|February 10, 2017|
ZOA: Appeals Court Decision on Immigration Executive Order Ignored Public Safety Interest
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Zionist Organization of America (ZOA) President Morton A. Klein and ZOA’s Director of Special Projects Elizabeth Berney, Esq. released the following statement:
The Ninth Circuit Court of Appeals’ decision (State of Washington v. Trump (Feb. 9, 2017) – which refused to stay the lower federal court order temporarily enjoining enforcement of President Trump’s Executive Order 13769 (“Protecting the Nation From Foreign Terrorist Entry Into the United States”) – only gave “lip service” to – and in reality disregarded the overwhelming public interest of protecting our national security (in addition to the decision’s many other flaws).
In a case called Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7 (2008), the U.S. Supreme Court overturned a Ninth Circuit injunction because the Supreme Court determined that the public interest in national security (the Navy’s need to conduct training exercises to ensure its ability to neutralize the threat posed by enemy submarines) “plainly outweighed” the environmental interests at issue there. In the Winter case, the Supreme Court did not address the merits, and instead explained that “the balance of equities and consideration of the public interest—are pertinent in assessing the propriety of any injunctive relief.”
The overwhelming importance of national security is also evidenced by the fact that the state constitutions of Washington and Minnesota – the two states that brought the case against President Trump in the Ninth Circuit – both place public safety over freedoms of religion and conscience. The State of Washington Constitution, Article I – Declaration of Rights, Section 11 – Religious Freedom and State of Minnesota Constitution, Article I – Bill of Rights, Section 16 – Freedom of Conscience both contain the identical proviso that “the liberty of conscience hereby secured shall not be so construed as to . . . justify practices inconsistent with the peace and safety of the state.”
Unfortunately, instead of recognizing the vital importance of public safety and security, the Ninth Circuit in the current Executive Order case apparently placed our national security interests – namely, the public’s interest in avoiding terrorist attacks and saving lives – on the same level with other interests that the Court deemed to be in play. The Ninth Circuit wrote: “Aspects of the public interest favor both sides . . . On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay [of the lower court’s injunction].” (State of Washington v. Trump, slip op., at pp. 28-29.)
Disturbingly, the Ninth Circuit also implied that in order for the government to be able to enforce a law designed to prevent terrorist attacks by nationals of certain countries, such terrorist attacks must have already occurred in the U.S. The Ninth Circuit wrote: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” (State of Washington v. Trump, slip op., at pp. 26-27 (emphasis added).) Of course, the Ninth Circuit is wrong factually: Somali terrorists have perpetrated several terrorist attacks here during the past few months. (See “Ohio State Attack Latest Stain on Somali Community of Columbus,” Fox News, Nov. 28, 2016; and “Flashback 2016: Somali Refugee Attacked 9 in Minnesota, Another Attacked 11 in Ohio,” Breitbart, Feb. 2, 2017.) Nonetheless, past attacks are not a requirement for the government to be able to protect its citizens from future serious threats. The right to enforce a law does not have to wait until “the horse is already out of the barn.”
Indeed, this is exactly how the U.S. Supreme Court ruled when it overturned the Ninth Circuit’s injunction in the Winter v. Natural Resources Defense Council, Inc. case. The U.S. Supreme Court stated: “Unlike the Ninth Circuit, we do not think the Navy is required to wait until the injunction “actually result[s] in an inability to train . . . sufficient naval forces for the national defense” before seeking its dissolution. By then it may be too late.” (Id., emphasis added).)
There is overwhelming evidence of the threat facing our country from terrorists infiltrating from the countries designated in President Trump’s executive order. We only need to observe the deadly attacks in Europe by ISIS terrorists who infiltrated along with refugee streams from Syria and Iraq; the multiple investigations of and thwarted attacks planned by such terrorists in the U.S.; and the warnings by the Obama administration’s top security officials, including Obama’s directors of the FBI, the CIA, Homeland Security, National Intelligence, and the National Counterintelligence Center. (See “Nation’s Top Security Officials’ Concerns On Refugee Vetting,” U.S. House of Representatives Homeland Security Committee, Nov. 19. 2015.)
Jewish Americans are likely particularly at risk, given the high levels of anti-Semitism in the countries designated in President Trump’s Executive Order (PEW Polls show 75%-97% of people in Muslim Majority countries hold anti-Semitic views); recent threats and plots targeting U.S. synagogues and Jewish schools; and ISIS and other radical Islamic terrorists’ targeting of Jews in attacks in Europe and now Israel, such as the murder of four Jews at the Paris Hyper Cacher kosher supermarket, and the murder of the Rabbi and 3 little Jewish children (ages 3, 6 and 8) at a Jewish school in Toulouse.
These threats far outweigh the travel rights and similar interests cited by the Ninth Circuit. Accordingly, enforcement of President Trump’s Executive Order should not have been enjoined.
We also note that some of the supposed harms to the State of Washington appear to be financial. For instance, the Ninth Circuit wrote (albeit in the context of its standing discussion) that: “The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted.” (State of Washington v. Trump, slip op., at p. 10.) Financial harms are generally not a basis for issuing an injunction, because money can be recouped later. By contrast, lives taken by radical Islamic terrorists can never be recovered.
Moreover, the Ninth Circuit failed to consider that any harm stemming from enforcing the Executive Order would be minimized by the fact that the Executive Order merely delays admissions into the U.S. This again demonstrates that the equities favored lifting the injunction, and letting the Trump administration enforce the Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States.