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More reflections on the 9th Circuit’s decision on Trump’s EO — 17 Comments

  1. I didn’t read the cases cited by the 9th and I am glad French did. No surprise that the 9th either distorted the holding or really expanded it. That’s what liberals do when they are on a court. Intellectually dishonest in order to get the policy result they want.

  2. Of course we all know that as soon as there is a Democrat president then these same judges that are going to all these extremes to stop Trump will suddenly change their tune. It really is a scary situation where all kinds of things could be greatly affected by mostly faceless judges that may have been appointed by someone that hasn’t been president in 30-40 years (one of these 3 judges was a Carter appointee).

  3. “That’s what liberals do when they are on a court. Intellectually dishonest in order to get the policy result they want.”

    That needed repeating.

    And, as many others have noted, in all 29 pages of the Ninth Circuit ruling, the statute authorizing the Executive Order, namely, 8 U.S.C. §1182(f), went unmentioned.

  4. Rush Limbaugh today quoted a case from 1952 where Supreme Court Justice Jackson stated that courts have no jurisdiction in matters like this since they involve politics. He was quoting an article by Andrew McCarthy that I can’t locate.

  5. Paul in Boston:

    I saw that, too, and tried to Google the McCarthy article but could not locate it.

    As far as I can tell, McCarthy hasn’t yet written more than a few sentences since the decision came out. I’m looking forward to what he has to say.

  6. In theory could Congress or the pres just not fund the “vetting” which is currently going on? Has there been any est. Of the actual cost and a detailing of the process that goes into the vetting? Can they be made to pay for the vetting ?

  7. The idiom; “drastic times require drastic measures” comes to mind.

    In that vein, consider; “It Is Time To Abolish & Reorganize The Federal Courts”

    “All the lower federal courts are a creation of Congress and can be abolished or reorganized at will. The ruling by Judge James Robart is the latest example of the extremism and dictatorial power of the courts. Obviously, we cannot have Judge Robarts running the foreign policy of the United States. He should have thrown the case out.”

    The Congress shall have the power to constitute tribunals inferior to the Supreme Court.

    —Article I, Section 8

  8. Andrew McCarthy has tweeted a link to NRO’s editorial today, and I think perhaps he wrote it. In any case, it quotes from a 1948 Supreme Court ruling written by Justice Jackson that explains that decisions involving foreign policy are “political, not judicial” in nature, and are

    wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

    The full editorial is here.

  9. I heard today the 9th Circuit has a backlog of 13,000 cases awaiting review and hearings.
    A single judge, Federal District or otherwise, should not have the power to stay the President. The cart needs to be righted (pun intended).

  10. @Neo – Was going to link French’s article in a prior comment, glad you did.

    Here is another, from the Editors, who have additional points…
    http://www.nationalreview.com/article/444800/ninth-circuit-trump-immigration-order-ruling-separation-powers-national-security
    .

    Also, this insight about the consequences of all this…

    Hindsight is 20/20, but it was not hard to foresee that the Left would be gunning for Donald Trump … the goal would be to delegitimize him, humiliate him, crush him, using any weapon available.

    But the White House didn’t see this – or did, and didn’t care. The order should have been crafted with care and precision, the relevant officials properly informed and instructed, an airtight legal defense prepared – but none of these things happened. Was this incompetence or recklessness? There is no third option.

    … the White House’s extraordinary bumbling on this initial measure has made it easier for the administration’s critics to make their favorite case: that the order is, in truth, nothing more than thinly veiled bigotry. And as the president tries to implement other elements of his immigration agenda, they’ll point back to this executive order as evidence of his “real” intentions.

    When that happens, as it inevitably will, the White House will have no one to blame but themselves. – Ian Tuttle
    http://www.nationalreview.com/article/444816/trump-immigration-order-ninth-circuit-ruling-debacle-consequences
    .

    Thanks to this “bumbling”, trump’s admin opened the door for the left…

    The political branches’ plenary authority to control alien entry into the United States, and the heightened deference owed by courts to the national-security judgments of the political branches, are precisely at stake in the matter of President Trump’s executive order.
    http://www.nationalreview.com/article/444800/ninth-circuit-trump-immigration-order-ruling-separation-powers-national-security
    .

    According to trump’s own standard, should he be fired for this?

  11. @Ann – see that you already posted the link. Took me too long to put together that last comment and missed yours. 😉

  12. Reckless and rather stupid for the district court and the 9th circuit. Haven’t these people paid any attention to Trump?

    Not only should the 9th Circuit be broken up as Sen. Flake wants, I think it should be abolished altogether and its judges reassigned to other courts while two or three new circuit courts are established in its place and staffed with Trump appointees. Too political? Maybe, but the courts have long since decided to be as much political as judicial in their acts now it is time for them to take a big dose of political medicine.

    By the way, Yale Law Review has an article on how to get rid of federal judges altogether. I haven’t read it yet, but it seems timely.

  13. Trump was 100% correct — they’re not judges, they (most of the federal judges in the 9th Circuit) are leftist politicians wearing black robes. Trump should appeal en banc, then go back to the district court, then do whatever else he needs to do to stall long enough to get Gorsuch confirmed. And fill the four vacant seats on the 9th Circuit Court of Appeals, and the 15 vacancies in the District Courts of the 9th..

  14. Compare this statement cited in the article…..

    “Applied more generally, this ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants – merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. ”

    with the costs cited in this article on the impact of refugee children being placed in public schools….

    http://nypost.com/2017/01/31/how-trumps-refugee-order-targets-educational-injustice/

    Specific points in the article is that refugees are placed in smaller towns which is impacting education for all children. Attempts to bring the refugees up to speed with English immersion programs resulted in ACLU suits forcing mainstreaming the students.

  15. You ain’t seen nothing yet, Neo. I predict the lower courts will put a stop to any deportations, too. Also, I predict every single EO Trump signs, plus much of the coming legislation he signs will be overturned by a court somewhere.

    What is coming is going to get very, very ugly- and quickly at that.

  16. Another on-point article
    https://www.conservativereview.com/commentary/2017/02/the-full-case-for-why-courts-have-no-jurisdiction-over-trumps-immigration-order

    Yancey Ward Says:
    February 11th, 2017 at 11:52 am
    You ain’t seen nothing yet, Neo. I predict the lower courts will put a stop to any deportations, too. Also, I predict every single EO Trump signs, plus much of the coming legislation he signs will be overturned by a court somewhere.

    What is coming is going to get very, very ugly- and quickly at that.
    * *
    It’s already ugly and it started before Trump’s inauguration. I agree with commenters who pointed out the protestors and courts would be pushing back against any Republican president. Maybe Trump’s “incompetence” is making their obfuscation easier, but it may also be making it more visible, because he doesn’t back down when they push him.

  17. Another astute observer:
    http://libertyunyielding.com/2017/02/09/ninth-circuit-upholds-stay-trumps-immigration-order/

    I’m just hearing on Fox News that the Ninth Circuit ruling – which I haven’t seen published yet – took a peculiar premise: that although federal courts have uniformly agreed that a presidential action like Trump’s is not reviewable, that doesn’t mean it isn’t reviewable by the courts.

    Since no rights of American citizens are at stake, and no question at issue on what the president’s po.wers are, the implication here is that the courts are empowered to have an opinion different from the president’s on national security matters. That is a political, not a judicial judgment. …
    the American people will not agree to simply be led as sheep to the slaughter by this outcome. It is very dangerous to remove from the people all hope of the rule of law prevailing, and their justifiable expectations being upheld.

    Three, the reality that our courts are so unreliable now has been exposed, in an attention-grabbing way that people will understand, perhaps even better and more broadly than they understood the bad Obamacare ruling on the insurance mandate. And the “winners” in the ruling have taken the mask off entirely, and are prancing around gloating about their victory over the clear will and obvious security interests of the American people. The opponents of Trump’s order quite evidently want to act against our security interests, and are thrilled that two courts have ensured that that will happen….
    If our borders aren’t protected, and our immigration policies judicious and sound, our laws become unenforceable. If laws don’t mean what they say – if judges keep suddenly reinterpreting them – they can’t be enforced in a reliable way that allows the people to go about their business, unburdened by constant worries about their lives and property. It isn’t possible to take a jackhammer and blowtorch to the law, and then expect it to protect you later. No matter who or where you are, you won’t be immune. Sooner or later, the consequences of lawlessness get around to everyone.
    * * *
    Cue the usual quote from “Man for All Seasons”

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