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9th Circuit: Trump’s Immigration EO Still Subject to Restraining Order

9th Circuit: Trump’s Immigration EO Still Subject to Restraining Order

Outrageous decision effectively extends Due Process rights even to persons abroad who haven’t even applied for visas yet.

https://www.youtube.com/watch?v=DEK8FCBMkMQ

Just in:

https://twitter.com/realDonaldTrump/status/829836231802515457

Full Order at bottom of post. (pdf.)

The long and the short of the 9th Circuit opinion is quite outrageous.

The 9th Circuit failed to distinguish between people even the government concedes have some due process rights and as to whom it would not apply the Executive Order (e.g., permanent residents, those lawfully in the U.S. on a visa) and strangers abroad who may not even have applied for a visa. By failing, indeed refusing, to distinguish among those very different categories, the 9th Circuit effectively extends constitutional due process protections even to people who have not yet even applied for a visa.

The Court also confuses whether it has the power to review immigration actions of the President with substituting the court’s judgment as to reasonableness of security measures. The court substituted its own judgment that there was no proof of significant risk – but that’s a judgment the court doesn’t get to second guess, even if it can review executive action to evaluate constitutional claims.

There also are interesting legal issues of “standing” and procedural issues, but the heart of the decision is extending due process rights even to persons abroad.

Here are some excerpts from the due process holding:

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause….

At this stage of the proceedings, it is the Government’s burden to make “a strong showing that [it] is likely to” prevail against the States’ procedural due process claims…. We are not persuaded that the Government has carried its burden for a stay pending appeal.

The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” …. These rights also apply to certain aliens attempting to reenter the United States after travelling abroad…. The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States…..

The Government has argued that, even if lawful permanent residents have due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued “[a]uthoritative [g]uidance” stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents….

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully ….

First, we decline to limit the scope of the TRO to lawful permanent residents and the dditional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”…. There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do…..

More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order…. The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.

The Court declined to reach the religious liberty claims:

The First Amendment prohibits any “law respecting an establishment of religion.” U.S. Const. amend. I…..

The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.

The Court rejected Trump’s reliance on prior congressional and DHS risk assessments:

[footnote 7] Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.

Some reactions:

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9th Circuit Stay Decision – Trump Immigration Executive Order by Legal Insurrection on Scribd

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Comments

A circus indeed.

    Page 20 of their ruling will make them a laughingstock for years to come. Did you see how they said they said the order blocked legal permanent residents and non-immigrants? Everyone from the DHS to the DOJ to the Ninth Circuit has been making the same dumb mistake since the day after the order was signed. A legal permanent resident doesn’t get “admitted” to the USA as an “immigrant” unless they’ve done one of a very few things that can put their LPR status in jeopardy. “Immigrants” are people traveling to the USA on an immigrant visa; “immigrants” are not people who have already immigrated, at least not technically.

    Here’s the law behind it all:

    Immigration and Nationality Act (INA): ACT 101 – DEFINITIONS Sec. 101. [8 U.S.C. 1101]
    (a) As used in this Act-
    (13)(A) The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
    (C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien-
    (i) has abandoned or relinquished that status,
    (ii) has been absent from the United States for a continuous period in excess of 180 days,
    (iii) has engaged in illegal activity after having departed the United States,
    (iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,
    (v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or
    (vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

    The executive order reads as follows:
    (3) (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

    Put these two things together, even you non-lawyers, and you can see that the executive order doesn’t apply to green card holders because they’re not “immigrants” needing admission to the USA under the INA (unless they’ve done one of the above-enumerated things that puts their LPR status in jeopardy). Yet the 9th Circuit and the White House counsel and the DOJ and everyone else is still in the dark on this point and claiming that the order as originally written barred green card holders. These are the “elites” running our country. They can’t even read the definitions section of the relevant federal law, something any border patrol agent could school them on. Absolutely shameful.

      C T in reply to C T. | February 10, 2017 at 2:39 am

      Before I go off to bed, I must clarify something I gave the wrong impression about above. Every “alien” is called an “immigrant” under the INA unless they have proven that they fit into a “nonimmigrant” category; “immigrant” is simply the default term. However, when it comes to admission (which means entry with authorization) to the USA, LPRs do not have to be admitted under the INA as either immigrants or nonimmigrants. They have already gone through the process of having an immigration petition approved and acted upon to grant them legal permanent residency. When they come into the USA afterward, they are simply coming home as entitled per their LPR status. Hence an executive order suspending immigration benefits, including admission, under the INA is irrelevant to LPRs.

      Immigration law is a beast, and no lay person should feel bad for getting it wrong. I won’t say the same for the DOJ, DHS, and the 9th Circuit.

What a huge SHOCK. It was blatantly obvious these political hacks had already made their decision before the arguments even began.

I’m sure their full written brief is going to be filled with ‘feelings’ and almost completely devoid of sound legal reasoning.

So to the Supreme Court then, where we all knew it was going to end up anyway.

    heyjoojoo in reply to Olinser. | February 9, 2017 at 7:18 pm

    How does a Ninth Circuit Court wield so much power that it supersedes an executive order?

      Gremlin1974 in reply to heyjoojoo. | February 9, 2017 at 7:32 pm

      Because we have let a supposedly “co-equal” branch of government that is fill with un-elected bureaucrats, become the final arbiters that they were never supposed to be.

      What needs to happen now is The President needs to get congress to sign off on his order and then tell the judges to go pound sand they have been overruled by the 2 other “co-equal” branches of government.

      Milhouse in reply to heyjoojoo. | February 9, 2017 at 7:48 pm

      Um, what exactly do you think an executive order is? It has no legal power at all; it’s just an employer’s instructions to his employees. A court can of course enjoin any action it believes is likely to be found illegal. What’s outrageous in this case isn’t that it dared to override an executive order, but that it made up new legal doctrines that don’t exist, and that it inserted itself into a judgment call that belongs exclusively to the executive branch.

        heyjoojoo in reply to Milhouse. | February 9, 2017 at 8:17 pm

        Then we’re hosed. And that is extremely depressing.

        sidebar in reply to Milhouse. | February 10, 2017 at 8:25 am

        You description ofExecutive Orders is accurate. However, the President undertook an Executive Actions explicitly authorized by law. The underlying Statute providing authority for the Executive Action is § 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.

I wonder if the full Circuit will take a look at it?

    FarFromIt in reply to Anonamom. | February 9, 2017 at 7:14 pm

    If I have this right, there are only 6 Republican appointed judges out of the 23 judges sitting on that circuit. If I am wrong someone will let me know. One of the 3 judges making this decision was a George W Bush appointment. Asking for an en banc decision would likely produce the same outcome. Obama stacked the courts, especially at the appeals courts.

      Gremlin1974 in reply to FarFromIt. | February 9, 2017 at 7:33 pm

      actually its worse than that, there are only 6 republican appointed judges on the 9th Circus out of 29 judges, there are 23 liberal judges.

      Anonamom in reply to FarFromIt. | February 9, 2017 at 7:58 pm

      I don’t think it’s simply a matter of counting up justices by whom they were appointed. The full panel does have a history of reversing decisions that are waaaaay out there. I haven’t read the opinion yet, honestly, but assuming that Prof. Jacobsen’s analysis is correct, there may be at least some chance that they will at least review this one.

      Without Gorsuch on the Supreme Court, I don’t think that the AG is going to want to rush this one upstairs.

      gospace in reply to FarFromIt. | February 9, 2017 at 8:07 pm

      From what I’ve read (could be wrong) the Bush appointed judge was a leftover that Bush appointed as a courtesy. Because Republicans do things like that. Or did. Don’t think that’s the new paradigm.

      He sure did stack the courts. Thank harry reid for the nuclear option.
      Mitch should invoke the nuclear option tomorrow for the SC. Turn about being fair play and all.

    ecreegan in reply to Anonamom. | February 9, 2017 at 8:34 pm

    Probably, if the appeal goes to them. I have no opinion as to whether they will consider it with an open mind. But it doesn’t matter: given the apparent lack of effort the DOJ put into this one, Sessions needs the time to get his department under control before the appeal to the Supreme Court, so Trump should appeal en banc regardless. The element of urgency is probably less important now that the borders have been reopened for a while.

Maybe it is because I switched off Fox quickly. However, it looked to me as if the guy doing the commentating was ecstatic, and the outside guy looked pretty happy as well.

Blaise MacLean | February 9, 2017 at 6:40 pm

This is in many respects a Judicial coup.

    CloseTheFed in reply to Blaise MacLean. | February 9, 2017 at 8:52 pm

    But they have done this exact kind of thing so many times, it ceases to cause me to eye roll. The courts have made America into this unrecognizable mosh pit.

    Plyler v. Doe: States have to educate illegal alien children, even if they don’t pay.

    Remember the case that overruled California voters in the 90s when they voted to stop all benefits to illegal aliens. California would be a GOP state today if the judge hadn’t overruled American voters.

Is the 9th circuit saying that every individual denied entrance to the USA deserves notice and a hearing?

Bullshit.

Can you imagine the lines at the airport if something like that were ever implemented? Not to mention the needless expense and potential for mischief & corruption.

    4fun in reply to rotten. | February 9, 2017 at 8:28 pm

    The lines would be really long especially if budget cuts knocked immigration officers down to one per airport.

Quail hunting in Texas, anyone?

It will be overturned, like near everything else that comes from the petty tyrants of the 9th.

What value is a court that does not respect the law?

I saw an article elsewhere by some nitwit who claimed that Trump’s challenge to the 9th Circuit’s ruling threatened the power of the presidency, because SCOTUS, being split, might rule against him.

I don’t think that’s a likely outcome. First, the law is on Trump’s side, and that’s plain enough for (I believe) a majority of SCOTUS. Second, SCOTUS will understand that an adverse ruling will not only affect Trump, it will tie the hands of all future presidents, no matter their party. I don’t think even the liberals on the court would be keen on that. And third, Trump isn’t the one threatening the authority of future presidents, the clowns on the 9th Circus Court are responsible for forcing the issue, because they can’t reasonably expect a sitting president to take a circuit court’s adverse ruling sitting down. They certainly must understand that any president would consider himself forced into a corner in such a situation, and he’d be expected to fight his way out.

    Tom Servo in reply to DaveGinOly. | February 9, 2017 at 7:31 pm

    “First, the law is on Trump’s side, and that’s plain enough for (I believe) a majority of SCOTUS.”

    Sadly, I think that’s a bad assumption. The 4 liberal justices (Ginsburg, Breyer, Sotomayer, and Kagan) always vote in lockstep with each other, and always vote for the most far left position possible on any given issue. With only an 8 member court, that means a 4-4 tie and the 9th circuit decision stands.

    This should not go to the court until Gorsuch is seated, which at best will still take months.

      CloseTheFed in reply to Tom Servo. | February 9, 2017 at 8:55 pm

      I realize its not right to expect consistency from leftist justices, however, they have knocked back a number of states who wnted to do their own thing with respect to immigration stating it’s a federal matter.

      If they’re consistent, they won’t hesitate to knock this back.

      snopercod in reply to Tom Servo. | February 10, 2017 at 8:05 am

      Why should seating Gorsuch take months, please?

    SCOTUS is down a player. Imagine what happens if they become deadlocked.

Does that mean our military can’t kill anyone because the whole world has due process rights ?

    Observer in reply to dmi60ex. | February 9, 2017 at 7:23 pm

    Everybody on the planet is apparently an undocumented American now, with all the rights and privileges of U.S. citizenship (but none of the responsibilities, like paying taxes or obeying our laws, of course).

    And all of the president’s national security decisions now have to pass muster with a bunch of unelected, ill-informed leftist judges, who are free to substitute their own ignorant judgment for the president’s (but only if the president is a Republican, of course).

      Do they have “super” privileges since they get forgiven on their crimes while us mere Americans get prosecuted?

      If I get stopped by a policeman, I am asked for id, registration and insurance. If I don’t have that information, I get a ticket or two. Do that too many times and I would be in jail. Do these illegal aliens get a pass? If they live in NYC, they do.

This court has picked the wrong hill to die on… national security. Trump is now free to attack the whole system using the constitutional power of the executive and legislative branches.

God save us from activist leftist judges

    CloseTheFed in reply to gonzotx. | February 9, 2017 at 8:57 pm

    Dear GonzoTx:

    God won’t help us. We must help ourselves as all is being lost. And I don’t mean this case, I mean the culture, everything.

Time to get Gorsuch confirmed.

Baby Elephant | February 9, 2017 at 7:40 pm

The president needs to do a couple things… declare that the courts have usurped his national security powers and that they now own it and let them spend all their time doing national threat assessment briefings.

When next terrorist who comes from one of these countries commits an act of violence have the AG bring the judges up on charges of treason.

Under the first Judiciary Act, which implemented Article III, Congress has the right to establish or change the federal districts AND the number of Supreme Court justices. Nine seems right for the latter (it was actually ten justices for period after the Civil War) but the Ninth Circuit needs to be divided into two and possibly three new appellate circuits.

Last year the Supremes overturned 86% appeals from the Ninth. Something is seriously wrong with a court so detached from mainstream jurisprudence.

What is the status of the current EO when the Seattle Judge’s Temporary Restraining Order expires? Is there a date set for that?

To paraphrase Ann Coulter today:

–When the president’s immigration policy is to promote international communism: The president wins.

–When the president’s immigration policy is to transform America into a different country: The president wins.

–But when the president’s immigration policy is to protect Americans: Some pissant judge announces that his authority over who may and may not enter the United States exceeds that of the president and the Ninth Circuit agrees.

The Trump administration just won.

Look,the EO was a totally innocuous temporary ban on new visa entries and refugees from seven countries, utilizing a federal law which has never been declared unconstitutional, or even seriously questioned, in the 65 years of its existence. And, the countries affected were all the subject of the same order, for a longer period than this order applied, under President Obama in 2011. On top of that, all of these countries have a failed national governmental structure, except Iran [the avowed enemy of the United States of America] and widespread terrorist activities ongoing, again with the exception of Iran [which is unarguably the number one supporter of terrorism against the West]. So, the argument that the current vetting process, for these countries, needs to be re-evaluated, before more immigrants from these countries are allowed to enter the US, is simply common sense. But, the liberals have just shot themselves in both feet.

By ruling that the TRO was 1) properly issued and 2) that the government had not shown that there was a real likelihood that they would prevail at hearing, the 9th CA just showed everyone that this was nothing more than a political maneuver against the current President and not rooted in legality. 8 US Code 1182(f) is so crystal clear that even a dimwitted high school senior can understand it. So, everybody with an handful of working brain cells realizes exactly what happened here. Trump had the inarguable power to issue the EO, the EO was legal and binding, and, even better the petitioners for the TRO, the State of Washington, does not have legal standing to bring the action. And, it is going to get even worse, for the petitioner as the true facts surrounding their claims become public. Even the people who, are claiming a win tonight, know that the courts cheated. And a win by cheating is often reversed with a heavy penalty involved.

Trump has already set the courts up. He has planted the seed that the actions of Robart were unconscionably political rather than judicial. And, everyone who looks at what has happened so far agrees with this. Even those who favor the TRO. So, now the courts are going to have to adhere strictly to the law, as written, and rule based upon common judicial standards or face coming under highly warranted attack from the President and losing any credibility at all. They could find themselves in much the same predicament as the news media. And, if a single violent act is committed by any person who would have been barred from entry, but entered while the TRO was in effect, then the court system will own that. And the President will have a huge club to use to change the federal court system.

One thing, which has not been addressed, is what happens if the President simply ignores the courts? If he chooses that path and is later proven to be correct, then exactly what actions are the courts going to take against him?

    JohnC in reply to Mac45. | February 9, 2017 at 8:51 pm

    All I can hope right now is that once again Trump is playing a type of 4D chess like he did during the campaign. He’s a smart man who surrounds himself with the most talented people he can find. I have to think by this point he’s got plans inside of plans with another as a backup. It’s all far beyond me and all I can do is sit back and watch.

    SaltyDonnie in reply to Mac45. | February 9, 2017 at 9:21 pm

    I agree, but only if Trump is smart and holds his wad. I LOL’ed when Trump tweeted that the Judge owed any terror attack that happens henceforth, as it was EXACTLY what I’d hoped he say. The Bully Pulpit manifest.

    I wouldn’t take it to the SCOTUS yet, though, not a man down.

    Tom Servo in reply to Mac45. | February 9, 2017 at 9:42 pm

    On this, I agree with you completely.

    As for where we go next – I think it is possible for Trump to ignore the court rulings, but that is not his best play, and it weakens him. It is better for him to voluntarily accept their momentary authority while fighting this, and open up the fight on a much wider scale.

    First: Use this to quickly confirm Gorsuch
    Second: Use this as a campaign theme for senators in every state that voted for him; shoot for a 60 vote majority in the Senate in 2018.
    Third: Hammer home on the importance of reforming the judiciary, most importantly the importance of busting up the 9th circuit court. He needs a strong Congress on his side to do that.

    Question:
    How might one incur “permanent damage” from a temporary restraining order?

      An immigrant, who would have been barred from entry under the Eo, who enters while the TRO is in effect, and blows up a mall killing people can be safely presumed to be the cause of permanent damage.

      Now, Robart really should have denied the TRO. as the petitioners 10did not show any immediate harm would be caused by the EO. He could have scheduled a hearing date for the TRO and both sides could have presented their cases at that time.

    Wookiebush in reply to Mac45. | February 10, 2017 at 5:37 am

    If President Trump ignores the court, the calls for his impeachment are all we will hear about for the next 8 years.

    W.
    RAR!

Well, I suppose Trump has several tools which may achieve the same objective.
He could start with an E.O. Snowstorm to bury the 9th.
Just for fun.
But as a matter of National Security, surely there must exist a means to address the matter in a more significant way.
I don’t understand why it should take long to get Gorsuch seated, possibly someone can touch on that.

If I were Trump I’d establish a policy that no visa applicant gains entry into the US unless by majority vote of 9th Circuit Court. Every application has to go through them.

Since they’re now the experts.

    wyntre in reply to Arminius. | February 9, 2017 at 9:58 pm

    ROTF!

    SaltyDonnie in reply to Arminius. | February 9, 2017 at 10:16 pm

    That’s exactly what you do. Make the 9th Circus every more of a joke by mentioning them at every turn. “We are preparing a new treaty with X country, but we’ll need 9th Circuit approval first”. “We were going to declare war, but, ya know, the 9th Circuit has to weigh in”. “Now if you’ll excuse me, the 9th Circuit needs this daily intelligence briefing”, etc.

Do you think Trump will get even?

As long as he’s going to have to fight for his E.O., he should issue a good one. None of this “delay” garbage. Same for the limit to a paltry seven countries.

Let’s have an E.O. worth fighting for.

Thomas Jefferson warned of judicial tyranny, which we have been living under. For example, a federal judge recently ordered this to a civil litigant before illegally confiscating his property:

“You are a fool, a fool, a fool, a fool to screw with a federal judge, and if you don’t understand that, I can make you understand it … I have the full force of the Navy, Army, Marines and Navy behind me,”

http://dailycaller.com/2016/08/12/california-attorney-dallas-judges-shred-constitution-steal-millions/

Correct me if I’m wrong, but all of this is over the temporary stay of the EO created by the TRO? And then the issue of the legitimacy of that stay was taken to the 9th Circus? So basically, the matter goes back to the District Court for a hearing on the merits while the stay is in effect (we all knoe how THAT will turn out)? But if Trump pushes this to SCOTUS, and say, the whole Court hears it, it splits 4-4 and the District Court is upheld?

So why not either 1) reissue the EO; 2) allow it to go back to the District Court, take every step to harden immigrant monitoring, and if any terror attacks happen, lay that shit VERY PUBLIC-LIKE directly on the Judges while waiting for Gorsuch to take the bench?

It’s a joke we’ve come to this, but I fear putting this in front of the SCOTUS a man down.

    The smart move, tactically, would be for the DOJ to take the matter back to the district court, for a full hearing, while at the same time stressing that imposing the TRO on the entire country is unwarranted. The 6th has already identified the deficiencies in the Government’s argument in requesting the stay. So, all the Government has to do is present overwhelming facts in support of their arguments. If Robart finds against the Government, again, this time without having the excuse of a dirth of facts to support the Government’s position, then it is back to the 9th, where the Government will present its case with the information required by the 9th in this decision. This should take about 6-8 weeks. By then, it is possible that Gorsuch will have been confirmed. If the 9th again rules against the Government, then it is on to a reconstituted SCOTUS. If, during that time ANY immigrant who would have been barred from entry under the EO enters and commits ANY violent crime, the US Federal Court system will own all of the fallout. Just as the POTUS so clearly pointed out.

    The smart tactical move, by Judge Robart, would have been to deny the TRO and scheduled a hearing for an injunction. This would have been fairly easy to do, as no evidence was presented of any truly imminent harm occurring, if the TRO was not granted. But, he did not do this. So, now, he and 9th CA, OWN any damages caused by admitting anyone who would have been barred from entry under the EO. And, the chances of actually producing someone who has suffered actual damages, as a result of the EO, have dropped to zero.

    Liberals need to buy Stratego and play a few games.

      One point I ponder on is that Trump has real world information that none of these Judges are probably even privileged to hear. They don’t hold the security credentials.
      So, technically, and factually they are ignorant, and are not in a position to make an informed decision based on those unrevealed facts.

        Observer in reply to snowshooze. | February 10, 2017 at 6:01 am

        They can’t even use google competently. Both the district court judge and the appellate judges claimed that no persons (“zero”) from the listed countries had been arrested for terror-related crimes in the U.S. since 9/11. That assertion is demonstrably wrong.

        Since 9/11, according to congress, at least 60 persons from the listed countries have been convicted — not just arrested, but convicted — of terror-related crimes in the U.S. It’s “at least” 60, because there have been 100 other foreigners convicted of terror crimes in the same period, and some of them are probably from the listed countries, but the government can’t say for sure since they lied about their country of origin when they were admitted to the U.S., and their home-country governments (or what passes for them) can’t or won’t verify their identities, which was the reason for creating the list in the first place.

        Oh, and there are other terrorists from countries on the list who weren’t included in the list of 60 terror convicts, like the Somali refugee who recently went on a terrorist rampage at Ohio State. He wasn’t included in the number of list-countries’ terror convicts, because he was shot dead by cops during his terrorist rampage, and therefore could not be arrested and charged.

        But yes, by all means let’s allow ill-informed and ignorant 9th circuit judges to craft our immigration policies based on their superior knowledge of the national security risks. What could possibly go wrong?

      SaltyDonnie in reply to Mac45. | February 9, 2017 at 10:20 pm

      I agree completely. The appeals court told them what was “missing”, and backed themselves into a corner on the merits.

      And Robart HAD to virtue signal. Same as the appeals court. “Procedural decisions or objections just won’t do – we have to thumb Trump in the eye.”

    Wookiebush in reply to SaltyDonnie. | February 10, 2017 at 5:42 am

    The Left and Fakestream Media WANT President Trump to reissue the EO, it makes it look like President Trump is weak and moved too quickly like he does not know what he is doing. Playing into the incompetence of never being a politician.

    W.
    RAR!

The ruling is entirely understandable once you understand that California just voted to make pot legal.

    alaskabob in reply to Leslie Eastman. | February 9, 2017 at 9:51 pm

    That is the LEAST of their laws or desires….. secession, sanctuary state, free tuition for illegals (not residents.. especially Asian and Cauc), etc etc etc…. forget any earthquake, Ca is so far left it will physically pull/push itself away from the North American continent. Forget the Middle East… we have impending refugees from California that must be saved from the Progs.

There is a way that Trump can strike back but he must do so quietly.
1. Cut funding to Washington Unioversities. ( Very queitly. )
2.Create another executive order ordering immediate reexamination of all h1b visa, and the termination of rights to hire H1bs to any company that is found to be seriously abusing H1b visas.

These were two two groups cited as being damaged.

    Wookiebush in reply to RodFC. | February 10, 2017 at 5:44 am

    Even better, after review of all H1Bs, cancel them all and the entire program forever.

    Make these silly corps hire Americans.

    W.
    RAR!

Ok, Trump doesn’t even need to defend himself as the power to make his proclamation is pretty clear.
But, since it has come to this…
How about a change in venue to Judges who are properly cleared to hear evidence on National Security issues at this level?
Are there any?
Due to the potential gravity of the evidence, Trump may not even be able to cite it. Especially to a security risk like the 9th Circuit…
Hence, Presidents are allowed this freedom of judgement.

1. There I was, sure that even the Ninth Circuit would recognize that the courts had extremely limited jurisdiction over this issue.

2. Query: Should an Executive Order barring an American citizens from returning from a brief visit to Libya (a) be reviewable by the courts, and if so, (b) be held constitutional?

3. Perhaps the key in the case before the Ninth Circuit is that the Ninth Circuit was considering whether or not to STAY the district court’s TRO.

Among the questions that the Ninth Circuit had to consider are these:

Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012).

So, while the Ninth Circuit might have decided differently from the district court if it (i.e., the Ninth Circuit) were considering whether or not to issue the TRO in the first place, the U.S. Government had to overcome a very high hurdle in order to get a STAY of a TRO that had already issued.

    MSO in reply to Ira. | February 10, 2017 at 12:03 am

    Thanks Ira,

    Most would (I think)consider that “…among the questions that the Ninth Circuit had to consider are these:…” only the first consideration contains an issue that falls within the court’s competency; the last three items are unanswerable by the court as they are not privy to the information necessary to answer the questions.

    That is, if keeping the border open allows a terrorist team entry, it is possible that the governments interests, the interests of the states of MN and WA and the interests of the general public could all be irreparably harmed.

    On what basis could the court make such a decision? Is the court arguing that a terrorist team could gain entry anyway, or that even with the border open, there is no way a terrorist team could gain entry?

      Ira in reply to MSO. | February 10, 2017 at 3:57 am

      MSO: Above, Mac45 mentioned Trump’s citation of 8 U.S.C. §1182(f). That statute in my opinion “trumps” everything else in this case:

      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.

      And, aliens outside of the USA have no Constitutional rights. (If they had rights, could there be any limits on immigration?)

      The Ninth Circuit should, in my opinion, have said that U.S. Government’s case is SO strong (question 1) that the STAY should have been granted with respect to aliens (i.e., the other questions would become irrelevant).

Open rebellion against the rule of law. No different than armed men storming a government building.

How can one defend themselves in a court when the Judges do not hold the proper National Security Clearances to hear the evidence?
You cannot. Not without breaking the law…you can’t even make hints.
They aren’t officially trusted enough to hear it.
Change in venue… or I dunno.

    alaskabob in reply to snowshooze. | February 10, 2017 at 12:48 am

    Making law as one interprets the law makes any law possible. As such, national security is under their jurisdiction to determine. As noted above…this is a judicial coup. No checks and balances apply. Law has become farce. Whoever rules makes the laws now. What the Founders saw as the “weakest” member of the three elements of government….is the weakest link…in the maintaining the republic. Wrong reasoning in 1700’s ….correct and tragic outcome in the 21st century.

      Well.. ya, but no.
      You gotta understand the ” Law ” is clear, concise, and nothing new.
      There is, in this case… nothing new under the sun.

        alaskabob in reply to snowshooze. | February 10, 2017 at 1:22 am

        Yes, reality is clear, concise and nothing new. But now we are adding perceived “intent” into it…Trump said thus or that during the campaign and no matter what the EO says his intent is really there between the lines (see Roe v Wade). The 9th anticipated the potential outcome with prescience and ruled accordingly. They saw intended consequences and cut them off. Now any really bad unitended consequences…not responsible or accountable.

        tom swift in reply to snowshooze. | February 10, 2017 at 1:55 am

        the ” Law ” is clear, concise, and nothing new

        Not if the words in which the Law is clearly and concisely expressed can mean whatever a Judge pretends that they mean.

        Recall the Heller decision, in which even Scalia went along with the fraud that “infringed” is synonymous with “forbidden”—which of course in the real world it is not—and that therefore the most absurd restrictions were generally Constitutional, as long as they didn’t entirely forbid the people their right to keep and bear arms.

The twilight resists the approaching dawn.

Move all of them to their street. These star chamber types are merely interested in winning law review and ABA kudos. They could care less about the Constitution or the safety of Americans.
If Obama or Clinton had brought this it would have been approved. But now they go home and tell their hand-wringing, angry wives what heroes they are. Because it is all about Hilary.

I see McCain and someone else has a bill in Congress to break the 9th Circuit up. You would think that Judges who belong to a system where over 80% of their decisions are over turned by the Supreme Court would be a little more aware of the precariousness of their position when they delivered poor judgements.

Mailman

    snopercod in reply to mailman. | February 10, 2017 at 8:31 am

    I count three bills which have been introduced to break up the 9th circuit. S.295 by Sen. Daines, Steve [R-MT] (Introduced 02/02/2017), S.276 by Sen. Flake, Jeff [R-AZ] (Introduced 02/02/2017), and H.R.196 by Rep. Simpson, Michael K. [R-ID-2] (Introduced 01/03/2017)

I think that Congress needs to pass a law that says any judge that legislates from the bench is to be removed immediately for usurpation of the legislative branch. That would stop activist judges real quick.

W.
RAR!

Well that was fast. The blowback is starting and Judges Want Us ALL to Die! Reduced to the simplest possible argument that would seem correct to a layman.

MaggotAtBroadAndWall | February 10, 2017 at 8:19 am

Looks like filling judicial vacancies needs to be a pretty high priority for Trump. If everything he and the GOP does is going to be challenged in court and overturned by left wing judicial activists, he should try to neutralize the activism by seating as many thoroughly vetted judges as possible.

The 9th Circuit is a rogue bunch of so-called “judges” who are clearly in violation of standing U.S. Supreme Court precedent on this issue. They should be kicked off the circuit for these obvious crimes against our laws…

I don’t see why any federal judge should care about blowback. They can’t lose a reelection or get fired because they made a patently outrageous ruling. At worst they won’t rise higher in the ranks in this administration, but administrations change. That’s the whole point of the progressive takeover of the federal judiciary.

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