FEDERALISM AND SEPARATION OF POWERS

The travel ban cases put the president's authority over immigration in the United States to the test. This includes whether the president can discriminate against visitors and immigrants to America based on their religion or national origin, as well as how the court should treat the history and context of common law in making decisions about the cases presented, including blatant evidence of discriminatory intent by state officials. At this juncture in history, the president's policies have been attacked for flouting the rule of law, with bias serving as his winning campaign strategy and national security serving as a significant pretext for degrading the United States. constitutional protections with only the Supreme Court having the upper hand to solve the issues. In this paper, several questions concerning the President’s and Supreme Court’s move concerning the travel ban case is going to be analyzed.

When civil liberties and security collide in this case, the court will have to decide whether the national security interests of the country are much greater or lesser than the foreigners’ rights or entities in the United States of America, who have close relationships with refugees or foreign nationals abroad.

The Court will be based on a duty of checking the merits of the ban of the eight countries by considering some issues. It will have to cross-examine on the question regarding how to establish if an immigration law has no “bona fide relationship” behind it and also the scope whereby courts can see things beyond a law’s text in determining is such a bona fide rationale truly exists or if the law pronounced is religious animus product. The court examines the executive authority breadth under section 1182 (f) and how those presidential powers relate to America’s Immigration and Naturalizations Act (INA) on prohibiting discrimination practices. That can be done by relying on President Trump’s statements regarding foreigners during his campaign period before he was elected as the POTUS. The Supreme Court may also declare at least some sections of the travel ban invalid, based not on the violations of INA or Establishment Clause, but on the Fifth Amendment’s procedural Due Process protections, which requires an individual’s to be provided with a chance or a notice to be heard. That occurs if the state or federal government denies them their liberty, life, or property of interests. Nonetheless, those protections only apply to people who are inside the country regardless of whether they are citizens or non-citizens and also to some kinds of visa holders outside the US.

Despite the executive orders being a way that a United States president can make changes to the country’s policies, there are also limits regarding the extent of the orders. The federal courts have the authority to challenge and deem executive orders by the president as either lawful or unlawful. In Trump’s travel ban, the federal courts declared that the act violated the federal immigration laws and also discriminated against the Muslim nations, which violated the Constitution of the United States. The 9th and 4th Circuit beginning of 2017 offered firm statements against the president abusing his powers and prejudice.

The cliché “the constitution is not a suicide pact” is usually used by citizens and even constitutional attorney’s who are ready to make compromises to the constitutional guarantees for increased security sake whether imagined or real. Those individuals usually proclaim that people should be flexible especially during the periods of danger in the country. In the travel ban case, the slogan means that civil liberties only go beyond and at limits; nonetheless, national security must be given priority to safeguard Americans from foreigners whose intent is to harm all Americans. The believed essence of wisdom had become part of Donald Trump’s intent in banning countries deemed dangerous to the US. Over the course of history, the “suicide pacts” rhetoric has been brought by during arguments concerning protecting the constitutional rights and not arguments of sacrificing them for the sake of security concerns.

The Supreme Court should not defer to the Commander-in-chief judgment, and if it does so base on the procedural grounds, the ban will probably be held valid constitutionally mainly concerning the individuals who have no links to the US. It will also be probable that the “the temporary pause” will become permanent against the nationals of the eight countries including Venezuela and North Korea. Should the court to deter to Trump’s demands, the Supreme Court will empower the president and his predecessors in discriminating against a group of people in the society based on their nationality and religion under the disguise of the hazy national security interests with practically no convincing fact basis. Even though, many people will still be allowed entry to the country under the ruling of the court, the US constitutional principle and immigration law foundational element will be eroded with the consequences being not minor. It will also mean that the national and religious origin-based discrimination in the current society’s immigration policy will be permitted in most circumstances due to the example set forward by the president’s executive order. The situation would return Americans to the 1965 periods whereby the Immigration system disfavored both black and brown immigrants from other countries. It would undermine the US constitution foundational principle, which states that the state shall not in any way favor or disfavor any religion in the country. The decision would also make American Muslims and even other Americans with roots in the banned countries much more marginalized than they are right now based on the law, which treats groups of people from a particular faith and nationality as presumptively dangerous and suspects in crimes. The Supreme Court’s ruling social meaning would be fundamentally inescapable. Perchance, even more disconcerting, a court decision, which does not brazen out the prejudices in the Muslim ban, will offer more support to the credibility of the idea regarding the national security being more significant than the civil liberties and that a selection has to be made between the two principles. The Muslim ban is a unique scenario whereby the odious reason of the law is quite apparent; if the national security wins in the case, it will not augur well in situations in which terrorism concerns more ingeniously discriminate against certain groups. Thus, the importance of the judiciary in providing its independent assessment concerning the executive branch policy even when the military and foreign affairs are all involved.

If the Supreme Court ruled that in the name of national security, Trump’s actions are “non-reviewable” after going through the case merits, the judges would leave the Department of Justice with a doubtful legacy. There is no non-reviewable notion when it comes to explicitly discriminatory intent with a national security reasoning that is fabricated being behind the ban, and actually for what such as verdict would relate to our comprehension of the US Constitution abroad and back at home. The Supreme Courts need to recognize the political, social, and legal importance of the issues that are involved in the Muslim ban cases and tackle them in a manner, which is both morally responsible and legally sound. If it fails to do so, the damages that America’s society and legal system will not be limited to only this one concern in the future but several ones that got their roots from this issue.

The travel ban case refers to the president’s exercise of his foreign powers by using the rationale of national security in executing the law. An Immigration and Nationality Act that was passed in the year 1952 has been the basis of President Trump’s influence on the Travel Ban issue. The act was established during a period when the world was a “phobic and fearful” place. During the period, the United States was entangled in the Cold War and in “the Red Scare,” which was an anti-communist approach that was spearheaded by Wisconsin Senator, McCarthy Joseph, whose major role was to destroy all the sympathizers of the communists that majorly included immigrants from different locations entering the US. Espionage became the key concern of interest during that period as the threat that immigrants can easily bring radical notions inside the US from other countries. Thus, the sponsors of INA act in 1952 who included the then Nevada Democrat Senator Pat McCarran and Pennsylvania Representative Walter Francis debating that the state needed a strict immigration legislation for the citizen's national security rationale. The 1952 law changed and also managed to maintain the quotas instituted by the 1924 Immigration Act. Even though it tweaked the racial citizenship condition, which held back Asians for a long time, it established the new quotas in a manner that prioritized mostly the Western Europeans. A major provision indeed offered the president the authority in overruling the quotas if need may arise. Section 212 (f) points out that “Whenever the President finds that the entry of any aliens or 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 nonimmigrant’s, or impose on the entry of aliens any restrictions he may deem to be appropriate.” Trump seems to be the first modern POTUS to apply the 1952 Act in deporting immigrants.

QUESTION 2 A

Rights of Somali and Syrian Refugees who are citizens and non-citizens

Legal permanent residents have the rights to travel outside the US and return within a specified duration. However, unlike a citizen, legal permanent residents cannot stay outside the country indefinitely whereby doing so would make them lose their residency. Thus, the president’s move of making male and female citizen’s and non-citizens from Somali and Syrian heritages from the age of 18 to 65 to carry a similar special identification card after registering with the local Immigration and Customs Control Office is illegal. The order can only apply to non-citizens. The law provides a distinction between the two with citizens no matter of their political, religion, or national origin being accorded the same rights with other Americans. As the name suggests, a legal permanent resident if the United States has the ultimate rights to live permanently and work in the country. They are usually protected under the US laws and all the available local jurisdictions. Moreover, the permanent legal residents maintain their rights a provided by the Constitution, including equal protection and due process of law. These legal rights come from the 14th Amendment that offers guarantees for “any person.”

Both citizens and non-citizens of the US from the Somali and Syrian origin are all referred to as the foreign nationals. The 14th Amendment and through further extension of the 5th Amendment offers the right to equal protection to all the foreign nationals within the borders of the country under the laws of the US. For instance, the Supreme Court ruled in the 1971 case of Graham V. Richardson that alienage can be categorized under the “suspect” class, and thus any different treatments based on alienage in any situation must be severely condoned, and a compelling state interest must be available to validate the difference in the treatment. Thus, President Trump order in fining and imprisoning the foreign nationals who fail to produce the special identification when requested by the law enforcers is illegal since it supports the different treatments that are unconstitutional. The foreign nationals who may have the physical presence in the US have their rights to bring their claims to courts in the US against the order of the president as guaranteed under the standing jurisdictions. Also, foreign nationals who are not physically present in the US can also sue in the United States Courts, if the cause of action presented emanates within the boundaries of the US such as property or contract. Foreign nationals do not have any right to vote or sit on the jury. Nevertheless, non-citizens can still serve in the US military that can offer them with an expedited route to naturalization. Therefore, the president’s move in categorizing all the Somali and Syrian refugees to register in the ICE for the special identification cards goes against the expediting of foreign army officers law.

President’s Trump move in recognizing Jerusalem as Israel’s Capital and relocating the US Embassy

Trump’s move in recognizing Jerusalem as the capital city of Israel and moving the American Embassy from Tel Aviv to Jerusalem will be one of the greatest moves that he has made internationally apart from the local court battles regarding the Medicaid and the travel bans. The move can be a great history made that will be remembered all over the world and also the greatest mistake that he would have committed while being the president. His predecessors have always signed the presidential waivers to delay the plans of relocating the American Embassy to Jerusalem. Over the past 20 years, other presidential administrations have always cited matters of “national security interests” in explicitly waiving the 1995 decision made by the Congress in recognizing Jerusalem as the Capital of Israel and transferring their embassy there for safety. Each US president from Clinton has over the period signed the waivers involving Israel after every 6 months in postponing the embassy relocation from Tel Aviv due to national security reasons. Nonetheless, Trump’s failure to sign the waiver and support for the action seems to call for a significant problem in the US, Israel, and the Palestinians. There are two reasons why the other presidents have signed the waiver consistently. First is the national security that Jerusalem Embassy Act supports that if the head of state fears that relocating the embassy would upset the Arab nations enough to instigate any terror attacks against the United States interests, then it could be waived merely. The second one is much more critical whereby every president from Clinton to Obama have stated that the action flouts on the presidential privilege where he has the limited authority in recognizing foreign sovereignty over their territory, which is unconstitutional. Thus, the move by Key House Members and the Senate Foreign relation committees led by its new chair Senator Ben Cardin in an attempt to block the directive is the right decision since Trump is overstepping on his executive powers. The Bill’s rations that conditions appropriate funds for establishing and opening up US Embassy in Jerusalem is unconstitutional. The president is also placing America vulnerable to attacks from the Arabs who will want retaliate against his move since Jerusalem has been a location of the battle between Palestinians and the Israelites. With the Democrats winning back the majority in the US Senate by a margin of 52 to 48 against the Republicans in the 2018 mid-election, the president’s directive can be easily blocked. And if the President manages to convince both Republicans and the Democrats, he will have to adhere to the constitutional rights of the presidency and avoid signing the waiver by at least recognizing part of Jerusalem as being Israel to avoid angering the Palestinians. Israel and Palestinian citizens have long been fighting an unending war over Jerusalem thus it is vital in the peace negotiation for Trump to consider the objectives of the Palestinians, therefore, give them an equal share of the city.

Rights to sue against Libelous statements made by Public Figures

Libel refers to written and published information of false statements, which can harm the reputation of a subject. Senator Elizabeth Warren (D-MA) committed a libel offense when she called Donald Trump a “moron” and “an insane psychopath” during her speech in the National Press Club. The insult came after the president came up with a proposal that would offer all the American citizens from the age of 21 the opportunity to purchase, register, and carry a handgun to combat terrorism. Nonetheless, Trump’s retaliation in claiming that the senator is a “Pocahontas” is also another crime when saying that he would sue him. Pocahontas was a Native American teen who is commonly known for associating with the Colonials at Jamestown in Virginia. She was called that name due to her playfulness. Suing someone in court for libel is usually a complicated manner due to the several hurdles that one has to clear and in situations whereby both the plaintiff and the accused are public figures. In this scenario, both the senator and the president can counter sue one another. The situation goes back to the US Supreme Court decision in 1964, New York Times V. Sullivan whereby a decision was made regarding libelous statements concerning public officials are protected by the law of America as long as media does not publish the said words while “knowing” that they are false. If the press is afraid of writing about a public figure in fear of being sued for libel damages, the political arguments will be not be heated thus the statements being chilled. The landmark case also gave the public official a right to sue if another person makes defamatory remarks about them especially if the individual who made the statements acted either with falsity knowledge or hasty disregards to the truth.

Powers of President Trump in undertaking the re-introduction of US Combat Troops into Afghanistan

In commanding 25,000 U.S. combat troops and 1000 Special Forces to Afghanistan to recapture the provinces that were under the influence of Taliban, President Trump was not quite right when he said that he had all the powers to take that action. Even though the United States Constitution empowers Trump to wage wars as a commander in chief of the army, it also offers the Congress the power used in declaring wars and also authorizing warfare at all levels and finances them. Presidents can order the American troops to engage in combat especially when the nation attack appears looming or is attacked; however, both major parties chief executives usually differ with the Congress regarding their ability in initiating combat force in other war situations. Since the end of the World War II, presidents have shown their greater power when it comes to waging wars, but this idea that they can decide to go to war anytime that they wish by ignoring the Congress is a post-WWII attitude and not constitutional. While the Constitution empowers the Congress to start and an end conflict, its main intent to the president is to provide him with powers to wage war efficiently, once a war that was authorized has commenced. The courts have always challenged presidents who have undergone such extent of misusing their powers. In the 1952 US Supreme Court ruling in 1952, President Harry Truman’s order was struck down in maintaining operations of America’s steel mill for the sake of our national security, which was found to be against the wants of the Congress. The incident follows Truman’s order of directing the US combats to the Korean War without congregational consultation. The Supreme Court’s ruling in Hamdi V. Rumsfeld in 2006, also demonstrates the limits of the president’s power regarding wars. The court established that the special military commissions and operations instituted by George Bush were indeed illegal. The two case examples show how wartime powers are usually shared by the President and Congress to avoid contradictions with the law. The constitution framers deliberately separated the powers of war between the two sides to force them in working together on issues of national security to protect all the citizens. The situation helps in keeping in check all the military decisions made by the president to not put the lives of Americans at risk.

Deportation of Immigrants including the ones under the Obama’s DACA program

The unitary executive theory has been used many presidents in establishing new laws without checks and balances. It occurs when the president decide to act without the advice from the Congress. That was the case when Obama opted to push the envelope further on the domestic front by deciding to shield many undocumented immigrants from being deported since 2012. Unitary executive theory rejects the notion of checks and balances, with the president’s power sometimes being unchecked even in the foreign and military policies. Just like Obama used the unitary executive powers in establishing the Deferred Action for Childhood Arrivals (“DACA”) program that protected illegal immigrants who arrived in America as children, Trump also has the same powers to end the program. Obama instituted the program without approval from the Congress by simply exercising his powers. Nonetheless, Trump can also decide to end the program with or without the assistance of the legislature. However, returning the legislative powers to the legislature will assist in restoring the separation of powers, which are significant to the US constitution. In the matter of immigration, the only Congress is permitted by the constitution in making laws that the president can enforce.

Under the US constitution, the Congress is accorded with the responsibility of writing laws while the president is supposed to execute the laws. That is essential especially when it comes to the immigration department. During the 19th century, the United States Supreme Court affirmed that the Congress has the complete power in regulating immigration. That can be derived from Article one, section eight in the constitution whereby the doctrine was based on the notion that immigration is national sovereignty question that relates only to the nation’s right in defining its borders and restrict entry of people posing a threat. Nonetheless, President Obama opted to assume this power by unilateral order, unimpeded by established checks and balances. In taking that action, he gave himself extra-constitutional power thereby upsetting the carefully established separation of powers. He also went against the rule of law. Power of the Congress only exception in regards to dictating the immigration is the statute established in 1952 whereby the legislative branch managed to transfer its full powers to the president in matters related to the national security. The president is exclusively given powers to restrict immigrants from coming inside the country to safeguard Americans. That is the law that formed the basis of Donald Trump’s travel ban.

President Trump lacks the unitary executive power in deporting immigrants without the consultations from the Congress. In 1996, the congress passed a law that required federal agents in deporting illegal foreigners with only some few exceptions. The legislative language is fundamental, and it remains effective up to today. Thus, Trump cannot breach his sworn duty in deporting millions of illegal immigrants without the Congress. In fact, his ordering of immigration agents to assist in the deportation process is illegal thus breaking the law. Article II of section three of the United States Constitution demands that “the president shall take care that the laws are faithfully executed.” It is not written anywhere in the legal document that the presidents can be granted the full autonomy in picking and choosing which and what laws that they want to execute. The POTUS cannot disregard and invalidate laws that they do not like or adore because the US Constitution offers no such powers not to implement laws. To conjecture, such leeway will invite a dictatorial rule abomination to the visions of our founding fathers. As much as Trump wants to deport the immigrants that he claims to put the security of all citizens at risk, he must adhere to the immigration laws. The United States Constitution does not permit the POTUS rights to engage in a de facto repeal of a law that already exists whereby in doing so, it would be a delinquency of duty. President Trump decision in revoking Obama’s immigration program, DACA, will forever be criticized; however, following the right method of avoiding to use unitary executive powers in doing so unlike his predecessor will assist in bearing fidelity to the rule of law and Constitution. Only the Congress according to the constitution is empowered to change laws of the immigration, which affect the foreigners who are within the boundaries of the US illegally. It has the authority to enact new laws or decline with the determination is not to act being by itself a deliberate act. That is how the Framers developed America’s system of government. Congress mulls over and debates many bills with not all them being passed. That is not usually called a “failure” when it comes to a conventional reasoning but a resolution by declination. It represents a rational and premeditated process. Obama managed to twist the law by ignoring the constitution and relinquished his core role as chief executive thus President Trump’s move in claiming that he has the executive unitary powers in deporting the same immigrants that Obama bent the law to do so, would mean all their actions regarding the immigration laws are illegal.

Bibliography

Fisher, Louis. 2013. Presidential War Power. University Press of Kansas.

Walker, Thomas, and Lee Epstein. 2017. Constitutional Law For A Changing America: Institutional Powers And Constraints. 9th ed. California: Sage Publications.