Friday, March 29, AD 2024 4:56am

The Ninth Circus Strikes Again

 

 

Known to its critics as the Ninth Circus, the Ninth Circuit Court of Appeals has long enjoyed the reputation within the Federal Judiciary of being left wing looney, and in rendering decisions that are frequently reversed by the Supreme Court. Last year for example 86% of the decisions of the Ninth Circuit reviewed by the Supreme Court were reversed by the Surpeme Court.

In its decision upholding the nation wide injunction issued by District Judge James Robart with no legal reasoning supporting the injunction, and after a whopping fifteen minutes of oral argument, the Ninth Circuit fully lived up to its reputation.

Professor Eugene Kontorovich, who teaches Constitutional law writing at Northwestern, at The Volokh Conspiracy, explains one of the wilder aspects of the decision for us:

The U.S. Court of Appeals for the 9th Circuit has just upheld a nationwide temporary injunction on President Trump’s executive order relating to refugees and visas from certain countries. I think the court’s opinion is weak in most respects, but I will address one of the most interesting and potentially far-reaching aspects.

Generally, the president has vast discretion in issuing visas. One of the major arguments against the executive order is that while in principle a president can limit immigration from the seven affected countries, it would be unconstitutional for President Trump in particular to do so, because in his case the action is motivated by impermissible religious bias. The central exhibit for this argument is his campaign statements about a “Muslim ban.”

While the 9th Circuit did not address this at great length, focusing instead on due-process arguments, it did accept the basic validity of the form of the states’ argument. “The States’ claims raise serious allegations and present significant constitutional questions,” wrote the court.

There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive. The 9th Circuit fairly disingenuously cites several Supreme Court cases that show “that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” But the cases it mentions do nothing more than look at legislative history — the formal process of adopting the relevant measure. That itself goes too far for textualists, but it provides absolutely no support for looking before the start of the formal deliberations on the measure to the political process of electing its proponents.

Indeed, a brief examination of cases suggests the idea has been too wild to suggest. For example, the 10th Circuit has rejected the use of a district attorney’s campaign statements against certain viewpoints to show that a prosecution he commenced a few days after office was “bad faith or harassment.” As the court explained, even looking at such statements would “chill debate during campaign[s].” If campaign statements can be policed, the court concluded, it would in short undermine democracy: “the political process for selecting prosecutors should reflect the public’s judgment as to the proper enforcement of the criminal laws.” Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995).

Go here to read the rest.

Other risible aspects of the decision include

(1) Finding that states have standing to bring suit in reference to the Executive Order due to its impact on state universities and possible impact on foreign professors and students. That argument was such a stretch, and so contrary to prior Federal rulings on State standing to sue that I laughed as I read it.

(2) The idea that religious discrimination is involved in the executive order when most Islamic nations on Earth are not covered by the Executive Order, and the Court simply ignored the fact that the Executive Order had a religious neutral justification in being targeted at nations where terrorism is a prime concern in regard to immigration.

(3) Prior to this decision no Federal Court had ever ruled that foreign nationals had due process rights in whether they were granted a visa to enter the United States.

(4) No attempt was made by the Court to limit the injunction to areas which they thought impinged on Constitutional rights.

(5) The Court did not address that Presidential power has generally been considered by Federal courts to be paramount when national security is implicated.

So, what next?

First, a new Executive Order should be issued that addresses the legitimate Constitutional concerns of current visa holders who are entitled to due process. I would divide up the Executive Order into two covering the 90 day ban from the seven nations and the ban on Syrian refugees.

Second, I would appeal this mess to the Supreme Court. Either appealing this rubbish en banc to the full Ninth Circuit or fighting it out before the manifestly loopy Judge James Robart is merely a losing waste of time.

Third, I would issue new vetting regulations for both refugees and Visa holders from nations that the administration formally finds are hot spots of terrorist activity.

Fourth, put together a stellar legal team. It was amateur hour by the Justice Department in both arguments before Robart and the Ninth Circuit.

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Anzlyne
Anzlyne
Friday, February 10, AD 2017 4:08pm

Yes good isolutions but many headed serpent will keep striking.
During WW2 when Europe was in trouble, the Calvary came riding to the rescue in the form of the United Dtates.. can we get the will and cohesion to save ourselves today? We have to recognize that many of our enemies are not going to be vetted because they are already here and working in various departments in D.C. And even holding elected seats.

Lucius Quinctius Cincinnatus
Saturday, February 11, AD 2017 7:32am

Anzlyne brings up a good point:
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“We have to recognize that many of our enemies are not going to be vetted because they are already here and working in various departments in D.C. And even holding elected seats.”
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There are two sort of such enemies: (1) liberal progressive feminists and (2) Islamic jihadists. After seeing the rioting and sedition in left wing cities throughout the nation, I discern little difference between the two.
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And such people are not in merely elected office. They pilot jet aircraft. They control speeding locomotives. They work in petrochemical and nuclear energy industries. They are even military brass among our soldiers, sailors, airmen and marines. Fathom such a person at the helm of a Trident ballistic missile submarine. They are everywhere that is is possible to do gravest harm to the most people. Maybe I am paranoid, but Obama let the city gates open and the Greeks are now in Troy, to use an old analogy or metaphor.
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I have worked with Muslims throughout my nuclear career. I have never thought twice about their mental stability or their overall intent. Everyone one seemed like an ordinary human being. I even had a Shiite Muslim boss once and he seemed to be a really good man. He always treated me well. Then 9-11 happened and Muslims by and large would not denounce the attack. Those with whom I worked were silent. So frankly I don’t trust them.
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The same is true with liberals since the election. Their attitude at work has changed. There is this air of defiance, of malicious compliance with the written word and actual disobedience that cannot be punished because the perpetrator is in some protected class like homosexual or female or minority race or minority religion like Islam. They portray themselves as victims while they victimize anyone who is a white Christian conservative male. They lie and they under-perform quite deliberately. I have never seen anything like it. I think they in their atheistic humanistic secularism are as unstable as the Koran-reading, Mecca praying, Jihadist excusing Muslim.
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Anzlyne went on to write:
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“When Europe was in trouble, the Calvary came riding to the rescue in the form of the United States…”
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The next Calvary riding to the rescue will be no United States or other country. It will be Revelation 19:11-16.
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11 Then I saw heaven opened, and behold, a white horse! He who sat upon it is called Faithful and True, and in righteousness he judges and makes war. 12 His eyes are like a flame of fire, and on his head are many diadems; and he has a name inscribed which no one knows but himself. 13 He is clad in a robe dipped in blood, and the name by which he is called is The Word of God. 14 And the armies of heaven, arrayed in fine linen, white and pure, followed him on white horses. 15 From his mouth issues a sharp sword with which to smite the nations, and he will rule them with a rod of iron; he will tread the wine press of the fury of the wrath of God the Almighty. 16 On his robe and on his thigh he has a name inscribed, King of kings and Lord of lords.

Thomas
Thomas
Saturday, February 11, AD 2017 10:07am

I work as an engineer for large US corporation, that does hire a good many foreign engineers and the company takes credit for that in the name of “diversity”. Many are Muslim and some were impacted by this executive order. I’m also Catholic and active in my Parish. A few observations:

– The more devout a Muslim is, probability is very high that he will believe in Sharia law and Polygamy. I have had numerous conversations with devout Muslim engineers where they have expressed support for both. These are also in favor of in one form or another -Jihad.
– Muslims, who are (MINOs) Muslims-in-name-only, do not express support for either Sharia or Polygamy, but these are afraid of the Muslims who do. Afraid of those who are devout and afraid to speak out. For all intensive purposes these Muslims are secular Christians. They think and act accordingly.
– The company asked 18 new hires in a company newspaper once, if they were an animal which would they be as an engineer: 11 answered a beaver, 6 answered an ant, and 1 a honey badger(I liked that;-). All six who answered “an ant” were Muslim. That is telling. A collective answer.
– Last year my Parish held a “day of evangelization”. Person’s visited a devout Muslim who I work. They came back with glowing stories of visiting a Muslim family and how we believe in much the same thing. The next day my Muslim co-worker told me he thought such evangelization should be illegal. I have had numerous conversations with him, and quite frankly evangelizing devout Muslims is like banging your head against a wall. It is extremely difficult and dangerous.

There is a great deal of ignorance regarding Islam among Catholics, and I consider our present Pope to be among the most ignorant. I trust Muslims, but only if they are not devout; they must be MINO. We have a duty to criticize Islam, such criticism will keep others from becoming devout. I think these executive orders have done a world of good in raising awareness for everyone including Muslims.

Steve Phoenix
Steve Phoenix
Saturday, February 11, AD 2017 11:22am

The San Bernardino terrorist massacre — only one year ago, 12/2/2015— killed 14 and gravely wounded 22 others. Tashveen Malik (the spouse) came in, unvetted, on an F4 (spousal) visa from Pakistan. (You know, our ally, where Bin Ladin was hiding out.) Her true identity is not known. The FBI’s DNA analysis reputedly does not match up with Pakistani authorities’ info.

One of the 14 killed by the Muslim jihadi duo was Bennetta Betbadal, a R Catholic who fled Iran because of Islamic state persecution; Isaac Amanios was an Egyptian Coptic Christian who came to the US to be “safe” (Are you listening Abp Gomez of LA?); Damien Meins was R Catholic, attended St Catherine of Alexandria Church in Riverside; Tin Nguyen, R. Catholic, St Barbara’s Church, Santa Ana; Juan
Espinoza, Catholic, private services; Nicolas Thalasinos, Yvette Velasco, and Michael Wetzel were of differing Christian denominations; the 6 others were private services (may also have been Catholic or Christian) or non-denominational.

One year later, they are all forgotten, all irrelevant, “we didn’t know them, Lord”, as well as the 22
others who were injured, many of them severely and for life. All forgotten. All irrelevant. Many of
them brother Catholics, fellow Christians, or fellow human beings. We don’t care. We must “experiment” with bringing in masses of migrants whom FBI director James Comey admitted in Oct. 2015 are of unknown background and “don’t show up on our radar.”

http://www.breitbart.com/national-security/2015/12/11/funerals-begin-san-bernardino-terror-victims/

Steve Phoenix
Steve Phoenix
Saturday, February 11, AD 2017 11:29am

[The prior info was sent to me by a friend, Anonymous Anselm, who looked into the victims of San Bernardino: the same could and should be done for those killed at the Boston Marathon bombing (3, wounded 264); the Chattanooga Military Recruiting Office attack (5 killed, the Orlando murder rampage (49 killed, about 50 gravely wounded); or the Major Nidal Hassan “workplace violence”, 13 killed, many wounded.]

Dick the Butcher
Dick the Butcher
Saturday, February 11, AD 2017 12:01pm

Thomas, Our NY offices were about three blocks away from the WTC from October 1999 thru December 2009. I was there that day.

We had on-site an iT contractor that was a Turkish Muslim. He was subtle but (I watch people) obviously (to me) overjoyed about the attacks. Luckily (for him), he was shortly let go.

Another devout Muslim (older man from India) I knew for years sells newspapers at the LIRR STA. He’s a nice guy and liked by all. He lives in a Mosque and helps teach the youths. I try to be all things to all people and act the Christian until I need (it would take a great deal) to go tactical. Once, he let his guard down and blurted out that all Hindus are going to Hell and that Allah will tell them to ask their snake, or whatever, god to save them.

Truly, my children, they generally are aggressive, pushy and dangerous. Some act like lambs until they decide to go tactical. Most of the rest provide financial or moral support.

Art Deco
Art Deco
Saturday, February 11, AD 2017 1:12pm

Israel and India cope with muslim minorities far larger than Germany suffers (much less the U.S.). However, they have elites who are concerned with the interests of their domestic working class. Most of the occident has elites who side with exotics over common-and-garden wage-earners, whom they despise. This creates an entirely different matrix in which the immigrant must move, and permits and stokes aggressive behavior. A century ago, this country was led by men like Teddy Roosevelt. Now we have Barack Obama.

Christian Teacher
Christian Teacher
Saturday, February 11, AD 2017 6:11pm

I read over the weekend that a panel of the 9th Circuit may hear the arguments. Or at least one of the judges on the 9th has asked for a vote from everyone on the court to see if a larger panel of them will rehear it.

Christian Teacher
Christian Teacher
Saturday, February 11, AD 2017 6:12pm

Trump needed this defeat on the front end. It will make him fight wiser in the future.

Christian Teacher
Christian Teacher
Saturday, February 11, AD 2017 6:16pm

” I trust Muslims, but only if they are not devout; they must be MINO”

I don’t trust any of them. Their money all goes to support the enslacement & degradation of women even in this country. You are aware that they practice segregation of the sexes here in the US?

Christian Teacher
Christian Teacher
Saturday, February 11, AD 2017 6:33pm

The congress can rule areas of immigration completely off limits to our Federal court jurisdiction if they had the back bone to do that. And matters of national security strictly need to be off limits to the courts. What are they going to do next? Tell our president he cannot carry out military exercises against our enemies because they don’t like it?

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