Ruling on Muslim “Ban” is not Political, it is Constitutional

(Ethan Bearman) The United States 9th Circuit Court of Appeals has denied the Trump Administration’s motion to stay the temporary restraining order on President Trump’s Executive Order Travel Ban. The Ban’s full title is “Protecting the Nation from Foreign Terrorist Entry into the United States.

Supporters of President Trump (and the President himself) will attempt to paint the ruling as a purely political decision. Further, some will claim that this ruling means Constitutional rights apply to all people, not just U.S. citizens.

Balderdash.

First, the court clearly defines who receives due process rights based on precedent. They include permanent residents, previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States, and aliens who are in the United States unlawfully (p. 23 ΒΆ 3.) That last one will upset some people but it is precedent from Zadyydas v. Davis.

That first point means the President’s team did a poor job writing the Executive Order, per the court ruling. They could have stopped all visa issuance for those seven countries, but because the order didn’t carve out exceptions for the three categories above, the order didn’t meet Constitutional requirements.

Second, this ruling never even got to the question of national security and the President’s “good cause” ability to circumvent certain rules. It failed before even getting there.

Third, for those who think the Constitution is a static document and exists only in a vacuum as it was originally written, you don’t understand how the law works. We start with the Constitution which is a framework, then the legislature writes laws that extending how our country functions, and then courts hand down rulings determining the validity of those laws while interpreting and applying the facts of cases setting precedent. That is an exceptionally simplistic description of how it works.

So, just because you read the Constitution and think you know exactly what it says, you don’t. Have you read all the U.S. Supreme Court cases that give you an idea of how it all actually works? If not, then you are mistaken.

Fear not, our system works. If you are happy with today’s decision, then it works well. If you are mad about Thursday’s decision, ask President Trump to have his team rewrite the Executive Order so it can withstand the court challenges. And if you don’t like how the system works, vote and ask for change.

But most of all, it is not the end of the world today. Our Constitutional system is reasonably intact while our broken duopoly of a political setup continues to duke it out in Washington D.C.

 

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