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.