Mark Krikorian: Revised Immigration Order Legally Sound, but Trump Opponents Will ‘Find at Least One Federal Judge’ to Block It

AP Photo/Pablo Martinez Monsivais
AP Photo/Pablo Martinez Monsivais

Mark Krikorian, executive director of the Center for Immigration Studies, discussed President Trump’s revised executive order on immigration with SiriusXM host Alex Marlow on Tuesday’s Breitbart News Daily.

“The changes are mostly in response to the legal challenges, and I think the point here, the goal here, is to try to keep federal judges from stopping this executive order, the way they did the previous one,” Krikorian explained. “So they explicitly exempted people who had green cards, for instance, even if they were from those countries. They explicitly exempted people who had visas issued before the first executive order. In other words, they already had visas in hand before then.”

“For political reasons, they removed Iraq from the list of seven countries, now six countries, whose citizens would be barred for 90 days,” he continued. “It’s really just a pause. And the other thing specifically that I think probably was related to the court cases was they removed the special refugee reference to Syria. What they had done in the original one was pause all refugee resettlement for 120 days, but for Syrian refugees, they just indefinitely put it on hold. They got that Syrian part out, so now, it’s all refugees, including Syrians, are on hold for 120 days while they look at how they can redo the vetting.”

“There’s two points to make,” Krikorian said. “One is, this really is a better-prepared document than the first one, than the first executive order. It’s not just longer. It actually goes through and explains why they’re doing this list. Each country – why Libya? Well, there’s a whole paragraph on Libya, then one on Somalia, then one on Syria. That’s important for political purposes. This is a political act, so you need to keep explaining what you do.”

“I think they didn’t realize that when they issued the first one,” he speculated. “They figured okay, we won. We have this authority. It’s obviously in the law. Let’s just use it. They didn’t get the need for constantly explaining what you’re doing – talking to people, to the voters, about why this is important.”

“The other thing, though – and I think this really is the overarching issue – is that the specifics of the executive order are less important than the fact that the president has blanket authority to do this,” Krikorian argued. “This is what the attorney general was referring to when he said this order, like the previous version, is a lawful and proper use of presidential authority.”

“Congress has given the president the authority to keep out all aliens or any class of aliens if he thinks it’s in the national interest to do so,” he explained. “It doesn’t say any class of aliens that the San Francisco Ninth Circuit Court judges think is acceptable. Any class of aliens. So the president could, in fact, issue a Muslim ban for non-citizens – which I think would be bad policy. It would be a stupid idea – and this doesn’t do anything like that. But he could do that under the law if he wanted to.”

“First Amendment protections do not apply to foreigners living abroad. That’s really the key issue here, is that judges and the people they work with, the ACLU and the rest of them, are operating on the principle that the American people don’t have the right to decide who comes in and who is kept out. The judges are the ones who can make those decisions, not the elected representatives of people. That is an issue, in my opinion, far more important than whether Somalis are put on pause for 90 days before they can start coming again,” he said.

Krikorian predicted that despite the care put into crafting this revised executive order, “they’re going to find at least one federal judge, maybe more, who will block this.”

“Those actions by that federal judge in Washington State that were upheld by the Ninth Circuit Court, and then various other judges around the country, those rulings were not based on law,” he charged. “They were simply political assertions of will. Those judges didn’t like the policy, and like we’ve seen way too often in all kinds of areas with the judiciary over the last 50 years, they just made up some legal pretext to stop a policy they disagreed with. That’s all that was about.”

“It’s not just that it has nothing to do with law. Those actions by those judges were, in fact, lawless. The Ninth Circuit did not even address the statutory basis of the original executive order. It said right in the executive order, citing that statute I mentioned about the president being able to keep out any class of aliens he wanted. They didn’t even mention that,” he noted.

“To me, that means this was just a political act by activist judges. I think they’re just going to do it again. I don’t think they care about law. This is purely an assertion of will by a class of people that just don’t like Trump and his policies,” he said.

Marlow noted that President Trump’s past comments about a “Muslim ban” have been cited as a reason to block this executive order, even though it manifestly is not a “Muslim ban.”

Krikorian agreed that, legally speaking, Trump’s past statements should not be a problem, but “in court, with the ACLU working with judges – because they’re basically all just the same people,” the president’s campaign rhetoric is clearly coming back to haunt him.

“Again, that’s just a pretext for judges acting to stop a policy they don’t like. It’s not a Muslim ban. In fact, with taking Iraq out, it only covers something like ten percent of the world’s Muslims. That’s an odd Muslim ban that does not apply to 90 percent of the people who are Muslims, and – this is key – even if it were a Muslim ban, it would be lawful,” Krikorian said.

“Politically, I think it would be a bad idea. I’ve written about this back when he made his original comments during the campaign. But that’s a different point from the legal point: judges don’t get to weigh in on political questions, and that’s what this is,” he insisted.

“Justice Scalia used to say that he wished he had a stamp, like an ink stamp he could stamp on petitions that were brought to the Supreme Court, that said the following: ‘Stupid but Constitutional,’” he recalled. “The problem with much of the Left, and really much of our political discourse, is that people have redefined in their own heads the word ‘unconstitutional’ to mean ‘any policy I disagree with.’ That’s not the way it works. That’s not the way any of this works.”

Marlow proposed that for some courts, any policy that cuts against the Left is automatically deemed “unconstitutional.”

“Oh, yeah, absolutely. We’ve been seeing that, like I said, for fifty years now,” Krikorian agreed. “Look, whatever you think of the gay marriage issue, the idea that somehow, that’s in the Constitution is almost comical, if it weren’t a serious public policy issue. If California wanted to legalize gay marriage, I don’t live in California, whatever. But the idea that the U.S. Constitution, the guys in 1787, were sitting in Pennsylvania, in Philadelphia, and writing this document, they said, ‘Of course, gay marriage!’ It’s absurd on its face. And yet, there’s probably half the judiciary, if not more, that actually thinks that’s not a joke; that’s a real thing.”

Krikorian found some merit in the argument that Trump’s executive order does not go far enough to suspend immigration from problematic areas until security can be assured, but he added he had two disagreements with that critique.

“The first is they’re starting with the hardcore of the most difficult countries to do this kind of screening in,” he pointed out. “This revised order does a better job of explaining why. In fact, these are countries that are obviously already in statute, listed as problem countries with regard to terrorism. Four of them have no governments at all, so how are you going to get any information to vet anybody when literally there’s no government that runs the country? And then, two of them, plus Syria which has no government, and like Sudan and Iran, are state sponsors of terrorism. They’re certainly not going to let us tap into their DMV databases and make sure that a person is who they say they are. Their avowed goal is to kill Americans.”

“So they’re starting with the worst cases, listing those countries that are most problematic, but then the executive order specifically provides for the secretary of state, or Homeland Security, or the attorney general to recommend to the president other countries that are either not providing the information we need to be able to vet people or are unable to do so. This is a starting point for a broader re-examination of how we do this security screening and vetting. This isn’t the whole policy; this is just kind of the start of developing a policy,” he contended.

Marlow asked if there was any truth to the claim that extremists like ISIS would use Trump’s immigration orders as  a “recruiting tool.”

“You know, none of us knows for sure because it’s not like ISIS is calling up the commentators on MSNBC and saying, ‘Hey, you know, this is what we’re going to do,’” Krikorian replied. “This is all speculation by anybody, but it seems to me kind of ridiculous speculation.”

“Think about it. What this is saying is you put it in the words of somebody in the Middle East: ‘Give me a visa or I’m gonna join ISIS.’ I mean, come on,” he scoffed. “This is just a pretext these guys are making up.”

“You know, droning their leaders, that may be more of something that is going to motivate people, especially when things go wrong and we end up hitting a wedding party instead,” he mused. “Things like that happen, of course. Helping Saudi Arabia lay waste to Yemen – whether that’s a good idea or not, I’m not going to debate. I don’t know enough about it, but that’s the kind of thing maybe that can motivate people. Preventing Israel from being exterminated, that might be something that motivates people to join ISIS.”

“There’s all kinds of things like that, some of which we can control; some we can’t. The idea that a 90-day pause while we reassess screening procedures is somehow going to empower ISIS and drive all of these new recruits to it is, again, almost comical, except that people actually believe this,” he said.

Krikorian agreed that Trump’s executive order was vulnerable to adverse coverage of personal drama, such as families stopped at the airport because their permission to travel has been suspended or celebrities like Muhammad Ali’s son getting hassled by airport security.

“The question is, did they take steps to make it less vulnerable?” he said. “And the answer is yes. The first thing is that it doesn’t go into effect until March 16th, so there’s nobody boarding a plane not knowing this was going to happen, and then they show up at the border and they’re surprised.”

“I think the reason they did it that way last time is they figured, ‘Well, we’ve got to get this in. We can’t telegraph it, tell people what we’re going to do, because then, bad guys might take advantage of that window,’” he surmised. “Maybe that wasn’t a dumb concern, but as you described, it wasn’t a good media strategy, and it created all kinds of pushback – not just pushback from wacky Left groups that just don’t want immigration control – that was going to happen anyway – but the stories that you mentioned and the pictures from the airports and all that stuff, were the kind of thing that actually concerned a lot of more middle-of-the-road people who would be willing to go along.”

“Nobody’s a big fan of importing more Yemenis to the United States who are going to cause problems, but they didn’t have a strategy of explaining to the public. So the two things are, this doesn’t go into effect for a week-and-a-half, so everybody can prepare and make sure they don’t end up being caught in the middle, and the executive order goes into much more detail about explaining to people why they’re doing this,” he said.

“This doesn’t mean the ACLU isn’t going to sue to stop it. It just means that you’re not going to have some of these stories that the media just dies for, people protesting at airports around the country. I think that kind of thing, some of it may still be staged, but it’s not going to be the way it was back in January when they did this,” Krikorian anticipated.

Breitbart News Daily airs on SiriusXM Patriot 125 weekdays from 6:00 a.m. to 9:00 a.m. Eastern.



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