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President Donald Trump filed an appeal with the Supreme Court from adverse decisions in two circuit courts on the revised version of his travel ban Executive Order, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”

If the Court decides this appeal on its merits, which I do not expect the Court to do, the most controversial issue will be the claim that Trump is using a national security reason for the travel ban to cover up his real purpose, religious discrimination, and, therefore, the Executive Order violates the First Amendment’s Establishment Clause.

Even if Trump had hostility towards the Muslim religion in his heart when he decided to write the travel ban, it is not the reason he stated in the Executive Order, and the travel ban opponents have not established a legitimate basis for rejecting the stated reason.

The test is whether permitting the banned aliens to enter the United States would be detrimental to the interests of the United States.

Trump issued the travel ban order pursuant to section 212(f) of the Immigration and Nationality Act, the pertinent part of which reads as follows:

(f) Whenever 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 aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

May not need to state a reason at all.

In Kleindienst v. Mandel, the Court observed that, without exception, it has sustained Congress’ “plenary power to make rules for the admission of aliens.” And, “The power of Congress .... to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.” (Page 408 U. S. 766)


Published originally on Huffington Post.

About the author.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.