Immigration

President Trump's Travel Ban Requires Intellectual Honesty and Political Indifference on the Part of Judges

The president has the right to set policy, and the judiciary has the duty to prevent the trampling the rights of an unpopular minority.

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White House

Over the past weekend, Trump administration officials offered harsh criticisms of the judicial interference with the enforcement of the president's immigration order. The Jan. 27 order suspended the immigration privileges of all refugees from Syria indefinitely and all immigrants from seven designated countries for 90 days.

After a federal district judge in Seattle enjoined the federal government from enforcing the executive order and the 9th U.S. Circuit Court of Appeals upheld that injunction, President Donald Trump's folks pounced.

They argued that we have an imperial judiciary that thinks it has the final say on public policy — one that will freely second-guess the president in areas that are exclusively his under the Constitution.

Here is the back story.

The Constitution provides for essentially a shared responsibility in the creation of laws. Congress passes bills, and the president signs them into law. Sometimes bills become laws over the president's veto. Bills are often proposed by presidents and disposed of by Congress.

When challenges to the meaning or application of the laws are properly made, the judiciary decides what the laws mean and whether they are consistent with the Constitution. My point is that there are substantial roles for the legislative and executive branches in the process of lawmaking and that there is an exclusive role for the judiciary in interpreting the meaning of the law.

When it comes to articulating and carrying out the foreign policy of the nation, the president is superior to the other branches. Though the House of Representatives and the Senate appropriate money for foreign policy expenses and the Senate ratifies treaties and confirms ambassadors, the president alone determines who our friends and enemies are. Congress has given him many tools with which to make and carry out those determinations.

Among those tools is substantial discretion with respect to immigration. That discretion permits the president, on his own, to suspend the immigration privileges of any person or group he believes poses a danger to national security. Though the effect of his suspension may, from time to time, fall more heavily on one religious group, the purpose of that suspension may not be to target a religious group.

Can an immigrant who has been banned from entering the United States challenge the ban?

In a word, yes. Once an immigrant has arrived here, that person has due process rights (the right to know the law, to have a hearing before a fair and neutral authority, and to appeal to a superior neutral and fair authority). This is so because the Constitution protects all persons.

The challenge to the president's exercise of his discretion cannot be based on a political disagreement with him or an objection to the inconveniences caused by the enforcement; it can only be based on an alleged constitutional violation. In the Seattle case, the states of Washington and Minnesota had sued the president and alleged that he had issued his Jan. 27 order to target Muslims, many of whom study or work at state universities.

Can the courts hear such a case?

In a word, yes; but they must do so with intellectual honesty and political indifference. The judiciary is an independent branch of the government, and it is co-equal to the president and the Congress. It is answerable to its own sense of scrupulous intellectual honesty about the Constitution. It is not answerable to the people. Yet in return for the life tenure and unaccountability its members enjoy, we expect political indifference — that judges' decisions shall not be made in order to produce their own politically desired outcomes.

It is the job of the judiciary to say what the Constitution means, say what the statutes mean and determine with finality whether a governmental actor used governmental power consistent with the Constitution and the statutes. When the courts do this with intellectual honesty and indifference to the political outcome, they are doing their job, and we should accept the outcome.

Must the president justify to the satisfaction of judges his exercise of discretion in suspending immigration privileges?

In a word, sometimes; he only needs to do so when a fundamental liberty, such as the free exercise of religion, is at stake — and not when state universities might temporarily lose students or faculty or the enrichment that those from foreign lands often bring.

This can be a dangerous sea for judges to navigate because judicially compelling the president to justify his development of the nation's foreign policy might expose that development to unwanted eyes and ears who could cause the nation ill in perilous times.

Suppose intelligence officials told the president they believe that Islamic State-inspired lone wolves are about to enter the United States from three of the seven countries but some of them have multiple passports and may leave from one of the other four countries. That would clearly justify the president's executive order, but it would be foolhardy for him to explain in a court how he came to know that and detrimental to then have to await a court's approval while the evil-doers arrive here.

In our democracy, the president and members of Congress make promises and then convince us that they have kept them so we will re-elect them. The whole purpose of an independent judiciary is to be anti-democratic — to protect the life, liberty, and property of all people from the unconstitutional behavior of the two political branches of the government. When the judiciary does this, it is not being imperial; it is doing what the Constitution requires.

If this were not the case, then nothing would prevent the political branches from trampling the rights of an unpopular minority.

The late Justice Robert Jackson once famously quipped that the Supreme Court is infallible because it is final; it is not final because it is infallible. But that infallibility — if you will — must be tempered by fidelity to the rule of law, which demands the intellectual honesty and political indifference that the Constitution requires for the personal freedoms of all of us to survive.

COPYRIGHT 2017 ANDREW P. NAPOLITANO | DISTRIBUTED BY CREATORS.COM

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  1. OH MY GOD REASON IS THE TRAVEL BAN CONSTITUTIONAL? UNBAN ADDICTIONMYTH AND HE WILL TELL YOU.

  2. On another note – anyone catch the Gorsuch commercial? The agenda is to discredit him. The ‘tell’ is that the audio is out of sync with the video by just a fraction of a second. They do the same thing on the Ron Paul commercials to make him look kooky. Also note how she says “The left” – this is an insult.

    Why are they doing this? Blame my precious anarch0-frankentrumpkencucks. Hehe – sorry. 🙂

    1. Ron Paul doesn’t need any help to look kooky now.

  3. Well, Judge, is the travel ban constitutional or not? I don’t see how one can object to the internment of the Japanese during WW2 and then turn around and support this travel ban. In both cases, large groups of innocent people have their rights violated. In both cases, people should be treated as individuals and decisions be made on a case by case basis.

    1. The only violation was the inclusion of legal permanant residents in the ban. No one else impacted has a right to come to this country. The whole purpose of the pause in travel was to allow for the establishment of procedures to do those case by case evaluations you advocate.

      1. And that violation was statutory not constitutional. The government has the power to exclude any non-citizen from entry into this country, but that power belongs to Congress first. Legal permanent residency is a special category under the law which the President must recognize, but Congress can change the law to remove that distinction without violating the constitution.

      2. What about people that were here on visa and had apartments and jobs?

        1. I know some that I wish had been overseas at the time…

    2. There is a qualitative difference between imprisoning someone and asking them to wait 90 days before they move here.

  4. Though the House of Representatives and the Senate appropriate money for foreign policy expenses and the Senate ratifies treaties and confirms ambassadors, the president alone determines who our friends and enemies are.

    Really? In that case you should be able to point to the specific provision in the US Constitution which endows a president with that power.

    And indeed you admit as much in your very next sentence.

    Congress has given him many tools with which to make and carry out those determinations.

    If Congress has to pass a law to create a tool for the president to use to determine who is an enemy and who is a friend then that canNOT be one of those powers endowed upon a president “exclusively” by the Constitution”.

    For example, take the Cuban embargo. Was it a US president who declared Cuba to be an enemy of the US and imposed an embargo against them? No, it was through Congress passing such statutes as the Foreign Assistance Act of 1961 and the Cuban Democracy Act of 1992.

    Then there are the Russian and Iranian sanctions. Did US presidents impose those themselves through a power endowed upon them directly by the Constitution or through powers endowed upon him by Congress.

    I am astonished Napolitano would make such make a demonstrably wrong assertion.

    1. Why are you surprised? He also wrote this which is patently insane.


      Once an immigrant has arrived here, that person has due process rights (the right to know the law, to have a hearing before a fair and neutral authority, and to appeal to a superior neutral and fair authority). This is so because the Constitution protects all persons.

      Since the constitution protects all persons, this means we honestly need to go to war with Iran does it not? They do not respect due process rights, property rights, or honestly any natural rights so therefore they are in violation of the constitution and we have a right to bomb the everliving fuck out of them yes? This recent decision by the appeals court, while it will no doubt be killed at the supreme court level, essentially applies the constitution to all person across the entire planet. This is a ludicrous assertion.

      While natural rights as a concept should apply to all persons, as a legal construct they absolutely do not. What the fuck is wrong with the Judiciary that they believe otherwise?

      I’m not against immigration necessarily, but simply throwing the doors wide and saying ‘welfare for all’ is about as retarded as you can get.

      1. Also, as a follow up, how is this still being spun as a ‘Muslim Ban’ when 85% of Muslim’s are from countries that aren’t included in the so-called ‘ban’? Is Trump that retarded, or is the media that dishonest? You decide.

        1. He used the phrase, people are using it against him.

          Is it dishonest? Yeah.

          Am I offended by it? Meh, he’s the one who was calling for a Muslim ban, you start doing things that approximate it you should expect those words to be hung across your neck like an albatross.

          1. Can you cite another example of a candidtae being, legally, held to statements made during a campaign?

        2. “Is Trump that retarded, or is the media that dishonest?”

          Yes.

          1. This is the response I was looking for! ^_^

      2. Um, context. He’s clearly referring to all persons within the US. Plus all citizens, globally. It doesn’t protect non citizens ex US.

        Note: “Once an immigrant has arrived here”

        1. The constitution does not protect all persons just by virtue of being on American soil. Certain rights, yes, but not all. Obviously. Although it is telling that there is an appeals court for deportation who’s waiting list is quite lengthy (years, last time I checked). It’s also telling that most aliens don’t show up to the hearing, telling you exactly how effective that process is. Instead of coming up with a better system, we are constantly told that never-ending amnesty is the only answer.

          I get frustrated with any author that tries to apply the constitution to foreign nationals. It’s a fools errand.

          1. American exceptionalism at its finest.

        2. Try, as a citizen, even, to have your Fourth Amendment rights upheld, when coming to the Customs table, with your luggage, and then tell me anyone has Constitutional protection “on US soil”.
          Apparently it is “reasonable” for everything, including your cavities, to be searched, when on US soil but not before crossing through the gauntlet of Customs and Immigration.

      3. This recent decision by the appeals court, while it will no doubt be killed at the supreme court level

        My prediction is that, if the Trump administration even files a petition for writ of certiorari (while the administration has up to 90 days to petition for cert, the decision has been out for a week already and no cert petition has been filed yet despite this allegedly being a matter of utmost urgency; instead Trump is going around talking about writing a new EO), SCOTUS will reject it without hearing the case.

    2. That’s OK, because he also makes the false claim that the courts are to “protect an unfavored minority”, when no such provision is anywhere in the Constitution.
      And let’s not forget that, until one passes through Customs, when entering the country, one doesn’t enjoy the protections of, say, the Fourth Amendment and can have their persons and possessions searched, with no probable cause.
      How about if someone shows up on an arriving flight, with no visa, or other method by which they can legally be granted entry, do they get to go to court to argue their case, or are they sent packing?
      People, in the “legal” profession have some strange ideas about what judges are supposed to be allowed to do, and Andrew is no different. They even believe that the Supreme Court makes laws, which is in direct conflict with Article 1, Section 1.

      1. he also makes the false claim that the courts are to “protect an unfavored minority”, when no such provision is anywhere in the Constitution.

        Wrong! Most of the First Amendment rights are to protect “unfavoured” minorities.

        For example, the freedom of speech clause is NOT there to protect the speech of the favoured majority (since they don’t need protection–on the ground that they are unlikely to ever be persecuted by those in power) but the speech of an “unfavored minority”.

        Something similar can be said for the freedom of religion and freedom of assembly.

        How about if someone shows up on an arriving flight, with no visa, or other method by which they can legally be granted entry, do they get to go to court to argue their case, or are they sent packing?

        Point out to us where the Constitution excludes people arriving in airports.

        But why stop at airports? By that same stretch of logic ocean beaches and properties in Texas fronting the Rio Grande are also Constitution-free zones (on the ground that people might set foot on the US from some passing tanker or Mexican boat with the proper visas.)

        They even believe that the Supreme Court makes laws

        Which “People, in the ‘legal’ profession” believe this? (And example or two would be nice. As opposed to a simple, baseless assertion.)

  5. Must the president justify to the satisfaction of judges his exercise of discretion in suspending immigration privileges?

    That “discretion” was endowed upon the president by the Congress, not by the Constitution. Can Congress endow an unlimited discretion upon a president?

    In a word, sometimes; he only needs to do so when a fundamental liberty, such as the free exercise of religion, is at stake

    Define “fundamental liberty”. Is freedom from hunger a “fundamental liberty? What about “freedom from fear”?

    The Declaration of Independence” makes “the pursuit of happiness” an “unalienable right”. Is that the same thing as a “fundamental liberty”?

    By “fundamental liberty” does that mean only those listed in the WRITTEN Constitution or does it extend also to those listed in the Unwritten tomes of Natural Law?

    …and not when state universities might temporarily lose students or faculty or the enrichment that those from foreign lands often bring.

    That is a slanted statement about the motives of the States of Washington and Minnesota. It is a bit rich to call upon judges to exercise their powers “with intellectual honesty and political indifference” when an ex-judge, in criticising their decision, himself approaches the issue from a political perspective.

    Not to mention a less than “intellectually honest” approach.

  6. Suppose intelligence officials told the president they believe that Islamic State-inspired lone wolves are about to enter the United States from three of the seven countries but some of them have multiple passports and may leave from one of the other four countries.

    If we are indulging in what-ifs, then why stop at there? If these “lone wolves” really do have multiple passports they could just as easily have passports from a country like Saudi Arabia which is NOT on the banned list. To therefore use that as a ground for justifying the ban is too full of flaws to be “intellectually honest”.

    Which begs another question: just how many “lone wolves” from those seven countries on the banned list have there been to justify such wide-ranging and indiscriminate (not to mention sudden) ban?

    If the aim is to stop bad people getting in why isn’t Saudi Arabia not on the list? That’s where most of the 9/11 hijackers came from.

    I would also note that this entire argument strikes me as equivalent to the ticking time-bomb argument Bush Administration officials and sycophants used to justify torture and mass surveillance. That was where you had scenarios of lone wolves running rampant with improvised nuclear devices and only CIA torture and NSA survellance could save the day.

    Now we find someone suggesting that only Trump’s ban can save the US from evil foreigners.

    1. I agree with many of your criticisms, but not the conflation of a “travel ban” with torture or mass surveillance. The latter two run afoul of the 8th and 4th Amendments, respectively, while the former doesn’t run afoul of any constitutional provision per se.

      1. The short answer is that it probably does not violate the constitution (unless the first amendment’s religious protection can somehow be invoked). Some critics (e.g. in Politico & Slate) have suggested violates the 14th amendment’s equal protection clause, but that only applies to the states, not to the feds.

        That said, others have suggested its violates the fifth amendment’s due process clause. That does sound more plausible–provided a visa, duly issued, could be regarded as the “property” of the person it was issued to. That would be a stretch but we’ll have to wait and see. If it applies at all it would most likely apply to those already in the air when the ban came into effect. At the very least those affected would surely be entitled to have their air fares refunded by the US.

        The fact that the ban also expressly applied to green card holders is surely also legally problematic, though with various Acts of Congress rather than the Constitution. The clarification that was subsequently put out about that matter also has legal problems given that the individual who put it out was not Trump. Only presidents can change executive orders, not some flunky.

        1. Only presidents can change executive orders, not some flunky.

          What is the legal basis for that? An executive order is already pretty weak from a legal perspective. It’s the President’s prerogative to issue orders to the executive branch, yes, but there is no requirement that said prerogative must be exercised exclusively through the form of written executive orders signed by the President. It would be preferable to “clarify”/amend/retract an EO with a subsequent EO but I don’t know that it’s strictly necessary.

          1. What is the legal basis for that?

            AFAIK the US courts have not decided the matter. That said, the short answer would be that to have some lower-level federal employee be able to issue a statement modifying a presidential executive order would imply that that employee had been endowed with the power to overrule an order issued by America’s chief of state.

            For example, can an American general overrule an order from the commander-in-chief and substitute his own version?

            That would pose such questions as: where did that general did get such power in the first place? Does the Constitution endow him with such a power? Is there an Act of Congress which does so?

            If no such power has been vested in him, then on what legal basis is he purporting to issue such a modification?

    2. If the aim is to stop bad people getting in why isn’t Saudi Arabia not on the list? That’s where most of the 9/11 hijackers came from.

      The distinction that is allegedly being made is between countries with functioning governments that take strong anti-terrorist actions and those without. But that doesn’t explain why Iran is on the list. Nor why Turkey isn’t on it.

      1. Back to the point at hand, Saudi Arabia is (again, allegedly) not on the list because they do things differently now than in 2001 vis-a-vis terrorism.

      2. Another questionable exclusion from the list: Pakistan. Even more so than Turkey.

        1. The point is, you, a random member of the commentariat, do not get to make that determination. We elected a President to make that determination. Sorry, this is not a direct democracy.

  7. “Though the House of Representatives and the Senate appropriate money for foreign policy expenses and the Senate ratifies treaties and confirms ambassadors, the president alone determines who our friends and enemies are.”

    An enemy country is a country with which the U.S. is at war.

    Congress has the power to declare war, not the President.

    Of course, if some other country chooses to declare war first, then one could say the Pres can accept the situation without getting a declaration of war from Congress, but that’s a fuzzy area.

    In either choice, the President *didn’t* make the decision of “who our enemies are,” it was Congress or the enemy country which made the decision.

    1. “An ‘enemy” country is a country with which the U.S. is at war.”

      Who died an made you Dr. Merriam-Webster?

      1. I believe it’s a term of art.

    2. Congress may have the power to declare war, but presidents seem to have the power to proscribe them.

      Haven’t you ever heard the term “undeclared war”. The U.S. has engaged in a few in the last half century. At the behest of presidential administrations. I haven’t seen any SCOTUS decisions otherwise.

  8. “It is the job of the judiciary to say what the Constitution means, say what the statutes mean and determine *with finality* whether a governmental actor used governmental power consistent with the Constitution and the statutes.”

    Really? So when President Jefferson pardoned the people who had been convicted of violating the Sedition Act, he was doing wrong, because the courts’ decision should have been final?

    1. Also…

      It is the job of the judiciary to … say what the statutes mean

      No. It is Congress that gets to say what the statutes mean. In particular, the Congress that passed them into law. The Courts don’t have the leeway* to interpret statutes as they see fit, but rather are charged with maintaining fidelity to the text and original intent of the lawmakers, as much as it is possible to do so.

      * = Under the doctrines of textualism and originalism

      1. Sometimes Congress passes statutes whose meaning isn’t automatically obvious without applying interpretive tools.

        Sometimes Congress passes conflicting statutes, like it did in the immigration field in 1952 and 1965. Courts have to sort out how to apply both statutes so they work together if possible, or if necessary make one statute yield to the other.

        1. Sometimes Congress passes statutes whose meaning isn’t automatically obvious without applying interpretive tools.

          True, but those “interpretive tools” are prior statutes and case law. In other words, a court hearing a case doesn’t get to invent “interpretive tools” out of whole cloth. That includes many of the “tests” invented by SCOTUS.

          Sometimes Congress passes conflicting statutes, like it did in the immigration field in 1952 and 1965. Courts have to sort out how to apply both statutes so they work together if possible, or if necessary make one statute yield to the other.

          Where two statutes conflict, the later statute should rule. When there is ambiguity in the text of the statute, the most restrained interpretation should rule. Congress is free to amend the statute to remove the ambiguity.

        2. Sometimes Congress passes statutes whose meaning isn’t automatically obvious without applying interpretive tools.

          Obviously, such statutes are automatically meaningless and are invalidated by the court of public opinion.

          You know, like laws that prohibit texting while driving.

      2. No. It is Congress that gets to say what the statutes mean.

        Congress has never exercised such a power, if only because that would imply a Congress with UNLIMITED power.

        That is to say, a Congress with the power to decide what its statutes mean would be a Congress which could enact anything it liked. Even if a statute openly violated the US Constitution it could always get round the problem by interpreting the problem away. Just as a policeman vested with the power to investigate himself in the case of an alleged homicide by him of an unarmed citizen will always find himself innocent even in the face of damning evidence to the contrary, so the Congress which made a law some were alleging breached (say) the First Amendment will always find itself innocent of the charge and vested with all the powers it needs.

        That’s how places like the People’s Republic of China work.

        In particular, the Congress that passed them into law.

    2. The courts’ decision would be that the President used his pardon power.

  9. As Judge Nap notes, Congress delegated broad power to the Pres to exclude foreigners from the U.S. Why, then, discuss this as if it were a case of Pres vs. Congress?

    Perhaps because it give the Pres an excuse to ignore the 1965 statute regarding immigrant visas and banning national-origin discrimination (with irrelevant exceptions) in the granting of such visas?

    1. I think the precedent is to read laws and executive orders so as to assume they are consistent with each other.

      So, you can’t fundamentally change the implementation of visas to discriminate against national origin, but you could temporarily halt immigration from classes of immigrants deemed by the president to be a risk.

      So, you can’t arbitrarily cut the number of visas from Iran, but you can put a hold on them while you address their failure to cooperate in background checks.

      I think if Trump were clever, he would put a freeze on all visas that are not supported by an affirmative background check from the relevant government. If that happens to be a barrier for Syrians, so be it.

  10. As for religious discrimination – there are laws on the books with a “disparate impact” on Muslims who want to enter this country. There’s a ban on practicing polygamists, which should exclude Abdul and his four wives. There *used to be* a ban on *philosophical* polygamists, that is, those who weren’t bringing in four wives but who thought they could. If that were still in force, then Sayyid the single guy who dreams of getting multiple wives would be banned.

    Muslims aren’t the only ones who are into polygamy. And not all Muslims are practicing polygamists. But the “disparate impact” is there.

    The same would be true of a ban on people who believe for religious or ideological reasons that they are at war with the United States or with countries with which America is at peace. There is a version of Islam which teaches its followers they’re at war with “infidel” countries and that they should go blow stuff up in those countries for the sake of their holy war. Again, not all Muslims believe this, and not all those who want to blow up stuff in other countries are Muslims, but there’s a *disparate impact.*

    1. The same would be true of a ban on people who believe for religious or ideological reasons that they are at war with the United States or with countries with which America is at peace.

      The same would be true of a ban on people who believe for religious or ideological reasons that they must not show their faces to “just anyone”.

      1. One difference would be in the RFRA analysis.

        For people who want to wage war with the U.S., it may be easier for the govt to show that excluding such people from the country is the least restrictive means of achieving the compelling government interest of not getting blown up.

        Is forcing Muslim women to show their faces the least restrictive means of achieving a compelling government interest?

  11. Which rights did the US Constitution confer to Yemeni citizens et al, and are now being infringed, pray tell?

  12. Yet in return for the life tenure and unaccountability its members enjoy, we expect political indifference ? that judges’ decisions shall not be made in order to produce their own politically desired outcomes.

    Then our Constitutional form of government must fail, since this is an impossible standard to meet in practice.

  13. SCOTUS is not infallible, what they say does not automatically become right or constitutional, it only becomes how the law is applied. I present to you the eugenics programs and the SCOTUS decision that basically says death camps are OK if for the good of the country if anyone wanted to take it that far, hey, if we can ask people to die in a war for the good of the country and we can force sterilize those we deem unworthy of breeding we can surely execute people for any reason as long as we say it’s for the greater good.

  14. Washington State’s suit claimed that the order was unconstitutional because it unnecessarily interfered with the rights of US citizens to associate with anyone holding valid visas, in particular the faculty, staff and students of the University of Washington. I think this is the most solid case. The government should have to show a clear and present danger in order to abridge this right.

  15. “The whole purpose of an independent judiciary is to be anti-democratic ? to protect the life, liberty, and property of all people from the unconstitutional behavior”

    From your lips to God’s ears!

    But two observations:

    1) How to we get them to honor and respect this purpose? And,

    2) What do we do about state and local governments who trample on our these rights with seeming impunity? Much more so in my life experience, than the Legislative or Executive branches of the federal government.

  16. Bottom line: Trump is right (again) and the court is wrong.

    Trump is interesting because he does so many things, says so many things, that SEEM wrong at the time – but turn out to be right.

  17. When it comes to articulating and carrying out the foreign policy of the nation, the president is superior to the other branches.

    That sounds suspiciously close to President Nixon’s famous claim that “when the president does it, that means it is not illegal.”

  18. In a word, yes; but they must do so with intellectual honesty and political indifference. The judiciary is an independent branch of the government, and it is co-equal to the president and the Congress. It is answerable to its own sense of scrupulous intellectual honesty about the Constitution. ???? ???? ??????? ?????? ????? ???? It is not answerable to the people. Yet in return for the life tenure and unaccountability its members enjoy, we expect political indifference ? that judges’ decisions shall not be made in order to produce their own politically desired outcomes.

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  21. Let’s start with this quote from this article. “They argued that we have an imperial judiciary that thinks it has the final say on public policy ? one that will freely second-guess the president in areas that are exclusively his under the Constitution.” Next next look at the phrase “Exclusively his”. Now lets assume this is the gods honest truth. This would mean we could have a black president write an immigration order declaring only black skinned people could enter. Or a native American president could say only native Americans can enter. How about a president of Russian ancestry declaring only Russian communists can enter. I strongly suspect the author would scream bloody murder if one of the other scenarios happened.

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