Saturday, February 11, 2017


Bad Court Rulings

I'll start with a little bragging and context. One of the few legal talents I have is an ability to read a court decision and tell if it is legally sound or utter bs. I've been reviewing some of the more suspect Supreme Court decisions lately (such is my powerhouse social life). I'm adding Justice Kennedy's Boumediene v Bush decision to the top five worst.

But the subject of this is the decision by the 3 judge panel of 9th Circuit in Washington v Trump. You can read it for yourself here. It's pretty much utter bs.

Let's start with some constitutional doctrine which no rational person disputes. The President is given the executive power for the nation in Art. 2, Sec. 1; and in Sec. 2 he or she is given the bulk of the power to conduct governmental business overseas. We call that foreign policy. He or she is admonished to take care that the laws of the nation be faithfully executed. He or she is the commander in chief of the nation's armed forces. These grants of power and duty would seem to include defending the nation from foreign invasion. There is plenty of case law that says he or she has plenary power regarding foreign policy (but Treaties must be approved by the Senate overwhelmingly). Congress in Art. 1, Sec. 8 has the sole power and duty to establish a uniform rule of naturalization (so much for sanctuary cities).

So here is part of what Congress put into the rules of immigration (the first step of naturalization) in 1955 in 8 U.S.C. ยง 1182(f).

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.

So this law allows the President, and the President alone, to decide if stopping immigration of an individual or class of individuals is a good thing for the defense of the country. According to the often cited concurrence of Justice Jackson in the Youngstown case, the President is on firmest constitutional ground when he or she acts regarding an inherent power of the executive which is bolstered by a specific grant of power from Congress. That's exactly what we have here. So it would seem that President Trump was acting in the mainstream of his executive powers when he ordered that we're taking a 90 day break in letting in people, even those who have a visa, from the 7 nations whose citizens the Obama administration identified as not deserving of visa-less entry. But there are judges who say differently. That they didn't cite, quote or even mention the above quoted law is proof positive how worthless their decision was. It's like saying we're reviewing the constitutionality of a law and then not mentioning the law.

Green card holders may get to be treated like citizens but foreign nationals, outside our borders, have no constitutional rights whatsoever, the brilliance of Boumediene notwithstanding.

So screwed up is the decision right now that the best thing to do would be to cancel the Executive Order in question and rewrite it specifically exempting green card holders. Put in some facts about Islamic terrorism and why it is impossible to properly vet at this time the citizens seeking entry to the US from the 7 nations identified as a problem by the Obama administration.

Then dare the members of the judiciary blinded to their duty and limitations by political animus to stop the temporary ban again. Double dog dare them.

Better legal minds than I have come to a similar opinion here, here and here.


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