The 9th Circuit Court is about to make a ruling on whether President Trump's “travel ban” executive order should be temporarily blocked while a lawsuit challenging its constitutionality plays out in court.
The Trump administration, though standing on sound legal ground, shouldn't be too optimistic. Of the three judges who heard the case, two were appointed by Democrats, and the 9th Circuit is one of the most liberal courts in the nation.
A ruling halting the executive order in its entirety, effectively signaling their belief that the order is likely unconstitutional, would no doubt cheer Democrats and immigration advocates.
But both Congress and the Supreme Court have made it abundantly clear that the authority to control entry of aliens into the United States lies with the executive branch. Such a decision would then pose a terrifying question: who exactly has authority over our nation's borders?
That would make a real constitutional crisis - and one with severe national security implications.
Congress has gone to great lengths to make it resoundingly obviously clear that they have delegated the power to “suspend the entry of aliens” to the executive branch. They even wrote it into law:
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.
The Supreme Court, in Knauff v. Shaughnessy, went even further, writing that the power to exclude aliens is inherent to the president's constitutional authority to lead the nation's foreign affairs:
The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.
Both the legislative and judicial branch have made their intentions clear. A sudden declaration from the 9th Circuit that the president cannot suspend the entry of foreigners into the United States would be a stunning reversal of decades of jurisprudence - and would make it extremely unclear who holds the power to control our borders.
It's a scary thought with potentially dangerous implications. In an attempt to get around the clear statutory authority, the lawsuit argues that Trump cannot necessarily ban aliens from an entire country. Yet as attorneys defending the executive order argued, if the court buys into that logic:
The State’s assertion...would mean that the President would be statutorily disabled from barring the entry of nationals of a country with which the United States was at war—a result that would raise serious constitutional questions...
This ruling may come down to a more narrow complaint that the president cannot deny entry to the United States from travelers who already carry valid visas. Yet Congress has made it clear - again - that holding a visa does not give an alien the right to enter the United States:
Nothing in this chapter shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to be admitted  the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under this chapter, or any other provision of law.
Congress even gave the the executive branch the power to revoke visas at his discretion:
After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation.
Opponents can attack the policy on its merits, but the law cannot be more clear about who holds the power to suspend travel into the United States - both the legislative branch, the executive branch, and the judicial branch agree its held by the president. If the 9th Circuit arbitrarily rules that the executive branch does not hold that power, then who does?
That would be a real constitutional crisis - and one that the courts, not Trump, started.