Below is my column in The Hill newspaper on the nomination of Tenth Circuit Neil Gorsuch. If President Trump sought to change the subject from immigration, I doubt this will do it. However, as I discuss in the column, if he sought to quiet restless Republicans over a truly dreadful performance of the Administration in the first week, the nomination should do so. He is a jurist with impeccable credentials and will be very impressive in the upcoming hearings. He is, to put it simply, a game changer.
I previously discussed how President Donald Trump has the advantage in a constitutional challenge of this executive order suspending entry for refugees and imposing special limitations on seven stated countries. As I have noted, this does not mean that there are not legitimate questions raised, particularly over the express preference to be given “religious minorities” under the order. However, the case laws heavily supports a president’s plenary power over such border controls. There remains however a question over whether the law could be constitutional under a president’s inherent authority but still unlawful under statutory authority. Most of that argument centers on the Immigration and Nationality Act of 1965, which bars discrimination based on nationality or place of origin. There are clearly compelling arguments on both sides of this question, but once again I believe that critics may be overstating the 1965 law as making the executive order facially invalid. As I have repeatedly stated since this executive order was signed, I believe it was a terrible mistake, poorly executed, and inimical to our values as a nation. However, legal analysis by a court should not be influenced by such personal viewpoints. The question is solely whether the president is barred statutorily from taking this action.