“We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy.
For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches — and perhaps especially when we disagree — we have to trust that the wisdom of the nation as a whole will prevail in the end.”
—-Five judges of the U.S. 9th Circuit Court of Appeals (Judges Jay Bybee, joined by Judges Alex Kozinski, Consuelo María Callahan, Carlos Bea, and Sandra Segal Ikuta, attacked what Bybee called the “fundamental errors” in the February decision of a three-judge panel upholding the temporary restraining order that blocked President Donald Trump’s first executive order temporarily halting immigration from seven Muslim-majority countries.
The opinion denounced the panel’s ruling as a “clear misstatement of law,” and stated that the five, constituting a larger number of judges than the three judge panel whose contrary holding was described as a “unanimous” 9th Circuit decision, had an”obligation to correct” it for the record.
“We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress,” the five judges stated.
Currently, the President’s revised order is held up by an even more widely criticized temporary restraining order issued by U.S. District Judge Derrick K. Watson. As well as following many of the same lines of activist judicial reasoning the five judges criticized in their dissent, Judge Watson’s opinion heavily relies on the campaign rhetoric of President Trump and statements by chief aide Stephen Miller in TV interviews. This means, as several critical legal experts including Alan Dershowitz have pointed out, that the exact same order, if issued by Barack Obama, would not have been blocked, and would have been found Constitutional.
Now that’s a double standard!
In criticizing their colleagues, the five judges said that the panel “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972) and ignored entirely the rulings in Kerry v. Din, 135 S. Ct. 2128 (2015) and Fiallo v. Bell, 430 U.S. 787 (1977). The Supreme Court in Mandel recognized that First Amendment rights were implicated by an executive action but decided…
“when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment 11 interests of those who seek personal communication with the applicant.”
Points to ponder:
1. Given the abundant precedent on the President’s side, it seems very likely that he will prevail in the Supreme Court.
2. This episode has revealed unethical judicial activism and bias at its worst.
3. I’m taking names of commentators and lawyers who oppose the order and don’t like Trump, but who have the integrity to agree that the judges in Washington and Hawaii and the three-judge 9th Circuit panel were playing politics rather than doing their jobs So far, I have Jonathan Turley, Jeffrey Toobin, Dershowitz, and the five judged on the list.
4. Members of the general public who cheer incompetent and dangerous judicial opinions they have never read, and probably don’t understand, just because they like the result show the damage ignorance and bias can do.
5. You would think—wouldn’t you?—that the 9th Circuit dissent from a majority of the judges supporting the President’s power to order a temporary halt in immigration from certain countries would be important news. After all, it might educate the public regarding the real powers of the President regarding immigration, as well as why the Trump administration has been so vociferous in it criticism of the judges blocking the orders, and why partisan judicial activism is a problem. In fact, I have only seen it reported in legal blogs and a few other sources. There has been no mention of it at all in the mainstream news sources.