Some 280,000 Americans are asking the Supreme Court to let President Trump suspend entry from eight nations “with terrorism concerns.”
A friend-of-the-court brief by the American Center for Law and Justice was filed in the case against the president’s executive order halting arrivals from Chad, Syria, Iran, Libya, Somalia, North Korea, Venezuela and Yemen.
The brief was filed with the support of ACLJ’s Committee to Defend Our National Security from Terror, which represents more than 280,000 Americans.
Trump’s order was made after a review by the Homeland Security secretary of nearly 200 nations. DHS concluded the eight nations were unable to properly vet people coming to the U.S.
The DHS initially had identified 16 countries with significant risk factors and another 31 with security concerns.
Two district courts and two appeals courts ruled Trump’s order was invalid. But their orders have been put on hold until the Supreme Court listens to arguments, probably in a few months.
“The proclamation is valid and should be upheld in its entirety,” the brief contends. “Under the Constitution and federal statutes, the president has broad power to exclude aliens from this country for national security reasons.”
The order is a “valid exercise of executive authority,” it asserts.
Claims that the order is a “Muslim ban” are false, it argues, because Trump made such references when he was campaigning as a private citizen. The law provides that a government action is constitutional if “it has a secular purpose and was not motivated wholly by religious or anti-religious considerations.”
“The proclamation clearly serves a genuine secular purpose – protecting our national security – and is not motivated by anti-religious considerations,” the brief insists.
ACLJ said the court will have to review the scope of the president’s authority and the Establishment Clause implications.
“We explain that the Constitution and federal statutes provide the president with broad power to exclude aliens from this country on the basis of facially legitimate reasons. When the Supreme Court has considered constitutional challenges to immigration-related actions in the past, it has declined to subject those actions to the same level of scrutiny applied to non-immigration-related actions given the sensitive and discretionary nature of the subject.
“That same deference should be given to President Trump and his senior advisors here, as the proclamation deals with national security and protecting our country from foreign terrorists,” ACLJ said.
“The ACLJ has been engaged in this battle from Day One,” the group said. “Since the president first began taking executive action on this issue early last year, we have filed nine amicus briefs: two in the federal trial courts, four in the federal appellate courts, and three in the United States Supreme Court. These briefs have urged the various courts to uphold the lawfulness of the president’s efforts to protect the security of our country.”
Previously, the high court has “recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control,” the brief argues.
In fact, previously rulings have found “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.”
Federal law supports that concept: “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 impose on the entry of aliens any restrictions he may deem to be appropriate.”
The president’s power, the brief shows, is at its peak when supported by Congress and the Constitution.
It explains that even the “suspected involvement” of a person in terrorism is enough to satisfy the requirements to exclude.
“Further, the proclamation does not single out Muslims. … The countless millions of non-American Muslims who live outside the eight countries of particular concern are not restricted. … Neither does the proclamation limit its application to Muslims in the designated countries: instead, it applies irrespective of an individual’s religion.”