The History of the Statute Trump’s Order Is Based On
RUSH: If you want another reason to really be ticked off about what’s happened here with the presidential executive order, understand this: The executive order — and even the AP (The AP!) has to admit this. The executive order substantively has not been killed! Even the AP says the three-judge “panel denied the motion for stay and set a briefing schedule for fuller arguments on the merits of the appeal. … Barring an immediate appeal to the Supreme Court, the government’s opening brief is due March 3, with the states’ filing due March 24.”
This would be before Judge Robart. In other words, this executive order has never been argued! The substance of this has not been argued, much less decided. It has simply been stayed because the left has some hack judges who are using obstructionism here, and they’re hiding behind so-called legal principle to do it. That’s the thing that enrages me. Judge Robart did not even review the substance. I have people sending me the statute that this whole executive order was based on. They’ve just encountered it. They’ve just read the statute.
I’ve read it to you the past two days, and when you read the statute, you ask, “How in the name of Sam Hill can any judge stop this?” And that’s the point. Robart didn’t even get into this. Robart went to the, “Well, you know what? I haven’t seen any terrorists come in from these seven countries! This sounds like a potential religious ban, to me. I think I’m gonna stay it.” They went and found a judge who would do hackery. So the substance of the executive order has not even been argued, and yet look what people think.
People think that the substance is what has been stayed and overturned. People think that Trump wrote something that’s so outrageous that these mild-mannered, brilliant judges — in order to save democracy — had to make immediate moves to rein in our out-of-control, tyrant president. That’s what they want people to think. That’s what ticks me off about this. None of this is honest. All of this is usual trickery and lies and distortions and misdirection coming from people on the left. So the Trump executive order hasn’t even really been argued because the Ninth Circuit could not rule.
This is why… You know what? I mentioned this yesterday. If there were some serious judging going on here, this executive order would have been sent right back to Robart with the Ninth Circus saying, “We can’t judge this. There’s nothing to judge. There’s no ruling here! We have to send it back. Robart, you’ve gotta conduct hearings on this. There’s nothing for us to review. We are an appellate court. There’s no finding here. We can’t appeal anything here,” which is the damn truth!
Judge James Robart
Robart has not yet conducted one substantive hearing on this. He just stayed it because a couple of hack Democrat governors wanted him to — and he’s a hack Democrat, so he was going along with ’em. Plain and simple. I’ll read that executive order… Not the executive order. I’m gonna read the statute to you again. Let me get back to the phones. I don’t want people to get backed up here too much people. We’ll start in this half hour with Mike in Salisbury, Maryland. Great to have you on the program, certify. CALLER: Hi, Rush? How you doing? Listen, I have a question for you: What would happen if Trump just ignored the Ninth Circuit court and implemented his executive order…? Because we have the majority. We have the Congress; we have the Senate and House of Representatives. What would happen, hypothetically speaking, if he just ignored what they said and he went ahead with it?
RUSH: Well, what would happen is politics, and the politics would be the media would have on-air conniptions. The media would go literally insane and nuts and they would go 24/7, wall-to-wall with guest after guest after guest —
CALLER: Well, they’re doing that now.
RUSH: — portraying Donald Trump as tyrannical, deserving of being impeached. “This must not stand! He needs to be out of office by the end of the week.” I mean, it would be unprecedented. You haven’t seen anything. You think what’s going on now is bad, if Trump would basically say, “(Raspberry) you,” and move on with this. Now, technically, though, your question is, “What can they do to stop him?”
CALLER: Yeah, if he did, what could they do to him, legally? I mean, if they’re fighting dirty, why can’t we?
RUSH: They’d just continue to sue him, and you throw open… Okay, where would you sue him? They’re gonna find a place that’s… It’s called judge shopping. I don’t pretend to have the answers to something like that. There’s precedent for it. Presidents have ignored judges in the past and all hell broke loose. Some presidents got away with it, and so some didn’t.
RUSH: There are too many variables. I also… To do something like that, you would have to have your party on your side, too. If you’re gonna tell Judge Robart, “Hey, So-Called Judge? Take a look at this,” and you go on TV and you rip up his ruling and then you reinstate the ban, well, here come the protests. And if all it takes is John McCain going on TV (impression), “I strongly disapprove! I think the president’s out of control. I think it’s horrible. I think this is a mistake. This is why he should never have been elected.” You’d have stuff like that happening. Anyway, I appreciate the call. I understand the sentiment, too.
Look, there’s a part of me that would love to see it. Don’t misunderstand. But there are better ways. There are better ways. Look, see, here’s what can’t be denied. At the ballot box these people are continuing to lose! This is what they’ve got left: The judiciary and the bureaucracy. And, folks, I’m telling you something. I just want to reiterate. When we had oral arguments before the Ninth Circus, whoever… (chuckles) We didn’t have Sessions as attorney general so we don’t know how the lawyer to argue for the president was picked, but he was not informed; he was not effective.
Ditto for whoever argued before the so-called judge, Robart. Because here’s Robart, “I don’t see any evidence here that we have any terrorists from those seven country.” And there’s only 80 examples! So you have to ask yourself, “All right, is there plenty of Obama holdovers here?” I mean, there’s a story today… Trump’s president, right? There’s a story today. “The State Department,” is what it says. “The State Department is ushering in hundreds of refugees. The State Department’s opening the border and opening doors and ushering in in this period of…”
It’s Trump’s State Department! How the hell can that happen? So there’s still plenty of potential for sabotage, because the left has had people embedded in deep, dark crevices and crannies of the bureaucracy, and they’re not elected, so you can’t unelect ’em or get rid of ’em. And they’re there to do exactly what these judges are doing. Now, here is the federal statute. I’m just gonna read it one more time. I know you’ve heard this, but I’m gonna read it one more time because this is why I’m so livid. It is title eight U.S. Code, “Inadmissible Aliens.”
This is the law of the land since the 1950s, and it was written by Congress and signed by the prexy. “Suspension of Entry or Imposition of Restrictions by President — Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation,” meaning just by saying so, “and for such period as he,” meaning he alone, “shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
The translation for this is: The president of the United States, according to statutory United States law, has sole and total power over who and who doesn’t get into this country for as long as he may deem necessary when such entry would be judged to be by him detrimental to the interests of the United States.
I don’t care what you think of Trump, the rule of law is the glue that holds this country together, and there is simply no way that a competent judge who respects the law could stay the presidential executive order based on external political concerns because the law covers everything! Even if the president said during the campaign that he was going to ban Muslims. You realize that’s the basis for Robart and the Ninth Circuit, one of the many bases for telling Trump he can’t do this?
Something he said on the campaign trail, when common sense says if it was a Muslim ban, why is he leaving 85% of the Muslim population free and open to come into the country? This could not be more clear. You know, normally legalese, you gotta go out and hire somebody, pay a thousand dollars an hour to translate this stuff. But this is just crystal clear. There’s no ambiguity. There’s no confusion. There no double or triple meanings here. It’s clear.
This is why I’m so ticked off. There is no basis for any judge to say that Trump’s executive order fails to meet the tests applied to it by law or by the Constitution. They have to make them up! And when they start making up these things, guess what they make up? Their own political policy preferences.
RUSH: The left is flooding the zone. Reuters has a story — there are now cases — you ready for this? There are now cases moving through 11 of the 13 U.S. appeals courts circuits challenging Trump’s executive order, and that does not include what are a bunch of habeas corpus petitions out there or challenges to detention.
The left is trying to get some people released! In addition to keeping the border wide open to anybody who wants to come in, the left is issuing habeas corpus challenges to get people who are in detention released. And these are being filed on behalf of individual people detained at airports after the ban, a majority of which would have been dropped after people were released.
Headline of the story: “Trump’s Travel Ban Faces Multiple Legal Challenges,” and just to cut to the chase, in 11 of 13. There are only 13 federal appellate circuits. In 11 of them the left has mounted legal challenges to Trump’s executive order. So they’re not just gonna rely on the Ninth Circuit. They’re challenging this in any number of different ways, different from the way Robart dealt with it, for example, the so-called judge in Seattle.
RUSH: The federal statute, as I mentioned, dates to 1952. Now, I want to, with the assistance of a column today by National Review’s Andy McCarthy… Wait a minute. It might be an editorial. I happen to know he wrote it. It might be an NR editorial. I’m not sure which. Either way, it’s Andy’s work here, and if it’s an editorial, there were some editorial contribution.
But in his piece today, reviewing the Ninth Circuit’s ruling, he goes through exquisitely all of the legals of this and explains why Robart (the so-called judge in Seattle) and the Ninth Circuit really have no legal basis on which to stand. But about this executive order. I have people sending me notes after hearing this statute from 1952. “Well, why do we even need an executive order, then? Why isn’t this just the law of the land? Why does Trump need to do anything? Why can’t…?” Well, the executive order actually spells out the presidential action that he’s taking. But he doesn’t really.
The law of the land is… Let me read it to you: “Whenever the president finds that the entry of any aliens or of any class of aliens,” which means any single alien or group. “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation,” just by saying so, “and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” (i.e., refugees) “or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Meaning he has total power, total control over who gets into the country and who doesn’t and when they get in and when they can’t be let in. And he can impose any restrictions that he may deem to be appropriate. It’s a federal statute written in 1952. And a question arises: “Well, since this is the law of the land, why can’t the president just do it?” He did. He wrote an executive order, and that executive order gave the left the opportunity to focus on it and not the statute. Somebody even said, “Why didn’t he just write the statue as the executive order?” Well, because he then specified a time length.
It was 90 days, 120 days for Syrians. It was endless. So he had to add the specifics to it. But I want to give you the history of this statute. Okay, it’s 1952, so where did this come from? You know, what caused this to be written? Why did Congress give the president this much power over immigrant and refugee entry to the country? And for this, you go back to a Supreme Court decision in 1948, Chicago & Southern Airlines v. Waterman is the name of the case. “Justice Robert Jackson,” who was Roosevelt’s former attorney general, all right?
United States Supreme Court Justice Robert H. Jackson
He was Roosevelt’s former attorney general, and he was the chief prosecutor at Nuremberg, which means we love the guy, right? He was the chief prosecutor at the Nuremberg trials, which really stuck it to the Nazis, right? So we love the guy. So he’s eminently respectable and qualified, right? We all agree here, Justice Robert Jackson, former AG for FDR, chief prosecutor at Nuremberg explained in this Supreme Court case “that decisions involving foreign policy, including alien threats to national security, are political, not judicial in nature.”
A Supreme Court justice in 1948 said in a case, Chicago & Southern Airlines v. Waterman: Foreign policy, alien threats to national security are political, not judicial. “Thus, they are wholly confided…” I’m now reading from Jackson’s own ruling in 1948. They “are wholly confided by our constitution to the political departments of the government, executive and legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil.
“They are decisions of a kind for which the judiciary has neither aptitude, facilities, nor responsibility, and have long been held to belong in the domain of political power, not subject to judicial intrusion or inquiry.” So the timeline is that in the Supreme Court case, Chicago & Southern Airlines v. Waterman in 1948, a justice writing for the court, Robert Jackson, wrote what I just read. Essentially, the judiciary is not equipped — it’s not prepared, it’s not structured, it’s not competent — to determine national security the questions. Chief among the reasons why is they don’t get intel briefings.
There is no daily brief for the Supreme Court, for example. Judge Roberts hasn’t the slightest idea what’s going on with Al-Qaeda, other than what he reads in the newspaper. So after that ruling, Congress wrote the following in 1952: “Whenever…” They took the Supreme Court ruling and codified it and made it stature law. “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Now, the point here is, we have a so-called judge in Seattle and three judges at the Ninth Circuit who went looking for precedent, who went looking for legal backing. The United States Supreme Court — in a ruling that is still active today, backed up by a 1952 statute — says they cannot do what they did. This is akin… It’s not apples to apples, but remember during the Florida recount in 2000, the United States Supreme Court finally brought the counting to an end by claiming that they had control of it over the Florida Supreme Court?
The Florida Supreme Court defied an original Supreme Court ruling to stop the count. “There’s the no reason going forward.” They gave the legal reasons, and the Florida people kept going, and there was another Supreme Court ruling where they really admonished the Florida Supreme Court. Now, remember, the Florida Supreme Court chief judge was reading the case, and he was just bamboozled. “Well, they’re tellin’ us we have to stop! They’re tellin’ us we can’t do this.” Now, they stopped.
But the whole point here is, folks, that judicial precedent — from the guy who was one of FDR’s justices and ran the Nuremberg trials — in 1948 proclaimed that the judiciary has no business… You know another reason why they got no business? ‘Cause they’re not elected. The political process is responsible. They are elected; they owe the people of this country security, national security protection. They are the people, the political class, the legislative and the executive. They are the departments of government that endeavor to protect, to learn, to gather intel.
The judiciary doesn’t get involved in one iota of this. And so the legislative branch, after this decision, “You know what? We’d be glad to let the president have all this.” So they wrote that 1952 statute, writing themselves out of the equation, and investing in the president total, total power, authority to do what Trump did. Trump is not extraconstitutional. He’s not unconstitutional. He’s not illegal. He’s not out of bounds. He’s not tyrannical.
The tyranny here is coming from the so-called judge in Seattle and the Ninth Circuit. You have a question, Mr. Program Observer? I don’t know. What do you mean, stare decisis? Precedent? Well, the left only cares about precedent when it confirms what they want to do. They’re happy to overturn precedent if it modernizes and advances things. But this is clear to me, when you look at the legal history of this whole concept, that if there is a tyranny going on here, if there is anybody operating outside the law that doesn’t know what they’re doing and has no business being involved, it’s the judiciary, as stated previously by the Supreme Court itself.
And it was a beloved Supreme Court, by the way, ’cause it was FDR’s Supreme Court. They never made a mistake. ‘Cause FDR never made a mistake, ’cause FDR was perfect. Right? But they’re counting on nobody knowing this. They’re counting on nobody learning this. They’re counting on nobody believing it if they hear it. They’re counting on even if everybody in conservative media gets hold and starts labeling it and broadcasting it all over everywhere, the low-information crowd watching TMZ will still never hear about it.