On immigration EO, Trump should appeal to the Supreme Court

The three-judge panel of the Ninth Circuit affirmed the decision of Judge Robart to grant a TRO to stop Donald Trump's temporary ban on immigration from seven countries deemed a risk.  The question now is whether Trump requests a hearing before a ten-judge, en banc panel of the Ninth Circuit or appeals to the U.S. Supreme Court or accepts the TRO and litigates the matter before Judge Robart.

Trump should immediately request a stay of the TRO from U.S. Supreme Court justice Kennedy, who hears such emergency petitions from the Ninth Circuit.  Trump should also appeal the Ninth Circuit decision to the U.S. Supreme Court.

The strongest argument is that the state of Washington does not have standing to bring a claim on behalf of the residents of the seven countries who are not residents of the USA, no matter how they disguise the issue of standing.  The foreign residents are not covered by the U.S. Constitution.

Further, the president has the sole statutory authority under 8 USC 1182(f) to issue the order at issue:

(f) Suspension of entry or imposition of restrictions by President

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 only role, if any, of the Court is to determine if the president has found that the entry of any aliens would be detrimental to the interests of the United States.  The Court does not have the authority to second-guess why the president made such a finding.  To do so would involve subjecting the president's foreign policy decisions, based on intelligence findings, to the court system of discovery of documents, depositions of witnesses, and testimony in open court about why the decision was made and the basis for the decision.

We would have a situation where CIA agents, State Department agents, and the president would have to testify in court, subject to cross-examination, to satisfy Judge Robart about the merits of the executive order.  Since President Obama made the decision about placing the seven countries under the risk status, then Obama would have to testify, along with his administration officials.

Since there have been numerous suits brought against President Trump to challenge the executive order, it is best to get a final ruling from the Supreme Court on the issues of standing and the authority of the courts to review the executive order made pursuant to Section 1182(f).  This is preferable to litigating these issues in the various district courts, especially the Ninth Circuit. 

Justice Kennedy should grant the Petition for a Stay because otherwise, the litigation before Judge Robart will delve into the merits of the order, which will involve discovery of intelligence findings and sources.

It is absurd to have a foreign policy security issue decided by a court when this authority is specifically delegated solely to the president.

The three-judge panel of the Ninth Circuit affirmed the decision of Judge Robart to grant a TRO to stop Donald Trump's temporary ban on immigration from seven countries deemed a risk.  The question now is whether Trump requests a hearing before a ten-judge, en banc panel of the Ninth Circuit or appeals to the U.S. Supreme Court or accepts the TRO and litigates the matter before Judge Robart.

Trump should immediately request a stay of the TRO from U.S. Supreme Court justice Kennedy, who hears such emergency petitions from the Ninth Circuit.  Trump should also appeal the Ninth Circuit decision to the U.S. Supreme Court.

The strongest argument is that the state of Washington does not have standing to bring a claim on behalf of the residents of the seven countries who are not residents of the USA, no matter how they disguise the issue of standing.  The foreign residents are not covered by the U.S. Constitution.

Further, the president has the sole statutory authority under 8 USC 1182(f) to issue the order at issue:

(f) Suspension of entry or imposition of restrictions by President

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 only role, if any, of the Court is to determine if the president has found that the entry of any aliens would be detrimental to the interests of the United States.  The Court does not have the authority to second-guess why the president made such a finding.  To do so would involve subjecting the president's foreign policy decisions, based on intelligence findings, to the court system of discovery of documents, depositions of witnesses, and testimony in open court about why the decision was made and the basis for the decision.

We would have a situation where CIA agents, State Department agents, and the president would have to testify in court, subject to cross-examination, to satisfy Judge Robart about the merits of the executive order.  Since President Obama made the decision about placing the seven countries under the risk status, then Obama would have to testify, along with his administration officials.

Since there have been numerous suits brought against President Trump to challenge the executive order, it is best to get a final ruling from the Supreme Court on the issues of standing and the authority of the courts to review the executive order made pursuant to Section 1182(f).  This is preferable to litigating these issues in the various district courts, especially the Ninth Circuit. 

Justice Kennedy should grant the Petition for a Stay because otherwise, the litigation before Judge Robart will delve into the merits of the order, which will involve discovery of intelligence findings and sources.

It is absurd to have a foreign policy security issue decided by a court when this authority is specifically delegated solely to the president.