Refuge From Refugees In The Land Of Immigrants

A Federal Appeals Court is deciding on the Immigration / Travel / Muslim Ban executive order issue that has become one of the latest tests of the Trump Administration’s decision making efficacy. At the heart of the issue is whether the President’s authority over immigration and national security are contestable by other governmental entities or even impacted citizens.

This issue would seem to be a simple partisan dispute between the Republican and Democratic parties; but in reality, it could be a defining moment the nation’s understanding of and adherence to a “nation of laws” and the importance of the three separate independent branches of government. The ‘common’ consensus is that regardless of the Appeals Court’s ruling the case will progress to the Supreme Court for a final challenge by the side that views the appellate court’s ruling as wrong. Assuming the Supreme Court accepts the case rather than accepting the lower court’s ruling then the “laws of the land” will become more explicitly defined and presumably understood.

So, if this is a test for the courts and country, it must be an exceptional opportunity for an American Intelligence Test on the issue.

Question A:   What is the core issue being contested before the court?

(1). Whether the President has the authority to issue the ban uncontested.

(2). Whether a State(s) Attorney General has standing to challenge the ban.

(3). Whether the executive order was unconstitutional.

(4). Whether the consequences of the ban justify its suspension.

(5). Whether the outrage over and attempts to oppose is just partisan political animus.

(6). Whether a claim of national security interests overrides other interests without question.

Answer - A:  3

Rationale - A:      The court is judging whether there are applicable laws that constrain or prohibit the executive order. Because this involves a dispute between the federal government, one or more states, Congress (whether they recognize it or not), and various citizen-level groups (this includes corporations as they are “persons” before the court) the issue becomes intertwined with the independence of the three branches of government and the Constitutional aspects of the case. The complicating factor is that the question of constitutional or unconstitutional is not a simple question. The ‘original’ intent isn’t applicable here since it isn’t applicable anywhere, but that’s another intelligence test topic. The issue is what constitutional requirement or authorization would have precedent over other constitutional requirements or authorizations? The knotty problem is one of resolving the conflicts inherent in our laws and our understanding.

Items 1, 2 and 4 are attributes of the case but they are not the core issue that should and needs to be how the case is adjudicated. They may frame how the issue is assessed and understood but are not the question under appeal.

Item 6 is a tricky problem since it isn’t strictly a legal dimension. The courts are highly unlikely to be informed or knowledgeable about the relevance of any national security considerations or non-considerations that underlies the order.

Item 5 is what plays out in the media and prevents any need for the public to be informed.

Question B:   Does the core issue depend upon whether it is being justified as immigration policy or as a matter of national security?

(1). Yes

(2). No.

Answer - B:  No

Rationale - B:      The issue is whether the order is constitutional. That would seem simple but then that would mean that you must know everything about the constitution, the laws passed by Congress applicable to this situation, and the context of the decisions around the executive order. How likely is it that the judges will know this? How likely is it that anyone knows everything that they need to know? So the judgement of the court will be based on the degree to which what the pertinent information is available to and understood by the justices.

Question C:   Where does the authority to impose a “travel ban” reside?

(1). President

(2). Congress

(3). Supreme Court

(4). Constitution

Answer - C:  1, 2, 3 and 4

Rationale - C:      The President has the administrative authority to issue an executive order on the immigration process within the parameters of the law (this includes the Constitution and all derived laws).

Congress is responsible for the legislation that authorizes the President, that defines the parameters that limit his authority within the constraints of the Constitution and all derived laws).

The Supreme Court will settle all challenges and disputes regarding the executive order, the laws passed by Congress, and consistent with the Constitution. The Supreme Court assesses whether either the President or Congress has exceeded their authority or violated the Constitution or it’s derived laws.

The Constitution establishes the responsibility for each branch of government and the people can only hope that at least one branch acts in accordance with the Constitution. If they all do, then all the better. This of course doesn’t answer the question of whether the ‘travel ban’ is or is not constitutional.

Question D:   Is challenging the Executive Order an infringement upon Presidential authority?

(1). Yes

(2). No

Answer - D:  No

Rationale - D:      Consider the answers to question C. Challenging the order is within the obligation of Congress, a State, or a citizen. Taking a case to court is how the process works. It may be rare or exceptional that an executive order is challenged but I believe that there are cases in recent memory that challenges happen.

Question E:    Does whether there was an imminent national security threat factor into whether the President’s responsibility to issue the ‘travel ban’ is unquestionable?

(1). Yes

(2). No

Answer - E:  No

Rationale - E:      If the President issues a ‘travel ban’ that violates the Constitution, the reason doesn’t negate the violation.

The condition of imminent national security doesn’t require a ‘travel ban’ as there are other remedial actions that would be applicable. Of course, if there were an imminent national security condition it should be a relevant factor to be documented and validated by an authoritative body. At some appropriate point the nature of the imminent threat should be presented in an properly redacted context.

Question F:    Could a more competently planned and executed roll-out of the ‘travel ban’ have provided the opportunity to more effectively combat terrorism and protect the national security?

(1). Yes

(2). No

Answer - F:  Yes

Rationale - F:      One has only to consider the opportunities that could have been realized by a better plan or a better execution. Even a pre-announcement of a ‘travel ban’ to be put into place could be used to the advantage of national security.

Question G:   Are the impacts from the ‘travel ban’ outside of national security arena relevant to whether the courts should uphold the Executive Order or to uphold the Temporary Restraining Order?

(1). Yes

(2). No

Answer - G:  Yes

Rationale - G:     If the impacts represent constitutional violations, then the restraining order is appropriate. If the impacts represent other consequences to the national interests, there may be some other legal contexts that could be relevant but it would have be an impact sustentative to constitute a greater threat to the nation than the security threat. That comparative judgement and decision would however likely fall within the domain of the President as the Executive branch. Whether the President makes the right decision on these competing impacts would fall into assessments of the relative intelligence used in determining the cost-benefit trade-offs entailed in that decision.

No matter how poor the decision might be, if it doesn’t violate the law the ‘travel ban’ would be legal and within the President’s authority. If the consequence of the ‘travel ban’ were to turn out to be catastrophic for the nation that doesn’t make it illegal nor unconstitutional. It just means those who made the decision were ill-equipped to carry out their duty. It’s just how our democratic system works.