Yeah, well, maybe not.
As you are probably aware, a three person panel from the 9th Circuit Court of Appeals upheld a temporary restraining order (TRO) against an Executive Order (EO) issued by President Trump on immigration.
There are going to be people who applaud the decision and those who are against it.
We are somewhere in the middle.
First, some background. The EO is Trump following through on campaign promises he made during the election. We like the idea that a politician is trying to fulfill their campaign rhetoric, but the fulfillment has to be done in a legal manner.
There are two laws in play here.
The first is 8 USC § 1182:
(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.
8 USC § 1182 was passed in 1952 by the Congress. As you can see, it gives the President the authority to suspend entry into the country of any class (group) of people.
The second law that is in play is 8 USC § 1152(a)(1)(A) which was passed in 1965 as part of the The Immigration and Nationality Act of 1965.
8 USC § 1152(a)(1)(A) says the following:
Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
What appears to have happened is that the Congress passed a law allowing the President to suspend immigration of people based on certain classes (groups.) Then in 1965, the Congress said the President can suspend immigration on some classes (groups) of people, but not other specific classes (groups) of people.
One of the classes that the President cannot suspend or ban immigration is an entire nation of people.
That’s what the Trump EO did. It suspended the immigration of people from entire nations which appears to be against the law. That means the EO was too broad and needed to be revised.
If the 9th had stopped there, the decision would have still raised the cackles of many people, but people could eventually see the problem and see the fix of not banning everyone from a nation and only banning classes of people within that nation. (All that had to happen was the EO needed to allow those who had visas in hand. That most likely would have solved the issue as the Court could not say that the EO banned everyone.)
However, the 9th went way way way over the line in its decision. It ventured into new territory where the separation of powers no longer exists and the power of both the Congress and the Executive Branch usurped by the Judiciary.
First the 9th Circuit said that the government had made no proof of the issues it claimed the EO addressed. In other words, despite the sponsorship of terrorism in the countries the ban affected and the number of people who committed or were planning acts of terrorism in this country, the Court said it didn’t see any “proof.”
That sets up a major problem as the Department of Homeland Security, the State Department and the FBI are all involved in tracking terrorism. If their conclusions and advice is that the countries have a connections to terrorism in this country and others, it is not the purview of the Courts to say “we approve of the data” or “we approve of your conclusions.”
That’s not their call. It is a reach – an overstep of their authority to say to Congress, “we see the law that you wrote giving the Executive Branch the authority to collect data and make determinations based on that data, but you didn’t include us in that process and so we are going to interject ourselves into it.”
The second overreach is that the 9th Circuit extended Constitutional protections to non-US residents living in other countries. That’s really quite troubling especially when considering those non-residents in other countries have no loyalty to the US or its laws, and very well may be living under a different set of laws where it may, for instance, be acceptable to have an “honor killing.” Or it may be acceptable to beat prisoners into confessions. Or it may be acceptable to beat your wife, or hold her accountable for your infidelity.
If we cannot impose our laws and beliefs onto other countries (and we shouldn’t) we should not say people in other countries have the same Constitutional claims.
In conclusion, we believe several things are true about the 9th’s decision:
1) They got it right in that that EO was too broad and covered a class of people in a nation where the law says it could not.
2) There is some (if not a great deal) if ideology in the decision. There is and can be a case made that the Court ruled on their hatred of Trump rather than the laws. This is evident because in the past, the 9th has stated what needs to be done to make a law Constitutional. In this case, they flat out say “not our job to do that” meaning they weren’t giving the administration any hints or direction.
3) The decision is a massive overstep and power grab by the Court. They reached into areas where they have no jurisdiction and said “mine!”
4) They extended Constitutional protection to people who never had those protections.
So the real question is, “was this a good decision or not?”
The answer depends on your point of view.
On one hand, you can applaud the idea that an overreaching EO was slapped down. On the other hand, you could be happy with all the overreach the 9th did.
Looking at the reverse, you could be upset the ban on the EO was not lifted. You could also not be happy with the destruction of the separation of powers from this Court.
For us, we are going with we are accepting not lifting the ban on EO because it is too broad and contrary to the laws on the books. Fix that and go after it again. The country needs a more comprehensive plan to deal with terrorists coming across our borders. The ban was supposed to allow the administration time to fix the problems with a lack of vetting of people coming into the country.
At the same time, we hate – absolutely hate – the power grab this Court made.
Trump’s EO violated the law. The Court’s rulings and statement in places violated the Constitution.
We should also note that there is a movement to break up the 9th Circuit and establish a new, 12th Circuit.
The 9th Circuit is huge.
The 9th covers nine states and 40% of the US population. Those states include Washington, Oregon, Hawaii, Alaska, Montana, Idaho, California, Arizona and Nevada.
There’s a price to be paid for that clout, said Walter Olson, Cato Institute senior fellow and founder of the “Overlawyered” blog. The 9th Circuit is the only circuit to hold “en banc” — or full bench — hearings with 11 of its 29 judges. Olson has taken to calling the 9th Circuit “the court that’s not all there.”
“It’s so big the three-judge panels cannot keep track of what they’re all doing. You’ve got a panel over here that says one thing and a panel over there that says the opposite thing,” Vanderbilt Law School professor Brian Fitzpatrick said.
[Senator Jeff] Flake [R. – Arizona] has argued that the district’s size contributes to a court case gridlock.
“The average wait time for a decision is 15 months,” the senator told radio talk show host Hugh Hewitt. “The one bedrock principle we have in this country is the swift access to justice. If you live in the 9th Circuit, particularly Arizona, you don’t have that.”
And in case you are wondering, Article III, Section 1 of the Constitution allows the Congress to set up new Federal Court districts.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. (emphasis ours)