Is America devolving into a country of men from a country of laws?

Donald Trump speaking with supporters at a campaign rally at the Prescott Valley Event Center in Prescott Valley, Arizona.
Gage Skidmore (Wikimedia Commons)

It seems that America is devolving into a country of men and not of laws, that the constraints put in place by the framers of the Constitution are being willfully ignored and that the country is, shortsightedly, beoming increasingly vulnerable to those who seek to destroy it.

In 1780, John Adams famously declared that the separation of governmental powers into the legislative, executive and judicial departments must be safeguarded, and that one department should never be allowed to usurp the power of another “to the end it may be a government of laws and not of men.” That is, the Rule of Law must prevail and citizens must obey the law or anarchy will ensue and the nation will not survive.

We see evidence of this devolutionary trend in calls to “resist” everything done by our President, even when his actions are clearly lawful and undertaken after lengthy consultation with his advisors. His detractors – especially the liberal media – ignore his every accomplishment and inflame public opinion against him by failing to accurately report the news. Recently, the media raised a huge outcry against Trump’s “Muslim ban,” deceptive in the lack of information published about its context and contents.

First, some historical context: The exclusion of aliens has been consistently and robustly exercised by past presidents – and never challenged. As the Supreme Court recognized in 1950, “The exclusion of aliens is a fundamental act of sovereignty.” U.S. ex rel. Knauff v Shaughnessy, 338 U.S. 537 (1950).

For example: In 1979, after Iranians stormed the American Embassy, President Carter denied entry to and revoked visas of Iranians. In 1981, President Reagan curtailed illegal immigration by sea of undocumented aliens. In 1986, he banned Cubans and in 1988 he suspended the entry of Panamanians “until such time as democracy has been restored in Panama.” In 1992, President George H.W. Bush similarly suspended entry of aliens coming to the U.S. by sea without proper documentation. In 1997, President Clinton banned entry of certain Sudanese, citing “foreign policy interests” of the United States. In 2011, President Obama banned all aliens subject to U.N. Security Council Travel Bans until the Secretary of State determined that it was no longer necessary, and in the same year he suspended entry of aliens who committed or took part in committing crimes against humanity or violations of human rights. In 2014, he suspended entry of Russians working in financial services, mining, engineering, or defense because of Russia’s annexation of Crimea and its use of force in Ukraine. Some exclusions have occurred for reasons of national security; others have been diplomatic retaliations.

And now, some content: The recent ban temporarily limited entry for aliens from eight countries whose systems for managing and sharing information the President deemed inadequate – not based on his personal opinion – based on a factual review by the Department of Homeland Security in consultation with the State Department and intelligence agencies. After a 50-day period during which the State Department made diplomatic efforts to encourage foreign governments to improve their information sharing, the director of Homeland Security – not President Trump – concluded that eight countries remained deficient. After consultation with multiple Cabinet members, the ban was issued, including a provision that required a reassessment every 180 days. At the end of the first 180 days, the restriction against Chad was lifted, since Chad had sufficiently improved its information sharing practices. Later, Sudan was also removed. Even though Iraq did not have a sufficient data sharing system, it was not included because of its close cooperative relationship with the U.S.

In upholding President Trump’s temporary suspension of aliens from certain countries which cannot or will not provide sufficient information about their nationals’ criminal backgrounds, the Supreme Court cited an earlier Supreme Court decision that found it “perfectly clear” that the President has the absolute right to exercise this authority.

The Court further noted that there had been no outcry in response to any proclamations by previous presidents even though the justification for prior bans had been a mere five sentences – or fewer – in President Clinton’s case, a mere one sentence – while President Trump justified his proclamation with seventeen pages of factual recitations.

Opponents of the travel ban claimed that it was motivated by anti-Muslim animus. Two trial courts agreed, in spite of the fact that Venezuela (predominantly Roman Catholic) and North Korea (predominantly Buddhist and Confucian) were included, and that Chad, Sudan and Iraq were excluded. Moreover, as the Supreme Court pointed out, the text of the Proclamation says nothing about religion. It covers only about 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks. The proclamation’s exclusion of Iraq prompted the Supreme Court to state, “It is difficult to see how exempting one of the largest predominately Muslim countries in the region from coverage under the Proclamation can be cited as evidence of animus toward Muslims.” Furthermore, the ban includes Christians, Jews, Hindus, and practitioners of all other religions from the countries with deficient information sharing systems.

If citizens – and judges – choose to “resist” clearly lawful actions taken by a lawfully elected President, simply because they dislike him, our nation will not survive.

About the Author
Karen Hurvitz is a Boston-based lawyer and on the board of American Friends of LIBI.
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