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Another Voice: President not empowered to legislate immigration laws

By Maurice F. Baggiano

On Dec. 7, 2018, President Trump’s asylum ban was declared illegal and unconstitutional by the ninth circuit court of appeals. The federal appeals court said, “([the president) may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”
U.S. law specifically allows individuals to apply for asylum whether or not they are at a port of entry.

Last November Trump signed a presidential proclamation that would bar migrants who cross illegally into the U.S. through the southern border from seeking asylum outside of official ports of entry.

We have a legislative process for enacting, amending and repealing laws in this country and the president cannot cut out the legislative branch from that process. In fact, the president’s primary job is to faithfully execute the laws as passed and as written.

As Judge Jay Bybee, a George W. Bush nominee, put it in writing for the majority, “Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the executive legislate from the Oval Office.”

The president’s actions along our southern border should be of grave concern to every American. Not only has our president violated U.S. law by presidential proclamation but also has deployed our military to the southern border to enforce his unauthorized order.

Blocked by the judiciary the president is now trying to accomplish the same thing by declaring a “national emergency” to obtain funding for a “wall” that would prevent migrants from seeking asylum at unofficial ports of entry.

What next? How far will the Trump administration go in enforcing its “zero-tolerance” immigration policy, especially at our southern border?

Article I, Section 9 of the U.S Constitution provides, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Is it too far-fetched to think that this president may issue a proclamation declaring that the United States is being “invaded” along our southern border?

If such a proclamation is issued it could “justify” the suspension of the writ of habeas corpus, not only for asylum seekers detained who crossed the border “illegally” but also for anyone deemed “rebellious” in assisting them or not “fully” cooperating in apprehending them or in preventing them from crossing the border.

Hypothetically, asylum seekers and Americans’ due process rights could be suspended indefinitely.

Maurice F. Baggiano, of Jamestown, is a member of the Bar of the U.S. Supreme Court.

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