Posted by: Floyd J Fernandez, J.D. | June 16, 2017

U.S. v. Trump, A Critical Analysis

The intelligence that went behind the decision on May 25th by the U.S. 4th Circuit Court of Appeals, in Richmond, Virginia, upholding a trial judge’s order of an injunction against President Donald Trump’s executive order placing a temporary ban on travel to the U.S. from six countries, is a puzzling thing of wonderment to me.

First of all, and worst of all, is the decision by the Court’s 10-3 majority to refuse to follow a basic principle of law that is employed every single time a court reviews the interpretation and the language of a legal document.  The thing you do first is look at the clear meaning of the document, within the four corners of that document.  The second thing you do, is you look at the orders and statements of the executive, and especially, if it involves an administrative agencies’ regulatory rule or order, is to look at their announcement, and how it is likely to be implemented, to catch what the agency’s interpretation is going to be, in order to save the particular law.

The last thing you do is look at a politician’s campaign speeches in a previous election.  There isn’t a political leader alive that hasn’t had to walk back statements he made to get elected, once he gets elected and into the office he holds.  But alas, a different world was, and is, around now.  In effect, it did not matter what, once he was President, he may have done to instruct his department secretaries at DOS, DHS, DOL, and elsewhere to do.  It did not matter how he may have ordered his staff, on advice of his attorneys, to walk away from campaign rhetoric and craft his policy and regulatory rules to fit within constitutional and statutory law.  It did not matter how well the policy is justified with historical record.  All that mattered is that at one time Donald Trump said he wanted a ban on Muslims traveling to the U.S.A until they can be properly vetted.  From then on, his orders are racist, sexist, anti-Muslim, anti-gay and worst of all, pro-Christian, and as such are illegal.  He cannot ever give an order to a janitor to take out the trash, for that is racist.

As far as the 4th Circuit is concerned, stopping the movement of individuals who include those who, in the name of their religion, have spread death and horror already in France, Belgium, Sweden, Germany, and Italy, and who come from nations who are either supporting terrorism, or whose governments have virtually collapsed, is a violation of the Establishment Clause of the 1st Amendment of the Constitution, as long as the one ordering it is DONALD TRUMP!  That is not jurisprudence, that is unadulterated bigotry against patriots.  And the logic fails on multiplied fronts, but I will point out a few.

One, the 4th Circuit totally ignored a fundamental fact, the provisions within the INA that do not allow for denied visas based upon religion, race or national origin, are absolutely not applicable to nations which are verified to either be nations supporting terrorism or failed states.  In no proceeding so far addressing the travel ban orders by President Trump, has a single consideration been made to the fact that the countries involved are of the nature of either category.  The 4th Circuit majority simply said that no one from any of the six countries subject to the ban had committed a terrorist act, therefore President Trump has no case for national security as a reason for the temporary ban.  That is simply unbelievable, for it has been well-established that ISIS has been a powerful presence in Syria, Somalia, Libya, Sudan, and Iran in Syria, and Yemen, through Hezbollah, and Iran as an entity itself, has spread terrorism and murder, including against Americans.  We should not have to wait until a Yemeni or a Syrian opens up a suicide vest in an American shopping mall to decide that the country’s citizens need extreme vetting.

But the lead judge of the 4th Circuit forgot how to review facts, he wasn’t there when they said that, the day they taught law at law school.  He was too busy reading ‘Das Kapital’, I suppose.

Second, the notion that using previous campaign rhetoric, or a layman-politician’s imprecise language, overrides the clear language of that politician’s legal counsel, or his army of cabinet officials and bureaucrats and lawyers, all preparing the language of that executive order, reviewing it, vetting it, consulting, writing and rewriting it….and for what!? To make sure it is in compliance with THE LAW—that means NOTHING to this collection of “circuit judges”.  The fact is, all they cared about was the President was Donald Trump!  Clean language does not describe what should be said about such pathetic legal writing.

The Ninth Circuit does make more of a challenging opinion in its invalidating of the March 6, 2017 Executive Order by President Trump.  They eschewed limiting their findings to a constitutional issue under the Establishment Clause, and resorted to a sound move to interpreting the President’s actions in light of the most relevant provisions of the Immigration & Nationality Act, 8 U.S.C. Sec. 1182(f), 1185(a)(1), and 1152(a)(1)(B).  In short, they used respected principles of judicial construction to try to cut off the most vulnerable of the previous court holdings against Pres. Trump.  They went to statutory law to determine whether the acts of ceasing the grant of visas to the people coming from these 6 nations and limiting the number of individuals coming with refugee/asylum visas were properly applied.  They decided that Pres. Trump could not limit the number of refugees in the middle of the fiscal year from 110,000 to 50,000, that the determination of a national security risk as the basis of the temporary ban was misapplied, and that no such need for “extreme vetting” was demonstrated.

The truth is that the limitation on the numbers was not by regulatory law, but by Presidential executive order (in the fall of 2016).  That EO was not in force once Barack Obama left the White House in January 2017.  Therefore, the 110,000 figure could be set aside by a new order by a new President.  The notion that “extreme vetting” was unnecessary was both incredibly silly in light of the complete chaos in the refugee camps of those fleeing Syria, Libya and Yemen, as well as Somalia and Sudan.  The determination, I would add, that national security has no evidence of any threat by individuals from those countries has been completely ignorant, by the judges, and in the poor arguments of counsel by the government.  To limit threats only to those within the USA to find a security issue is naivete in the extreme, especially in the light of trucks running down children in Nice, or Berlin, or bombs used on weary travelers in Brussels, or children at a rock concert in Manchester.  These countries are nations that are our allies, our fellow members of NATO.  If they are under threat there, then we are so threatened here.

It is obvious that judges have already pre-judged the result, and are simply wanting to confirm them.  So, we are going to have to fight hypocrisy and dishonesty in the judiciary….again.


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