By Alan W. Cohen
For those caught up in the madness of college basketball (as I), please allow me to explain the Hawaiian District Court decision in the newest Trump travel ban. Pretend your team just got fouled, and the referee awarded your team, not two, but 22 free throws. Pretty sweet, huh? Those on the anti-Trump side, the district court just awarded your team 122 free throws, and counted every one of them, even the ones your team missed.
In basketball, there is a rule book. In law, the Constitution is the rule book. It is plain and straightforward. The Declaration of Independence proclaimed that American citizens had inalienable rights. The citizens awarded limited authority to the federal and state governments to perform their roles. The states were given police powers to see to our safety, and to punish those that would do us harm. The people awarded the federal government the police power over foreign affairs. Congress had the sole authority to declare war, and to determine who could and could not come into our country. In the 1950s, Congress passed a law giving the President sole authority to determine if any group of individuals might pose an immediate threat, and to, on his or her own authority, exclude them from entering the United States.
The States have no authority over foreign affairs because the people did not delegate them that authority. States have no standing in federal court to act on their own accord. Rather, state officials are given the authority to seek redress in federal court on behalf of its citizens. States, like any other plaintiff, must prove actual harm. When President Obama issued an executive order that forced Texas to issue licenses to non-citizens, Texas had to prove that harm. The district court in Hawaii found no such harm, only he possibility of harm. Speculative harm is not harm at all. It is only speculation. A district court has no authority to act unless there is an actual case and controversy, and that requires actual harm. Moreover, in order to achieve a temporary restraining order, the state must prove irreparable harm, meaning that the harm cannot be financial in nature because, by definition the harm can be compensated. Again, the federal judge found only a possibility of financial harm. Thus, it cannot be irreparable.
Finally, the Constitution grants to United States Citizens inalienable rights. Therefore, logically, non-citizens cannot enjoy those rights. If that were the case, we could never go to war. Imagine if you would, a federal district court in Hawaii in 1941 enjoining Congress from declaring war on Japan because some Hawaiians had relatives in Japan. As the five dissenting judges in the Ninth Circuit explained, the Supreme Court could not be clearer when it comes to foreigners who had no prior right to entry into the United States. They have no rights. Period. The federal government has complete discretion to deny them entry.
So, Trump haters. Rejoice in your 122 free throws that count automatically. And think about how you would feel if it was the other team that just got that ruling. You and your fellow partisans would be tearing down the arena in an effort to run that stupid referee out on the proverbial rail.
Alan W. Cohen is a former attorney and author of several books, including his recent work, Private Vows: The Case for Ending State Regulation of Marriage and Divorce. It is available on Amazon.com.