Washington v. Trump: A Disturbing Eruption of Judicial Lawlessness

Dear readers,

President Trump recently released an Executive Order banning the travel to the United States of citizens of several terror-infested nations (1).  Federal Judge James Robart of Seattle issued a temporary restraining order in response to the EO, and a 9th Circuit panel subsequently ruled against the government’s attempt to have it lifted (2).

For those unfamiliar with federal immigration law and the Immigration and Nationality Act (INA), the statutory provision giving the President the authority to exclude foreigners from the United States is 8 U.S. Code Section 1182.  More specifically:

(f)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, 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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline (3).


The most important words in this portion of the statute are that the President “may…as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.”  (Emphasis added).  Put plainly, this means that as a legal matter, the President can wake up on Monday morning and decide Canadians should not enter the United States.  All that is necessary is that he deem it necessary.  If the President were in a particularly nasty mood, he could even legally bar all foreigners from entering the United States.

This is not to suggest that any such prohibitions would be good ideas as a matter of policy.  I only seek to illustrate how broad the Executive’s power is under the statute.  It was logical for Congress to delegate this authority, as the Executive directs the nation’s law enforcement, immigration and intelligence operations and is the only branch equipped to respond quickly to new information suggesting that the presence of some group of aliens is detrimental to U.S. interests.

This post is not meant to be a detailed dissection of the 9th Circuit’s decision, as other (and more talented) commentators have already taken up such work.  I primarily want to highlight why the decision is so disturbing.  As pointed out by President Trump, and as even some left-wing commentators have admitted, the Court remarkably did not address the text of the statute I have cited above.  This is a stunning omission.

The opinion drones on at length about prior Supreme Court and Circuit Court decisions regarding immigration, but does not address directly the statute under which the Executive claims authority to act!  Had an attorney in private practice made such an omission in his own filing to a court, he could likely be charged with malpractice in having failed to identify the law at issue in the case.  But for the judiciary to commit this error is far more ominous.

I suspect that this was judicial activism of the most guerrilla variety.  The Court could not reach this decision after undertaking an analysis of Section 1182 given that the section’s text clearly shows that the President acted not only within, but well within the scope of his authority.  But they had likely decided that as a matter of policy (not the appropriate domain of the judiciary, incidentally), they wished to halt the EO, so therefore crafted an opinion that suspended the President’s order without bothering to address the INA.  Had they addressed the INA directly, they would have had to declare an entire section of the statute unconstitutional, thus laying bare to an even greater degree the utter jurisprudential bankruptcy of the decision.

In this light, the decision appears rather like a childish judicial rebellion.  By ignoring the INA, the 9th Circuit judges signal their awareness that the Supreme Court would likely reverse them eventually.  However, given the inherent procedural delays involved, many of the immigrants that the President sought to bar by means of the EO will be admitted permanently without going through the more intense vetting that the President sought to have implemented.  In the near term, judicial activism wins.

In the old days, you could at least rely on the 9th Circuit to twist the Constitution and bend the wording of statutes to come to the result they wanted pending the eventual overturn of their absurdity by the Supreme Court years later.  Perhaps understanding this themselves, they have now decided to get out of the business of citing statutes entirely.

As a matter of fairness, I only hope that the nation’s law schools have decided to spread the wealth around and hold first-year students to the same standard.  Don’t feel like citing statutory provisions in your mock briefing?  No problem.  Think back to Poli Sci 101 and write about what you think the law should be.  If well-paid judges get to do it, why not starving students?

Thank you as always for taking the time to visit.  I appreciate any comments you wish to offer, and as I always remain most respectfully



K. Evanston Treadwell


(1) https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states

(2) For context, this post is primarily focused on the following 9th Circuit opinion: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf.  I may write further on this matter if there is any interesting development as a result of the Judge’s recent en banc request.

(3) https://www.law.cornell.edu/uscode/text/8/1182


Salute to James O’Keefe and Project Veritas

Dear readers,

With all of the deserved attention paid to the leaked emails of Podesta and the DNC during the latest election cycle, we should not forget the role that the aggressive investigative journalism of Project Veritas played.

The most damning example was the footage they captured in which a Democrat operative admitted to instigating violent incidents at Trump rallies — notably at a time when the left was attempting to paint Trump supporters as violent.  See that story here: http://www.projectveritasaction.com/video/rigging-election-video-i-clinton-campaign-and-dnc-incite-violence-trump-rallies

Sadly but not surprisingly, it appears that mob action by the left is an enduring feature of our political system.  In the latest feature by Project Veritas, leftist activists are caught plotting to disrupt inaugural celebrations using such methods as putting butyric acid in a building’s ventilation system.  See here: http://projectveritas.com/2017/01/16/part-i-hidden-camera-investigation-uncovers-groups-plotting-violence-at-trump-inauguration/

If things turn ugly in DC during the coming weekend, the country will have a good idea as to which side was responsible.  And the control left will have  taken one more opportunity to alienate average, working class Americans.

And that result is fine with me, as long as nobody gets hurt.  Let us all pray nobody does.

I remain most respectfully 


K. Evanston Treadwell

The Treadwell Plan: Simple Fixes for Immigration Security (Part 1)

Dear readers,

The following suggestions were composed after discussions with many highly experienced individuals with years immigration experience (both in and out of government).  As I intend to reach the broadest possible audience I have tried to communicate these succinctly and without legal or technical jargon.  Your responses are greatly appreciated.

1. Require biometric registration of all alien departures

Remarkably, and likely unknown to many citizens, foreigners entering the U.S. are only fingerprinted upon entry.  Exit records are unreliable and based on matching of biographical data to airline passenger records.  It is not a foolproof system and can result in failure to detect or calculate the length of unlawful overstays when immigration officials later review an alien’s travel history.  

Also, failure to check fingerprints upon departure means that officials cannot tell when an alien who crossed the border illegally is exiting through a port of entry.  One can sneak across the Rio Grande and then depart via any airport without any special questioning.  In countries with normal biometric exit screening, detection of an overstay or entry without inspection would occur and as a result the alien would be subject to detention pending payment of an overstay fine based on the duration of the alien’s unlawful presence. 

All aliens should be subject to fingerprint checks upon departure.  If this were implemented, the immigration official encountering the alien would instantly be able to see the length of their stay (based on biometric matching with their entry record). Just as importantly, if the alien’s prints produce no match to any entry record, they could be identified as having entered the U.S. without inspection.

Ironically, the U.S. has helped other countries implement biometric exit screening (1).  Admittedly there would be personnel and equipment costs involved if this were to be implemented nationwide.  Repurposing TSA personnel to perform this task might be a good initial point of consideration to overcome the resource hurdle.

2. Implement fines for unlawful presence

This would require legislation, but is a standard feature of the immigration codes of many countries with significant illegal immigration problems.

In my view, the purpose for implementing these fines should be to remove the economic incentive for illegal immigration.  Therefore, the daily fine should be set to an amount above the likely daily earnings expectation of an illegal immigrant given the sorts of work they commonly perform.

Of course, it would be impossible to calculate the period of unlawful presence for those who cross the border undetected.  Thus, the INA should also be amended such that the very act of unlawful entry would trigger a severe fine, perhaps some multiple of the typical illegal alien’s annual earnings expectation.

3. Eliminate or curtail adjustment of status for illegal aliens

Another incentivizing “feature” of our immigration system is the fact that it allows those who are unlawfully present to adjust their status to that of a lawful permanent resident.  Most commonly, the alien crosses a border illegally or overstays a visit using a tourist visa.  They then enter into a marriage with a U.S. citizen and obtain lawful permanent resident status (commonly called a “green card”) with no waiting period given that there is no annual limit for this category.

Such marriages are often shams contracted for immigration purposes only.  Sometimes they are legitimate and result in children. However, all adjustments of status based on such marriages serve to incentivize abuse of our immigration system by demonstrating that one can use unlawful acts to become a lawful resident — and eventually a citizen.

If for policy reasons the Congress maintains the right of some illegal immigrants to adjust status, conservatives should push for the creation of a limited category of permanent residency that does not provide any opportunity for naturalization nor confer any right to petition for other foreigners to immigrate (thus stopping the cycle of chain migration that can otherwise begin with one individual’s unlawful acts).

4. Simplify process for consular officers to refuse visa applicants for terror ties under INA section 212(a)(3)(B)

Consular officers in our embassies and consulates overseas are the first to see many future immigrants.  Although they have limited training, they are uniquely qualified to judge applicants in that many receive language training specific to their countries of assignment and often conduct thousands of interviews during the course of an overseas posting.  Despite the reputation of the Department of State as a left-leaning organization, many consular officers actually complain about the weaknesses of our immigration controls.

Under Immigration and Nationality Act Section 212(a)(3)(B), consular officers can refuse applicants for suspected terror ties.  However, the current procedure requires that the officer overseas submit the information of concern to stateside analysts for review.  Only if these personnel respond with an “OBJECTION” is the consular officer then allowed to apply the “3B” refusal.

This has resulted in consular sections issuing  visas to individuals previously identified by adjudicators as potential terror threats.  In effect, their judgment can be overruled when officials far removed from the region in question decide the information provided is not sufficiently derogatory.  This must stop.

We pay consular officers for their judgment.  While they should be required to provide written notification to the Department of State (which in turn informs the Congress) of any 3B refusals, in no case should the concurrence of a domestic official be required.

Requiring the concurrence of a supervisory official overseas might be a reasonable management control in such cases, and allowing consular officers to request an opinion from D.C. in questionable cases may be prudent.  But turning domestic authorities into administrative bottlenecks in the process shows distrust in a uniquely qualified set of overseas employees whose very positions exist because they are best situated to scrutinize problematic applicants.

5. Exclude aliens with any history of domestic violence

This item will not affect a large number of people, but is worthy of consideration given the policy interests implicated.

Currently, applicants with previous convictions for domestic violence can remain eligible to immigrate to the U.S. if they were convicted of only misdemeanors or had minimal sentences (the applicable INA sections are complex).

This results in the immigration of highly undesirable people.  A portion of these are males from cultures in which some men regrettably do not view wife-beating with the same revulsion as their western counterparts.  Marriages in these cultures are often arranged with no true consent from the bride.  Accordingly, the wives are often forced by male family members to remain in violent marriages to preserve family integrity.

Our immigration law should make no allowance, even incidentally, for cultural practices incompatible with our values and should help those who cannot defend themselves.  USCIS and consular officers should be empowered to refuse immigration to any individual with a history of violence.

We are the most desired immigration destination in the world.  It is an insult to well qualified individuals that we would even consider importing people with violent criminal profiles, especially those who pray on the vulnerable.
Thank you for taking the time to read this post.  I will offer additional proposals in a future Part 2.  My focus is primarily on solutions that could be implemented with minimal financial and materiel requirements.  I will leave discussion of resource-intensive solutions such as expanding the Border Patrol or building border barriers for another time.

Please check back soon for Part 2 of this post and writings on other topics of interest.

Until then, I remain very respectfully 


K. Evanston Treadwell

UPDATE: Part 2 has been published at http://wp.me/p8fzBg-f

(1) For a comprehensive treatment of this matter see the excellent Center for Immigration Studies piece at: http://cis.org/biometric-exit-tracking-feasible-and-cost-effective

The Treadwell Plan: Simple Fixes for Immigration Security (Part 2)

Dears readers,

Thank you for stopping by.  This is a continuation of Part 1 (available here: http://wp.me/p8fzBg-d).

The following are further suggestions for the improvement of U.S. immigration security, generally with a view towards keeping the worst individuals out or reducing the illegal population generally.

6. Amend and enforce U.S. Code provisions controlling criminal penalties for illegal entry

Surprisingly for a country that is such a target for illegal immigration, the U.S. does not usually charge aliens criminally for the mere act of illegally crossing or attempting to cross the border.  This means there is little disincentive for those considering such a crossing, nor any to prevent those who have previously been caught from trying again.

Federal law currently does have relevant provisions (1), but they are so often unenforced that many foreigners actually believe illegal entry is not a crime (2).   The point is often raised that we could not house all the prisoners we would have to accommodate if the laws were consistently applied.

I suggest that instead we think of the deterrent effect that would be generated if we began to apply the law effectively, or especially if the first offense were raised to the level of a felony.  If Congress amended Section 1325 to make the first attempt at illegal entry a felony with a sentence of one year, and made a corresponding change to the Immigration and Naturalization Act to make any 1325 conviction a permanent ineligibility for immigration purposes, the deterrent effect would be considerable.  The amended INA would specify that any 1325 conviction–regardless of the penalty ultimately imposed–would be a bar to any future immigration benefit.

With just these two changes, the potential illegal immigrant’s incentive picture would be drastically changed. When contemplating an illegal crossing, they would face the prospect of apprehension and a 1325 conviction that would permanently exclude them from the United States.  Those who do get apprehended would generally not actually have to be quartered at public expense for long.  As with the current system, they could be returned to their country origin.  But they would only be released after resolution of their criminal charge under Section 1325, with the concerned U.S. Attorneys being instructed not to pursue prison sentences for first-time offenders who plead guilty.  Thus, as a practical matter the illegal alien could choose between a lengthy detention followed by a trial, imprisonment and deportation, or simply enter a guilty plea at their first opportunity and be returned home, albeit with the caveat that he could never return without facing a greater penalty.  Nearly all would likely plead guilty given these options, which would minimize the number we would have to keep in pretrial detention (or eventual imprisonment).

7. Amend U.S. Code to establish criminal penalties for visa overstays

Next, I would suggest that Congress enact a statutory provision criminalizing the act of overstaying one’s authorized period of presence in the United States.  Given that a large portion of the present illegal alien population is made up of people who entered with tourist or student visas but stayed beyond the time authorized by DHS, our laws clearly need to be more stringent in addressing this group of aliens.

To avoid draconian effects for innocent overstays of a few days, I would suggest that the criminal period of illegal presence begin at some reasonable point, for example 30 days after the original end date of the authorized stay.  This would make allowance for those who had honest reasons for overstaying, such as a cancelled flight or brief illness.

8.  Use entry records to create a realtime national database of current known deportable population

Once biometric exit tracking is implemented as recommended in Part 1 of this posting, the backend data could be used the maintain a constantly updated list of all known aliens illegally present (being all those whose latest authorized departure date has passed and for whom there is no biometric exit record).

This would provide federal, state and local law enforcement agencies with a comprehensive platform to plan operations to reduce the illegal alien presence in the United States.   To make effective use of it would require more law enforcement man hours than would be possible at present, leading to my next point.

9. Establish reimbursement arrangements to employ state and local law enforcement agencies in the apprehension of illegal aliens

The federal government does not have enough uniformed personnel to properly police the borders, let alone thoroughly cover the entire country.  However, this could be overcome by paying state and local law enforcement agencies’ applicable overtime rates for operations resulting in the apprehension of any illegal alien, whether the operation is launched strictly due to illegal presence or due to the commission of additional crimes.

This would leverage the knowledge of local uniformed officers who best know where groups of illegal aliens commonly live and work, and would save the federal government the training and personnel costs that would accrue from the creation of additional federal officer positions.

10. Eliminate employment-based visas for unskilled workers

It may surprise those readers not familiar with immigration law that we have an entire category of employment-based visas for unskilled workers (3).

Even without examining the minute details, in a country with substantial unemployment and urban blight it is obviously questionable whether we have any need to import people classified as unskilled.  Fundamentally, every physically healthy human being is qualified to conduct unskilled labor.

Beyond the economics, the fact that our system allows for a backlog in this category creates serious questions about whether any of these jobs really exists. Once the annual numerical limit of such immigration petitions is reached, the subsequent applicants go into a backlog that can reach many years in duration.  As a result, some applicants will wait years for a job as a butcher or janitor, often at a business owned by a friend or family member.

Currently, nothing in federal law requires the relevant agencies to verify that the purported vacancy truly exists when the alien’s petition finally matures.  Nobody is required to ask, for example, who has been carving those carcasses or cleaning those toilets in the seven years since the petition was filed.  Similarly, as the green cards granted in such cases are not conditional (that is to say there is no requirement that the alien maintain the specified employment in order to keep his status) there are many cases known to federal officers in which the aliens never actually report to the employer who petitioned for them.

As they are easily exploited and serve no compelling need of the business community, these visas should be eliminated.

This concludes Part 2 of this posting.  I may add a Part 3 if I receive sufficient feedback to warrant it.  Otherwise, future pieces will be somewhat narrower in scope.  Finally, a special shout out to Little Ray and Disestablishmentarian at Free Republic for their kind feedback on this piece.

I once again thank those who have troubled themselves to read my work here.  And as always I remain most sincerely


K. Evanston Treadwell

(1) See 8 U.S. Code Section 1325 (https://www.law.cornell.edu/uscode/text/8/1325) and Section 1326 (https://www.law.cornell.edu/uscode/text/8/1326) providing for criminal penalties for illegal entry.

(2) See for example the statement of the Mexican official in this article (although incorrect he was apparently sincere in his belief): http://www.cnsnews.com/mrctv-blog/dan-joseph/mexican-embassy-mexicans-illegally-crossing-us-border-are-not-committing-crime

(3) For further information see https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-third-preference-eb-3

Welcome and Happy New Year 2017


Thank you for visiting and welcome to the blog.

I have come to describe myself as a constitutional conservative, though it is a term I use with some sadness.  Simple obedience to the Constitution truly should not, in my view, be a subject of political argument.  Liberals and conservatives alike ought to understand that the federal government outlined in the Constitution is one of enumerated powers, and that it cannot act outside of the limits of these delegations of authority.

However, over the past decades I have noted with alarm that too many politically-oriented Americans — and the right is not exempt from this criticism — have grown careless in their attitude toward our founding documents.  This deficiency in civic education is dangerous in a constitutional republic.   Adherence to constitutional law should be the underlying basis of unity between people at both ends of our political spectrum.

Too often, heated public debate over what the federal government should be doing takes place with no mention of what it may do.  Too many Americans treat the Constitution as a beloved but quaint artifact rather than as a binding legal document that created only a limited number of areas in which the federal government may act.

Wisely, the framers created a processs by which the Constitution can be amended, as has occurred regularly throughout our history.  But tragically, out of expedience, many of our leaders have begun legislating or issuing orders far beyond the constitutional scope of federal authority.  Sometimes they simply see no need to reference the Constitution, while at other times they pervert the general welfare or commerce clauses to suggest that whatever appears politically desirable is therefore also constitutional.

In the future, I intend to expand more on this theme in writings posted to this blog.   I will also write about other current events of interest and will post announcements regarding my other writing projects outside of the blog.

Thanks again for taking the time to visit.