In a recent post, I criticized the United States Court of Appeals for the Ninth Circuit's decision to uphold a temporary restraining order (TRO) (as a preliminary injunction) against aspects of President Donald Trump's Executive Order suspending entry for aliens from seven countries, and I also criticized the President for his reckless off-the-cuff statements during the litigation [see blog]. However, on February 8, 2017, President Trump engaged with the issue more productively, by taking a moment to discuss the statute under which he issued the Executive Order instead of attacking individual judges and making statements about the proceedings without consulting the lawyers tasked with defending him [link to remarks]. Please see our comprehensive article on section 212(f) of the Immigration and Nationality Act (INA) to learn about the provision in even more detail than offered by President Trump in his impromptu lecture [see article].
President Trump's Remarks
The following is President Trump's parsing of section 212(f);
And that's why it was done. And it couldn't have been written any more precisely. It's not like, oh, gee, we wish it were written better. It was written beautifully. So just listen, here's what it says. This is what they're arguing:
“Whenever the President finds that the entry of any aliens” — okay, the entry, the entry of any aliens — “or of any class of aliens” — so any aliens, any class of aliens — “into the United States” — so the entry of people into the United States. Let's say, just to be precise, of aliens into the United States.
So any time — “whenever the President finds that the entry of any alien or any class of aliens into the United States would be detrimental to the interests of the United States” — right? So if I find, as President, that a person or group of people will be detrimental to the interests of the United States — and certainly there's lots of examples that we have, but you shouldn't even have them, necessarily — he may be — and “he may by proclamation, and for such period as he shall deem necessary…” Now, the only mistake is they should have said “he or she.” But hopefully, it won't be a she for at least another seven years. After that, I'm all — (laughter and applause.) See? I just noticed that, actually. I just noticed it. I'm saying, whoa, this is not politically correct. It's correct, but it's not politically correct, you know, this is the old days.
He may by proclamation and for such period as he shall deem necessary — so here it is, people coming in — suspend the entry of all aliens. Right? That's what it says. It's not like — again, a bad high school student would understand this. Anybody would understand this. Suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens. Okay, so you can suspend the aliens, right? You can suspend the aliens from coming in — very strong — or impose on the entry of aliens any restrictions he may deem to be appropriate.
Okay. So you can suspend, you can put restrictions, you can do whatever you want. And this is for the security of the country — which, again, you're the chiefs, you're the sheriffs. You understand this.
And I listened to lawyers on both sides last night, and they were talking about things that had just nothing to do with it. I listened to a panel of judges, and I'll comment on that — I will not comment on the statements made by certainly one judge. But I have to be honest that if these judges wanted to, in my opinion, help the court in terms of respect for the court, they'd what they should be doing. I mean, it's so sad.
They should be — when you read something so simple and so beautifully written, and so perfectly written — other than the one statement, of course, having to do with he or she — but when you read something so perfectly written and so clear to anybody, and then you have lawyers and you watched — I watched last night in amazement, and I heard things that I couldn't believe, things that really had nothing to do with what I just read.
President Trump was on to an interesting idea in deciding to discuss and parse the language of section 212(f) of the INA. To be sure, it was not quite the standard of a law-review article or of an article that we would post here on site. However, President Trump is not a lawyer, but instead is a political official who must defend his actions not only in court, but also to the broader public.
In his typical style, President Trump exposed many Americans to a statute that very few have ever seen in order to explain the central issue at hand regarding the litigation of his Executive Order. Had President Trump decided to give this speech when he issued the Executive Order, instead of issuing the Order without any prior explanation or guidance, he would have likely been able to frame the debate favorably for the administration from an early point in the process. As the litigation goes forward, President Trump — and the country — would be far better served by him actually explaining and defending his policies instead of attacking individual judges and critics on Twitter (something he did not even manage to do for the duration of the speech that the above passage was taken from). If he proved anything in the campaign, it is that he has a preternatural ability to command attention when he speaks, and that his simple and blunt style appeals to millions of Americans.
In a blog that I posted on the occasion of President Trump's dramatic election victory, I included two quotes from our 30th President, Calvin Coolidge, that would seem to be more relevant today than they were even then.
“The words of the President have an enormous weight and ought not to be used indiscriminately.”
“It would be exceedingly easy to set the country by the ears and foment hatreds and jealousies, which, by destroying faith and confidence, would help nobody and harm everybody.”
We can only hope that what we saw on February 8 may be the seeds of a change in how he will defend his more contentious policies — although subsequent signs have been mixed at best. President Trump would do himself and the country a great service by learning to heed the wise advice of one of his great Republican predecessors, Calvin Coolidge.