President Trump must not back down on immigration Executive Order
If Courts are to designate themselves functional directors of DHS, such mandate must come from the Supreme Court, not the 9th Circuit.
The decision of the 9th Circuit Court of Appeals to leave in place a broad Temporary Restraining Order freezing President Trump’s Executive Order on visas and refugees presents a serious threat to the constitutional and statutory authority of the presidency.
By leaving an overly broad TRO in effect that protects even persons who are abroad with no prior connection to the United States, and by refusing to narrow the TRO, the 9th Circuit effectively extended to such persons U.S. constitutional due process rights both to apply for a visa and in the visa process.[*]
Not only that, while not disputing the President’s inherent constitutional and explicit statutory authority over foreign affairs, including security procedures as to the admission of aliens, the Court nonetheless designated to itself the judgment as to what constituted a sufficient threat for the President to exercise that authority. The President’s reliance on Congressional and Department of Homeland Security analyses as to threat assessment was explicitly rejected by the Court as sufficient basis.
To make matters worse, the Court weaponized every state with a public university system to have “standing” to access the courts for suit to interfere with the exercise of these presidential powers. The theory is that because such universities admit and interact with foreign students, they have a sufficient legal interest. Because every foreigner of an age suitable to higher education is a potential student at U.S. universities, this standing is almost limitless. Every Democratic Governor or Attorney General seeking headlines and campaign donations now has a platform in which to dispute the President’s national security decisions, and that platform is federal court.
If a state has standing to dispute visa decisions because the potential applicants are potential students, then why don’t such states have standing to dispute actions such as drone attacks which may kill some of those potential students without due process of law? Similarly, states would have standing to sue under any domestic policy that might somehow impact students. Flimsy and overly broad determinations of standing are not mere legal niceties.
I have seen many analyses critical of the 9th Circuit ruling which urge the Trump administration to take a step back, to withdraw the current Executive Order and rewrite it to fit what is acceptable to the 9th Circuit. The Trump administration, according to some reports, is considering doing that.
That would be a grievous mistake.
The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.
This legal dispute no longer is just about the Executive Order. Democrats have made clear that they will fight in court over almost everything the Trump administration does. The 9th Circuit has opened the door to this tactic on an issue that goes to the core of presidential authority.
If the Courts are to designate themselves the functional directors of the Department of Homeland Security, then such mandate must come from the Supreme Court, not the 9th Circuit.
[* The wording of this sentence was modified after publication for clarity.]
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Comments
As you note the LibDems have decided that “lawfare” is the best way to combat Trump, and by having friendly LibDems courts on their side, to redefine and rewrite the US Constitution. Senate Leader McConnell needs to immediately eliminate the filibuster and fast track Judge Gorsuch’s confirmation. Time to stop playing nice with the LibDems who want to destroy our country.
Resort to the Supremes would be an implicit surrender to the courts—not the 9th, but still a court.
But this is a much bigger issue than that.
Usurpation of Legislation function by the Judiciary has been a slow-motion disaster, one propelled by wispy emanations of peneumbras, but usurpation of the Executive function will be an almost instantaneous catastrophe.
This is an Andrew Jackson moment, and one with considerably higher stakes than Jackson faced when he went all medieval (figuratively speaking) on John Marshall.
Courts have already assumed control of Voting in this country. Now, they are moving on Immigration.
The conditions are different. He would be impeached if he tried to go against the courts.
No, he wouldn’t. Not over this. A majority of the House and at least 34 senators would support him if he took a stand over this.
The 9th Circuit covers 40% of the land mass of the United States and 8 States. However, it is a creation of Congress. I suggest that Congress carve that area into 9 separate Circuit Courts — 2 for California and one for each other State. The 9th Circuit should be relocated to Barstow Alaska and given jurisdiction over controversies arising in the State of Alaska,
Obama had a history of not following Court decisions he did not like. Actually, he was not on completely shaky grounds. United States Courts are not competent to decide all matters. For example, a Court cannot order the President of the United States to surrender to a foreign enemy in a war.
When Obama did not follow a Court order the press was strangely silent. Trump could tell the 9th Circuit to pound sand. Yet the caterwauling from the left about the “rule of law” would be incessant.
Two sets of rules. That has to stop.
bingo
Thank you for this chess-like analysis of the 9th circuit’s decision. Every bit of it is of critical importance. Totally agree: The administration should not back down or try to accommodate the most-reversed circuit in the country.
Trump should give the 9th circuit original jurisdiction to cover the newly granted right of every traveler to notice and a hearing before entering the country.
Visa applicants trying to get into the country can wait in camps, like the old Ellis island facility.
But the important point, is that every time a terrorist from another country kills people here, there is a judge’s signature on the paperwork who can be blamed.
A new circuit can be created to cover all other cases if the immigration mess backlogs the ninth circuit.
I respectfully agree with David French…
“So, what should the administration do? It should think long and hard — especially given its own considerable mistakes — before galloping to the Supreme Court. Victory is far from assured, and a tie in the eight-member Court would uphold the Ninth Circuit’s dreadful decision. Rather than risk making terrible law, perhaps the administration should redraft its order, lay the proper foundation, and fight from higher ground. This fight goes beyond the politics of the moment and could impact national security for years to come. If it continues in confusion and haste, the administration may well lose more than a news cycle. If the administration slows down, it increases the chance of victory and of preserving important presidential prerogatives. The Ninth Circuit’s decision was bad enough that Trump now has to win, and the best way to win is to do things right, not to charge headlong into the legal cannonade.”
Read more at: http://www.nationalreview.com/article/444785/ninth-circuit-travel-ban-donald-trump-ruling
The administration can always redraft the order even if it loses at SCOTUS.
I think the right thing is to decide what’s good and what’s bad about the 9th Circuit decision, or new decisions when the case is soon argued on the merits in the District Court. It’s possible though they don’t want to give Robart another bite at the apple, if they can avoid it.
Any appeal to SCOTUS should wait until Gorsuch or another suitable justice is seated. If we can wait until another seat is filled with a new appointee, so much the better.
This will always be there, ready to be overturned.
Yet another legal strategy is to redraft the order to something we know can win in SCOTUS but NOT moot the original case, then appeal the original order once SCOTUS is more favorable to get the full scope of the original EO.
“The administration can always redraft the order even if it loses at SCOTUS.”
Well, I disagree. First, the administration wouldn’t have to “lose” in SCOTUS. A draw is a loss.
Second, what would you imagine a “redraft” would say after the original was ruled against?
I think redrafting the order now would be the ideal (given the reality on the ground), making sure the weaknesses in the original were corrected, including a very complete recitation of the factual background for the need of the EO. Also, assigning a Ted Cruz caliber litigator to shepherd the new EO through the courts would be a VERY wise more. Giving ONE skilled person the role of championing the EO would assure that we had a person who knew the reasons and arguments front-to-back would be a signal step in the right direction.
Again, I agree with you completely on this. When one is headed into a legal war, you want the strongest possible defense you can have. The current order had too many holes in it since it was rushed into effect. Often a minor tactical retreat is necessary to reposition ones forces for victory.
The problem is the EO is not defective. It cites the applicable law, and is well within the scope of that law.
Bingo.
One should not back down and rewrite orders that were legal and explicitly authorized by the constitution.
Anyone suggesting otherwise just prefers to see Trump “lose”, because Trump.
This is, naturally, pure T-rump suckery.
The original EO was weak and hastily pushed, as is pretty much generally acknowledged now, what with the walk-back of the green card elements.
It was particularly weak WRT the basis for the EO, which could and should have been recited in the body of the text.
This is, naturally, pure Trump derangement syndrome.
There is nothing in the order that isn’t consistent with the constitution.
A contrary opinion from the likes of the NRO “Never Trump” crowd is useless. We have no reason to trust the opinions of blowhards that oppose Trump on everything. They are simply suspect in everything they do or say.
While the order may not have met some standard you have decided to impose, it is still legal and should be carried to the end, IMO. The executive branch may very well decide you are right and do something different. They may simply find other means to restrict the flow of potentially harmful individuals from entering the country while this is fought out in the courts.
In any event, you are now labeling the professor as a “pure T-rump suckery” type which is, of course, false.
‘There is nothing in the order that isn’t consistent with the constitution.’
I said nothing to the contrary. Straw man.
“A contrary opinion from the likes of the NRO “Never Trump” crowd is useless.”
Red herring, stupid, and a fallacious appeal to hatred. Also a blatant lie, since there are several NRO authors who are against the courts.
“We have no reason to trust the opinions of blowhards that oppose Trump on everything.”
Another straw man. Trust his own people and their actions. See Cards, green.
Moron.
“They are simply suspect in everything they do or say.”
While we all should join in T-rump sucking worship…? Naw.
“While the order may not have met some standard you have decided to impose, it is still legal and should be carried to the end, IMO.”
K. Another straw man as to “legality”. Your opinion is fine. In the frame of a proven, known T-rump cultist.
“In any event, you are now labeling the professor as a “pure T-rump suckery” type which is, of course, false.”
Nope, that’s lie and you’re a liar. As so often demonstrated here.
My comment was expressly to “Pom-poms” Valerie, and to you, Deep Throat Berri.
“Nope, that’s lie and you’re a liar. As so often demonstrated here.”
Never demonstrated by you at all. Whenever you are at a loss you resort to calling people names and calling them liars. It’s just who you are.
My initial reply, as was Valerie’s, simply agreed with the professor, which you labeled as “pure T-rump suckery”. But I’ll give you credit, you probably did not mean to imply such.
Otherwise, everything you wrote is typically the rantings of the Trump deranged. Just like your links to the terminally ill, Trump deranged, “Never Trump” NRO, they of the special issue “Never Trump”. Almost no one believes anything they have to say anymore. Or you.
http://www.nationalreview.com/article/444800/ninth-circuits-trump-immigration-order-ruling-usurps-presidents-powers
There you go, you lying SOS.
ANOTHER demonstration.
The advantage of redrafting is that it will moot the case before the Judge Robart. A new Executive Action can also address the specious reasoning of the 9th Circuit. For example it could permit previously enrolled University students back into the United States.
The law notwithstanding, Judge Robart will continue on with the case. The Government at that point should decline to participate.
I totally agree with Rags’ comments. In part, based on current reality, law fare is like a chess match, except Robart and the Ninth Circuit are not grandmasters. They can be overturned. Modifying Rags’ comment a little…1) Redraft the EO now even if it is to be temporarily shelved. Have it ready to go.
2) Get Gorsuch confirmed. 3) Find the best lawyer money can buy to ride herd on this fight at SCOTUS and make sure he is being coached and brought up to speed by Cruz and Cotton.
Or Trump could do what Obama did when TX federal district court judge Andrew Hanen ruled against the implementation of Obama’s unconstitutional amnesty EO: he could simply ignore the judge’s ruling, and instruct DOJ lawyers to repeatedly lie to the judge’s face about what his administration was doing.
http://lawnewz.com/high-profile/federal-judge-absolutely-skewers-doj-lawyers-for-lying-about-obamas-immigration-directive/
Of course, if Trump engaged in blatantly illegal and immoral behavior like that then the media would go apoplectic, just as they did when Obama did it.
Oh, wait . . . . . . .
How did that turn out for Barracula…???
He chose…poorly.
It turned out poorly for him? Really? How so? There were no repercussions for him. The district court judge merely ordered the DOJ lawyers, who had lied to Hanen’s face on a number of occasions, to take an ethics class. And the media barely made any mention of Obama’s blatant lawlessness. Contrast that with the screaming headlines we’ve been treated to for the past week, after Trump did something within the law, and then complied with the district court’s order, even though the order was wrong on both the law and the facts.
I will concede to your scholarly insights and concur that the EO should have been better written. Further, and pointman should have been lined up to shepherd the thing through the courts. Clearly the liberal-marxist will turn to lawfare to stop as much Trump as they can.
However, had the original been perfectly written, it would have run into the same road blocks. The objections are incoherent, without a substantial legal basis. There is no “muslim ban” in the EO: people from other Muslim countries, like Saudi Arabia and Pakistan are still coming in, non-Muslims from the identified countries were blocked. Yet “he said in his campaign he wanted to block muslims” now means this is a muslim ban.
What’s the point of having elections, if the courts are going to decide policy for the whole country?
They need only dictate policy if those elections have the wrong outcome.
Ask the Israelis. Their judiciary decided that absolutely everything is justiciable, that no matter what sort of government is elected it must obey without question the dictates of its solicitor general (whom it may choose only from a court-approved shortlist), and that only the solicitor general can represent the government in court, even if the prime minister is there in court shouting that what the SG is saying doesn’t represent the government’s position.
The self defeating chaos of the Isreali government never ceases to amaze me. I’m not surprised that the Judiciary seized power for itself, it always strives to do that, but I am amazed that the other parts of the government have never made any effort to fight back, which they have more than enough power to do. No other country in the world has ever submitted for long to a judicial dictatorship.
The current Attorney General, Ayelet Shaked, wants to put the courts in their place, and so did a previous AG Daniel Friedman, but they are a small minority with the guts to do that, and they can’t get a majority in the Knesset to pass such a law. The Israeli media and commentariat keep insisting that such a thing would undermine the rule of law and make Israel a banana republic, and merely to suggest it is dangerously fascist; and most politicians either buy that garbage or pretend to.
(Note on terminology: For some reason I cannot fathom, when the press report on Israeli affairs they consistently translate יועץ משפטי as “attorney general”, and שר המשפטים as “justice minister”. But the former is a career civil servant, not a politician, whose appointment is supposed to be nonpartisan; the latter is the cabinet minister in charge of the justice department. It seems obvious to me, therefore, that the correct terms are “solicitor general” and “attorney general” respectively.)
The mere fact that liberal leftist democrats are doing a victory dance over the Court decision for allowing unvetted foreign nationals from terror espousing countries into the U.S. should tell anyone with two brain cells how demented they are.
First, there’s nothing in the court’s action that allows “unvetted” aliens into the US.
The T-rump administration is perfectly free to…and they’d better…direct State to use rigorous criteria for vetting ANY foreign national applying for visas. And more for some.
Second, was there any doubt in your mind that some Collectivists are demented? I mean, really, really demented, as opposed to deluded.
State has already admitted that there is no way to properly vet people from Syria. It simply cannot be done. There are no reliable sources to vet them against.
So, the criteria cannot be met.
Or did I miss something…???
And, naturally, State can set the criteria. Hence, no visa.
Duh.
Setting unmeetable criteria amounts to a ban, and we’re back where we are.
Isn’t the real problem here that a single District Judge was able to issue a worldwide slapdown to the POTUS? The procedure whereby a District Judge can issue an order that extends far beyond his district gives too much power. You can always find some wacko (in the wacko circuit) that is eager to play king of the world, but the confirmation process at the District Judge level is nowhere near rigorous enough to give someone that kind of power.
What’s the history of this power? Is there any chance of changing this state of affairs?
I dunno about you, but I was jumping for joy when our Texas Federal district judge did roughly the same thing (procedurally) to Barracula’s illegal immigration order.
You?
In Mance v Lynch (Originally Mance v Holder) a judge from the 5th circuit found the law that prohibits us from purchasing a handgun from a FFL in a different state, unconstitutional. It also applied nationwide. The DOJ is appealing and immediately requested a stay, which was denied. The ATF is still enforcing the original law, thus ignoring the stay. I haven’t heard any hue and cry from the left over that case. It appears if the left doesn’t like a decision, it’s okay to ignore it.
Trump should halt ALL immigration! Just to prove he has the authority and the bonus is that all those DHS and Ice employees with nothing to do can get to work deporting criminal aliens!
Problem Solved, take that to the Supreme Court through the slowest longest process just to prove a point!
What if Congress passed a law declaring that non-citizens outside this country do not have Constitutional rights and removing any issue concerning them from court jurisdiction? Trump would be likely to sign it and it would give him all the cover needed to tell the 9th to pack sand. And it carries less risk of a reversal at the Supreme Court. Sounds like a possible solution to me, though it requires Paul Ryan and Mitch McConnell to do their part, and quickly.
Congress cannot decide what the constitution means. That’s outside its power and when it purports to do so it’s ultra vires and its act is null. See City of Boerne v Flores.
In exactly the same way, a court cannot decide what dangers lie in wait for the USA, or how the president may decide who does or doesn’t pose a threat to our security; when it does so it’s also ultra vires, and the president should ignore it.
This usurpation of legitimately exercised Executive authority, in the absence of a true and reliable remedy, is very like a coup.
I agree that the Administration should not consider re-drawing the E/O until the legal course has been run. Find out where the lines are to be drawn before even considering and concession of legal executive authority. There is still some hope that the USSC will retain enough intellectual honesty to do its constitutional job. To assist it the Administration ought to retain the best available legal counsel to argue the case.
If the State of Washington is at risk by the restriction of these refugees in entering the country, then relieve their concern by shipping every single one to Olympia washington. Let them set up camps across from the Legislature I am sure that the Washington State legislators and voters will be ecstatic.
Congress should re-draw the boundaries and jurisdiction of the 9th Circuit. One commentator above suggested particular original jurisdiction in certain immigration cases but I take a different approach. Re-draw the boundaries to 4 square acres in eastern Oregon and define the jurisdiction to include only cases originating within those 4 square acres. Then create a new circuit or circuits to replace it. I accept that it may be costly to maintain a cicuit with so little to do, but I consider it a small price to pay to preserve the rule of law and the constitution.
Preferably let them camp on the west side by Evergreen State College. Perhaps near Rachel Corrie’s friend and family.
So the office of POTUS can prevent my local elementary school from selling cupcakes at a bake sale because the sugary treats too dangerous, but that same office can’t decide if a foreign state is hostile enough to curb immigration.
For the first time in my life, I’m proud of my country!
Oligarchy. Rule by a panel of ‘wise’ men. Which is what this court decision is trying to turn us into. A judicial coup. Frankly each and every one of these judges involved needs to be impeached.
We are in a war. The uniparty progressives have been in control for a long time, using the courts to compensate for their loss of political power at the voting booth. Trump’s election was a bloodless (so far) revolution. WTP won, but now the courts are staging a coup against the newly installed winner of the bloodless revolutionary war. They will not go quietly. This coup must be put down. If not, the next battle may not be bloodless, I fear. The battleground has shifted from the voting booth to the courts.
Though the Executive has often overstepped and should be checked, in this case it’s the Courts that have crossed the line, and the Executive should protect its preogatives against what is an obvious overreach based on a political agenda to obstruct.
http://www.americanthinker.com/blog/2017/02/the_law_that_never_was.html
Absolutely correct! I am not a lawyer, although being able to read and properly understand – not interpret – federal law was a major part of my 40 years of federal service, both military and civilian. The language of the EO is clear and in complete compliance with 8 USC, sec. 1182(f); the 9th Circuit panel was 100% wrong here and does indeed rise to the level where impeachment is warranted. However, that action should be tabled until this whole kerfuffle is settled; once that happens these three should be removed as quickly as possible!
The President should confront this judicial power grab head on.
1. The President should state that the Executive Branch will only recognize a definitive United States Supreme Court Decision, not the decision of an Article III Court created by Congress.
2. The President should direct all Executive Agencies including Homeland Security to comply with his order.
3. The President should direct the United States Marshal Service not to carry out any orders of Judge Robart or the 9th Circuit related to this case.
Of course Democrats will say impeachment.
4. The president should declare that any civil servant who does not obey the order is fired. That will be a good way to clean house and purge many of the Democrat operatives embedded in the career civil service.
“Of course Democrats will say impeachment.”
They will be enabled by the GOPe. That is where the real battle takes place.
This whole farce would not be taking place were they to act as responsible conservatives.
I like the addition of #4 🙂
The Dems should be reminded — again (somehow, the lesson never sticks) — that any Court decision against President Trump that they cheer now, will be equally applicable to “their guy” later on.
It’s a shortcoming of both parties that they believe and act as though:
1. As the majority party, once in power they will always be in power, and;
2. As the minority party, legal precedent that harms the opposition won’t apply to them as the future majority party.
The trouble is, neither party has a long-term plan. Neither cares about the future of the country. Both are living in the here-and-now, and can’t think any further than the next election.
To expand on that, as “tom swift” implied up above, this issue is no longer about immigration, terrorism, the “establishment clause”, or the EO; it’s much, much bigger than that.
This issue is about whether the President is allowed, under the Constitution, to exercise the authority granted to him under the Constitution.
If the TRO is upheld and made permanent, it basically says that the President’s Constitutional authority is unconstitutional, and that sets precedent that will harm future Democrat Presidents just as much as it harms Trump now.
Cut off the nose, just to spite the face. The Dems need to exercise EXTREME caution here, but I doubt they will.
Because TRUMP.
“…and that sets precedent that will harm future Democrat Presidents just as much as it harms Trump now.”
No, they will just adjust the law to fit when a future D president is in office.
Recall, the president cut off immigration – from Cuba. Remember how the courts shut that down?
“Recall, the president cut off immigration – from Cuba.”
No. You and mailman have been telling that lie over and over the last few days, and thinking it was swell.
Barracula did NOT “cut off immigration from Cuber”.
He indefensibly decreed the end of the “wet-foot/dry-foot” policy for refugees, which is nowhere near “cutting off immigration from Cuber”.
It doesn’t even mean the end of Cuban refugees coming to the US. They will still come from various places, including our own shores. They just won’t get the benefit of the aforementioned (and good) policy.
Improperly worded, not a “lie”. Yes, you are correct other than that.
The point was and stands, the left cared nothing about the change in that policy, because 1) it was Obama, and 2) the Cubans typically vote R after becoming citizens.
“Recall, the president cut off immigration – from Cuba.”
No. All that’s a lie. Liar.
“The key point for everybody to know about the United States Court Appeals for the Ninth Circuit’s opinion regarding President Donald Trump’s executive order regarding immigration is that the three judges failed to discuss, or even acknowledge the existence of, the primary law that supports the E.O.
…
Did judges Canby, Clifton, and Friedland each “faithfully and impartially discharge and perform all the duties incumbent upon” them “as judge under the Constitution and laws of the United States”? Their duty was to interpret and apply the law, specifically, 8 USC, sec. 1182(f). If they believe that the law does not apply here, they had a duty to explain why. If they believe that the law is unconstitutional, they had a duty to explain why. They violated their duty. They violated their oath.
If you had to make a list of things that a judge could do that warrants impeachment, deliberately ignoring an applicable law that contradicts the judge’s opinion would be on the list.”
http://www.americanthinker.com/blog/2017/02/the_law_that_never_was.html
So, the State of Washington decided they could endanger the rest of the United States as a whole..
At this level, I believe they are now in a position where any other State could file a lawsuit against them for Reckless Endangerment… or possibly a variety of charges.
I read that the 9th Circuit Court is up to shenanigans. Update?
FYI – You mean this?
“The Ninth Circuit Court of Appeals is now independently, on its own impetus, requesting an internal vote on a full panel en blanc hearing to review its own decision.
Additionally, the full ninth are asking the Trump administration to file an additional brief telling the court why the three member original appeals ruling authority was wrong. In essence, the smart judges know what wasn’t considered, and are now looking for an out.”
https://theconservativetreehouse.com/2017/02/10/ninth-circuit-court-now-demands-it-be-protected-from-itself/
I find that both amazing, as well as entertaining.
What a dog and pony show.
Is it just a ploy for stalling further action at SCOTUS?
Yup. I see a whole new thread.. Ty.
“I have seen many analyses critical of the 9th Circuit ruling which urge the Trump administration to take a step back, to withdraw the current Executive Order and rewrite it to fit what is acceptable to the 9th Circuit.”
What version of the order would be acceptable, other than one that is effectively a nullity?
Can’t Trump just order the State Dept to vet every foriegner requesting entry into the USA? Those who are from countries that are sources of terrorists should face extreme vetting that takes years. Those from terrorist countries such as Iran and Syria and those without law or government wouldn’t be able to be vetted and therefore wouldn’t be able to gain entry.
This would slow entry for every no n-citizen but it would keep us safer.