February 11, 2017

Trump’s justification for failed Ban: I’ve Got a Secret

by Hal Gershowitz

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Of Thee I Sing Heading AuthorsThat’s the message the President relayed to the American people when he stated, “I’ve learned a lot in the last two weeks, and terrorism is a far greater threat than the people of our country understand, but we’re gonna take care of it.”

When all was said and done, that was the heart of the President’s argument before the Federal 9th Circuit Court justifying the ban. President Trump’s attorneys could have filed a sealed brief with the court specifying the specific evidence of a threat to our national security that necessitated the ban on travel from the seven Muslim-majority countries, but they didn’t. They didn’t think they had to, and maybe we’ll ultimately find that they may be right.

Few people would argue with the broad powers the President is given in the case of a national emergency, or a substantial threat to our national security. Giving the President the unfettered authority to do whatever he wants to do in the name of national security, however, is another matter. The President should be prepared to demonstrate, albeit in confidence if necessary, some evidence that there is a relationship between the threat and the action with which he seeks to mitigate that threat. Otherwise, the president—any president, can, on a whim, transform our government into an autocracy simply by declaring that a national emergency exists without offering any evidence that such an emergency necessitates the action he or she seeks to take.

Having listened to the arguments from both sides before the 9th Circuit Court, and having read opinions that support the Government’s position and those that support the Court’s decision, we recognize that this is one of those constitutional issues that could, ultimately, be decided either way.

We have, in the recent past, taken particular issue with the position of the Trump Administration that the United States does not adequately screen prospective refugees. That simply is not true. Refugees from these seven countries, and all other countries, are arduously screened. It generally takes years to enter this country as a refugee. Refugees from Muslim countries are, invariably, fleeing from the very regimes that threaten us.

The real issue, beyond the constitutional question, is whether a threat exists from immigrants or refugees from the seven countries subject to the ban that justifies the President’s Executive Order. That, to us, is more relevant than the fine points of constitutional law.

Alex Nowrasteh, an immigration specialist at the libertarian CATO institute, has compiled a list of every country from which foreign nationals have killed Americans on American soil. It’s quite revealing—2369 Americans have been killed on American soil by terrorists from Saudi Arabia, 314 killed by terrorists from the United Arab Emirates, 162 killed by Egyptian terrorists, 159 by terrorists from Lebanon, 6 by terrorists from Kuwait, 3 by terrorists from Cuba, 3 by terrorists from Kyrgyzstan, 3 by terrorists from Pakistan, 2 by terrorists from Palestine, 1 from Armenia, 1 from Croatia, 1 from Taiwan and 1 from Trinadad and Tobago, but NONE from the countries subject to the ban.

Furthermore, only three Americans have ever been killed by refugees—THREE, and those three refugees were from Cuba and that was in the 1970’s.

One particular aspect of the 9th circuit court hearing was, to us, particularly fascinating. The Justice Department’s lawyer, August Flentje, seemed to argue that a national emergency or threat necessitated the Executive Order, even though no evidence was offered to demonstrate such an emergency or threat. He then stated that the President’s decision that an emergency justified the seven-nation ban and the suspension of the settlement of refugees into the United States was not reviewable by the court. The court, he argued, could only review the correctness of the form of the brief—that it was “facially” in order. In other words, when President Trump (or any president) determines that there is a national emergency or a threat to the nation’s security, his judgment and his action, thereafter, is not subject to judicial review.

Jessica Levinson, a Loyala Law School professor and a critic of the executive order, argued that the court needed to send the message that the president should not be “un-reviewable” — especially for an order considered by many to be a “Muslim ban.”

University of California law professor and former Bush attorney John C. Yoo concurred, stating, “they should have lost. The order was done badly, The government badly defended it in court by claiming the 9th Circuit couldn’t even review the executive order.” Yoo said the ruling was a well warranted rebuke.

Here President Trump’s habit of speaking hyperbolically and, not infrequently, inaccurately if not untruthfully, has put him in a difficult position to argue for unfettered power simply by declaring the existence of a national emergency or a threat to our security. While President Trump may ultimately be found to have the legal authority to take such action without review by the courts, he doesn’t have the credibility to take such action given his record of wild and fanciful tweets and allegations.

American Presidents do have, and do need, the power to take drastic action in the face of a national emergency. It is an awesome power we give to our presidents. And it is a power that has been abused in the past. It did not take an Act of Congress for the Roosevelt Administration to, essentially, incarcerate over 100,000 loyal American citizens following Japan’s attack on Peril Harbor simply because they were of Japanese ancestry. This was done with the wave of a pen by President Roosevelt when he signed Executive Order 9066. He simply signed an order and tens of thousands of Americans were rounded up and locked away for years. Today, we recognize that Roosevelt’s executive order was wrongheaded and based on little more than war hysteria, with a healthy dose of racism thrown in.

It isn’t asking too much for President Trump to offer to the court, under seal if necessary, some evidence that a draconian executive order is justified. Hinting in a speech that he’s learned a lot in the past two weeks about the threats facing the nation isn’t sufficient. President Trump, in particular, has to offer the courts more than “I’ve got a secret.”

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2 responses to “Trump’s justification for failed Ban: I’ve Got a Secret”

  1. susan duman says:

    When I read the NYT this am, I thought…………..Trump is getting desperate. I was not surprised to hear from you this afternoon.

  2. Bobbi and Mike resmo says:

    We would not miss a newsletter from you. Thank you !bobb

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