The President’s power to keep aliens out 4

Further to yesterday’s post, The Left’s abuse of children, and our argument that the best way to deal with the flood of illegal aliens crossing into the US over the southern border is to send them straight back to where they came from, here’s an authoritative opinion that the President has the power to do this.

Daniel Horowitz* examined Article II of the Constitution which gives the President control foreign affairs – reiterated as delegated congressional authority under 8 U.S.C. §1182(f) (Sec. 212(f) of the INA) – and writes at Conservative Review:

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.

There are three important observations to be made here:

  1. The criteria for exclusion is not based on “national security concerns” or “terrorism.” It’s anything that, in the determination of the president, would be “detrimental to the interests of the United States.” That includes public welfare, health concerns, values, attitudes, etc. Thus, in this case, where the surge has already created the worst drug and gang crisis in the history of the country, the president would be justified in invoking this power.
  2. Just like the president has the authority to completely shut off immigration, he may impose any restrictions on entry even if he chooses to continue various forms of immigration. Thus, in order to abide by the Geneva Conventions on asylum, the president can condition any asylum claims on applying at a U.S. consulate in Mexico, not at the border – or turn them back immediately.
  3. This is not the type of provision in which a court can demand evidence that the condition of “detrimental to the interests of the United States” was met. The delegation of authority was designed as plenary power. The courts have absolutely no authority to second-guess the president’s determination. That is up to Congress and the electorate. As a recent Congressional Research Service report observes, from the House report on the 1952 immigration bill that granted this authority: “The bill vests in the President the authority to suspend the entry of all aliens if he finds that their entry would be detrimental to the interests of the United States, for such period as he shall deem necessary” (H.R.RPT.1365, 82d Cong.,2d Sess., at 53 (Feb. 14, 1952)).

Section 212(f) has been invoked 43 times since 1981, 19 of which were by President Obama. The one major Supreme Court case covering 212(f) was Sale v. Haitian Centers Council, Inc. (1993), which dealt with a policy established by Bush 41 and Clinton to apprehend Haitians traveling by sea to our shores. The policy was designed to return these Haitians to their home country before they could land in the United States and apply for asylum. In a clear 8-1 decision authored by Justice John Paul Stevens, the court fully upheld the act and made it clear that there are no limitations on 212(f) authority.

Similarly, the few lower court decisions on this matter clearly affirmed long-standing settled law. Any alien who enters the country without lawful status or against the president’s 212(f) proclamation is considered to be outside our borders and has no right to apply the due process of deportation procedures to his predicament.

In one of the few cases on 212(f) (Encuentro del Canto Popular v. Christopher, 1996), a district judge in California made it clear that not only does the president have the delegated authority from the legislature to cut off visas, but he also has his own powers to conduct foreign affairs:

The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power” [930 F. Supp. 1360, 1365 (N.D. Cal. 1996)]. …

In addition to INA 212(f), there is another section — INA 215(a)(1) — that grants the president an almost equal level of authority to regulate entry of all aliens, which includes both immigrant and non-immigrant visas:

Unless otherwise ordered by the President, it shall be unlawful–

(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe;

If demanding that all immigrants enter legally or apply for asylum in a safe and controlled environment at a consulate rather than at a border controlled by some of the most dangerous people in the world is not a “reasonable rule”, I’m not sure what is. According to the Congressional Research Service, President Carter used 215(a)(1) authority to suspend immigrant and non-immigrant visas from Iran following the Iran hostage crisis. Bill Clinton also used it to prevent Haitians from landing on our shores. These regulations clearly cover even legal permanent residents; they therefore certainly cover people who have no ties to our country and are seeking entry at our border for the first time.

The point is that nobody ever has a claim to land on our shores without the consent of the president, and the president can block such entry using both his inherent Article II powers and these two sections of the INA. As the Supreme Court said in Youngstown Sheet & Tube Company v. Sawyer, “When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”

Also, let us not forget that even if individuals find a way onto our soil, that does not give them any affirmative rights. Constitutional rights on our soil only apply to a person who comes here with consent. That is deeply rooted in social compact theory and settled law. As the court said long ago in United States v. Ju Toy, a person who comes to the country illegally is “to be regarded as if he had stopped at the limit of its jurisdiction, although physically he may be within its boundaries”. 

Trump is reportedly looking for a way to go big on immigration using executive authority. He already has the ultimate authority to shut off the migration completely. And that is all the leverage he needs over Congress.

 

*Find Daniel Horowitz’s book Stolen Sovereignty: How to Stop Unelected Judges from Transforming America here.

Seventeen victims of a demented ideology 8

The massacre at Marjory Stoneman Douglas High School in Broward County, Florida, was carried out by the psychopath Nikolas Cruz. He was ably assisted by the incompetence of the Broward County Sheriff’s Department under Sheriff Scott Israel. And it was also the result of a policy hatched and implemented by the Obama administration.

Daniel Horowitz writes at Conservative Review:

 It turns out that Broward County has been promoting a program … to incentivize local officials to do everything they can to keep juveniles out of jail. …

That’s what the Broward County “PROMISE” program (Preventing Recidivism through Opportunities, Mentoring, Interventions, Supports & Education) did. Not prevent crimes, but prevent young criminals being punished by the law.

Broward County “had the highest number of school-related arrests statewide at 1,062” before Obama began his Common Core-style grant programs for local jailbreak agendas. Once millions of dollars were doled out for juvenile feel-good programs to avoid arrest, such as the PROMISE program, the number of arrests plummeted by 63 percent from 2011-2012 to the 2015-2016 school year. …

Every nook and cranny of the [Obama] federal government’s law enforcement and education programs are filled with a culture of leniency on crime. Up until the very last month of the Obama administration, the Department of Education, along with senior Obama adviser Valerie Jarrett and former Domestic Policy Council Director Cecilia Muñoz, were promoting “the continuing need to rethink discipline.”

If there was ever an argument for abolishing the Department of Education, the growing concern over school violence and the role of the federal government in pressuring local communities to weaken their disciplinary standards should be the number one reason.

There is certainly [reason] to believe the particular leadership of Broward County was corrupt, incompetent, and even had ties to unindicted co-conspirators with Hamas. … Speaking at a mosque with his Hamas-supporting deputy, Nezar Hamze, Scott Israel said, “I have said over and over again, we have to measure the success of the Broward Sherriff’s office by the kids we keep out of jail, not by the kids we put in jail. We have to give our children second chances and third chances.” Or maybe 45 chances.

That was the number of times the police were called to criminal disturbances at the home of Nikolas Cruz. 45 times! And still he wasn’t arrested and charged.

Lest you think [Scott] Israel is uniquely radical, his statement is the gospel of the bipartisan leniency factions in almost every state.

Amazingly, the entire political class is attempting to expand these programs and apply them at a federal level as well, while decrying guns. Even Rep. Mark Walker, the chairman of the Republican Study Committee, is mindlessly touting vague “criminal justice reform” initiatives as if they are a positive.

Where is the clamor, even on the Right, to end the “reform” of criminal justice rather than attack the Second Amendment? After all, you can’t target the guns going into the wrong hands if you don’t target “the wrong hands” in the first place. The irony is that the bipartisan criminal justice reform agenda will make any background checks moot, particularly for juveniles who escape the entire criminal justice system through programs set up with federal funds, local liberal judges, and Soros-backed NGOs designed to expunge their records and treat them outside the system.

The soft-on-crime crowd can’t have it both ways. They can’t seek tougher laws on guns while seeking lenient laws on the violent criminals. They can’t promote federal policies that incentivize or bully states into putting more names in a NICs database while promoting policies that encourage states to lock up as few criminals as possible. The entire criminal justice “reform” movement has created a culture, pressure, and incentive for cops and county governments to be as lenient as possible when it comes to incarcerating juveniles, the exact opposite of the cultural pressure from the past two decades.

Rather than pandering on gun control while simultaneously promoting jailbreak legislation, Republicans would do better to cut off all funding for jailbreak grant programs through the Department of Justice and Department of Education and call upon Education Secretary Betsy DeVos to rescind all Obama-era memorandums pressuring local school districts to change their methods of discipline.

Paul Mirengoff at Powerline refers to, and quotes, the Horowitz article, and comments:

If law enforcement had retained discretion, there’s a good chance Cruz would have been arrested and/or committed. After all, the sheriff’s department received dozens of credible complaints against him. Some described his violent acts and tendencies, others his threats to shoot up the school. …

Cruz was expelled for bringing weapons to school. And when he got into a fight in September of 2016, he was referred to social workers rather than to the police. Similarly, when he allegedly assaulted a student in January 2017, it triggered a school-based threat assessment, but no police involvement.The Washington Post notes that Cruz “was well-known to school and mental health authorities and was entrenched in the process for getting students help rather than referring them to law enforcement“. …

Sheriff Scott Israel provides a perfect example of the new mentality — the culture of leniency.

Speaking at a mosque, he remarked:

I have said over and over again, we have to measure the success of the Broward Sherriff’s office by the kids we keep out of jail, not by the kids we put in jail. We have to give our children second chances and third chances.

 Unfortunately, Nikolas Cruz’s victims never even had a first chance.

The idea of measuring the success of a law enforcement agency by the number of people not in jail is sheer lunacy. The only valid measurements of success are (1) prevention of crime and (2) apprehension and successful prosecution of criminals. If, instead, we were to measure success by the number of people not in jail, then the most successful sheriffs would be the ones who didn’t arrest anyone, or at least any youths. And the logical way to build on that “success” would be to release those already in custody. …

It’s not enough to condemn Scott Israel as incompetent. His incompetence is only part of the story. The rest of the story is the culture of leniency, enshrined in federal policy, that encouraged Israel’s department to keep Nikolas Cruz free to kill.

And Ann Coulter writes at Townhall:

If Cruz had taken out full-page ads in the local newspapers, he could not have demonstrated more clearly that he was a dangerous psychotic. He assaulted students, cursed out teachers, kicked in classroom doors, started fist fights, threw chairs, threatened to kill other students, mutilated small animals, pulled a rifle on his mother, drank gasoline and cut himself, among other “red flags”.

Over and over again, students at Marjory Stoneman Douglas High School reported Cruz’s terrifying behavior to school administrators, including Kelvin Greenleaf, “security specialist”,  and Peter Mahmood, head of [the Junior Reserve Officers’ Training Corps] JROTC.

At least three students showed school administrators Cruz’s near-constant messages threatening to kill them — e.g., “I am going to enjoy seeing you down on the grass,” “Im going to watch ypu bleed,” “iam going to shoot you dead” — including one that came with a photo of Cruz’s guns. They warned school authorities that he was bringing weapons to school. They filed written reports.

Threatening to kill someone is a felony. …

If Cruz had been charged and jailed, not only would a dangerous criminal have been locked up for a while, but also …

Having a felony record would have prevented him from purchasing a gun. …

Cruz was never arrested. …

Of course, killjoys will say that removing the consequences of bad behavior only encourages more bad behavior. But that’s not the view of Learned Professionals, who took summer courses at Michigan State Ed School.

In a stroke of genius, they realized that the only problem criminals have is that people keep lists of their criminal activities. It’s the list that prevents them from getting into M.I.T. and designing space stations on Mars. Where they will cure cancer.

This primitive, stone-age thinking was made official Broward County policy in a Nov. 5, 2013, agreement titled “Collaborative Agreement on School Discipline.”

The first “whereas” clause of the agreement states that “the use of arrests and referrals to the criminal justice system may decrease a student’s chance of graduation, entering higher education, joining the military and getting a job.”

Get it? It’s the arrest – not the behavior that led to the arrest – that reduces a student’s chance at a successful life. (For example, just look at how much the district’s refusal to arrest Nikolas Cruz helped him!)

The agreement’s third “whereas” clause specifically cites “students of color” as victims of the old, racist policy of treating criminal behavior criminally. …

Just a few months ago, the superintendent of Broward County Public Schools, Robert W. Runcie, was actually bragging about how student arrests had plummeted under his bold leadership.

When he took over in 2011, the district had “the highest number of school-related arrests in the state”. But today, he boasted, Broward has “one of the lowest rates of arrest in the state.” By the simple expedient of ignoring criminal behavior, student arrests had declined by a whopping 78 percent. …

When it comes to spectacular crimes, it’s usually hard to say how it could have been prevented. But in this case, we have a paper trail. In the pursuit of a demented ideology, specific people agreed not to report, arrest or prosecute dangerous students like Nikolas Cruz.

These were the parties to the Nov. 5, 2013, agreement that ensured Cruz would be out on the street with full access to firearms:

Robert W. Runcie, Superintendent of Schools

Peter M. Weinstein, Chief Judge of the 17th Judicial Circuit

Michael J. Satz, State Attorney

Howard Finkelstein, Public Defender

Scott Israel, Broward County Sheriff

Franklin Adderley, Chief of the Fort Lauderdale Police Department

Wansley Walters, Secretary of the Florida Department of Juvenile Justice

Marsha Ellison, President of the Fort Lauderdale Branch of the NAACP and Chair of the Juvenile Justice Advisory Board

Nikolas Cruz may be crazy, but the parties to that agreement are crazy, too. They decided to make high school students their guinea pigs for an experiment based on a noxious ideology. The blood of 17 people is on their hands.

And there will be many more victims of the noxious and demented ideology.