Post Talks Travel Ban
On Sept. 18, Cameron University participated in the nationwide academic celebration of Constitution Day.
The Department of Social Sciences, the Cameron University School of Graduate Studies and the Lawton Chapter of the Daughters of the American Revolution hosted a presentation by Texas appeals lawyer Russel S. Post titled “The Great Travel Ban Debate.”
A partner at the law firm of Beck Redden, Post has an extensive appeals court background and was made a Fellow of the American Academy of Appellate Lawyers last year.
Post is currently representing a client who gives him a personal perspective on the issue at the center of his presentation, an Iranian citizen seeking asylum in the United States.
“As I thought about that [Academic Festival X] theme,” Post said, “I thought, from the standpoint of an appellate lawyer, the most insightful thing that I could bring to the audience was to talk about the appeal of the travel ban case and to help people understand what’s really at issue.”
The travel ban in question is Executive Order 13780, titled “Protecting the Nation from Foreign Terrorist entry into the United States.”
President Donald J. Trump signed Executive Order 13780 on March 6, 2017. The order heavily restricted immigration from six Muslim-majority countries identified by the U.S. Department of Homeland Security as Somalia, Sudan, Syria, Yemen, Libya and Iran.
Over the last several months, the Supreme Court appealed the Executive Order twice and is set to hear oral arguments about the constitutionality of the Order on Oct. 10 of this year.
In his presentation, Post spoke about what the Supreme Court was going to argue, while speculating, based on his experience as an appellate lawyer, what sorts of decisions the Supreme Court might make over the course of the case.
Post said he believes the Supreme Court will most likely not begin by arguing the constitutionality of the Order due to a legal principle known as Constitutional Avoidance.
“That rule states that when a court can avoid deciding a difficult Constitutional question,” Post said, “it should do so.”
The Establishment Clause is a clause in the First Amendment of the US Constitution stating that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
In order to avoid a possible Constitutional crisis, Post believes that the Supreme Court will instead start by arguing whether the ban exceeds Trump’s powers to regulate immigration.
However, Post does not believe the court will side with the argument that the Executive Order exceeds the president’s power.
“It’s difficult to envision that the Supreme Court will hold that the president lacked the legal power to order the travel ban,” Post said.
Post said the best argument against the ban might be in defining whether Trump had a “bona fide” cause for enacting the ban.
According to Post, it will most likely be argued that, based on Trump’s statements in the past about Muslims, he enacted the ban as an act of religious discrimination instead of working in the interest of national security.
Post, in closing, stated he believed Supreme Court Justice Anthony Kennedy would be the “swing vote” in this case, as he has been in several past cases.
“There’s a difference between deference and abdication in Judicial review, and at its most basic level, that’s what this case is about,” Post said, “and that’s why I think it’s very likely that Justice Kennedy will cast the deciding vote.”