TITAN vs. TITAN: President Trump and the Federal Courts Face Off Over His Temporary Travel Ban | Eastern North Carolina Now

    It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers -- and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies -- we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders -- as inevitably it must -- determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot -- by availing ourselves of the calm perspective of hindsight -- now say that, at that time, these actions were unjustified.

    Justice Felix Frankfurter concurred in the opinion. He wrote: The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is "the power to wage war successfully." Hirabayashi v. United States. Therefore, the validity of action under the war power must be judged wholly in the context of war.

    The Korematsu decision has not been overturned. It is still good precedent.

    While there are some who think Korematsu was a bad decision, Supreme Court great William Rehnquist thinks differently. In his 1998 book All the Laws But One - Civil Liberties in Wartime, he wrote: "An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors."

    V. Kerry v. Din (2015) --

    The Kerry v. Din case is a recent case which speaks to the rights that foreign nationals are entitled to with respect to coming to the United States, and particularly when they come from a country that has a history of terrorism. If a person believes he or she has a right to something, such as "Life, Liberty, or Property," then a violation of such, including imprisonment, confiscation, condemnation, a denial of an essential liberty right, triggers Due Process rights (that is, a process to challenge that denial under our constitution). When Due Process is violated, then there is potential Due Process violation, challengeable under the 5th amendment or 14th amendment (depending whether the denial is by the federal government or the state, respectively). In Kerry, the Supreme Court held: "No Due Process is owed when these interests are not at stake." A foreign national (non-US citizen, not living in the US) is not entitled to a Due Process challenge because he has no rights that are respected by the US Constitution. Furthermore, he has no standing to bring suit in the United States for such a violation.

    The case concerns a US citizen who married a citizen and resident of Afghanistan (that is, citizen of the latter). Fauzia Din, who is a United States citizen, filed a visa petition for her husband Kanishka Berashk, a citizen and resident of Afghanistan. She wanted to bring him to the United States. Nine months later, the State Department denied the petition based on a broad provision of the Immigration and Nationality Act that excludes aliens on terrorism-related grounds. Berashk asked for clarification of the visa denial and was told that it is not possible for the Embassy to provide him with a detailed explanation of the reasons for denial.

    After several other unsuccessful attempts to receive explanation of the visa denial, Din sued and argued that denying notice for aliens who were not granted a visa based on terrorism grounds is unconstitutional. The federal district court held that Din did not have standing to challenge the visa denial notice. The US Court of Appeals for the Ninth Circuit reversed and held that the government is required to give notice of reasons for visa denial based on terrorism grounds. The Ninth Circuit held two things: (1) that a U.S. citizen has a protected liberty interest in her marriage that entitled her to review of the denial of a visa to her non-U.S.-citizen spouse, and (2) that the US government deprived her of that liberty interest when it denied the spouse's visa application without providing a more detailed explanation of its reasons.

    The case was appealed to the Supreme Court in 2013 and was decided in 2015. The question presented was this: "Is the government required to give a detailed explanation for denying an alien's visa based on terrorism-related ground under the Immigration and Nationality Act?"

    In a 5-4 decision for Kerry, delivered by the late Justice Antonin Scalia, the Supreme Court held that Mrs. Din was not deprived of any constitutional rights in the due process of law by denying a full explanation of why an alien's visa was denied. The Due Process Clause of the Fifth Amendment states that no citizen may be deprived of "life, liberty, or property" without due process, but judicial precedent has held that no due process is owed when these interests are not at stake. Because none of these interests are implicated in the denial of a nonresident alien's visa application, there is no denial of due process when the visa application is rejected without explanation. Although "liberty" has been construed to refer to fundamental rights, there is no precedent that supports the contention that the right to live with one's spouse is such a fundamental right.

    The Court agreed with Secretary John Kerry (State Department) that the U.S. has never recognized a liberty interest in having a citizen's alien spouse admitted to the U.S, and that Congress has plenary power to deny admission. As Scalia wrote: "Neither Din's right to live with her spouse nor her right to live within this country is implicated here. There is a "simple distinction between government action that directly affects a citizen's legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally." The Government has not refused to recognize Din's marriage to Berashk, and Din remains free to live with her husband anywhere in the world that both individuals are permitted to reside. And the Government has not expelled Din from the country. It has simply determined that Kanishka Berashk engaged in terrorist activities within the meaning of the Immigration and Nationality Act, and has therefore denied him admission into the country."

    The Court further analyzed whether procedural due process requires consular officials to give notice of reasons for denying a visa application. In Justice Anthony Kennedy's concurring opinion, he wrote: "Notice requirements do not apply when, as in this case, a visa application is denied due to terrorism or national security concerns." Because the consular officials satisfied notice requirements, there was no need for the Court to address the constitutional question about the right to live with one's spouse. Furthermore, Kennedy reasoned that because the decision was made based on a "facially legitimate and bona fide reason," the courts need not look any further, especially when national security is involved. He wrote that notice requirements "do not apply when, as in this case, a visa application is denied due to terrorism or national security concerns."

    VI. No Discrimination -

    The Left and the media has been misrepresenting President Trump's Executive Order on immigration and refugee admission as a "Muslim ban" - or, more cleverly, a ban on immigration from "Muslim-majority countries." In truth, the ban applies to everyone from the countries of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen - Muslim, Christian, whatever. In fact, one of the first families caught at the airport when the executive order went into effect was a Christian family from Syria.

    These seven nations were not chosen at random. They were all singled out as exceptional security risks in the Terrorist Prevention Act of 2015 and its 2016 extension. In fact, President Trump's order does not even name the seven countries. It merely refers to the sections of U.S. Code that were changed by the Terrorist Prevention Act, signed by President Obama in 2015 and then extended in 2016.

    The list of seven nations which was compiled by Obama's Department of Homeland Security, actually goes back to Obama's first term, around 2011. Obama made this list, not Donald Trump, and there was very little resistance from congressional Democrats at any step in the process singling out these countries for the potential danger they pose (or for the inability to provide adequate information on their citizens). And that speaks volumes. There was no resistance because the list was perfectly sensible.

    Again, on its face, the Executive Order is neutral. Only the Left reads discrimination into it. Only the Left puts the concerns and rights of non-citizens above those of citizens.

    But even if the travel ban were discriminatory, the Supreme Court, in Korematsu, explained how we assess its constitutionality or lack thereof. Justice Black wrote: "It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can." In other words, the burden on civil liberties is to be balanced with the public necessity. The burden may also be balanced with the severity of the threat to national security. In short, we have to ensure that government strikes the proper balance between liberty and security, with the greater weight placed properly. A nation devoted to the liberties of its citizens can only live up to those promises as long as it continues to exist. If the nation is cannibalized by the very freedoms that it seeks to protect so that its very existence is threatened, then no one's rights are secure. Liberty no longer has a safe haven.

    If we were to balance the burden on civil liberties by the burden placed on non-citizens (who arguably have no entitlement or right to come here to the United States), in the balancing test outlined by the Supreme Court (aka, "strict scrutiny"), we would need to balance that burden by the need to protect our country and its citizens from the violent attacks that are occurring, and occurring at a greatly increased frequency, by persons of one particular religious sect (or ideology). By all accounts, those seeking to do harm to us ("Death to America!") will seek to slip into the country through the refugee and relocation programs. We then need to evaluate that burden and ask if it is reasonable and whether there are other less burdensome policies to achieve the same result. Is a 90-day temporary ban reasonable? Is it reasonable to require those seven countries listed in the Executive Order to comply with a request from our State Department and Homeland Security Department to provide reliable and verifiable information on its nationals so that the United States can properly assess and vet these individuals for entry into our cities and communities?

    We are not talking about the issue of whether non-citizens living in the United States should be recognized with similar rights as citizens (minus the right to vote and hold office). We are talking about the right to come here in the first place. The "right" of a foreigner to come here necessarily burdens the right of the government to control immigration and set policy for national security.

    VII. No Right to Come Here --

    It is settled jurisprudence that an unadmitted, non-resident alien has no right of entry into the United States and cannot challenge his denial of his visa application. In other words, he has no protections under our Constitution and no right to use it for purposes to sue. Simply put, he has no standing. [Kleindienst v. Mandel, 408 U.S. 753, cited on pg. 762 (1972)]

    The decision of the Supreme Court in Kleindienst was delivered by Justice Harry Blackmun. In that decision, the Court noted Congress' longstanding power to exclude aliens from the United States, and to set the terms and conditions of their entry. Through the Immigration and Nationality Act, Congress legitimately delegated to the executive the authority to waive a finding of inadmissibility. He described the historical pattern of increasing federal control on the admissibility of aliens, particularly regarding individuals with Communist affiliation or views. Justice Blackmun held that the Court would not intervene so long as the executive used its waiver power on the basis of a facially legitimate and bona fide reason. "In the exercise of Congress' plenary power to exclude aliens or prescribe the conditions for their entry into this country, Congress in § 212(a)(28) of the Act has delegated conditional exercise of this power to the Executive Branch. When, as in this case, the Attorney General decides for a legitimate and bona fide reason not to waive the statutory exclusion of an alien, courts will not look behind his decision or weigh it against the First Amendment interests of those who would personally communicate with the alien." At pp. 761-770.].

    VIII. Standing -

    The states of Washington and Minnesota alleged that it had standing to challenge the validity of President Trump's Executive Order, claiming it would suffer irreparable injury. It alleged that the order was directed at the Muslim religion, that there have been no terrorist attacks in the United States from any persons from the countries listed in the ban which would make the religious targeting unconstitutional, and that to block Muslims from entering Washington would cause it irreparable injury. To be clear, the focus of the states' legal challenge was the way the president's Executive Order targeted Islam.

    Michelle Bennett, lawyer for the federal government, criticized the judge's issuing the TRO, claiming the states of Washington and Minnesota lack standing. She argues that the states can't sue on behalf of citizens and the states and also questions the rationale for their particular claim that the ban would cause irreparable injury

    What is "standing"?

    "Standing" is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. In law, "standing" is the legal right to bring a lawsuit to court. Usually, it requires that the plaintiff, or the person who brings the case, has either been affected by the events in the case or will be imminently affected or harmed if the court does not address the problem. Standing is also affected by state or federal laws that apply to the events in the case, since some laws do not allow injured plaintiffs to sue certain defendants even if the plaintiff can demonstrate that she was injured by the defendant's actions.

    A plaintiff usually demonstrates that she has standing by including the following elements in her Complaint, which is the document that opens a lawsuit in court and gives the defendant some idea of what he's being sued for. In order to show standing, most courts require the plaintiff to mention the following three things in the Complaint:

    (i) Injury: The plaintiff must show either that she has been injured in a particular way or will be injured in a particular way if the court does not act to prevent it (this is the basis of many requests for injunctions). The injury can be physical, mental/emotional, financial, or an injury to one of the plaintiff's civil rights, as long as it is a specific injury.

    (ii) Causation: The plaintiff must show there's some connection between the injury and the defendant's actions or planned actions. In a Complaint, causation is usually shown by a single sentence linking the defendant's acts to the plaintiff's injury. Complicated questions involving cause in fact or proximate cause are usually saved for trial.

    (iii) Addressability: The situation has to be one the court can fix in some way, whether it's by issuing an injunction, ordering the defendant to pay damages, or by some other particular method.

    In order to keep lawsuits focused on a plaintiff who was actually injured and a defendant who may be responsible, U.S. courts have, over the years, limited the kinds of cases a plaintiff has standing to bring.

    Currently, a plaintiff does not have standing if any of the following are true:

    (i) The plaintiff is a third party who was not injured herself, but is suing on behalf of someone who was injured. Exceptions to this rule include parents who sue on behalf of their injured children and legally-appointed guardians who sue on behalf of their wards. Courts have also allowed organizations to sue on behalf of their members in a few cases where it was obvious that all the members faced the same injury.

    (ii) The plaintiff tries to sue on behalf of some large, unidentified group who may or may not be injured. Often called "taxpayer standing," this rule prevents cases in which one plaintiff attempts to sue the government on the grounds that the plaintiff, a taxpayer, doesn't like what the government is doing with tax revenues. So far, the only exception to this rule has been certain cases brought under the First Amendment Establishment Clause to prevent the government from funneling taxpayer dollars to particular religious institutions.