A Federal judge in Washington State today issued an injunction preventing the enforcement of President Trump’s Executive Order (EO)halting immigration and entry programs from seven nations for 90 and 120 days respectively. I have already written about my own response to the EO as a policy matter and also said something about a Christian response or responses. Now however, the question has shifted to the legality of the order.
Let’s go through what is the very early stages of this case. Trump issued the order pursuant to (under the authority of) the Immigration and Nationality Act, particularly section 212(f). He invoked the following language: “to protect the United States and its citizens from foreign nationals who intend to commit terrorist attacks in the United States.” This language in turn is based on the language of the statute, which states in part:
“(f) 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.” (INA, Sec 212(f))
I am not yet sure what legal ground the judge used to issue his nationwide ban on enforcement (a very rare action by a District Court judge), but if his ruling was anywhere close to valid, it would have to have been based on the language of the statute itself and the EO’s alleged disjunction with it, not any mere dislike for it or “feeling” that it was unjust. Moreover, the Federal courts have given very (very) wide deference to presidents invoking laws based themselves on national security concerns. In addition, the president already has a great deal of discretion regarding “foreign policy” under the Constitution itself–to which Federal courts also defer.
This injunction will be overturned–though not necessarily by the Ninth Circuit–probably by the Supreme Court itself. Whether you like it or not, it is legal and constitutional. However, let me also add that President Trump’s tweet about the judge was uncalled for and pretty dumb. Throw the device into the Potomac and do your talking in other, more presidential, ways.