Saturday Politics : The "Nutty 9th" Circuit Got It Wrong on Both the Law and the Constitution

Saturday Politics is sometimes about hard truths that separate fact from the fake news and MSM making itself look good by omitting those facts that don't fit their agenda. • • • THE 9th CIRCUIT DECISION. To listen to CNN and NBC in the last two days, you would think that President Trump's immigration order is dead -- killed by the gallant knights of the 9th Crcuit who saw that it was unconstitutional and illegal. But, surprising as it may be for those who get all their news from MSM, the 9th Circuit ruling had nothing to do with the merits of the Tummp immigration Executive Order. The 9th Circuit decision was entirely an answer to a procedural question -- should the immigration temporary hold be reinstated as asked by the Trump adminsitration. The answer the 9th Circuit gave was "no" and it did not surprise anyone, especially lawyers, because the "Nutty Ninth" has a reputation for odd-man-out decisions, and in this case because the reinstatement of the EO would have again created chaos by halting another mass of aliens lined up to get into the US before the final curtain falls on the 9th Circuit's latest comedy of errors. • The rest of the 29-page 9th Circuit decision is mostly politically-based opinion from the most liberal of the 11 US federal court circuits. The Supreme Court, if the case gets that far, will either toss it out without a hearing because aliens with no connection to the US do not have standing to sue and the State of Washington cannot provide that standing for aliens by alleging that the state will suffer if they are not allowed to enter the US, or the Supreme Court will hear the case and uphold the President's temporary alien entry suspension because of constitutional and congressional statutory law giving the President the sole right to decide whether and which aliens may enter the US. • It is really too bad that green card and visa holders got put into the EO, because that made it much easier for the 9th Circuit to posit about constitutional problems in the EO. But, that happened, it seems, the EO was vetted by career Department of Justice lawyers who probably have more sympathy for Obama's Progressive view of events than for their new boss, and maybe they "forgot" to point out that green card holders have constitutional rights to enter and re-enter the US. But, now that Attorney General Jeff Sessions has been confirmed and is in place at DOJ, he will quickly take control of the career DOJ attorneys and bureaucrats, making sure that their work product reflects the legal position supporting Trump's programs. Until Sessions was confirmed, Trump was at the mercy of career DOJ lawyers, including those who wrote his briefs for the District Court in Seattle and for the 9th Circuit, as well as those making the 9th Circuit oral arguments. It would have been wise for Trump's senior legal and politcal advisors to have counselled him to hold off on all key exectuive orders until Sessions was confirmed, but that's hindsight -- an 'ah ha' moment too late to be useful. The truth in the 'ah ha' is that President Trump and most of his senior staff, no matter how sophisticated they are politically, are neophytes about the legal intricacies of executive actions, and they need a pro with the clout to keep them in line in the Washington "swamp" not yet drained of Trump enemy alligators anxious to snap off his head. • • • THE REAL ISSUES IN THE TRUMP IMMIGRATION EO. We start with 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." • The Trump DOJ pleading to the District Court in Seattle opposing the original complaint from the states of Washington and Minnesota to invalidate Trump's executive order argued : " 'Congress has 'plenary power' over the admission and exclusion of aliens, Kleindienst v. Mandel, 408 U.S. 753, 766 (1972), and here expressly has delegated to the President the broad power to suspend entry "of any class of aliens into the United States.' 8 U.S.C. § 1182(f). The President's exercise of his Section 1182(f) authority is committed to his discretion by law, and thus judicial review is precluded. Moreover, that delegation, combined with the President's own Article II powers in this realm, placed the President at the apex of his authority when issuing the Executive Order....As the Supreme Court repeatedly has held, Article II confers upon the President expansive authority over foreign affairs, national security, and immigration. See Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) ('The exclusion of aliens is a fundamental act of sovereignty...inherent in the executive power to control the foreign affairs of the nation.'); United States v. Curtiss-Wright Exp. Corp., 299 U.S.304, 320 (1936) (discussing 'the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress[.]') The U.S. Supreme Court in June 2012 concurred with the 9th Circuit in Arizona by reinforcing the supremacy of the federal government – both Congress and the president – over the states in immigration and national security. [In the Curtis-Wright decision, the Supreme Court held as follows] : Held: 1. The Federal Government's broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to 'establish an uniform Rule of Naturalization,' Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U. S. 1, 10. Federal governance is extensive and complex. Among other things, federal law specifies categories of aliens who are ineligible to be admitted to the United States[.]....The Supremacy Clause gives Congress the power to preempt state law. A statute may contain an express preemption provision, see, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___, but state law must also give way to federal law in at least two other circumstances. First, States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 115. Intent can be inferred from a framework of regulation 'so pervasive ... that Congress left no room for the States to supplement it' or where a 'federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.' Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230. Second, state laws are preempted when they conflict with federal law, including when they stand 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U. S. 52, 67. Pp. 7–8. 3." • The above DOJ pleading lays out the essence of the Trump case -- the President has the exclusive right to regulate immigration into the United States under the Constitution and under specifically authority delegated to the President by Congress. • • • THE 9th CIRCUIT IGNORED THE LAW. Because Congress has "occupied the field," even complementary state regulation is impermissible. Arizona learned that when it tried to interfere with Obama administration regulations about alien illegals present in states. But, thus far, the 9th Circuit has frustrated federal supremacy in immigration matters by maintaining the stay of the Trump EO placed by Judge Robart to at least temporarily deny the federal government's authority over immigration matters, and seemingly to authorize piecemeal nullification of federal immigration laws by the states. The 9th Circuit, in upholding Judge Robart's TRO, allowing the states to annul federally established immigration prerogatives while frustrating the President's sole authority in conducting foreign policy and executing national security, has placed the US in the dangerous position of eliminating anyone -- whether the federal government nor the states -- from exercising authority to establish or protect America's sovereign borders. • • • THE 1st CIRCUIT GOT IT RIGHT. President Trump was justified in labeling Robart a "so-called" judge. All Robart needed to do was spend five minutes in reading Boston federal district judge Nathaniel Gorton's opinion on the same topic, issued a day earlier, and denying petitioner's request to overturn Trump's EO : "The power to admit or exclude aliens is a sovereign prerogative and aliens seeking admission to the United States request a 'privilege.' Landon v. Plasencia, 459 U.S. 21, 32 (1982).....'unadmitted and nonresident aliens' have no right to be admitted to the United States. Adams v. Baker, 909 F.2d 643, 647 (1st Cir. 1990). There is no constitutionally protected interest in either obtaining or continuing to possess a visa. Here, the President has exercised his broad authority under 8 U.S.C. § 1182(f) to suspend entry of certain aliens purportedly in order to ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks. Exec. Order 13,769 § 3(c)." • It is a relatively simple decision when a federal judge follows his constitutional duty to uphold the Constitution when he or she decides cases. Only the leftist judges in the 9th Circuit could find otherwise. They should have tossed out the case that was wrongly recognized by district court Judge Robart. Instead, they continued it by ignoring the law and preempting the President's statutory and constitutional control over national security. • • • DEAR READERS, to give us an idea of just how wrong the 9th Circuit is on the Trump immigration EO, even Chris Matthews is skeptical about the court ruling. YES -- Chris Matthews on MSNBC last night expressed surprising doubts over the 9th Circuit’s decision to uphold the stay of President Trump’s immigration temporary hold EO. Matthews made several attacks on the ruling. He suggested the court had political motives : "so much of this court ruling is based on what they think about Trump.” He called it “an odd ban on Moslems if it doesn’t include 95% of Moslems.” Matthews suggested the ruling would not have gone 3-0 against the EO if it had been heard in another [less liberal] Circuit court. Matthews repeatedly attacked the court’s reliance on the fact that we haven’t been attacked by people from the countries included in the order. He argued that you can’t predict the future, pointing out that no one from Egypt had attacked the US before Mohamed Atta did on 9/11, and no one from the West Bank or Jordan before Sirhan Sirhan assassinated RFK. Matthews was also dubious about the court extending equal protection rights to non-Americans who are not in the country. Matthews concluded : “I think the courts have gotten into somebody else’s marmalade here." • Now, the clamor, begun by Alan Derschowitz, is that Trump should abandon the EO and write a new one that eliminates the inclusion of green card holders and other details that the Seattle district judge and the 9th Circuit jumped on. But, I am skeptical -- as Chris Matthews is about other facets of this fight -- that the Seattle federal district judge or the politically ambitious Democrat Attorney General of the state of Washington would let any Trump immigration EO stand without attacking it. Their goal is to prevent Trump from protecting our borders by restricting immigration in any way. However, Trump supporters as loyal as Representative Louie Gohmert of Texas are encouraging the President to do a rewrite. As Gohmert counseled this morning on “FOX & Friends,” Trump should dump the original order and reissue a new one that doesn’t “apply to people that already had their green cards.” Certainly, the argument runs, there would be new lawsuits for a new order, but most legal experts agree that eliminating the green card language would make the measure hard to beat. By focusing instead on the President’s enormous powers to restrict the entry of foreigners for national security reasons, Trump would help his political case as well, they say. The problem with this approach is that any objective court would effectively do the rewrite for Trump by ordering the Trump administration to rewrite those portions of the EO that violate federal law or the Constitution, if requested to do so in DOJ pleadings. So, why get into a snitch by having two EO's on the same subject working their way simultaneously through the federal court system up to the Supreme Court. Trump administration time would be better spent in getting Judge Gorsuch quickly confirmed to the Supreme Court by the GOP Senate majority -- with or without using the nuclear option of a simple majority. • And, if you need any other ammunition for the weekend about just how obsessed, undemocratic and irrational the Trump opposition is -- consider this. New Secretary of Education Betsy DeVos tried to enter a local public school in Washington DC Friday morning but was blocked at the entrance by a dozen angry protestors. ABC 7 News reported that one man shouted : “Go back!” Another protester said : “She does not represent anything that they stand for!” If the protester was referring to school unions, he was right -- Secretary DeVos does not represent the hamfisted, power-hungry school unions often blamed for the poor performance of American schoolchildren because their teachers refuse to be evaluated and cannot under union agreements be fired for incompetence. DeVos is looking out for the best interests of families and students. So, while angry Progressive protesters were shouting : “Keep giving money to Senate and buying your way into the position,” or “You should be so proud of yourself!” or “Shame! Shame! Shame! Shame! Shame!” -- or they carry professionally printed "Black Lives Matter" signs -- Secretary DeVos got past the protesters to continue her work of creating a renewed US school system that actually educates its children. President Trump may not often get a positive nod from the 9th Circuit, but Americans srrongly support him and his go-getter cabinet -- because Trump supports America.