The U.S. Justice Foundation and nearly a dozen other non-profit public interest organizations are offering robust legal support for Travel Ban 3.0, building momentum for a showdown at the U.S. Supreme Court later this year. The narrowly tailored presidential order restricted nationals from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen from entering the United States, following a worldwide review of information-sharing practices.
American security is the president’s constitutional responsibility, and Trump’s actions as commander-in-chief fall within long-established legal precedents established under both Republican and Democratic administrations, the U.S. Justice Foundation argues.
“The District Court opinion completely ignored President Trump’s focus on protecting the American people from ‘public-safety’ threats posed by immigrants from the designated countries,” the organizations state in an amicus brief filed with the Ninth Circuit Court of Appeals.
Lower Court’s Political Decision by Obama Appointee
The U.S. Justice Foundation highlights the significant bias and political motives by Honolulu-based U.S. District Court Judge Derrick Kahala Watson, an Obama appointee who initially ruled against the travel ban.
“One cannot help but conclude that Judge Watson rendered a political decision, seeking to preserve the policies of President Trump’s predecessor, his Harvard Law School classmate Barack Obama,” the organization writes in its legal filings in the travel ban case. “Can there be any doubt that President Trump was named as the lead defendant in the complaint not because of any legal necessity, but for political effect?”
Even David Frum, a former speechwriter for President George W. Bush and leading Never Trump figure who voted for Hillary Clinton, believes Watson’s ruling set a “dangerous precedent” and contradicts longstanding constitutional precedents.
“Watson’s imaginative reasoning in Hawaii v. Trump asserts a new judicial power to disregard formal law if the president’s personal words create a basis for mistrusting his motives,” Frum writes at The Atlantic. “Frankly, under any other president than Donald Trump, it seems impossible that a federal judge would have expressed such certitude—or granted their requested order.”
In addition to the judge’s lack of objectivity, the Hawaiian politician that filed the court challenge to President Trump’s travel ban has used the case to advance his political career.
“I’ve ended up being in court over and over again to stop some of the different actions that have been taken by the Trump administration,” Hawaii Attorney General Douglas Chin said in launching his 2018 campaign for a congressional seat vacated by Rep. Colleen Hanabusa, D-Hawaii.
Lack of Standing: Grandmother Arrives Despite Ban
Although routinely attacked on cable news and falsely described as a “Muslim ban,” Trump’s travel ban enjoys broad support from the American people. According to a Rasmussen poll taken last June, 52 percent of Americans consider Trump’s travel ban a proper security measure designed to keep terrorists out of the country. Last July, a Politico-Morning Consult poll found that “a clear majority of voters” back President Trump’s travel ban.
Rather than overturn the president’s popular executive order, the nation’s highest court could choose to sidestep the controversy on procedural grounds.
Before any court considers the merits of a case, a plaintiff must establish an “injury in fact” to have standing in the case. The challenge to the travel ban is on shaky legal ground, according to the U.S. Justice Foundation, because the plaintiffs lack standing.
“Being personally offended by government action has never been sufficient to confer standing for a federal judge to second guess the President of the United States — at least before 2017 challenges to President Trump’s two Executive Orders,” the U.S. Justice Foundation argues. “Although this country may now have entered an era where people often believe that they can go to court any time their feelings have been hurt, the lawyers and the district court should have known better.”
One plaintiff, the State of Hawaii, claimed standing based on the hypothetical loss of tuition from potential students from the affected countries. Jeffrey Toobin, a staff writer for the New Yorker and senior legal analyst for CNN, agrees that “the harm to the universities is pretty attenuated.”
He adds, “And it’s worth noting that the Justices of the Supreme Court (and Chief Justice John Roberts in particular) have been sticklers on the standing rule and haven’t hesitated to toss cases on this ground.”
Another plaintiff, Hawaiian imam Ismail Elshikh, is originally from Egypt, a country not covered by the travel ban. Elshikh claimed injury when his Syrian grandmother was unable to enter the United States, now a moot point. The grandmother, Wafa Yahia, arrived in the United States last August, according to Associated Press reports, thereby proving the travel ban did not injure Elshikh.
Last December, President Trump secured an initial victory at the U.S. Supreme Court, which overruled activist judges and lifted injunctions blocking the president’s executive order to enhance vetting of foreign nationals attempting to enter the United States. A final ruling is expected later this year.
Since 1980, the U.S. Justice Foundation has submitted testimony to the U.S. Senate on every Supreme Court appointee and sponsored conferences on a variety of important legal issues. Other organizations supporting U.S. Justice Foundation’s position include Citizens United, Citizens United Foundation, Conservative Legal Defense and Education Fund, U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America, Inc., Public Advocate of the United States, Restoring Liberty Action Committee, English First, English First Foundation, and Policy Analysis Center.