Saturday, February 11, 2017

Trump vs. the 9th Circuit

One must give credit to the Trump administration for having persuaded American leftists to venerate the Constitution. We all remember when Pres. Barack Obama decided to use his supposed executive authority to change immigration law… because, he said, Congress had failed to act. Even those of us who are not lawyers understand that the Constitution does not offer the president a right to do as he pleases, by default, when Congress fails to do what he wants.

As for the 9th Circuit Court's decision regarding the Trump immigration order, one gives more credence to legal scholars who tend to lean left. Those who lean right might be taxed with bias. Those who lean left and who find fault with the ruling can be expected to be more objective.

Alan Dershowitz knows the law and is notably (and proudly) liberal. One must say that Dershowitz is liberal in the old sense of the word, but he has consistently offered judicious opinions, calling them as he sees them-- and respecting those who think differently.

He believes that the court overreached and that the Trump administration will have a good chance to prevail before the Supreme Court.

The reason is simple:

The Circuit Court decision, despite its unanimity, is questionable on the law. It extends constitutional protections to foreigners who have never been in the U.S., have no connections to our country, and have no constitutional right to come here.

As for the question of who has standing to bring the case, a family with a visa would have standing while a family of foreigners would not:

Contrast that family with one already here on an academic visa or with a green card, who are deported or refused re-entry after a trip back to their home country.

They would have standing and a plausible claim that their exclusion violated their constitutional rights. But the 9th Circuit refused to distinguish these cases, ruling instead that the executive order was probably unconstitutional as to all who seek to enter the U.S. from any of the seven countries originally designated by the Obama administration.

Dershowitz recommended that the administration reframe the order, making clear that it only applied to people who did not have green cards or other valid visas. If the situation is dire and we need to stop certain people from entering the country, taking the case to the Supreme Court will simply take too much time.

Also  Jeffrey Toobin in the New Yorker weighs in against the 9th Circuit. Again, he was not writing in a Trumpophile publication and Toobin is anything but a conservative writer.

Toobin finds the court decision to be questionable on several grounds. Among them, on the ground of “standing.” The Court granted the states of Washington and Minnesota “standing” because their universities would have been harmed by the Trump administration order.

Toobin responds:

What injury did the states of Washington and Minnesota suffer? According to the Ninth Circuit, “the states allege that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries.” The faculty members and students themselves would surely have standing to sue; most of the other cases percolating through the courts involve challenges by individuals whose travel has been affected by the order. But the harm to the universities is pretty attenuated.

Second, Trump claimed that his executive order was based on his power under a federal law granting the president broad power to make close the borders to certain classes of people. 

Toobin notes that:

What does the Ninth Circuit say about this provision? Nothing. Remarkably, the opinion does not quote or even cite the relevant law. 

True enough, Toobin continues, the president’s order must pass constitutional muster. And yet, the circuit court does not even address the issue:

To be sure, the President’s exercise of his authority under this law must be consistent with the Constitution. But the words of the statute must be taken seriously as well. They amount to a broad grant of power in an area (national security) where the courts have traditionally given the President a relatively free hand. The Ninth Circuit should have engaged with this statutory text and explored its relation to the commands of the Constitution.

Those who were cheering the court’s decision as a victory for the Constitution apparently missed this point completely.


trigger warning said...

Well, like Reid's nuclear option, the 9thC may have done the country a favor. The opinion appears to give states authority to reject Constitutionally-derived Federal authority. If this works out over the next four years to include marijuana legalization and sanctuary cities/states, it is certainly a boost to states' rights. Americans fought a war over that once and the states' rights side lost. Maybe the leftists just gave it back. I hope so. I'd personally like to see the Federal government hobbled, being a big fan of subsidarity.

Dennis said...

It would seem that there are cooler heads in the Ninth Circuit. "en blanc" anyone?

Ignatius Acton Chesterton OCD said...

I love this idea that Minnesota was granted standing "because their universities would have been harmed by the Trump administration order."

Minnesota originates 14 Islamic State suspects under indictment in the United States, for a state with 5.5 million people.

Yes, the state of Gov. Mark Dayton, Sen. Al Franken and Rep. Keith Ellison. Hurrah!

So the reasoning is that we protect foreign "faculty and students" over national security interests in protecting U.S. citizens. You have to go to college to believe this crap, and a law degree to promulgate it.

It's endearing that Lefties have rediscovered the Constitution. Now they might actually want to read it and find out what it says.

Anonymous said...

Read the actual Constitution? Of course they will - but just so they know what clauses to selectively edit and/or misinterpret....

I'd say bring on the popcorn, but this is too important.

Ignatius Acton Chesterton OCD said...

Yes, TW, the judiciary's 14th Amendment overreach has led to a states' rights do-over. Hopefully without blood, but the Leftist insurgency leads us to leave that option on the table if we fear for our physical safety. By the courts' current standard, the 14th Amendment is sanction, redress and authority for virtually any American citizen's (or alien's or illegal's) claim, no matter how peripheral or obtuse. It just depends on which judge you get, and how elastic their view of the Constitution and how creative their writing. If that's the case, we have a government of judges, not elected officials. Why become a Congressperson when you can be a judge? It's much easier... you get to write your own laws!

Dennis said...


Ignatius Acton Chesterton OCD said...

But Dennis, the Democrats are upset. I mean, they're really, really upset. Isn't that enough for you? Why are you so MEAN?

This whole Ninth Circuit thing is a farce. Reading your CTH reference brings me great joy. My Facebook feed is delightful... all this upset.

Ignatius Acton Chesterton OCD said...

Golly geez, I wonder what John McCain and Lindsay Graham think of all this. I bet they're upset, too.

Anonymous said...

First they ignore you,
Then they laugh at you,
Then they fight you,
Then you win.

Ares Olympus said...

IAC: Minnesota originates 14 Islamic State suspects under indictment in the United States, for a state with 5.5 million people.

The internet is a blessing and a curse - allowing access to wide information, but also a perfect tool for youth radicalization from any cause - from White Supremacy to Radical Terrorist Muslims. You can "catch" radicalization viruses now, even if your community rejects it. And parents of all backgrounds can miss the signs when their teens are looking for something greater than themselves to connect to, and fall into groups that promote power through hatred.

If there is a small or large terrorist attack here, from refugees certainly that will change the conversation, and refugees will have to accept limitations on their freedom, but for the moment, it is all largely imaginary. It's prejudging a group of people for actions that have not been done, and punishing the entire group for the worst of their community.

Thoughtful people put danger into perspective, and devote attention to the problem, and try many different things and see what works.

I do fear that any violence by a single refugee will provoke every stronger responses against Muslims, and in the very least every Muslim person knows this. They know the actions of a single one of them represents all of them, and they are ALL in danger.

Minneapolis actually just elected its first Somali state representative. And there are a lot of Somali in parts of Minneapolis, but not close to enough to win an election, so Omar won also support among long time residents. What she does with this new status is her choice, but more widely it'll show Somalis here have a voice in their government.

I can't guess what will come out of Trump's travel ban. It does seem like if they were a little less impatient, they could have gotten it right, or closer to right. But instead Trump and Crew choose politics over justice and fairness, and we paid for their secrecy and incompetence with unnecessary fear and chaos.

It is a difficult question how to consider the consequences of any execution of power. And I can see modern global "neoliberalism" may be an exception to history rather than the rule of the future. And any refugee policy would seem to be flawed, being a drop in the bucket compared to demand, and a demand that can only increase as our world population continues to approach 9 billion by 2050, and most of the growth will be in poorer and less stable countries with high birth rates.

So in my mind, the real issue should be helping poor countries reduce their birth rates, at minimum to the level of "family planning" so every married couple has no more children than they can afford to keep. And yet we continue to play this political football on abortion, and so NGOs have to promise to not discuss abortion to have access to funding. This is senseless and evil to me.

But I admit everything we do seems so unsustainable, and when we live in a country that half the people are too poor to comfortably pay their deductibles to see a doctor, we are doing something wrong at home that needs addressing, and something that can't be solved by EOs.

Economic growth has been the only answer to all our problems, and unless we can find a way to keep it going on diminishing returns of taking the easiest resources first, our future is troubled whatever we do with refugees.

Ignatius Acton Chesterton OCD said...

Ares, what did you just say? I can't make sense of it.