News that doesn't receive the necessary attention.

Tuesday, March 28, 2017

13 states join brief in support of Trump's temporary travel ban: US Constitution confers no right of entry to the US for any foreign citizen. 'Power to admit or exclude aliens is a sovereign prerogative,' and aliens seeking admission to the US request a 'privilege.' (1982)

"Nonresident aliens who are in foreign territory clearly not under the sovereign control of the United States do not possess rights under the United States Constitution regarding entry into this country." From the brief, p. 11. Citations, p. 21 

3/27/17, "Texas AG Paxton leads 13-state coalition backing Trump's revised immigration orders," Dallas Morning News, James Barragan, Austi

"Attorney General Ken Paxton on Monday led a coalition of 13 states in filing a brief with the 4th U.S. Circuit Court of Appeals defending President Donald Trump's revised immigration order. In the brief, Paxton and representatives from 12 other states argue that the Trump administration's new order is legal and falls under the president's power over foreign affairs and national security. 

Federal judges in Hawaii and Maryland placed nationwide blocks on the order two weeks ago. The revised order would place a 90-day ban on travelers to the United States from Iran, Libya, Somalia, Sudan, Syria and Yemen. It exempted green card and visa holders in an effort to resolve the reasons that courts blocked Trump's initial ban. It would also block the entry of refugees into the country for 120 days and limit refugee admissions to 50,000 in the fiscal year.

"Rather than leaving national security in limbo while litigation dragged on, President Trump issued a revised immigration order that addresses the 9th Circuit's concerns and is a vital step in securing our borders," Paxton said in a written statement. "It is imperative we find a way to better screen refugee applicants to maintain national security. The president is fulfilling his solemn duty to protect Texans and all Americans." 

Paxton was the first attorney general to file a brief in support of the original immigration order in February after it was blocked by the 9th U.S. Circuit Court of Appeals. The brief filed Monday says the 4th Circuit shouldn't follow that decision, which was "wrongly decided." 

The brief argues that "nonresident aliens" applying to enter the country are not extended constitutional rights. Therefore, Paxton said, the ruling by the federal court in Hawaii, which was based on concerns about religious discrimination is erroneous. 

"For the district court in Hawaii to rule that it's a violation of somebody's constitutional rights -- they are non-resident aliens," Paxton said. "We think it's not the law. It's a made up constitutional right."

The president, the brief says, has discretion over who to allow into the country when it concerns national security and foreign affairs. Because the revised order lays out specific national security concerns, the brief says, it should be allowed to stand.

Opponents say the renewed order doesn't address their concerns about religious discrimination. The six countries in the travel ban are majority Muslim.

The brief says the order does not discriminate against religion because it classifies those seeking entry into the U.S. by nationality, not religion. The president, the brief argues, is allowed to suspend the entry of "all aliens" or "any class of aliens" if their entry would be detrimental to the country.
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Texas is joined in the brief by the attorneys general of Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Montana, Oklahoma, South Carolina, South Dakota and West Virginia, as well as Mississippi Gov. Phil Bryant."

From the brief: 

(page 21): "Plaintiffs’ constitutional challenges rest on the flawed premise that the United States Constitution confers on nonresident foreign citizens, located abroad, rights regarding admission into this country. But it is “clear” that “an unadmitted and nonresident alien” “ha[s] no constitutional right of entry to this country as a nonimmigrant or otherwise.” Mandel, 408 U.S. at 762.

The “power to admit or exclude aliens is a sovereign prerogative, and aliens seeking admission to the United States request a “privilege.” Landon v. Plasencia, 459 U.S. 21, 32 (1982)....

The Executive Order classifies aliens by nationality—not religion. The Executive Order’s temporary pause in entry by nationals from six countries and in the refugee program neither mentions any religion nor depends on whether affected aliens are Muslim. See EO §§ 2, 3, 6. These provisions distinguish among aliens only by nationality. Id. Thus, the Executive Order is emphatically not a “Muslim ban.” Indeed, numerous Muslim-majority countries in the world were not covered by the seven-country list used in the prior Executive Order, 6 and the Pew Research Center estimates that this list from the prior Executive Order “would affect only about 12% of the world’s Muslims.”"

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Added:  3/24/17, "Virginia federal judge rules in favor of Trump's travel ban," LA Times, Jaweed Kaleem

"Unlike federal judges before him, a judge in Virginia on Friday ruled in favor of President Trump’s revised travel ban in a case brought by Muslims who said the president’s executive order illegally discriminated against their religion by restricting travel from six majority-Muslim countries. 

U.S. District Judge Anthony Trenga of the Eastern District Court of Virginia in Alexandria wrote that the plaintiffs, the Council on American-Islamic Relations and other Muslim community leaders from across the country, probably would not prevail in their suit.

Trenga said the travel ban likely “falls within the bounds” of Trump’s authority as president, and he rejected a request to halt the order. 

Trenga’s ruling doesn’t have an immediate effect on the ban, which was put on hold by federal judges in Hawaii and Maryland last week. But it gives ammunition to government lawyers arguing for the ban across several U.S. courts where cases against it are pending.

The Hawaii and Maryland rulings agreed with arguments that the travel ban violated the Constitution by discriminating against Muslims. The judges cited statements by Trump and his campaign associates about restricting Muslim travel to the U.S. as evidence of their intent to single out followers of Islam.

Trenga’s opinion gave less weight to Trump’s statements. It more strictly looked at how the travel ban is worded in light of presidential power over immigration and national security.

The judge highlighted the changes made to narrow the scope of the travel ban after an initial version of the order was struck down by federal courts in January and February. Changes in the new version included omitting Iraq from the list of countries whose travelers would be blocked and removing preferential treatment of refugees who were religious minorities.

The Department of Justice, which is defending the Trump administration in court, hailed Trenga’s move.

“The Department of Justice is pleased with the ruling,” department spokeswoman Sarah Isgur Flores said in a statement. “As the Court correctly explains, the president’s executive order falls well within his authority to safeguard the nation’s security.”

The original travel ban, signed Jan. 27, was halted by federal district courts and the 9th Circuit Court of Appeals. The new ban, signed March 6 and scheduled to go into effect March 16, was modified in an attempt to pass court muster.

The Maryland ruling stopped the revised executive order’s 90-day ban on travel into the U.S. by citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen.

The Hawaii ruling went a step further by also blocking a 120-day pause on refugee resettlement from any country. It also blocked the government’s attempt to cap refugee resettlement and the compiling of a series of government studies and reports on how refugees and foreign visitors to the U.S. are vetted.

Those rulings, as well as the one Friday in Virginia, are not final but temporary decisions on the travel ban as the cases over its constitutionality proceed.

The Department of Justice has appealed the Maryland decision to the U.S. 4th Circuit Court of Appeals but has not appealed in the Hawaii case.

Trump has said he wants to take arguments over the travel ban to the Supreme Court."

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Additional on Virginia Federal Judge ruling: "(Judge) Trenga said only the order itself should be up for review by the courts — not the president's past comments. And since the president does have the authority to halt immigration, he ruled Trump's order should go into effect."

3/24/17, "Virginia court gives Trump his first win on updated travel ban," aol.com, Grant Suneson

"After two federal courts stalled his renewed attempt at a travel ban, President Trump finally has a judge on his side.

Judge Anthony Trenga of Virginia ruled in favor of Trump's plan. The order bars refugees from entering America for 120 days and blocks all people from six Muslim-majority countries for 90 days.

Judges in Maryland and Hawaii wrote that Trump's order didn't seem to be in response to any specific threat. They also noted that since Trump called for a Muslim ban while campaigning, his order violated freedom of religion.

(Judge) Trenga said only the order itself should be up for review by the courts — not the president's past comments. And since the president does have the authority to halt immigration, he ruled Trump's order should go into effect.

This doesn't overturn the previous rulings that froze the executive order. But it does give the Trump administration support in the lower courts and bolsters its case if the travel ban goes to the Supreme Court."





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