Federal law, legal precedent, and the Constitution divide U.S. foreign policy powers between the Executive and Legislative branches. It grants presidents certain powers – like the role of commander-in-chief of all armed forces – while granting Congress other specific powers, such as the regulation of foreign commerce.
The separation of powers has spawned a great deal of debate over the roles of the president and Congress in foreign affairs, as well as over the limits on their respective authorities. “The Constitution, considered only for its affirmative grants of power capable of affecting the issue, is an invitation to struggle for the privilege of directing American foreign policy,” wrote constitutional scholar Edward S. Corwin in 1958.
The same cannot be said of national security policy; it is generally understood and accepted that the Executive Branch is primarily responsible for defense and security policies, though presidents are provided insight and advice via the National Security Council, the Joint Chiefs of Staff, his national security advisor, intelligence agency heads, and others.
The one branch of government missing in this equation – which was purposeful – is the Judiciary Branch, as it was designed by our founders to have the least impact on such decisions. The entire point of leaving federal courts out of policymaking is to prevent said policies from being challenged inappropriately. (RELATED: This is wartime: Trump should ignore federal courts blocking his travel ban.)
But already in President Donald J. Trump’s young presidency, federal courts have intervened in Executive Branch foreign and national security policymaking, quite possibly to the detriment of the country. Driven by political ideology, a few state attorney generals were successful in stopping the president’s travel ban to the U.S. from seven terrorism-infested countries, in an unprecedented case that challenges the conventional acceptance of the Executive Branch’s role in ensuring the safety of the country.
Rather than continue fighting the original order in court – which would actually give legitimacy to the court’s actions – Trump instead issued a new order last week that the White House said should satisfy the so-called “religious component” which gave some precedence to Christians in Muslim-dominated countries who claimed persecution.
That hasn’t mattered to the Alt-Left, which constantly puts political ideology over everything else, including national security: Hawaii has filed suit to stop Trump’s new order, claiming that somehow it will harm the state and its residents. Only this time, legal scholars don’t see where this lawsuit succeeds, even though it was filed in the same 9th Circuit where the successful challenge to Trump’s first order came.
Writing for The Daily Signal, Hans von Spakovsky, a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, says regardless of any legal successes against Trump’s first order, Hawaii and other states don’t have any standing to challenge the second:
Hawaii’s lawsuit consists almost entirely of policy arguments as opposed to legal claims, and the legal claims that are made are far-fetched.
There seems little doubt that the lawsuit was filed in Hawaii to take advantage of the generally liberal nature of the 9th U.S. Circuit Court of Appeals and its dominance by Democratic appointees. Seventy-two percent of the judges on that court were appointed by Democratic presidents, and at the district court level in Hawaii, the lawsuit has been assigned to Judge Derrick Watson, a President Barack Obama appointee.
Von Spakovsky says that Hawaii is claiming Trump’s order harms the state by preventing “immediate family members living in affected countries” from being able to visit their relatives in the U.S. The state further claims that the order prevents “universities, employers, and other institutions” from recruiting or welcoming “qualified individuals” from the named countries.
He states further that the “basic flaw” in the argument is that foreign nationals have no constitutional right to enter the United States. What’s more, the Hawaiian suit does acknowledge that under U.S. code, the president has the authority to suspend entry into the country any class of aliens he feels are a threat. But the complaint claims that Trump is exceeding his authority in issuing the travel ban. (RELATED: Trump Vows To Fight Activist Judge’s Refusal To Honor Executive Order On Travel Ban From Terrorist-Harboring Countries.)
“But given its broad grant of authority, it is hard to imagine how the president could possibly be exceeding his authority,” von Spakovsky wrote. “That is particularly true given the fact that the revised order explicitly states how the six designated countries are connected to the terrorism problem we face.
The biggest issue here is that another liberal ideologue pretending to be an attorney general doesn’t like Trump and he doesn’t like the fact that Trump is in the White House – because when former President Obama made similar determinations as president, neither Hawaii nor any other Left-wing state attorney general filed suit. (Related: Get another angle on your news at Conservative.news.)
Besides, the real issue isn’t whether Trump’s order was the same or similar to previous orders issued by previous presidents; it’s whether or not Trump has the authority to issue it, and he clearly does.
J.D. Heyes is a senior writer for NaturalNews.com and NewsTarget.com, as well as editor of The National Sentinel.