Octavious wrote:Ya he's been killing it so far with the courts.
Sounds like he's going to release the wiretapping evidence right after he's out of the routine audit process.
How well he has been doing or not isn't relevant. The law and precedent is pretty clear.
http://www.politico.com/f/?id=0000015a- ... d7f9b30000
The Executive Order of January 27, 2017, suspending the entry of certain
aliens, was authorized by statute, and presidents have frequently exercised that
authority through executive orders and presidential proclamations. Whatever we,
as individuals, may feel about the President or the Executive Order,1
the
President’s decision was well within the powers of the presidency, and “[t]he
wisdom of the policy choices made by [the President] is not a matter for our
consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).
This is not to say that presidential immigration policy concerning the entry of
aliens at the border is immune from judicial review, only that our review is limited
by Kleindienst v. Mandel, 408 U.S. 753 (1972)—and the panel held that limitation
inapplicable. I dissent from our failure to correct the panel’s manifest error.
I
In this section I provide background on the source of Congress’s and the
President’s authority to exclude aliens, the Executive Order at issue here, and the
proceedings in this case. The informed reader may proceed directly to Part II.
A
“The exclusion of aliens is a fundamental act of sovereignty.” United States
ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); see also Landon v.
Plasencia, 459 U.S. 21, 32 (1982). Congress has the principal power to control the
nation’s borders, a power that follows naturally from its power “[t]o establish an
uniform rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4, and from its authority
to “regulate Commerce with foreign Nations,” id. art. I, § 8, cl. 3, and to “declare
War,” id. art. I, § 8, cl. 11. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414
(2003); Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952) (“[A]ny policy
toward aliens is vitally and intricately interwoven with contemporaneous policies
in regard to the conduct of foreign relations [and] the war power . . . .”). The
2
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President likewise has some constitutional claim to regulate the entry of aliens into
the United States. “Although the source of the President’s power to act in foreign
affairs does not enjoy any textual detail, the historical gloss on the ‘executive
Power’ vested in Article II of the Constitution has recognized the President’s ‘vast
share of responsibility for the conduct of our foreign relations.’” Garamendi, 539
U.S. at 414 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
610–11 (1952) (Frankfurter, J., concurring)). The foreign policy powers of the
presidency derive from the President’s role as “Commander in Chief,” U.S. Const.
art. II, § 2, cl. 1, his right to “receive Ambassadors and other public Ministers,” id.
art. II, § 3, and his general duty to “take Care that the Laws be faithfully executed,”
id. See Garamendi, 539 U.S. at 414. The “power of exclusion of aliens is also
inherent in the executive.” Knauff, 338 U.S. at 543.
In the Immigration and Nationality Act of 1952, Congress exercised its
authority to prescribe the terms on which aliens may be admitted to the United
States, the conditions on which they may remain within our borders, and the
requirements for becoming naturalized U.S. citizens. 8 U.S.C. § 1101 et seq.
Congress also delegated authority to the President to suspend the entry of “any
class of aliens” as he deems appropriate:
Whenever the President finds that the entry of any aliens or of any
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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.
Thens Part II really shreds.
It is
indeed an “uncontroversial principle” that courts must defer to the political
judgment of the President and Congress in matters of immigration policy. The
Supreme Court has said so, plainly and often. See, e.g., Mathews v. Diaz, 426 U.S.
67, 81 (1976) (“[T]he responsibility for regulating the relationship between the
United States and our alien visitors has been committed to the political branches of
the Federal Government.”); Harisiades, 342 U.S. at 590 (“[N]othing in the
structure of our Government or the text of our Constitution would warrant judicial
review by standards which would require us to equate our political judgment with
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that of Congress.”); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210
(1953) (“Courts have long recognized the power to expel or exclude aliens as a
fundamental sovereign attribute exercised by the Government’s political
departments largely immune from judicial control.”); Henderson v. Mayor of N.Y.,
92 U.S. (2 Otto) 259, 270–71 (1876). On the other hand, it seems equally
fundamental that the judicial branch is a critical backstop to defend the rights of
individuals against the excesses of the political branches. See INS v. Chadha, 462
U.S. 919, 941 (1983) (reviewing Congress’s use of power over aliens to ensure that
“the exercise of that authority does not offend some other constitutional
restriction” (quoting Buckley v. Valeo, 424 U.S. 1, 132 (1976))).
I'd suggest reading the entire thing. A real page turner.
