Regarding: President's plenary power to suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants as vested in you by the Immigration and Nationality Act, 8 U.S. Code § 1182 (f).
I applaud you for keeping your campaign promises, particularly those pertaining to immigration and border enforcement. For the first time since 1993, I feel that my country is headed in the right direction in this respect.
I would like to urge you, though, to not yield to the Judiciary Branch even one tenth of one percent of your plenary power invoked in the "Regarding" line of my letter.
In response to the absurd ruling issued by 9th U.S. Circuit Court of Appeals upholding the Temporary Restrain Order (TRO) against your recent Executive Order (EO), you tweeted "SEE YOU IN COURT".
I respectfully ask you: PLEASE, DON'T GO THERE.
It's a masterfully set trap.
They want you to put aside your guns, the executive plenary power to suspend the entry of aliens, and engage in a fist fight (figuratively speaking), instead. But there are about 3,500 of them, federal judges, and you are only one President. (Remember the lawyers who are U.S. Senators - they will tend to side with other lawyers and not with you.) They are much better in legal fights than you are. They will beat you up (figuratively speaking), badly, if not this time then sometime thereafter.
The judges and justices will entangle you in an insidious net of legal tricks and judicial sophistry from which you - most likely - may not be able to break free. And even if this time they will let you win on all your points, by just participating in this extra-Constitutional process you will lend credibility to their claims that your actions in this specific subject (temporary suspension of entry of aliens) are subject to judiciary review, which they are not.
Judging from the history of judiciary expansion of power, they may let you win this time around, indeed, just to have a basis for a claim that your plenary power vested in you by the Immigration and Nationality Act, 8 U.S. Code § 1182 (f) is subject to judicial review, and will derail many of your future attempts to defend this nation from its abusers, adversaries, invaders, and enemies.
A brief history of judicial expansion of power
Historically, the first instance of Supreme Court's judicial review was an uneventful case Hylton v. United States 3 U.S. 171 (1796) in which the court upheld an act of the U.S. Congress regarding a yearly tax on carriages. Although Supremes' decision in this case had no impact on the said act, it provided the Court with a precedent for its "landmark" decision in Marbury v. Madison, 5 U.S. 137 (1803), in which the Court declared Section 13 of the Judiciary Act passed by Congress in 1789 unconstitutional and, therefore, invalid. These two cases illustrate fairly well the Judiciary Branch strategy of gradual, if not sneaky, preemption of power form the other two Branches of the Government. Well meaning or not, it is an usurpation.
Since then, little by little, the Judiciary Branch was metamorphosing into a supreme political power in the U.S., not accountable to anyone but itself. Although the final destination in that long metamorphosis, a judicial dictatorship, has not been reached, yet, we are inching slowly but steadily towards it, with a general approval of the judicial community but without consent or even knowledge of the American voters who don't have any say in this matter. And it doesn't matter that the intentions of the judiciary are noble (they not always were), for the ruination of the foundations of our Republic will be irreparable once it is done.
Yet in the matters pertaining to foreign affairs, which area included immigration issues, the Judiciary Branch was careful enough to not interfere with the political branches of the government. Wrote Justice Jackson in Harisiades v. Shaughnessy, 342 U.S. 580 (1952): "[A]ny policy towards aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Chief Justice, Harlan F. Stone, (1941-1946), summarized this way the notion of self-checking-and-balancing of the Judiciary Branch: “While unconstitutional exercise of power by the executive or legislative branches of the Government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of restraint.”
That self-restrained didn't last very long in immigration matters, though. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court put its foot in the doorstep of the doctrine of plenary power of political branches in immigration matters, under the pretext of protecting the habeas corpus right of a criminal resident alien. Not surprisingly, this decision opened the door for judicial activism at the level if inferior courts that apparently interpreted the said decision as a carte blanche to encroach on plenary power of the political branches over immigration. The Courts decided to give themselves the right to review virtually all acts of these branches in such matters even if, like in the case of your recent EO, the aliens that were affected by these acts were not physically present in the U.S. I wonder if there is a more clear case of judicial usurpation than this.
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Un-Constitutionality of judicial dictatorship
The very notion (any judicial sophistry, no matter how old, long, or clever, notwithstanding) that the framers of the Constitution intended to make the Judiciary Branch the final arbiter on the issues of its own un-Constitutional powers, a supreme authority that is not accountable to We the People, is an unproven nonsense that needs to be clearly denounced once and for all.
The language of the Immigration and Nationality Act, 8 U.S. Code § 1182 (f) could not be clearer. It states that "[w]henever 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 of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate." It gives you plenary power in this respect with which the courts of any level are not authorized to interfere with.
You may ban entry of all aliens of Muslim faith, and all those who abide by Sharia Law, if you (and not the courts or anyone else) find such entry detrimental to our national interest. You were vested with sole discretion in making such kind of determination with no duty to justify them to anybody. Although the said Immigration and Nationality Act puts some restrictions on categorizing classes of aliens as inadmissible based on their religious and political beliefs, the Act expressly allows you to suspend the entry of any class of aliens, whether admissible or not, thus making the said restrictions non-applicable to your power vested in you by Act's Section (f) (quoted above). And unlike in the Article I of the Constitution, Section 8, Powers Granted to Congress, there is no “necessary and proper” clause in the above law that would make your proclamations and discretion in this matter litigable or subject them to a judicial review, judiciary decisions and legalistic sophistry to the contrary notwithstanding. The sworn duty of the judges is to follow and apply the law and not to twist it, whether they like it or not. In particular, they must follow the Immigration and Nationality Act, 8 U.S. Code § 1182 (f), or be guilty of dereliction of duty and breaking of their oath of office.
With those in the latter category you have a Constitutional prerogative to deal with sternly, vested in you by the Article II (The Executive Branch) of the Constitution, Section 3, clause "he shall take Care that the Laws be faithfully executed." These judges do not belong to the American Government as outlined in the Constitution. They should be removed from their offices using any means lawfully possible.
MY RESPECTFUL REQUEST
So, please, tell the Courts, with a personally delivered cc to the American People, that you and your lawyers tried very hard to find a Constitutional basis for the TRO against your EO mentioned above, but you failed. So, there is no evidence based on the Constitution that the said TRO is legally binding. Therefore, you conclude that the said TRO is Constitutionally null and void, and that you will instruct your Cabinet and other officers to implement your EO expeditiously and rigorously.
Please, ask them who gave them power to review your decisions in this respect? Themselves? (Yes, indeed.)
Please, tell them that they violate the fundamental doctrine of separation of powers, and that the Judiciary Branch is accountable to no one outside it and acts as if it were the highest authority that even the lowest level federal judge of which can dictate the president how to execute his discretion given him by the law.
Please, tell them you are going to be one of their checks-and-balances, as it is your prerogative to see to it that the laws are duly enforced. Promise them a review of the abuse of their Constitutional powers and refusal to apply the law as it was written. Rebuke them and move on to do your business. And, please, do follow on your promises in this respect.
I wish you all the best, Mr. President.
Sincerely,
Mark Andrew Dwyer
Mr. Dwyer has been a continuing contributor to the Federal Observer. Mark Andrew Dwyer’s commentaries (updated frequently) can be found here. Send your comments to .(JavaScript must be enabled to view this email address).
