Trump could channel famous tough-guy president for travel ban

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andrew-jackson

Because there is a conflict in district court rulings on his temporary travel restriction, President Trump could go ahead and implement it, some constitutional scholars believe.

The Trump administration Friday afternoon filed for an appeal of a Maryland federal judge’s ruling that the revised ban violates the First Amendment by disfavoring a particular religion. The case goes to the U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia.

But a federal judge in Boston approved the original order, noted attorney Robert Barnes in an interview with XM Sirius radio’s Breitbart Daily News.

Barnes, arguing the Constitution and federal law give the president the authority to restrict entry to the country, said Trump could “always do a true Andrew Jackson,” the last president to challenge a court “usurping authority they did not have.”

Jackson’s response to the Supreme Court, in that instance, was: “Well, they’ve issued their decision; now, they can enforce it.”

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But Barnes noted Trump can argue that because the federal court in Boston approved Trump’s Jan. 27 ban in a detailed 21-page order, “the president would be in his legal rights to say: ‘There’s a conflict between the courts. Until the Supreme Court addresses this, I’m going to do what’s appropriate to keep the country safe.’”

Barnes acknowledged the media backlash that would ensue, but he noted that Harvard Professor Alan Dershowitz made that argument when the Ninth Circuit upheld a block on the original order by a federal judge in Seattle.

A Hawaii judge also put a temporary block on Trump’s revised ban, but an appeal of that case would have gone to the same San Francisco-based appeals court that rejected the original version of the ban.

Barnes pointed out that the Hawaii judge issued a nationwide injunction against Trump’s order.

“His basis for doing so was an extraordinary interpretation of the right to travel and the freedom of association, which before, has only been associated with U.S. citizens,” Barnes told Breitbart Daily News.

“Every court decision in the 200 years prior to this has said that people who are not citizens of the United States, who are not present within the United States, have no First Amendment constitutional rights.”

He explained the Constitution “doesn’t extend internationally to anybody, anywhere, anyplace, at any time.”

The case was brought on behalf of Hawaii’s leading Muslim imam, who wants to bring over family and friends from Syria.

Trump’s new order bars issuing visas to travelers from Syria and five other Muslim-majority countries for 90 days and suspends the entire U.S. refugee program for 120 days. It also caps the total number of refugees admitted this fiscal year at 50,000, instead of 110,000.

Hawaii contends Trump’s order treats Muslims in the state as “second class” citizens, in violation of the U.S. Constitution and the Immigration and Nationality Act. The state’s petition cites comments by Trump and his surrogates during the campaign to argue that the temporary ban is motivated by animus toward Muslims, violating constitutional guarantees of religious freedom and equal protection of the laws.

The Hawaii judge, Barnes noted, ruled the imam has a First Amendment constitutional right to oppose Trump’s ban because he’s Muslim.

“It was one of the most extraordinary interpretations of the Establishment Clause of the First Amendment ever given, which is that because these are Muslim countries that were banned, where the issue of terror arises from, that that meant they had a special right to … visit the [United States],” he said.

Barnes pointed out that the judge did not cite any prior decision.

Barnes argued the U.S. Supreme Court, in its Din decision last year, implicitly ruled the right to association does not include a right to bring foreigners into the United States.

“When you have law professors like Jonathan Turley or Alan Dershowitz or Jeffrey Toobin saying that the prior Ninth Circuit decision – which did not go as far as this case did, as the Hawaii judge did – saying it basically is bad law, then you know how bad the law actually is,” Barnes said.

‘Reasonable restrictions’

WND reported last week that if the administration continues to be thwarted by federal courts, it could implement an alternative security measure that would be authorized by the statute cited in the president’s executive order, according to a prominent Georgetown University professor.

John Banzhaf noted in an interview with WND that Germany’s cabinet last month approved a measure allowing GPS ankle tracking devices for individuals who are suspected of posing a terrorist threat but haven’t been charged or convicted.

Banzhaf pointed out the U.S. law cited in the Trump order, 8 USC 1182(f), gives the president the authority to “impose on the entry of aliens any restrictions he may deem to be appropriate.”

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If the federal-court block on the travel ban continues or the Trump administration loses the case, Banzhaf said, “I think they would do well to consider the second part of that article, which permits the president to put any reasonable restrictions on which he wishes.”

It’s the first part of the statute, he said, that gives the president the authority to ban certain travelers.

“It says that he can make an order based upon class of person. And I think any reasonable reading of that doesn’t mean he’s going to differentiate based upon tall people or short people or whether they have long noses or short noses,” Banzhof explained.

“When you say class, you’re talking about ethnicity, you’re talking about religion, you’re talking about country of origin,” he said.

The statute reads:

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.

“Trump is telling us,” the Georgetown professor said, “that based upon the very weak governmental structure, bordering on chaos, in many of these countries, it is virtually impossible to reasonably vet them, to be able to say beyond any reasonable suspicion these are not, in his words, ‘bad dudes.’”

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