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Trump’s Travel Ban E.O.-Why Both Sides May Be Right

The last paragraph in Section 1 of the EO says:

In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

With the inclusion of “[gender, (brackets mine)] or sexual orientation”, faithful Christian immigrants can be denied entry into the U.S under his EO as well. Trump is advancing the LGBTQ Agenda under the guise of national security.

This is no mistake, Trump has been a life-long advocate of homosexual rights who campaigned on doing this. In a major speech on 8/15/2016 concerning immigration, Trump proposed testing the attitudes of would-be immigrants on religious freedom, gender equality, and homosexual rights.

Religious liberty and homosexual “rights” are contrary to each other, you can’t be for both. In other words, you can’t serve two masters…

So on that account, Christians and conservatives need to demand this detrimental EO be rewritten before defending it tooth and nail.

This isn’t as much an Executive Order as it is a bad Executive Opinion. I demand that “or sexual orientation” be replaced with “or sex”. Period.

The astute observation cited above is taken from a comment posted by Cousin_Ken The Blue Tail Gadfly in response to a WND article by Bob Unruh on with the headline “It’s a Coup D’Etat by 9th Circuit”.  In the article, Mr. Unruh suggests that arresting the judges is the proper response to the ruling on President Trump’s executive order, in which he evokes national security concerns as grounds for banning entry into the United States by people from certain countries.

Mr. Unruh correctly cites an argument based on statutory law as the basis for his criticism of the Court’s decisions to suspend the implementation of the executive order; until the Court can hear and rule on appeals brought against it by officials from several States of the Union.  Mr. Unruh accepts the view asserted in the argument he cites, that the existence of the statute gives the President all necessary authority to proceed with the action he has taken.

But beyond statutory authority, the Federal Judiciary has to take account of the Constitution of the United States, which includes a range of provisions that must be respected by the U.S. government as a whole.  In their angry reaction against the Circuit Court’s action, many people simply disregard the fact that the Federal Judiciary is bound to consider the question of whether the statute violates any of those provisions.  This should be of concern to every person subject to the jurisdiction of the United States, since most of those provisions aim to guarantee their freedoms, liberties, rights, and equality under the law will be duly observed in all government actions.

Take, for example the 5th Amendment to the Constitution. It says that “No person shall…be deprived of life, liberty, or property, without due process of law.”  The President’s executive order applied to some persons already in possession of a valid entry vise properly issued by the United States.  This their possession, entitled them to enter the United States so long as they were otherwise in conformity with the legal requirements for doing so, requirements publicized and notified to them in advance of their travel.  In light of these requirements, they may have to make certain preparations, in addition to what they must do to carry on their business or other activities in the United States, including travel.

These preparations may involve expenditures, and the investment of time and work, more or less burdensome to individuals depending on their means and circumstances.  The sudden withdrawal of the entry permission they counted on may involve more or less substantial losses to the persons who counted on that permission, and to persons (including corporate persons) in the United States counting on their presence.  Taken all in all, these considerations raise the possibility that, whatever its statutory basis, the executive order adversely affected their liberty and property, without affording them, or the American persons the order also affected, with any opportunity to appeal against the determination by which they suffer that damage.

 Given these considerations, the plain language of the Constitution requires that the Federal Courts be open to hearing appeals from persons affected by a President’s order, even when the President asserts that his aim is to prevent consequences “detrimental to the interests of the United States.”   In every case, the people of the United States have an overriding interest in assuring respect for the provisions of the Constitution they have ordained and established for their government.

It’s dangerously absurd to suggests that Federal Judges and Justices should be arrested for giving due consideration to cases in which Constitutional provisions may evidently be at issue.  Some are contending that State officials have no warrant to appeal for a hearing.  But persons residing in each State may be affected. The language of the 14th amendment requires that every State refrain from cooperating in actions that “deprive any person of life, liberty or property, without due process of law” or that “deny to any person within its jurisdiction the equal protection of the laws.”  State officials are therefore required to take notice of this obligation, and act accordingly.

None of this means that President Trump’s order is simply unjustified. A strong case can be made for the step he seeks to implement.  But the evocation of “national security” must never be allowed simply or automatically to override the protections the Constitution seeks to assure, and equitably apply, to all persons who come under the jurisdiction of the United States.  There’s a good reason why the prevalent founders of the United States preferred to vest the judicial power in a separate and independent branch of government, responsible for its own decisions.

As Montesquieu astutely observes, the Judicial power is, by nature, a necessary aspect of execution. The separation made in our Constitution aims to assure that there is ample opportunity to remember the laws, and especially to appeal to the higher law that should govern both their contents and their execution. Thus, America’s founders sought to forestall the tyrannical abuse of unchecked government power. Unfortunately, our present circumstances tempt people to forget this purpose, pleading survival as the aim that must supersede all others.

This temptation is precisely the danger the founders intended to keep within bounds, bounds which the argument Mr. Unruh relies on does not keep in mind.   His call to arrest the judges would be a direct Executive Branch attack on the Constitution’s prudent provisions for a more independent judiciary.  It utterly discards the separation of powers. Using national security as the excuse, it seeks to consolidate Executive power in the hands of the Executive, a consolidation America’s founders regarded as the very definition of tyranny.  For if the Executive can evoke national security without giving injured parties any opportunity to seek relief by judicial means, our government moves instantly from liberty to constitutionally unchecked dictatorship.  Against it the only recourse is electoral action, or else the self-destructive expedients that a desperate people resorts to when political redress fails.

To be sure, we should not simply tolerate and accept arbitrary judicial opinions.  But the proper procedure is first to fight the battle to the Supreme Court, in which the Constitution ultimately vests the judicial power.  If the President holds that implementing the SCOTUS’s opinion runs contrary to his Constitution obligations, he can say so, while continuing to do what’s necessary to meet the emergency, that threatens the nation.

At the same time, however, he should appeal to the people directly, and to their legislative representatives, urging the reasons that support his view of his Constitutional responsibilities, and asking their support as he performs his sworn duty.  If there is not sufficient political will to threaten and then proceed with impeaching and removing the him from office, his view of the Constitution will prevail in the use of his executive power. 

But the SCOTUS (and the entire Federal Judiciary) should also continue to perform its Constitution duty, checking the application of that power in individual cases. For a time, their opinions may fall without immediate effect.  But each opinion, if supported by facts and good reasoning, will provide a fresh opportunity to appeal to the good sense of the people and their representatives, at first reminding and then persuading them that injustice is being done, which violates the Constitution’s language and aims.

This latter check is not useless simply because it doesn’t stop the Executive’s action immediately.  It continues, de facto. But as a matter of right and law, it comes continually under scrutiny.  Now, the Executive’s de facto authority depends on the people’s perception that an existential threat exists, which demands extraordinary measures. But as people sense that the emergency has passed, their tolerance will erode.  Evils deemed sufferable in the name of safety will again seem intolerable in light of the Constitution’s requirements for right and justice.   

As this happens, the Constitution’s provisions for periodic elections give the people regularly repeated opportunities to a) use their vote to remove the abusive executive in a Presidential election; or b) reject and replace their representatives in the legislature in mid-term elections.  They can thus produce a legislative majority sufficient to impeach, or impeach and remove the offending Executive.  Either way, keep abuses from settling into routine and permanent tyranny.

All in all, this ingeniously prudent Constitutional dynamic allows for the Executive to get away with using extra-constitutional means, for a time, when a sufficient majority of the people agree that there is little or no recourse. But the courageously independent judgment of the Judiciary, combined with periodic opportunities to change the government’s personnel using elections, allows for these measures to cease cease once it is clear their continuance has become the greatest threat to the nation’s good.  In the meantime, each side’s effort to persuade them will assure that the people remain vigilant, keeping their minds and hearts in readiness to act for the justice, liberty and safety of our country.

 

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  • Cousin_Ken

    All persons regardless of size or location must be given due process.
    We’re called to do better than a President Trump or a Justice Scalia.
    https://www.youtube.com/watch?v=Qs_PqDLAD8s

  • consptheory77

    The objection I’ve heard raised is that the due process clause doesn’t apply to people who aren’t citizens.

    • The language of the Constitution plainly uses the word “persons” at various points in the Constitution, including the 5th Amendment. Judges and Justices have no warrant to ignore that, and when they do they violate their oath. Since Trump is supposed to be interested in “strict construction” of the Constitution, he should be especially interested in paying attention to this evident fact. (BTW, in the era when the Constitution was first adopted, the word “person” referred to any human being. It still does.)

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