Texas Attorney General Ken Paxton on Wednesday awarded Texas the dubious honor of being the first state to support President Donald Trump's executive order temporarily banning immigrants and refugees, primarily from seven countries in the Middle East.
The order was struck down by the U.S. Ninth Circuit Court of Appeals, which declined to reinstate the travel ban, upholding a lower district court's temporary restraining order against the ban. Trump's executive order suspended the refugee resettlement program for 120 days; banned entry of Syrian refugees indefinitely; and barred anyone from seven Muslim-majority countries — Iraq, Iran, Syria, Somalia, Yemen, Sudan and Libya, from entering for 90 days, while U.S. officials revise the vetting procedures for refugees, particularly those from Syria.
As the Trump Administration mulls its next move, Paxton threw in his two cents yesterday, filing an amicus brief with the Ninth Circuit in which he asserts that the court erred in its decision.
“The law makes it very clear that the president has discretion to protect the safety of the American people and our nation’s institutions with respect to who can come into this country,” Paxton said. “The safety of the American people and the security of our country are President Trump’s major responsibilities under the law.”
This defense of Trump's travel ban is notable not only because Paxton is the first attorney general to defend an order that has been struck down by multiple federal judges, but also because he had previously made his career off of suing the federal government over its executive orders. Paxton argued that Trump's actions were entirely within his right as president to make executive decisions on immigration and national security.
But the Ninth Circuit didn't deny this. What the judges took issue with was the government's argument that Trump's power in this arena should be unchecked by the judiciary.
As the Ninth Circuit wrote: "The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches — an uncontroversial principle that is well grounded in our jurisprudence. Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections."
Paxton also argues that Trump's order does not discriminate against Muslims, because, hell, it doesn't even mention Muslims anywhere in it.
There's a little section in Trump's order that says once the refugee program is up and running again, refugees will be prioritized if they are a minority religion in their region and face religious persecution. Perhaps Paxton missed out on the time Trump clarified exactly what this means in an interview with the Christian Broadcasting Network, in which he specifically said that Christians would be prioritized.
“They’ve been horribly treated,” Trump said of Christians in Syria. “Do you know if you were a Christian in Syria it was impossible, at least very tough, to get into the United States?”
“If you were a Muslim you could come in," he went on, "but if you were a Christian, it was almost impossible, and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”
Critics, including some Christian clergy, called Trump's prioritization of Christians a religious test.
Lastly, Paxton does not believe that "nonresident aliens" who live in other countries are owed any due process under the U.S. Constitution, because the Constitution doesn't apply to people in other countries.
Still, the Ninth Circuit ruled that the plaintiffs — the states of Minnesota and Washington — had a feasible due process argument since the travel ban would inevitably affect not only people wanting to come here from abroad, but lawful permanent residents of the United States, who perhaps want to travel back home to see family in Iran but then would be barred from returning. Or, people who are lawful citizens, yet whose family from Sudan would not be allowed to visit or join them in the United States. And all of those people, the court wrote, did in fact have rights to due process under the Fifth Amendment.