Friday, February 10, 2017

About that Ninth Circuit Opinion

First: Like the original non-decision by Federal District Judge James L. Robart, the 29-page order by the Ninth Circuit on Thursday does not qualify as a genuine decision on the law. Neither one of them cites or discusses the basic statutory authority for the President's Executive Order. They simply brush right past his authority in order to reach conclusions on issues that are really beside the point until one has addressed the scope of the President's powers in this area -- which are about as extensive as they can be. (See this article for a full explanation.)

Second. Although upholding the States' standing on a very narrow ground involving attendance / employment at State universities, the Ninth Circuit panel ignored US Supreme Court precedent that requires that a plaintiff demonstrate standing for all of the claims being asserted. (See the author's second point in the article just linked.) The States had no basis in fact whatsoever to present claims on behalf of foreign refugees seeking to come here; nor did they have standing to argue on behalf of other aliens who had no university-related visas (the vast majority of aliens affected by the EO). That fact did not stop either court from ordering a halt -- nationwide -- as to either the 90-day ban (for aliens from seven countries) or the 120-day ban on refugees.

Third: "Could the President have issued an order that simply banned all Muslims?" asked Judge Canby of the panel. The question was irrelevant to the issues actually involved, since the EO nowhere uses the word, and as even another member of the panel pointed out, it still allowed in the vast majority of the world's Muslims. Moreover, whether one practices Islam is beside the point -- no one has ever urged keeping an alien out based on his or her professed religion. The question displays a basic liberal confusion between the religion of Islam (whose followers are called "Muslims"), and the (non-religious, at least in my book) doctrine of jihad against infidels, which sanctions terrorism. Most of the jihadis who engage in terrorism will tell you that they are also Muslims -- but again, that is why one would not want to define terrorists by the religion they profess. The EO was aimed at seven specific countries that sponsor and inculcate terrorism. It was thus not aimed at any religion per se, but at specific places of origin. The made-up issue of "religious discrimination" in the EO is a giant red herring, designed to mislead. And it certainly sucked in the panel, right along with Judge Robart.

In sum: One could say the courts told the executive branch: "You are (probably -- since this was just a TRO) guilty of overreaching. Under our system, only the courts can overreach. We can stop you, but you can't stop us."

Or perhaps Ben Stein of the American Spectator says it best of all:
What that court did on Thursday was the equivalent of Japan suing FDR in 1941 saying that if the USA went to war against Japan many Japanese would be killed and wounded. Therefore, Japan argued, the due process rights of the Japanese would be violated and the court must enjoin the U.S. going to war. Incredibly, this court in Seattle said Thursday that foreigners who were neither citizens nor residents had due process rights against the USA. This is obvious nonsense.
Yes, the EO was poorly considered, poorly drafted and poorly implemented. But the response to it by our judicial branch has been simply disgraceful. No one involved in this sorry spectacle has any reason to be proud of what they did. And there is no reason at all to continue the circus for one moment longer.

May better days be ahead.


  1. President Trump, his administration, and his family are political targets for those seeking to regain some power that was lost to them in the 2016 General Election. My husband had pointed out in a previous comment on this blog that Trump didn't have the political machine that Clinton had in place.

    It's likely we'll see more of this "sorry spectacle" unless, God willing, our elected or appointed government officials are chosen wisely.

    Many federal and state judges and administrators residing in powerful states, such as California and New York, have been chosen not for their desire to uphold justice and the rule of law. Rather they were elected or appointed to confound the law, or even to write it themselves, and to get away with doing it.

    Still, we will pray for better days.

  2. The feds lost this round for one reason and one reason only. Rather than provide the slightest rationale for this action, they insisted that this Executive Order was "unreviewable" because dealing with national security.

    And though the ninth circuit rightly acknowledged that the Executive is owed tremendous deference in this area, it also recognized that the law is plain that there is some slight burden on the part of the government to provide at least some shred of a rational basis for its action, and the Trump team, for whatever reason, declined to provide it.

    However strong your legal position, if you sit on your hands in court, you lose. So I don't know if the federal lawyers were just lazy, or over-confident. Or maybe the strategy is to get judicial recognition of "unreviewability," a carte blanche that would theoretically allow anything so long as the bloody shirt was first waved by the Executive.

  3. ""Could the President have issued an order that simply banned all Muslims?" asked Judge Canby of the panel. The question was irrelevant to the issues actually involved, since the EO nowhere uses the word."

    Seems to me that it was very relevant. The government's position was not that this EO was lawful, but that any EO invoking "national security" would be unreviewable.

    As you know yourself, a general legal proposition can be tested to see if it leads to absurd results under a different set of facts. The notion of a general Muslim ban is hardly unthinkable when it was one of the president's campaign promises. So an acceptance of the government's contention that all such EO's are unreviewable would mean that a general Muslim ban would also be lawful.

    So it's simply testing the government's position by asking whether application of the government's position under a different, but not improbable, set of facts would lead to an absurd result.

    I say "absurd result" because I assume that the Constitution's guarantee of the free exercise of religion is still a core value. I have to admit Democrats have played pretty fast and loose with it (though their narrow reading of it was precipitated by none other than Justice Scalia in his Smith opinion). Now of course it's more under threat from the Republicans, because whatever can be done to Muslim, as Muslims, will be precedent to what can be done to Christians, as Christians.

    1. Mosques don't issue passports or ID cards, Rick. Visas are issued to citizens of specific countries who have valid passports from them, and those passports do not identify the religion of the bearer. So there would be no way of enforcing a ban on Muslims even if you wanted one.

      And that's why the court's question was irrelevant - introducing campaign rhetoric into the issue of who could lawfully be denied visas is like using newspaper headlines to figure out what Hegel meant in his lectures on the philosophy of history.

  4. Look for a slew of new Federal judges being appointed over the next four years.

  5. From the reading I have done, and a quick review of the first judge's order, the stay was simply frivolous. No matter the quality of the appeal after the fact, the stay remains frivolous. I know that many attorneys in the federal departments lean hard to the left and harbor ill will toward their new boss; so the assigned attorneys may not have lost sleep about ineffectively crafting an appeal.

    The news media and other left wing groups clearly desired and fomented this media circus, but it may also be relished by President Trump who always seems to come out on top in these skirmishes.

    I hope that President Trump will push sound policy; I will wait, watch, and pray for it. Meanwhile, I must say that anyone who beats the press at their dirty political games is performing a valuable service.

  6. Dear Mr. Haley:
    Fred Kourmadas pasted this in his Facebook reply to my comment quoting you on the Sudarium and Shroud blood tests of 1995. I believe you should read the article. The results of the tests are around p. 9 or 10.

    1. Thank you, gordonh. I am going to transfer your comment over to the post about the testing of the Shroud, where I will comment on the article there.

  7. Jimmy Carter issued an executive order after the taking of the American Embassy in Teheran. It forbade the entrance into the United States any official of the new Iranian government, and any and all persons of the Shiite denomination of the Moslem religion. How soon we forget.

    Also the 9th Circus of Appeals, and many, many other judges..almost all Democrats....are quite happy to practice organic law which is based in sand, quicksand, and soupy mud that never dries to adobe. Organic law is essentially rule by estrogen poisoning and fairness and being reasonable and equal. It is also law of the moment, with no precedent to guide it or to project to the future.
    It is necessary to install this next judge to the Supreme Court. It is also necessary to doppelgänger the Chief Justice, and carry off the "real" one to that secret island we use when necessary, just to make sure the votes in the future go 5 - 4 and not 4 - 5.....

    These are the times that try mens' souls......

    El Gringo Viejo

  8. "It forbade the entrance into the United States any official of the new Iranian government, and any and all persons of the Shiite denomination of the Moslem religion."

    Well, yeah, the Iranian government had just seized and imprisoned our entire embassy staff (The Iraqi government, to draw the most obvious contrast, is not only our ally, but its soldiers have been fighting and dying in the fight against ISIS in Mosul for months).

    But where did you read that Carter forbad the entry of any Shi'ite? There were, and are, Shi'ite Muslims in practically every country in the world. Are you sure about that?