When a federal appeals court looked beyond the four corners of President Trump’s Executive Order on Immigration, which bans immigrants to the United States from 7 predominantly Muslim countries, it strengthened the pillars of a constitutional democracy. The case reminds citizens of the world that governments don’t enjoy unfettered discretion to infringe individual’s rights and liberties through a mere assertion that national security is at stake. It is a moment for the judicial branch in small democracies to take note of the important role the judiciary plays to tame tyrants on the loose.
A mere week into his Presidency, his Attorney-General still not confirmed, the President of the United States made a bold and sweeping exercise of executive power. His travel ban tested the boundaries of executive authority. Implementation of his Order resulted in the exclusion and detention of immigrants from a handful of Muslim countries, who sought entry to the U.S. Federal courts came to the rescue of scores of green card holders, visitors, academics and refugees affected by the ban, putting a halt to its implementation. The government made a frantic attempt to reinstate the travel ban but it was denied by a Federal Appeals court. Instead of reinstating the Order, the Court delivered a stinging rebuke.
NO Unfettered Discretion when Individual Rights are Infringed
The government mistakenly believes its action is not subject to judicial review because it has unfettered discretion to exclude classes of aliens from entry into the United States. The administration relies on textually demonstrable language that seems to give the President untrammeled discretion to exclude categories of immigrants from the United States. However, it is well settled that courts review executive discretion for abuse when it abridges individual rights. The chaos at airports when the ban was rolled out, is evidence of the abridgment of particularized, concrete and judicially cognizable individual rights.
In denying Mr. Trump’s request to be permitted to proceed with his exclusion order, the court noted that the government erroneously takes the position that the President’s decisions about immigration cannot be reviewed, even if individual constitutional rights are contravened. This is a fatal error that the government is not likely to overcome. The Executive Order also has no provision for due process and contains religious tests that run afoul of the Constitution.
Bald assertion of National Security Interest not Enough When Individual Rights are trampled
While great deference is usually given to the Executive in cases of national security, mere reference to national security is not enough to shield the government from scrutiny. The court puts it nicely in rebuking the most powerful man in the world. It reminded him that the Constitution of the United States is a law for rulers and people, equally in war and in peace. The Court therefore, rejected the government’s efforts to move forward with the travel ban without providing evidence of a legitimate national security urgency. Reaching back more than 50 years the court invoked a precedent from the U.S. Supreme Court to get the message across to the President of the United States, that the Executive doesn’t have unrestricted freedom of choice simply because a statute deals with foreign affairs.
National defense cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal… It would indeed be ironic if, in the name of national defense, [the court] could sanction the subversion of one of those liberties… which make the defense of the Nation worthwhile.
From time immemorial, the High Court has signaled to overzealous Executives that executive authority should not be viewed as a chisel placed in the hands of the President to chisel away at other fundamental aspects of the Constitution, in a self destructive way. The Constitution is the plank upon which a nation rest so the destruction of it is a threat to the county’s viability. The Court therefore determined that the government cannot merely assert national interest when its actions collide with particularized, concrete and vested individual rights.
Some legal analysts bristle at the idea that the government must come forward with some evidence of imminent danger before implementing a sweeping infringement of individual rights. National Review staff attorney, David French believes the court issued a dangerous ruling. In an article titled The Ninth Circuit Just Issued a Dangerous Ruling Against Donald Trump’s Immigration Order, he writes:
The President doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike.
The ruling against the Trump administration is NOT inconsistent with the concerns raised by French. Courts have consistently held that when executive action collides with fundamental rights, at minimum, the government must establish some rational or reasonable basis for regulation. The court repeatedly asked the government to establish that nexus and it didn’t. A mere bald assertion of national interest or defense is NOT enough. Courts have also insisted that regulation must be narrowly tailored so that the abridgment of individual liberties is no more than what is required to achieve the legitimate goals of the government. As the bulwark of democracy and liberties the court must ensure that one branch of government is not parasitic to the principles and values a country is founded on.
Trump’s Immigration Stance- A Global Threat Coming to City Near You
Immidiately after the attempt to reinstate the travel ban was denied, massive immigration raids were launched in major cities across the United States. Anxiety in immigrant communities is not restricted to Middle Eastern Muslims. Immigrants from everywhere are losing sleep at night and soon societies everywhere will feel the impact of Trump’s aggressive immigration stance when plane loads of deportees start touching down.
Mr. Trump is adamant that he will scrape the bottom of the immigrant barrel and return the trouble makers to their native land. Many of the so-called trouble makers are products of America with little or no ties to the country they will be returning to. Governments that are sitting back thinking Mr. Trump’s immigration stance is a Middle Eastern problem, should brace themselves for the exportation of America’s problems to their shores.
Forwarding thinking regimes should get busy crafting legal and diplomatic strategies to slow the pace at which America will dump its rotten apples upon their shores. Those that are in the habit of accepting deportees without resistance need to begin reassessing that policy and build a resistance movement against Mr. Trump’s aggressive deportation stance.
Rising levels of deportation did not start with President Trump. His predecessor was once dubbed the Deporter-in-Chief. This is a problem that has been lurking for some time and now the global threat is coming to a City near you. Regions such as the Caribbean Community that are bursting at the seams with social problems, should use the occasion to renew push for greater social assistance from the United States.
The world didn’t suddenly get to the point where citizens’ revolt became the order of the day. At the turn of the century dissatisfaction among citizens in every region, reached a staggering level. In 2002, the Pew Research Center found citizens’ dissatisfaction with the state of their country in regions such Europe, Latin America, North America, and Asia, consistently jotted above the 80 percent mark.
Trump’s defeat of his establishment opponent, Hilary Clinton, to become the Leader of the free world is heralded as a paradigm shift in global politics. His controversial Executive Order was resisted by a global movement that saw massive protest in the far corners of the world. The taming of his executive excesses by the judicial branch should echo through democracies across the globe. Constitutional democracies near and far, should look within their national boundaries to tame tyrants on loose and brace for impact of The Donald.