On Trump's Immigration Executive Order, Wrong Question

Ever since a federal judge, James L. Robart, issued a temporary restraining order (TRO) against President Trump's executive order (EO) temporarily suspending admissions of aliens from seven Middle Eastern countries, the question whether the President's EO was lawful or not has reached a heated national debate. Experts, pundits, and analysts, as well as civic organizations and governmental bodies, brought many arguments in favor and against the said EO. Some have tried to provide clarity to the context in which the question arose, while others tried to obfuscate it. What virtually all of them have missed is this simple fact: They have been debating the wrong question.

That's right, the question of whether the President's EO was lawful or not is a wrong question.

Trump's authority comes from Section (f) of 8 U.S. Code § 1182 - Inadmissible aliens, which states in unambiguous language that "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."

The right question that should have been asked was whether Judge Robart had the authority to issue the TRO and whether the said TRO was legally binding to the President. Neither answer is clear nor are they settled by a sound basis or valid legal reasoning (as opposed to, say, legalistic sophistry, court-approved or not).

I am going to present arguments that the answer to both questions (of the Judge's authority and the TRO's legality) is a resounding "No!"

First, let us consider this matter from a logical perspective. One of the basic scientific methods for disproving a proposition, or -- in other words -- proving that the said proposition is false, is to logically derive an absurd consequence from it. This method has been in use in deductive sciences since antiquity and is known under the Latin name reductio ad absurdum. I will show that the assertion of Judge Robart's authority to issue the TRO leads to absurd conclusions and therefore such an assertion is false. From this, it follows that Judge Robart did not have such authority, and that his TRO was legally not binding.

(That the debating parties tacitly asserted Judge Robart's authority to restrain the sitting President while questioning the President's authority to exercise one of his clearly enumerated powers is absurd in its own right.)

Suppose that Judge Robart had the authority to issue his TRO against the sitting president. There are about 2,700 federal district judges in the U.S., and if Judge Robart had the authority to issue his TRO, all the other 2,700 federal district judges would have the authority to issue a TRO against any President's EO as well. Should only a hundred of them decide to exercise such an authority broadly, they would de facto incapacitate the President to the point that he or she would not be able to preform most of his or her core constitutional duties.

But the absurdity of such an arrangement doesn't end there. Although I made myself believe that federal judges in the U.S. are incorruptible, the history of Western civilization is full of examples of judges taking bribes and then acting favorably to the briber rather than pursuing truth and justice. If there is (or will be) at least one corrupt judge in the U.S., then an enemy state may bribe him to issue a TRO against president's EO, thus crippling president's power to quickly undertake defensive measures against the said enemy's hostilities. Can you imagine, the leader of a hostile nation dictating to the president what he can and cannot do, via a corrupt federal judge, who fell under his or her influence? When that happens, our national capacity for self-defense would be decimated, and the blessings of liberty would quickly become reminiscences as we become subjects of a foreign power. That is one of the absurd consequences of a claim that Judge Robart had the authority to impose his TRO on President Trump.

At this point, America's sworn enemies may say: "The above consequences are not absurd. They are highly desired features of American democracy. So, the inference presented above does prove the conclusions in question, as there is no reductio ad absurdum here." Some others, more versed in legalistic sophistry, may add: "There is nothing wrong with the above conclusions because we can (using an established system of clever fallacies) derived them from the Law of the Land. So, these conclusions are not absurd; they are proven matters -- the derived Law of the Land, instead." Some others will refer to case law (court precedents) with total disregard of the invalidity of impositions of its instances pertaining to the case discussed here.

Well, they are absurd, and utterly so. To see it, all one needs to do is to read the Preamble to the Constitution. It says: "We the People of the United States, in Order to [...] provide for common defense [...] and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America." There is a widely accepted legal doctrine that one cannot use any law against its stated purpose. So it would be utterly absurd, indeed, to apply, say, the freedom of speech clause of First Amendment to restrict individuals' right to express freely their opinions. (I read legalistic sophistry that "proved" the validity of that inference.) The above mentioned doctrine summarily invalidates all of the sophistic "proofs" that the authority for Judge Robart's TRO lies in the U.S. Constitution, no matter how clever or lengthy such "proofs" could be. The conclusions of these "proofs" are absurd, because they go against the purpose of the Constitution that has been clearly stated in its Preamble.

Here is the same question approached from a legal perspective: It requires some study of the Constitution, in particular Article III, Sections 1 and 2.

Section 1 of Article III vests the "judicial Power of the United States" in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Section 2 paragraph 1 lists the cases within judicial power, including "all Cases affecting Ambassadors, other public Ministers and Consuls; [...] all Cases of admiralty and maritime Jurisdictions, [...] controversies to which the United States shall be a party; [...] Controversies between two or more States; between a State and Citizens of another State [restricted by 11th Amendment] [...], and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects [restricted by 11th Amendment]." Nowhere in this Article is it written that the judicial power extends to the President (the U.S. Senate has a monopoly on it) or to cases affecting him or her, for instance, to lawsuits against presidential EOs.

Even if one stubbornly claims that the intent of the framers of the Constitution was to extend the judicial power over the cases affecting the president (in particular, to his EOs) because of the "controversies to which the United States shall be a party" clause of Paragraph 1 (a claim which in itself is an invalid assertion, as it would imply that several federal judges have judicial power over the Department of Justice, Supreme Court, and other entities that one may characterize as "the United States" -- absurd in its own right), such a power would be an exclusive domain of the Supreme Court and not the lower level federal judges. Paragraph 2 of Section 2 states that "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party, the supreme Court shall have original jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction [...]."

First, the lawsuit that resulted in the TRO had two states as parties, so it belongs to the Supreme Court, and not to a federal judge. Second, it would be yet another absurd assertion that the framers wanted cases affecting "Ambassadors, other public Ministers and Consuls" to be the exclusive domain of the Supreme Court, but they willingly allowed the cases affecting the president to be tried by lower level federal judges. So, no matter how you read Section 2, a federal judge has no power over cases affecting the president, and no legalistic sophistry, no matter how clever or convoluted, can change that.

Thus Judge Robart falsely asserted powers that were either not among his enumerated judicial powers at all or were reserved by the Constitution to the Supreme Court. Therefore, his TRO is legally not binding for the president (or anybody else for that matter). And as of today, the ‎9th Circuit Court of Appeals upheld that falsely asserted power, de facto awarding the federal judge authority not vested in him by the U.S.Constitution, never mind that, according to the Constitution, it is the Supreme Court, and not any Circuit Appellate Court, that may have an appellate jurisdiction in cases at this level of the executive branch. And the circle closes: One court usurps powers it is not supposed to have and another court upholds that usurpation without any constitutional authorization from doing so. Can one think of a more blatant example of legalistic sophistry, a.k.a., "legislating from the bench"?

Those who are trying to impose on our country a judicial tyranny of TROs must first prove beyond a reasonable doubt that they have the constitutional authority for doing so. If they don't, the executive branch should just ignore (as opposed to fight them in courts thus giving some validity to judicial usurpation) such attempts as undoubtedly unconstitutional and therefore legally not binding. Because, as one of the characters in the movie "Ronin" once said: "If there is a doubt, there is no doubt." The 10th Amendments implies so.

Mark Andrew Dwyer's recent columns are posted at The Federal Observer. His other commentaries can be found here

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