Foreign nationals who have never traveled to the United States don’t have constitutional rights that insulate them from President Trump’s executive order suspending travel from seven terror-stricken countries, according to the Justice Department.
“The state has admitted that people abroad without prior U.S. contacts do not have rights that can be asserted by them and we agree,” August Flentje, the special counsel to the assistant U.S. attorney general, told a three-judge panel of the 9th U.S. Circuit Court of Appeals on Tuesday evening.
That argument was a last line of defense for the beleaguered Justice Department attorney, who argued that a lower court judge who issued a temporary injunction of the order overstepped his authority. “I’m not sure I’m convincing the court, so I want to make one really key point with regard to the injunction and that is that it is overbroad and should be immediately stayed to the extent it is overbroad, even if the court thinks some applications of the order are problematic,” Flentje said.
He made that argument after struggling to defend the suggestion that the judges don’t have the right to second-guess Trump’s determination that the current visa vetting processes expose the U.S. to an unacceptably high threat of terrorism.
“The president is applying section 212(f) [of federal law] which authorizes the president to suspend entry of classes of aliens if their entry would be ‘detrimental to the interests of the United States,'” Flentje said. He cited terror-related arrests of Somalian nationals connected to al Shabaab, but conceded that those cases had not been admitted to the record in the lawsuit.
Without that evidence in hand, Flentje was exposed to counterarguments that the order was written not simply to restrict travel from dangerous countries, but with the goal of preventing Muslims from reaching the U.S.
“Haven’t there been allegations here of bad faith?” Judge Michelle Friedland asked at during the argument.
“The states are claiming that the executive order violates the Establishment Clause,” she observed at another point. “If that’s true, and it can’t meet the standards that the Establishment Clause imposes, then wouldn’t it be invalid on its face?”
Trump’s campaign rhetoric about banning Muslims proved a stumbling block, but Flentje argued the text of the executive order was itself the “best evidence” of Trump’s intent. And the order, he emphasized repeatedly, was based on a congressional determination that the seven affected countries — Iraq, Iran, Libya, Syria, Sudan, Somalia and Yemen — pose a heightened terrorist threat.
“It is extraordinary for a court to enjoin the president’s national security determination based on some newspaper articles, and that’s what has happened here,” Flentje said. “That is very troubling second-guessing of the national security decision made by the president.”
