Ninth Circuit Rejects Unconstitutional Arrogance of Trump Immigration Ban

I won’t say the Judiciary is our only hope, but like Princess Leia and the Rebellion, the fate of our free Republic depends significantly on old men (and women!) in robes.

Yesterday the Ninth Circuit rejected Presidential Executive Order 13769, the President’s immigration ban. “…[T]he government has not shown a likelihood of success on the merits of its appeal,” wrote the court, “nor has it shown that failure to enter a stay would cause irreparable injury.”

The government contended that the plaintiffs, the states of Washington and Minnesota, lacked standing. The court rejected that argument, pointing to the “concrete and particularized injury to their public universities”:

According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa. Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States. The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington. The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted. Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals. Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons [United States Court of Appeals, Order, Washington and Minnesota v. Trump et al., #17-35105, 2017.02.09, p. 10].

The court also upheld the right of universities to defend the rights of their students and faculty members.

The Trump Administration further failed due to its overreaching arrogance (anyone who has read any literature should see this coming):

The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence…. Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.

…There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the “political branches” lack “the power to switch the Constitution on or off at will”) [emphasis mine; Order, Washington v. Trump, 2017.02.09, pp.13–14].

The government contended that the urgency of the threat to national security shields the President’s action from judicial review. Quoting from numerous cases, the court said even war does not trump the court’s duty:

…[C]ourts have a duty, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty….

“The Constitution of the United States is a law for rulers and people, equally in war and in peace… under all circumstances.”

“‘[N]ational defense’ cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal…. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties… which makes the defense of the Nation worthwhile.”

“[S]imply because a statute deals with foreign relations [does not mean that] it can grant the Executive totally unrestricted freedom of choice” [Order, 2017.02.09, pp. 16–17].

The government contended that Constitutional rights don’t apply to the non-citizens affected by the Executive Order. The court pointed to the plain language of the Fifth Amendment, which protects every “person”, not every “citizen.”

The Court showed its openness to weigh constitutional harms against “the Government’s interest in combating terrorism… an urgent objective of the highest order.” However, the government failed to give the court any competing public interest to weigh:

Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above [Order, 2017.02.09, pp.27–28].

The government contended that guidance from White House counsel Donald McGahn to exempt lawful permanent residents from the Executive order mooted part of the plaintiffs’ argument on behalf of aggrieved green card holders. The court denied the White House counsel’s authority to amend a Presidential action and took a sly swing at the caprice of the current White House:

The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur” [Order, 2017.02.09, pp. 21–22].

Washington Attorney General Bob Ferguson said last night, “[T]he future of the Constitution is at stake.” He’s right. The government’s arguments and the Ninth Circuit’s rejection thereof show the fundamental danger posed by this White House: its arrogant assumption that it can do whatever it wants, without the support of evidence or the Constitution.


8 Responses to Ninth Circuit Rejects Unconstitutional Arrogance of Trump Immigration Ban

  1. Porter Lansing

    The Presidential election has been a valuable tool to introduce kids to politics. One lesson to be learned is that no matter how hard you work to build something when Republicans are elected they will tear it all down, just for spite. They believe people are better alone than in groups.
    ~ Kids, do you know why we Democrats never tear down the things that Republicans build? Because, Republicans don’t ever build anything. Example: Pierre legislature 2017. Just count the new ideas vs. the old, recycled bills that have already failed before.

  2. Roger Elgersma

    Donald thought he was dictator, but, opps we have democracy with checks and balances.

  3. Roger Cornelius

    45 just announced that his administration will issue a new or modified Executive Order next week to challenge the 9th circuits ruling.

    Without a doubt, 45 will issue something equally as hateful, he just can’t help himself.

  4. Roger Cornelius

    Roger E.
    45 thinks that the founders that wrote the U.S. Constitution were being mean to him and were very, very poor writers and wishes we had a constitution like Putin’s.

  5. bearcreekbat

    Roger C, I don’t think Trump would like the Russian Constitution as it provides for even greater human rights protections than the US Constitution. Check it out:

    http://www.constitution.ru/en/10003000-01.htm

    What Trump would like is the ability to ignore the Constitution, just as Russia’s leaders and government powers, including Putin, apparently need not respect Russia’s Constitution. This detail makes his desire for another Justice like Scalia a bit odd. Here are some interesting comments Scalia gave in a speech not long ago about the former Soviet Union’s Constitution:

    Every banana republic in the world has a bill of rights. Every President for life has a bill of rights. The bill of rights of the former “Evil Empire,” the Union of Soviet Socialist Republics, was much better than ours. I mean it, literally. It was much better. We guarantee freedom of speech and of the press — big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests; and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!

    Of course — just words on paper, what our Framers would have called a parchment guarantee. . . . The real Constitution of the Soviet Union . . . did not prevent the centralization of power, in one person or in one party. And when that happens the game is over; the Bill of Rights is just what our Framers would call a parchment guarantee.

    adding in a footnote

    Strictly considered, “parchment barriers” was the termed used by Madison (e.g., as quoted and interpreted in Federalist Paper #48) in reference to the questionable notion that a Bill of Rights, or something approaching it, is in itself a sufficient barrier against the steady encroachment of centralized government power upon individual liberty.

    http://www.americanrhetoric.com/speeches/antoninscaliaamericanexceptionalism.htm

    Trump simply wants the USA to become another banana republic in which we have a great Constitution with its Bill of Rights that looks good but is unenforceable.

  6. mike from iowa

    But you can’t tell Drumpf anything because he is ,like, a smart person.

    Seriously doubt Drumpf knows much of anything about the constitution. Like dumbass dubya he is surrounding himself with people who tell him he is right when he does anything at all- like torture.

  7. Roger Cornelius

    Fair point Bear, my comment about 45 and the Russian communist constitution was actually attempt at levity.
    The Ninth Circuit hopefully made 45 sit up and take notice that he is not the only power in America. That must have been a rude awakening for him.

  8. mike from iowa

    Drumpf sez he might just re-issue ban, nyah nyah. Then he said he might ask the Scotus to look at it. Then he said he might let it play out in court because he knows he will win there. Then he said he might re-issue ban.

    Speaking of Russia, General Flynn apparently was talking sanctions policy with Russia before Drumpf took over. He can’t seem to recall and a WH official sez Flynn did it. Dems want him stripped of access to classified material until an investigation can be done.

    US officials have corroborated some of the Russia/Drumpf Dossier. Nothing salacious but they have confirmed some officials were gathering evidence to harm HRC and to help DFrumpf. Spicer calls it fake news.