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The Ninth Circuit: Dangerously Out of Order

The Ninth Circuit: Dangerously Out of Order
Black-robed politicians on the Left Coast handcuff Trump, keeping the borders wide open for terrorists.

February 10, 2017
By: Matthew Vadum

Three unelected federal judges in San Francisco yesterday ordered the Trump administration to continue accepting visitors and would-be immigrants from seven dangerous countries that are incubators of Muslim terrorism.

When President Trump learned his temporary ban on the admission of aliens from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen that was put on hold Feb. 3 by Seattle-based Judge James L. Robart would continue in abeyance, he got on Twitter immediately.

At 6:35 p.m. Eastern time he tweeted in all caps: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

The open-borders crowd doesn’t have a legal leg to stand on. That may be why at a press conference celebrating the outrageous ruling, a member of Washington Attorney General Bob Ferguson’s (D) team deployed the phrase “social justice” to justify the decision. “Social justice” is a magical amulet that nullifies anything the Left doesn’t like, including the president’s executive order. Its very invocation is an admission that a cause is illegitimate and un-American.

The Ninth Circuit’s fairy dust-based decision is “an intellectually dishonest piece of work,” said retired Judge Andrew Napolitano.

Tucker Carlson was in fine form last night as he roughed up the platitude-spouting, Haitian-born District of Columbia Attorney General Karl Racine (D) on television.

Racine, who supported the lawsuit by filing an amicus brief, absurdly argued EO 13769 was “discriminatory to a certain religion” and therefore violated the Constitution’s Establishment Clause.

Carlson retorted that “there is a precedent for singling out people for special treatment because of religion” and that the U.S. had used “explicit religious tests until pretty recently.” Until September 1988, he said, the U.S. granted refugee status to Soviet Jews because they were persecuted in their home country.

Probably the two most insane legal principles invented in the decision are (1) that everyone, everywhere on the planet enjoys due process rights under the U.S. Constitution, and 2) that courts can second-guess a national security-related executive order based on something other than the actual words in the order.

That a panel of the notoriously left-wing U.S. Court of Appeals for the Ninth Circuit committed this unlawful, unconstitutional atrocity is not surprising but it is still unsettling. In the decision Judges William C. Canby, Richard R. Clifton, and Michelle T. Friedland, substituted their vision of how to conduct foreign affairs for the nation’s elected president. The ruling not only violates separation of powers but also constitutes an attack on the status of the president as Commander-in-Chief charged with protecting the United States.

Conservatives who follow judicial affairs know that no other court compares to the Ninth Circuit. In 2012 the U.S. Supreme Court reversed an incredible 86 percent of the decisions it reviewed from that court. The circuit previously struck down the Pledge of Allegiance because it contained the phrase “under God.” It has also found that citizens have no constitutional right to own guns. Some call the court the “Ninth Circus” and the “Nutty Ninth,” and for good reason. (The ruling in Washington and Minnesota v. Trump may be read here at the Ninth Circuit’s website.)

The litigation arose out of Executive Order 13769, which President Trump signed Jan. 27. The order, which isn’t much different from an executive order President Obama signed a few years ago dealing with the same seven countries, is titled “Protecting The Nation From Foreign Terrorist Entry Into The United States.”

The idea behind EO 13769 was to put a brief pause on the admission of aliens from the terrorism-plagued countries so the new administration could devise new strategies for dealing with visitors from those countries in ways that enhance, as opposed to imperil, U.S. national security. It also indefinitely halts the entry of Syrian refugee applicants because they can’t be properly vetted and many of them are no doubt jihadists posing as bona fide migrants.

Meanwhile, Washington Gov. Jay Inslee (D), whose state challenged the travel ban, rejoiced at the Ninth Circuit ruling. He wasted no time shooting back at Trump.

I just saw a tweet from the president. He said, see you in court. Well, Mr. President, we just saw you in court, and we beat you, and you ought to think about this because these courts have said this is unconstitutional and it will not stand. And we’re hopeful that that happens. If it doesn’t Washington State’s going to continue its fight.

Inslee’s gloating over the Left Coast court’s ruling may be short-lived. Legal observers say even with the current 4-4 ideological split on the U.S. Supreme Court, Trump would still stand a good chance of prevailing there.

As Sen. Tom Cotton (R-Ark.) sees it, the case shouldn’t even be before the courts because the law is so clearly on the president’s side.

“President Trump’s order to temporarily pause the refugee program and travel from seven war-torn countries is plainly legal under the Constitution and our immigration laws,” Cotton said.

“No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president,” he said.

“This misguided ruling is from the Ninth Circuit, the most notoriously left-wing court in America and the most reversed court at the Supreme Court,” he said. “I’m confident the administration’s position will ultimately prevail.”

Daniel Horowitz seemed to anticipate the kooky ruling in a recent column at Conservative Review.

“The ubiquitous notion,” he wrote, “among the political and legal establishment that there are any constitutional limitations on our sovereign right to exclude any immigrant for any reason is the most dangerous constitutional crisis we are facing in the coming months.”

Two centuries of case law, he adds, “the accepted laws of nation states, and the principles of the social compact, popular sovereignty, and jurisdictional sovereignty, the American people – as expressed through their elected representatives – have the right to exclude or deport any non-citizen for any reason.”

Obviously, Horowitz and Cotton are right.

According to 8 U.S. Code § 1182:

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 … 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.

Of course, there are limits to what the highest court in the land is willing to do. It bent over backwards to avoid conflict with the executive branch by upholding the grotesquely unconstitutional Obamacare law forcing Americans to purchase health insurance. Would it dare challenge a president in the area of foreign affairs and national security where a president’s authority is at its highest ebb?

For the high court to give a U.S. president the finger by ignoring the text of this clearly-worded federal statute would be nearly unthinkable and truly earth-shattering. It would create a constitutional crisis the likes of which the republic hasn’t seen in a very long time. It seems unlikely the U.S. Supreme Court would want to generate so much intense political heat.

But even if Trump continues to face resistance from leftists on the bench who make up stuff to arrive at preordained results, he doesn’t have to play by the legal Left’s rules by limiting his fight to the current litigation. He could moot the Ninth Circuit’s ruling by issuing a new executive order or by issuing a series of executive orders dealing with the individual subjects addressed by his original executive order.

This is chess, not checkers, and a president has a lot more moves available to him than judges do. There is absolutely no reason for him to limit his efforts to protect the homeland to his opponents’ turf in the judiciary.

This brings us to the larger problem of judicial supremacism, which isn’t anything new. But the Ninth Circuit’s boneheaded decision illustrates how unelected people in black robes can expose us to grave threats in an age in which Muslim terrorists want to annihilate America and Western Civilization.

Courts arrogate jurisdiction to themselves, taking authority away from the people’s representatives. To the Left, everything is justiciable, and that’s the problem. And this lust for power is going to get Americans killed.

It could be said that from Honolulu to Baltimore, a curtain fashioned of black cloth has descended over the country.

The courts take on too many cases they have no business hearing. In too many instances, judges recognize no limits on their authority. This is wrong. This is not what the Framers of the Constitution wanted.

It is not even what Chief Justice John Marshall wanted when he invented American-style judicial review in Marbury v. Madison. “It is emphatically the province and duty of the judicial department to say what the law is,” wasn’t intended to be a gateway to judicial dictatorship.

At long last limits must be imposed on judicial review.

When unelected judges seize power they are not supposed to have and thumb their noses at We The People by rejecting the Constitution and the unambiguous language of a congressionally approved statute specifically giving the president discretion regarding the admission of aliens, it is time for a revolution against those usurping judges.

Americans fought a long and bloody war to win independence from an oppressive mother country.

Now they must fight a new war against this judicial tyranny that has darkened the American landscape.

Matthew Vadum, senior vice president at the investigative think tank Capital Research Center, is an award-winning investigative reporter and author of the book, “Subversion Inc.: How Obama’s ACORN Red Shirts Are Still Terrorizing and Ripping Off American Taxpayers.”