In the INA of 1952, Congress delegated some of its power to the President through Section 212(f), which provides: 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.Open and shut case. You might think. But welcome to the judicial coup.
In Section 2(c) of the Order, the President invokes this power along with § 1185(a)10 to suspend for 90 days the entry of nationals from the six designated countries.Guess who gets to decide that.
Section 1182(f) requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States.
This section requires that the President’s findings support the conclusion that entry of all nationals from the six designated countries, all refugees, and refugees in excess of 50,000 would be harmful to the national interest.No, it does not. It certainly does not require that the 9th Circuit make policy in regard to whether bringing Syrians to America is detrimental to the national interest. That's judicial supremacism. The judicial branch does not have the supreme authority to determine policy or national interest.
But here the 9th tries to launch its coup.
There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests. These identified reasons do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.The 9th pretends to be baffled by the intersection of allowing the entry of residents of a terror state and the risk of terrorism.
Section 1182(f) requires that the President exercise his authority only after meeting the precondition of finding that entry of an alien or class of aliens would be detrimental to the interests of the United States. Here, the President has not done so.
The President has done so. The 9th however has announced that it will be in charge of determining national interests and security risks.
And, if you thought the 9th had limited its authority there, nope.
Instead it decided that it has the right to determine how many refugees can be allowed into the country.
Section 6(b) of EO2 restricts entry of refugees to no more than 50,000 in the 2017 fiscal year because entry in excess of 50,000 “would be detrimental to the interests of the United States.” 82 Fed. Reg. at 13216. But in accordance with 8 U.S.C. § 1157, President Obama previously determined that the admission of 110,000 refugees to the United States during fiscal year 2017 was justified by humanitarian concerns or otherwise in the national interest.And the 9th choose to enforce Obama's third term mandate.
And there is not any rationale explaining why the previous target admission of 110,000 refugees this fiscal year was justified by humanitarian concerns or otherwise in the national interest, see 8 U.S.C. § 1157(a)(2), but that the entry of more than 50,000 refugees this same fiscal year would be detrimental to the national interest.I believe that's called democracy. Not a concept that California courts are familiar with.
Here too, the President did not meet the statutory precondition of exercising his authority under § 1182(f) to cap refugee admissions.And so the 9th has appointed itself in charge of reviewing any presidential policy it likes and then determining that his reasons aren't good enough.
Forget the specific issues at stake. This is a direct attack on the separation of powers and the executive branch. If the White House obeys it, a dangerous precedent will be set.
Judicial supremacism has been chipping away at government by the people for over a century. If this coup succeeds, then elected government becomes meaningless. All meaningful authority will be held by the courts. Elections will become a hollow circus. And then America ceases to exist.