Trump Wiser to Play End Game, Wait for Ninth Justice

Press Release ( - WASHINGTON - Feb 06, 2017 - Although much of the media focus right now is on whether the 9th Circuit will stay or uphold the temporary restraining order [TRO] issued by Seattle-based Judge James Robart enjoining most of President Trump’s executive order [EO] regarding immigration and refugees, the real focus should be on the end game, not on TROs which have only a very short life, and are often based upon emotional responses and initial impressions not backed up by testimony under oath, says public interest law professor John Banzhaf.

        If, as is certainly possible if not likely, the Court of Appeals refuses to disturb Robart’s TRO, it might be wise for the administration not to seek immediate relief at the Supreme Court, but rather to wait until the ninth justice is installed. After all, since so many district court judges have already cast doubt on the validity of his EO, Trump may wisely want another justice likely in his corner to be on board.

        In other words, caution, and a genuine concern for his long term objectives, might dictate that he wait for some more-final and less-ephemeral ruling – i.e., a final decision, or at least a preliminary injunction with a written opinion – on the constitutional issues before going to the justices.

        Going to the Supreme Court now could result in a widely predicted 4-4 decision.  That would leave the ruling against Trump’s EO in force and in effect.  Although such a split would not necessarily create an adverse legal precedent, language used by justices opposed to the EO could be used by other courts in the future if Trump decides to adopt other immigration or refugee related bans or restrictions.

        Also, while waiting for a final judicial resolution concerning a president’s power to ban or at least restrict certain classes of people from the U.S., Trump might consider following the lead of Germany – one of the countries most concerned about individual privacy – and order anyone from the suspect countries to wear a GPS ankle monitor to permit effective and inexpensive surveillance, rather than leaving them at large with whatever risks this may entail.

        Imposing such conditions on admission is fully consistent with 8 USC 1182(f) which expressly gives the president the authority to “impose on the entry of aliens any restrictions he may deem to be appropriate.”  It is also more likely to be upheld since it is far less objectionable than a total ban.

        Indeed, ankle bracelets are already widely used in many states for persons suspected but not convicted of a crime.  Immigration and Customs Enforcement’s “alternatives to detention” programs typically uses thousands of such GPS ankle monitors, even in noncriminal cases.

        There have now been several major terrorist incidents in which authorities pointed out that they were suspicious of the perpetrator, but did not have sufficient information to arrest him, nor the vast resources necessary to provide effective surveillance of everyone under suspicion.  GPS systems incorporated in ankle bracelets permit one agent to track hundreds of suspects in real time, and provide computer generated alerts if he goes anywhere suspicious (e.g., near a nuclear power plant), meets with other persons likewise wearing ankle monitors, etc.

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418  @profbanzhaf

Source : Public Interest Law Professor John Banzhaf

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