Many in the media are reporting that the appeals court, deciding whether or not to keep in place a lower court’s Temporary Restraining Order (TRO) preventing President Trump’s executive order on immigration from going into effect, has scheduled a hearing on the matter for 6:00 PM EST on Tuesday.
But what they really mean is that there will be oral argument, not a hearing at which testimony under oath is presented, and that is one of the problems, says public interest law professor John Banzhaf.
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If the Supreme Court considers whatever the 9th Circuit decides regarding the Temporary Restraining Order, there will be no proper factual record upon which to base a very important decision, notes Banzhaf.
Several important constitutional issues – including not just the scope of the president’s authority over immigration, but also whether states can constitutionally raise (have standing to raise) the alleged constitutional rights of non-Americans in foreign countries – is likely to be heard by a divided court, with many observers predicting a 4-4 tie. This would leave the decision in place, but not clarify the law in any way.
In the meantime, many other lower court judges are still wrestling with these issues, and at least one has issued a lengthy decision validating Trump’s executive order. This ruling could likewise make its way to the Supreme Court, and could likewise be upheld by a 4-4 vote.
If there’s one thing all sides should agree on it is that important issues of constitutional law should be decided only when there is a clear and complete factual record based upon testimony given under oath, and subject to cross examination, not just conjectural arguments advanced by creative lawyers.
When it’s not clear whether the number of visas affected is closer to 60,000 or to 100,000, and whether the visas in passports were physically rescinded (e.g., by stamps) or simply marked off on an electronic record, it’s hard to see how the justices can make any kind of a truly informed decision, says Banzhaf.
Banzhaf has also suggested that Trump might be wise not to take the matter to the Supreme Court in the form of a TRO decision, but rather wait until after there is a final lower court ruling addressing all of the constitutional issues which has been reviewed by the 9th Circuit on the legal merits. This way his new nominee is likely be on the Court, not only making it much more likely he will have considerable power over immigration during the remainder of his term, but also eliminating the possibility of a 4-4 indecisive tie.
Banzhaf has also suggested – in a proposal featured on MSNBC, the Washington Examiner, Fox Business News, Drudge Report, etc. – that Trump consider requiring immigrants who cannot be satisfactorily vetted to wear GPS ankle monitors if the courts do not permit him to ban their admission to the country.
Germany is using such monitors, Norway is considering it, and the US Immigration and Customs Enforcement’s “alternatives to detention” program already uses many thousands of them – all to very effectively and inexpensively provide surveillance of persons who might be suspected as potential terrorists.