The security of a country is the first and most important duty of its government. In advanced democracies, public security is within the exclusive control of the political branches of the government: The legislature legislates on immigration, national defense, security matters, etc., and the executive executes the instructions of the legislature.
In Israel, the legislature is not sovereign to legislate, and the executive lacks actual control to execute the instructions of the legislature. The Supreme Court has seized the government’s power to enforce border controls, and to determine policies on immigration, military matters, national defense, public security, etc.
The dictum of Aharon Barak, President of the Supreme Court of Israel (1995-2006), that “everything is justiciable”, everything is liable to trial, makes nonsense of the rule of law, as well as Israel’s reputation as a democracy. It renders Israel a judicial despotism. The rules of law that Barak’s judicial opinions created have no counterpart in most democracies: that a court can countermand military orders; that a court can decide “whether to prevent the release of a terrorist within the framework of a political ‘package deal’” and direct the government to move the security wall that keeps suicide bombers from entering Israel; that judges can only be removed by other judges; etc. This is what passes for the rule of law in Israel: arbitrary decrees by unelected officials.
In January 2017, Trump issued an executive order calling for extra vetting of certain foreign nationals seeking entry into the U.S. The order temporarily suspends entry by the nationals of seven Muslim-majority countries: Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen (a reissued order excluded Iraq). It is to last for 90 days, while extra vetting procedures are developed. The judges ruled that the travel ban was not about national security, as the order stated, but “significant and unrebutted evidence of religious animus.” By vetoing the travel ban, the judges were orchestrating a judicial coup against the constitutional authority of the president; they should be impeached immediately.
A U.S. immigration law states that the president can by proclamation “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.” Yet the judges ruled against the travel ban based on their own subjective opinion of a president’s supposedly incorrect attitudes and past statements. Intent is neither an element nor a requirement of that law.
The U.S. constitution vests all executive power in the president. Shortly after its adoption, Thomas Jefferson wrote that under the Constitution, “the transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specifically submitted to the Senate. Exceptions are to be construed strictly.” The rare exceptions were such matters as the approval of treaties, which Article II expressly vests in the Senate. There are also Constitutional bases for a congressional role in foreign affairs, such as Congress’s power over international commerce, to declare war, and to establish the qualifications for the naturalization of citizens; however, when Congress legislates in this role, it must do so mindful of what the Supreme Court, in United States v. Curtiss-Wright (1936), described as “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress.”
In international matters, if there is a conflict between a presidential policy and a congressional statute, the president’s policy will take precedence in the absence of some clear constitutional commitment of the subject matter to legislative resolution. In addition to the president’s presumptive supremacy in foreign affairs, there is also a settled doctrine of constitutional law: Where it is possible, congressional statutes should be construed in a manner that avoids constitutional conflicts.
The national security distinction between Trump’s 2017 order and the objective of a 1965 immigration act makes it necessary not to construe them as contradictory, and principles of constitutional interpretation counsel against doing so. A section of that act, codified in Section 1152(a) of Title 8, U.S. Code, states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” The purpose of the anti-discrimination provision was to end the racially and ethnically discriminatory “national origins” immigration practice that favored Western Europe. Trump’s executive order is not about the racial or ethnic composition of the nation or its incoming immigrants. It is an effort to protect national security from a terrorist threat, which Congress has found to have roots in specified Muslim-majority countries.
Another issue is that the order is related to the conduct of foreign affairs – a matter of high importance since it involves foreign threats to national security. If there were conflicts here, the president’s clear constitutional authority to protect the U.S. would take precedence over Congress’s purported authority to limit the president’s denial of entry to foreign nationals; however, there is no conflict.
The U.S. immigration law mentioned above states in full in Section 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.” Section 1182(f) authorizes the president to issue temporary bans on the entry of classes of aliens for national security purposes, without revealing his state of mind, or proving that he does not have animus against them.
This is precisely what Trump did. He cited Section 1182(f), and his executive order mirrored the language of the statute, finding the entry of aliens from these countries at this time “would be detrimental to the interests of the United States.”
Some people theorized that because Section 1182(f) was enacted in 1952, whereas the non-discrimination provision in Section 1152(a) was enacted in 1965, then the latter must be deemed to have amended the former – thus removing the president’s authority to impose class restrictions based on the foreigners’ country of origin. In 1980, despite the 1965 anti-discrimination statute, President Jimmy Carter barred entry by Iranian nationals after the Ayatollah Khomeini revolution led to the American hostage crisis. The discriminatory treatment of Iranians was rooted in anti-terrorism concerns, and was clearly proper. Trump, like Carter, is properly acting on national security concerns.
Trump’s executive order also relies on an Obama-era provision of immigration law, Section 1187(a)(12), which empowers the executive branch to waive the documentation requirements for certain aliens. In the statute, Congress expressly discriminates based on country of origin. Under this provision, Congress provides that an alien is eligible for the waiver only if he or she has not been present (a) in Iraq or Syria any time after March 1, 2011; (b) in any country whose government is designated by the State Department as “repeatedly provid[ing] support for acts of international terrorism;” or (c) in any country that has been designated by the Department of Homeland Security as a country “of concern.”
So, Congress never repealed the president’s statutory power to exclude classes of aliens from entry on national security grounds. Moreover, decades after the 1965 anti-discrimination provision, Congress expressly authorized discrimination on the basis of national origin when concerns over international terrorism are involved. Consequently, by the spurious argument of those that theorized that the latter always amend the former, the 1965 statute must be deemed amended by the much more recent Obama-era statute.
The president has plenary power to decide who may and who may not travel to the U.S. The seven Muslim-majority countries (now six) Trump specified are hotbeds of radical Islam, and pose vetting challenges. The ban has to do with national security, not religion. If he wanted to institute a travel ban against Muslims, he would have included the countries in which more than 85 percent of Muslims live. The U.S. judges are carrying out a judicial coup, having decided that the judiciary, not the executive branch, is in charge of immigration, international relations, national security, etc.
Beginning with the Chinese exclusion case of 1889, the Supreme Court has made it clear that “the power of exclusion of foreigners” belongs to the political branches of government: Congress and the president; not to the judiciary. Since then, the president’s authority to exclude foreigners in the public interest has been reaffirmed in various cases, including: INS. v. Aguirre-Aguirre (1999), “(J)udicial deference to the Executive Branch is especially appropriate in the immigration context where officials ‘exercise especially sensitive political functions that implicate questions of foreign relations;’” and United States v. Valenzuela-Bernal (1982), “The power to regulate immigration -- an attribute of sovereignty essential to the preservation of any nation -- has been entrusted by the Constitution to the political branches of the Federal Government.”
Law should govern a nation, as opposed to arbitrary decisions of individual government officials. Since power tends to corrupt, democracies limit the powers of elected officials. The most important limit on their power is their need to stand for election on a regular basis. Voters can replace an elected official with another if an incumbent fails to meet their expectations.
Power also corrupts appointed officials just as much as it corrupts elected ones; however, voters have no similar authority over unelected officials who fail them. The public did not appoint them, and they owe it no account for their behavior.
The Knesset should determine the matters that courts are empowered to consider, and the disputes that they have the authority to resolve. They should not be policy upon vital matters affecting the nation, such that by their nature should be decided by the political (legislative and executive) branches of the government: defense matters, foreign policy, immigration, governmental spending, public security, the making of treaty, the making of war, etc.
Congress should impeach the despotic judges that are appropriating the powers of the commander-in-chief, and overriding the decisions of Congress and the president pertaining to immigration, national defense and public security.
In April 2017, Neil Gorsuch was confirmed as the ninth Supreme Court justice, filling the seat left vacant after the death of Justice Antonin Scalia. The Supreme Court should overturn the judges’ rulings against legally framed executive order, and return national security, a vital government policy affecting the whole people, to elected officials. As Abraham Lincoln stated, “if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.” In a democracy, key officials stand for election at relatively short intervals and thus are accountable to the people. A judiciary that is free to override the decisions of those officials is anti-democratic and despotic.
Dr. Sheyin-Stevens is a Registered Patent Attorney based in Florida, USA. He earned his Doctorate in Law from the University of Miami.