DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. No. 16–1436 (16A1190) v. INTERNATIONAL REFUGEE ASSISTANCE PROJECT, ET AL.
582 U. S. ____ (2017) (Per Curiam)
Trump-Internation al Refugee Assistance Project
Donald Trump was vindicated by the Supreme Court regarding the dispute over the provisional entry ban for citizens from six countries. The Supreme Court of the United States overturned the provisional injunctions of subordinate authorities. Of course mainstream media is once again misrepresenting the decision. The New York Times wrote: “On Monday, the justices agreed to review both appellate decisions, but their unsigned opinion did not address the merits of those cases. “
The “unsigned opinion” was Per Curiam meaning it was the UNANIMOUS decision of the entire court and this did not requite an opinion written by one Justice. This is a STAY to allow Trump to do what the travel ban was all about – a review. Such stays are typically Per Curiam when granted for the Supreme Court rarely grants such a stay. Here we have two lower courts interfering with the Executive Powers, for which there was absolutely NO historical precedent. If ISIS openly sent in 1,000 people to be terrorists, they would be able to freely enter all because the lower courts were playing politics rather than law.
Of course there is the famous Korematsu v. United States, 323 U.S. 214 (1944) where the constitutionality of the Presidential Executive Order 9066, which ordered Japanese Americans into internment camps during World War II regardless of citizenship was upheld. There the Supreme Court upheld held that the need to protect against espionage outweighed Fred Korematsu’s individual rights, and the rights of Americans of Japanese descent. So even American born Japanese were locked up just because they were Japanese.
There is even a statue specifying who may not receive a entry visa: 8 U.S. Code § 1182 – Inadmissible aliens. This even bans people with physical disease or mental disorder with the exception of adopting children under the age of 10. Criminals are barred if their crime was involving moral turpitude (sex crime) or a drug dealers. Those convicted otherwise of two or more crimes are banned or women who have been convicted of prostitution within 10 years. Moreover, the Attorney General may ban anyone he reasonably has grounds to believe is seeking to enter the United States to engage solely, principally, or incidentally in the violation of U.S. law.
So why has the media called Trump racist and treated him with such hatred over a 90 day ban? It is just politics. There is absolutely no legal ground whatsoever to deny the order. The Supreme Court noted the exceptions that Trump himself acknowledge needed some qualification. The court provided general guidelines — say, a family member of someone living in the country, a student admitted to a university or a worker with an employment offer in hand.
The Fourth Circuit had struck down the ban using the First Amendment claiming it was religious focused saying Trump’s ban “drips with religious intolerance, animus and discrimination.” That was really a very bad decision since they were bans on six countries not Muslims and that would include even Christians. I have Muslim employees and they come and go with no problem. Clearly, it is not a ban on all Muslims and thus their narrowly focused decision was political, not legally sound. It was a 90 day ban while a review was to be taken. The ban would have been long over by now. In fact, the Supreme Court pointed that out: “We fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments” within 90 days, the court said.
The legal grounds for granting a stay by the Supreme Count is straight forward. It must meet a two-prong test (1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits and (2) whether the applicant will be irreparably injured. The mere fact that the Supreme Court issued the stay proves that Trump acted constitutionally and the President has that power.
Had there been only one lower court decision, then the Circuit Justice overseeing that circuit could have issued a stay by himself. In this case, we had two separate decisions from two separate circuits and thus it went to the whole court. That is why the decision a unanimous and thus Per Curiam.
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Livio S. Nespoli has been a broker, registered investment advisor, and financial publisher since 1985.