Texas Attorney General Ken Paxton made Texas the first state to legally support President Donald Trump’s travel ban Wednesday.
Paxton said Trump’s ban safeguards national security in an amicus curiae brief filed to the 9th U.S. Circuit of Appeals in California. Paxton asked the appeals court to challenge U.S. District Judge James Robart’s decision on Feb. 3 to freeze the ban, which bars immigrants and refugees from seven predominantly Muslim countries.
“That Executive Order identified a heightened national security risk attendant to seven ‘countries of concerns’ that Congress and the Obama Administration had previously identified under national-security-risk criteria,” Paxton wrote in the brief, released Wednesday.
An amicus curiae brief is submitted by someone who is not part of a case but wants to influence a court’s decision. An 11-judge panel will rule next on whether to uphold the freeze.
Paxton said the San Francisco three-judge panel, which upheld Robart’s block, overreached its judiciary powers by protecting undocumented immigrants and blocking the executive branch’s power to enforce national security measures.
“Rather than accord the Executive’s delegated national-security decision the strongest presumption of validity, the panel found an extraordinary extension of constitutional rights to nonresident aliens who are outside this country and attempting to enter the country,” Paxton said.
UT law professor Lino Graglia said the president has full jurisdiction to prevent any non-U.S. citizen from entering the country.
“The president is very concerned with national security,” Graglia said. “But he can exclude would-be immigrants for reasons of national security or for any other reason.”
Paxton also said the Supreme Court has never applied the Fifth Amendment’s due process clause to nonresidents. The clause prevents the federal government from depriving someone of “life, liberty or property” without a legal process, and Paxton said non-U.S. citizens do not have a right to such legal procedures.
Graglia said non-residents do not have the same constitutional rights as U.S. citizens, and so these processes do not apply.
“(Paxton is) saying the American constitutional protections do not apply to people who are not in the country,” Graglia said. “If you’re a foreigner, you can’t say, ‘I have rights under the American constitution.’”
Paxton also said the U.S. Supreme Court has never extended the First Amendment right to freedom of religion to nonresidents. Trump told the Christian Broadcasting Network in January about prioritizing Christian refugees, according to CNN.
“I think (Trump) has complete discretion on who he will admit and for whatever reason,” Graglia said. “So if he wants to give preference to some groups rather than others, I believe he can do that.”
