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Weekly Updates from Attorney General Ken Paxton: February 17, 2017

Friday, February 17, 2017 – Austin

Dear Friends,


I wrote for Breitbart Texas last year, “Politics has a nasty habit of trumping good policy.” Recent events have made me want to add a postscript: politics makes for a terrible foundation on which to base a court opinion. It can cloud even the most routine of legal questions and turns an opportunity for the court to provide clarity into a morass of bad and often contradictory precedent.

The 9th Circuit fell afoul of exactly that trap when a three-judge panel substituted law with TV talking points and refused to vacate an injunction against President Donald Trump for his decision to temporarily suspend immigration from seven war-torn countries. Indeed, the court allowed itself to get pulled in by the spectacle surrounding the President’s executive order. It soon after lost sight of the single most important point on which this case turns. Does the President have the authority to oversee border crossings and prevent potentially dangerous persons from entering the country?

The answer to that question is undoubtedly yes. As I stated on FOX & Friends on Thursday, “The court did not consider the law as written; there is a clear congressional statute giving the president the authority to basically block entry of any class of aliens that he feels might be detrimental to the United States.” The judiciary ordinarily owes the President a wide degree of deference in matters of national security. That deference should be at its zenith when the President acts in concert with Congress.

A fuller explanation of this point can be found in the amicus brief my office submitted to the full 9th Circuit, which was scheduled to hear the government’s appeal.

Of course, the obvious follow up is to ask why I have elected to defend President Trump’s executive order, while labeling President Obama’s actions on immigration and refugees as unlawful. Several members of the media made that inquiry only minutes after my office filed its brief. It all goes back to that Congressional statute I mentioned on FOX & Friends.

Executive orders are not unconstitutional in and of themselves so long as they act in furtherance of what Congress has already legislated. Executive orders become problematic when the President uses them in place of Congress or to circumvent it. With respect to President Obama, not only did he act without Congressional approval when he tried to grant lawful status to more than 4 million undocumented aliens, but he clearly and deliberately acted in defiance of previously enacted federal statutes. It was only when Congress refused to amend the Immigration and Nationality Act (INA) that he acted unilaterally even though he had previously recognized that he did not have the authority to do so.

The executive order President Trump signed may have had a rough rollout. It may also have churned a lot of controversy, perhaps unnecessarily. But the order fell well within the President’s discretion as vested by both the Constitution and Congress. Had the 9th Circuit considered the law as written instead of getting distracted by the 5 o’clock news, it would have recognized that and let the President do his duty to protect the American people.  

Very Truly Yours,

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Ken Paxton