order which did not appear to have merit. No matter. The Leftist judges ruled basically as they damn well pleased regardless of their legitimate limitations.

Sooner or later, we must confront the massive, ongoing constitutional crisis in the federal courts which long ago went way off the constitutional rails and are basically in free-form with no apparent limitations. IMO, Trump should throw down the gauntlet here and now: call their bluff by notifying the reasons Trump is constitutionally mandated to take this action pursuant to Art VI, Sec 4 and why the courts have not shown a valid constitutionally-based reason for preventing his immigration EO.

Then proceed declaring the court’s ruling null and void. One branch, the executive, notifying the other, the judicial, with a constitutionally-based explanation why the judicial action is unconstitutional and thus null and void maybe giving the judicial branch time to correct their error with a time set where the executive branch will proceed if the error isn’t corrected and until Congress acts with appropriate legislation pursuant to Art VI, Sec 4 to correct THEIR error as well. Maybe NOW is the time for this.

Some have said Trump’s doing something like this would trigger a Congressional impeachment of Trump. Such a move would be without constitutional merit as Trump is the only party in this case trying to uphold the Constitution.

The answer is Trump should take his case to the American People citing Article IV Section 4 of the Constitution MANDATING the feds PROTECT the U.S. from invasion. Trump should urge his fellow Americans to call their congressmen to support his efforts to protect the American People and ask Congress to fix the existing law or pass a new one pursuant to Article IV Section 4.

The only issue was whether the courts had jurisdiction to even schedule the TRO for a hearing. They didn’t. The TRO is void on its face. They should never have appealed it. They should have simply told the court to STHU.

Congress sets the jurisdiction of the lower courts and in this case congress specifically stated that the courts have no jurisdiction. End of story.

Appealing the TRO was a tactical blunder. It lent credence to the decision. Trump should have simply ignored it. It is void.

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