Email #170: “cannot go unchecked”?

You said in March about the President’s travel ban:

“The Ninth Circuit was wrong on the first executive order, but I am pleased that President Trump is moving forward with a revised plan to keep Americans safe.”

Like the first, the President’s revised order has since been blocked and yesterday that block was upheld by a Virginia appeals court in a 10-to-3 decision.

When you wrote to me in January about the possibility of then President-elect Trump abusing his power, you assured me that you would “continue to uphold our Constitution” and that its “three co-equal branches of government” prevents “one branch from assuming too much authority without a challenge from the other branches of government.”

I see now that you were right. Judge Gregory reasoned similarly:

“Congress granted the president broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the president wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

You also said that courts “have the power to review the constitutionality of statutes and presidential actions.” Judge Wynn agrees with you, arguing that judges shouldn’t “blindly defer” to executive action:

“because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review.”

I am disappointed that no challenge came from you though, especially since you have repeatedly stated that “checking the executive branch” is one of your top priorities.

You have, however, described the President’s ban in reasonable terms, arguing that “it’s sensible to hit pause on admitting foreign nationals and refugees from countries where adequate screening cannot occur.” But Gregory and the other nine judges viewed it in light of the President’s anti-Muslim campaign statements and concluded that it “drips with religious intolerance, animus and discrimination.” The judges who blocked both versions of the executive order reasoned similarly. Do you still disagree with them?

I understand that the President may appeal the ruling to the Supreme Court. Would you advise him to do so? I read that such an appeal needs to show that the government would suffer irreparable harm if the 90-day ban was not reinstated. But more than 90 have passed since the President issued the first executive order. The administration said it needed that much time to change their vetting process, and presumably that’s what they’ve been doing.

So isn’t the ban now obsolete? The moment “to hit pause” has come and gone. Why should the Justice Department continue to spend tax-payer dollars defending the 90-day ban in court when the ban’s intended 90 days have already passed?

While I of course agree that the government should “keep Americans safe,” the battle over the ban seems to have devolved into pure politics, with supporters of the President supporting the out-dated executive order only because he issued it. So I urge you not to comment on yesterday’s ruling and focus instead on approaches to national security with bipartisan support. Keeping Americans safe is a unifying issue. Please don’t use it to divide us further.

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Author: Chris Gavaler

Chris Gavaler is an assistant professor of English at Washington and Lee University where he teaches creative writing, contemporary fiction, and comics. He has published two novels, Pretend I'm Not Here (HarperCollins 2002) and School For Tricksters (Southern Methodist University 2011), and two nonfictions, On the Origin of Superheroes (Iowa University 2015) and Superhero Comics (Bloomsbury forthcoming 2017).

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