Thursday, February 9, 2017

The 9th Circuit Out of Control

A couple of hours ago, the three judge panel of the 9th Circuit Court based in San Francisco) ruled unanimously to uphold the order of their colleague James Robart that suspended President Trump's travel ban from seven countries.

Full disclosure: I am not an attorney, but I feel strongly that this is a decision that cries out for a reversal by the Supreme Court. The 9th Circuit, which is the most liberal and most-reversed in the country, has overstepped its bounds. Regardless what you think about the wisdom of Trump's action, he is within his power to  exercise this action. It is covered quite clearly under Title 8 US Code Chapter 12, 1182 (f)

(f) Suspension of entry or imposition of restrictions by President
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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline."

So along come the attorneys general of Minnesota and Washington who go to the 9th Circuit, which covers the latter state. They claim that their states would be harmed by the ruling, a very dubious claim to standing in the first place. One judge issues a stay and the three-judge panel upholds his ruling. Given the liberal dominance of the 9th Circuit, I am not surprised.

What this court is saying is to Hell with the President's authority (as outlined above) to take such action for our national security. To Hell with whatever intelligence he has been furnished by his intelligence agencies to support such action. What's important-more important than our national security - is the constitutional rights of people sitting in Syria, Somalia, Yemen, Iraq, Iran, Libya and Sudan- Their right to come to the US-a right that does not exist. The judges don't like Trump's actions, so they are trying to make up the law to overturn it.

So what happens now? Trump can try to re-do the order to try and please this renegade court or he can go to the Supreme Court. Would the 4 liberal judges go along with the 9th Circuit, or would they have enough sense to know that the SC could not possibly support this decision when the law is so clear? If the SC winds up in a 4-4 tie, the 9th Circuit ruling stands and the President of the US is hamstrung in trying to control the jihadis coming here. (The issue will probably be settled  by the time Neil Gorsuch is confirmed.) What a disgraceful judicial action.


Siarlys Jenkins said...

You obviously have not read the judicial opinions. They are full of deference to executive authority. As GOP congress critter James Sensenbrenner acknowledged when pressed at a series of town hall meetings in his district, the order was poorly conceived and poorly written, and should be redrafted. It seems that behind a smokescreen of spluttering, this is exactly what President Trump is going to do. In fact, the court invited him to do so... turning aside a request from the government lawyers to do it for him. It is not, the court modestly observe, our place to rewrite an executive order.

Gary Fouse said...

Nor is it the court's place to tell the executive branch how to protect this country when it comes to people coming here from other countries who may pose a risk to national security. The court never even referenced Title 8 USC 1822 that gives the president authority to prevent any class of people coming into the US if they pose a threat.

I say let Trump send out a new order that allows for valid visa holders or green card holders to enter. let the 9th Circuit court reject it again and then take it to the Supreme Court.

Who knows? By that time Gorsuch may be on the court.

Siarlys Jenkins said...

Gary, for all your experience in law enforcement, you obviously don't take much time to read judicial rulings or legal opinions. The court didn't tell the executive branch how to protect this country. In fact, the court declined an invitation by the U.S. attorney to modify the order. The court said that's not our job. The court's job is to rein in lower courts, the executive branch, or the legislative branch, when they exceed their constitutional authority. I see I'm mostly repeating what I already wrote, but your comment is so obtuse it has to be said again. The executive can exercise all the discretion the executive has, but when the president exceeds his powers, the courts have to call him on it.

He can rewrite it so it will pass constitutional muster, and I suspect he will tell competent lawyers to do that for him, so he doesn't get embarrassed again.

Gary Fouse said...

Read Title 8 Ch 12 1182 (f) and tell me where the president exceeded his authority. I agree with you last paragraph, but I thing the 9th circuit will still shoot him down. It will jhave to go the SC.