posted at 9:21 pm on March 27, 2017 by John Sexton
Representatives from 13 states including 12 state attorneys general and one governor filed a motion in support of President Trump’s temporary travel ban. From the Dallas Morning News:
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.
Those joining the brief included Paxton plus AG’s in the states of Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Montana, Oklahoma, South Carolina, South Dakota, and West Virginia. Governor Phil Bryant of Mississippi also joined.
The brief makes several arguments starting with President Trump’s authority to make decisions about immigration, especially with regard to national security. The brief also argues previous courts have erred in suggesting that non-resident aliens have rights under the U.S. Constitution. From the brief:
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).
Finally, the brief argues that even if nonresident aliens were granted constitutional rights, Trump’s executive order is not unconstitutional because it doesn’t make any reference to religion:
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.”
Judges in Hawaii and Maryland have blocked implementation of the temporary travel ban while its merits are being challenged in court. Last week the Trump administration got a boost when a judge in Virginia ruled the revised travel ban was lawful. Judge Anthony Trenga wrote, “it is no longer likely that plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion.”