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AG Derek Schmidt: President has the authority to issue immigration executive order

Release Date: Mar 27, 2017

TOPEKA – (March 27, 2017) – Kansas and 12 other states have told a federal appeals court that President Donald Trump has the legal authority to implement a revised executive order temporarily restricting the entry of certain aliens into the United States.

The 13 states – led by Texas – today filed a legal brief arguing that a lawsuit challenging the revised executive order, filed by advocacy groups and private individuals in a federal district Court in Maryland, does not reflect the interests or legal analysis of the amicus states. The case is presently on appeal in the Richmond, Virginia-based U.S. Court of Appeals for the Fourth Circuit.

“Like every State, [our states] have a significant interest in protecting their residents’ safety,” the attorneys general wrote. “But the States possess no authority to restrict or set the terms of aliens’ entry into the United States for public-safety and national-security reasons. Instead, the States and their elected officials rely on the federal Executive Branch to carry out that function, pursuant to the laws of Congress. Congress delegated to the Executive Branch significant authority to prohibit aliens’ entry into the country, and the challenged Executive Order is a lawful exercise of that authority.”

The states’ brief notes that Congress has enacted a specific statute expressly delegating to the President broad, discretionary authority to suspend the entry of aliens into the country.

“This lawsuit [challenging the executive order] seeks a remarkable use of the judicial power to interfere with the President’s national-security decisions in an area of strongest executive authority,” Kansas and the other states wrote. “Because the Executive Order implements power expressly delegated by Congress … the President’s authority is at its maximum and ‘includes all that he possesses in his own right plus all that Congress can delegate.’ Plaintiffs’ constitutional claims thus implicitly argue that the ‘Federal Government as an undivided whole’ lacks the authority to proceed as the Executive Order here directs.”

The states’ brief asks the court to grant the defendants’ motion to stay pending appeal and ultimately reverse the district court’s order enjoining the Executive Order.

The case is International Refugee Assistance Project, et al. v. Donald J. Trump, et al. A copy of the brief is available at http://bit.ly/2n9pVVD.

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