Judges Acting as Attorneys for ‘The Resistance’ Soon to Face Real Judges


Photo by Franz Jantzen, Collection of the Supreme Court of the United States

Friday, in a Wall Street Journal opinion piece titled, “The Judicial ‘Resistance’ Is Futile,” David Rivkin and Lee Casey, appellate and constitutional attorneys, assert that the SCOTUS has already signaled that its patience with radical federal judges is at an end:

“The justices raised some eyebrows last month when they took only two weeks to agree to hear the government’s appeal of an immigration case. Normally it would have taken several months…. the court is expected to issue a decision in Trump v. Hawaii by the end of the current term, in June…. The justices voted 7-2 in December to stay any judicial order stopping implementation of the current immigration policy.”

Numerous radical judges had repeatedly blocked the president’s immigration executive orders, even in the face of past and present Supreme Court rulings.

“The lower-court judges have defied precedent by holding that the president has neither constitutional nor statutory authority to issue these orders. They have improperly questioned Mr. Trump’s motives, even analyzing his campaign statements for evidence of bad intent. And they have responded to each reversal from the high court by spinning new theories to strike down the orders. The judges appear to have joined the “resistance,” and it wouldn’t be surprising if the justices concluded enough is enough.”

The SCOTUS will be reviewing a decision of the Ninth Circuit, which is apparently the appeals court of choice for The Resistance. Bringing suit in Washington State or Hawaii guarantees that the radical Ninth will hear the appeal and rule the way the Resistance wishes.

The decision the High Court will be reviewing ignores precedent and judicial norms, say the authors, who write that the travel executive orders must be evaluated using “the core constitutional propositions, articulated by the Supreme Court in Knauff v. Shaughnessy (1950):

“’An alien who seeks admission to this country may not do so under any claim of right’ and that the authority to exclude aliens ‘stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.’”

In other words, Congress has the overriding say over who can enter America and/or live here, but the president has his own “plenary power to exclude aliens for foreign-policy or national-security reasons.”

The Ninth Circuit decided to ignore Knauff and rule that the president did not in fact possess his Article II constitutional power over foreign policy.

In writing the EOs, the president acted under the authority of 8 USC §1182(f), which says:

“‘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.”

That seems clear enough, but Washington State District Judge Robart tossed aside the statute cited above in his decision on Washington v. Trump. And on appeal, the Ninth Circuit ignored it, asserting that “The Government has not shown that a stay is necessary to avoid irreparable injury.” and: “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.”

This decision is a deliberate contortion of precedent in more than one way.

Of course, the president need not prove the aliens are a threat; he merely must believe it. Notwithstanding the courts’ analysis of Trump’s campaign statements, they are not qualified—either logically or by precedent—to peek behind the president’s ‘facial’ (on its face) assertion that it would be a detriment to admit the aliens in question. This was established by Kleindienst v Mandel, (1972):

Plenary congressional power to make policies and rules for exclusion of aliens has long been …  firmly established. In the case of an alien excludable under 212 (a) (28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Further, in the words of Justice Robert Jackson, Supreme Court justice from 1941–1954 (and the lead prosecutor at Nuremberg):

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty….
A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation.

As law professor Josh Blackman explains in his Lawfare Blog,

“The executive order must be afforded ‘the strongest presumption of constitutionality and the widest latitude of judicial interpretation.’ The [Ninth Circuit] panel did the exact opposite, and applied strict scrutiny, affording the government only the slightest latitude in an area where the courts have the least competency: national security.

Justice Jackson’s analysis has since become the rule in these cases. It arose in 1952, in the Steel Seizure case, during the course of a “police action” conducted by UN forces in Korea.

Immediately before a strike call by the Steelworkers was to go into effect, President Truman issued an executive order directing the Secretary of Commerce to seize the steel mills and to keep them operating.

The justification for his action was that steel was an indispensable element for war production and that a work stoppage would endanger the national security.

Justice Jackson opined that President Truman did not have the power for the seizure because Congress had not given it to him through implication or statute. Justice Jackson’s opinion is used by most legal scholars and members of Congress to assess executive power, ever since.

In the case now before the SCOTUS of President Trump’s immigration executive orders—Trump v Hawaii— he did indeed have statutory authority—8 USC §1182(f).

In Trump v Hawaii, the Ninth Circuit acknowledged the statute, but “declared that the law as written amounts to an unconstitutional delegation of legislative power.”

This would be laughable if it wasn’t blatant legislation from the bench, in defiance of §1182(f), which specifically delegates that power to the president.

What’s more, the Ninth “argued that even if the statutory language was constitutional, it was outweighed by a provision in the 1965 Immigration and Nationality Act barring discrimination on the basis of nationality. But that provision applies to the issuance of immigrant visas, not the entry of aliens.”

And the Ninth Circuit judges surely knew that.

Finally, the Ninth “held that even if §1182 applied, Mr. Trump failed to comply with it.” The liberal hacks at the Ninth said his proclamation was nothing more than “‘general immigration concerns’ not grounded in critical foreign-policy or national-security findings.”

Rivkin and Casey label that “an especially egregious error”—The Constitution and Supreme Court cases going back to …Marbury v. Madison (1803) grant the courts no authority to review the discretionary policy choices made by the political branches.”

Extending that ruling to its logical conclusion, would Muslims living in America be able to block our military action in Afghanistan in court?

The Big Question is why are the courts usurping this particular president’s power to ban entrance from countries with terrorism and/or vetting problems, when Carter and Obama had taken even more drastic actions?

The answer is the radical Left is especially keen on protecting the right of Muslims to enter America in ever greater numbers. Note that no exception was taken to Trump’s later decision to bar North Koreans, along with people from certain Muslim majority nations.

Getting Muslims into this country is clearly of the highest priority to the Left.

To perceive their goal, one need only look at what the Left has done to Europe via hordes of Muslim migrants. Its culture is in rapid decline and being replaced by one more like that of Pakistan.

If we are to avoid the same fate, the High Court must shut down these radical courts, who clearly are engaged in sedition.

The authors have high hopes that the Supreme Court will end the judicial chaos and restore the president’s powers to defend this nation, by issuing a broad decision.

“When it comes to immigration, the judiciary’s role is limited to determining whether any procedural requirements Congress had enacted have been satisfied.”

They conclude:

“One hopes the justices will strongly affirm that the president has the power to exclude aliens from the U.S. for foreign-policy and national-security purposes, and that the judiciary has no role in reviewing his policy choices in this area.”

I concur.

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