The law is very clear that the president has the power to exclude any person or group of people from entering the United States and the Supreme Court was right to rule in his favor, according to a former high-ranking Immigration and Naturalization Service official.
On Monday, the U.S. Supreme Court rejected appellate court decisions striking down President Trump’s executive order that calls for a 90-day travel ban from six nations with significant terrorism problems. The justices lifted some of the injunctions against the executive order and agreed to hear oral arguments on other components later this year.
Temple University School of Law Professor Jan C. Ting served as assistant director of the Immigration and Naturalization Service at the Justice Department during the George W. Bush administration. He says the Supreme Court’s stark reversal from the lower court decisions is striking.
“The unanimity of the high court was surprising. Even the liberal wing of the court concurred in the judgment that the positions of the lower courts in striking down the ban were overly broad,” said Ting.
He fully expects the court to rule in Trump’s favor on the outstanding issues as well given what Justice Clarence Thomas wrote in a separate opinion that both concurred and dissented from the majority opinion.
“It seemed like the travel ban was very likely to be affirmed by the high court on the merits when the high court gets to that point, and I think that’s reflected in the unanimous decision of the high court to push back on the lower court injunctions,” said Ting.
Ting has weighed in at various points of the travel ban debate, pointing out that Trump’s first version was perfectly legal based on existing U.S. statute, specifically 8 USC 1182(f).
“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 statute reads in part.
Ting says that makes this fierce political battle an open and shut case.
“The law is very clear. The president has the authority to exclude any alien from the United States for any reason and for any period of time the president chooses. That is unmistakably clear,” said Ting, noting the ruling is a rebuke to lower courts straining for reasons to block the order.
“The role of the courts is and ought to be very limited. These are political questions, whether people should be excluded from the United States. The political branches of government, the Congress and president together, should be making these decisions,” said Ting.
Critics often call the executive order a Muslim ban and cite first amendment concern. Ting says that argument simply doesn’t hold up.
“I think it’s pretty clear that there’s not a religious issue there. I mean anyone who reads the first amendment can see that we’re not establishing a religion in a travel ban,” said Ting.
Furthermore, he asserts that non-citizens in other countries don’t have constitutional rights.
“The notion that people who are outside the United States who are not citizens have some rights that they can assert under our Constitution is, I think, an erroneous claim. Those issues will all be decided when the high court rules on the merits,” said Ting.
“It would be startling if people outside the United States had some constitutional right either to come to the United States or, frankly, whether they could assert any constitutional rights while as non-citizens outside the United States,” said Ting.
“We think the United States is an exceptional country, but our Constitution is not so great that it governs people all over the world who are not citizens,” he added.
In it’s decision, the Supreme Court allows people to travel to the U.S. from the six nations listed in the executive order only if there is a clear connection for them in this country, ranging from a new job to admission to a college or university or if they have close family in the U.S.
Alternatively, the ban remains firmly in place for those without such connections.
Ting finds the distinction unhelpful.
“I’m with the three dissenters (Thomas, Neil Gorsuch, and Samuel Alito), who say this is going to give rise to a lot of unnecessary litigation before we get to the merits. It’s really not necessary. Since it’s going to be overturned anyway, why don’t we just restore it in the interim?” said Ting.
He says the answer to that can probably be found in in the man who leads the high court.
“I think we see the hand of Chief Justice Roberts here. He’s trying to preserve the dignity of the court and he would like to have unanimous opinions,” said Ting. “He negotiated this compromise just to get everyone on board so the Supreme Court could speak with one voice, heightening the respect of the high court and its decisions.”