Five Ninth Circuit Judges Issue Rare Dissent Rebuking The Panel In Immigration Ruling


The judges said that the panel simply “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972). Indeed, the panel noted that the panel missed entirely the rulings in Kerry v. Din, 135 S. Ct. 2128 (2015) and Fiallo v. Bell, 430 U.S. 787 (1977).  In a statement that is particularly probative of the Hawaii ruling, the Supreme Court in Mandel recognized that first amendment rights were implicated by the executive action but found that “when the executive has exercised its authority to exclude aliens 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 11 interests of those who seek personal communication with the applicant.”

Here is the opinion: 17-35105 en banc

162 thoughts on “Five Ninth Circuit Judges Issue Rare Dissent Rebuking The Panel In Immigration Ruling”

  1. Judge Reinhardt wrote that he was proud to be part of a system that “vigorously protects the constitutional rights of all.” He (and many other liberal leftist judges) seems to have forgotten that his charter is to protect the constitutional rights of AMERICAN CITIZENS — foreigners living in another country have no rights or standing in the US granted them by the Constitution. Thank God for a President willing to stand up and say, “We need to pause long enough (90 days — apparently an eternity to leftists) to implement a system that assures we are weeding out any terrorists among them.”

  2. “The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy.”
    ~ Hon. Jay Bybee

    “… serious physical injury, such as organ failure, impairment of bodily function, or even death”; that prolonged mental harm is harm that must last for “months or even years”; that “prosecution under Section 2340A may be barred because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war”; and that “under the current circumstances, necessity or self-defense may justify interrogation methods that might violate Section 2340A.”
    ~ Jay Bybee ASUA

    So the President may torture in prosecution of national defense but he may never ever criticize a overreaching federal judge. What must it be like to live and play in Bybee World?

    1. “…we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy.”

      Unless of course “we” feel butt-hurt from comments by the Executive. Then we will let our inclination flag fly.

    2. If they wished to be treated with that sort of deference, they should have behaved better. Scroom.

      The British Royal Family has the decency to confine their dismay at the disrespect they receive (after Wallis Simpson, Lord Snowdon, Roddy Llewelyn,, Mark Phillips, Diana Frances Spencer (& James Hewitt, James Gilbey & Dodi Fayed), Sarah Ferguson, Jeffrey Epstein, and Camilla Parker-Bowles).

      1. Confine their dismay to private conversation. (Some of which still end up in the papers courtesy tabloid grifters).

        1. yes let’s not forget the tabloids (and whomever else, LOL) bugged members of the Royals. By now I only remember the tapes of Charles to Camilla.

          1. San Francisco – who can forget the sheer romance of Charles offering to be Camilla’s tampon?

  3. Keep in mind that their are currently 25 judges on the ninth circuit and 29 positions, so five dissents is not even close to how the majority feel. The dissent is 1/5th.

    “A total of 29 judges make up the 9th Circuit Court of Appeals, although four of those seats are currently vacant. Of the 25 currently-active judges, there are 10 Clinton appointees, six George W. Bush appointees, seven Barack Obama appointees, one Ronald Reagan appointee, and one Jimmy Carter appointee.”

    1. “…so five dissents is not even close to how the majority feel.”

      Thank you for the prevailing leftist legal analysis on the “feelings” of this court. I don’t care if the entire Judicial Branch “feels” the sitting President is the anti-Christ, what is their opinion as it relates to THE LAW?

  4. Ya know, every time the OoP gets on Twitter he commits what it’s amounts is a media suicide. (Office of President) OoP. 🙊

  5. I’ve always had this question. If a judge’s decisions are overturned at a “high” rate, can the judge be fired? What protections do the people have from a judge who consistently issues erroneous rulings? Can a judge be impeached for incompetence?

    Are there any lawyers on this blog?

    1. A legislative body can impeach a judge for any reason they bloody well please. They just do not bother.

      These incidents are another indication that a judge’s rulings should not be binding outside a given geographic jurisdiction. They’re also an indication that federal judges should be subject to retention in office referenda, recalls, and mandatory retirement.

  6. These TRO hearings and decisions are by definition a fishing expedition, to the extent the Court is called upon to speculate on the likelihood of either side prevailing on the merits. Consider how lax is the evidentiary standard. The 9th Circuit and Hawaiian Judge were able to take campaign utterances out of context, which was the aftermath of a religious-zeal-inspired massacre of 51 young adults in Orlando. The Hawaiian Judge is somehow able to “reframe” the obvious common-defense motive of candidate Trump in calling for a moratorium and new vetting processes into an assumed prejudice against a religion. The Judge can’t see that, down the road when the merits are being heard, the question will arise whether the Establishment Clause exempts mass murder from government countermeasures when religious duty is claimed as the attacker’s motive?

  7. I’m no lawyer but in my opinion these judges that stopped both travel bans put their personal feelings before the law. Since when is the law interrupted by what is said on campaign trail? I thought u base your findings on the evidence in this case the document in front of u. I have never seen judges show such blatant disrespect for the POTUS. & the safety of this country. I’m sorry but these judges have made a mockery of the law. I always thought lady justice stood for fairness in our judicial system by listening to both sides & weighing the evidence fairly.That obviously isn’t true in this case.

    1. Idiot judge? Not quite. Out state courts should not be staked out. It prevents litigants from attending court to protect their rights, and they do have rights at least in this state.

      1. So, if a man is suspected of rape and shows up at the court for his trial for shoplifting, or for any reason, the police should be prevented from arresting him? Or more broadly, should the police be excluded from the courthouse and it’s grounds?

        On a more serious note, which state is it that gives people the right to break the law with impunity? Seriously, I want to live there.

      2. “Prevents?” I challenge you to please post here which definition applies to your usage. Do you propose to legally prohibit ICE employees, US citizens, from accessing court houses? Such proposal is illegal:

        Please post your complete list of persons who, depending on their employment, you propose to prohibit from going to which places. Train workers barred from fast food restaurants? FBI barred from hard ware stores?

        Steve’s comment below is better than mine (see his first Q).

        Are you down with Trump telling the States: go ahead and shut down all the abortion providers in your State. I won’t bother you about that. (I bet at least 25% of the States would prohibit abortion.) That’s exactly what Obama did with DOMA.

      3. Steve Groen – since CA is a sanctuary state they won’t put an ICE hold on the defendants. I do not blame ICE for stalking them at court. Good on them.

        1. Happy Persian New Year, Paul!

          The Persians believe “life is like a game of backgammon; it requires a bit of luck and a bit of strategy!,” according to an Iranian-American colleague.

  8. That’s nice. Can we use the appropriations process and Congress’ discretion over jurisdiction to shut some of these courts down? The courts have been making unwarranted assertions of power for two generations. It’s time to take them to the woodshed. They cannot legitimately complain about any measure short of physically beating them.

    1. Federal judge William Matthews Merrick was arrested on orders of President Abraham Lincoln by General Andrew Porter for defying the President’s suspension of the writ of habeas corpus in DC. The famous case, United States ex rel. Murphy v. Porter, deal with a father (Murphy) petitioning the DC Circuit Court for writ of habeas corpus against Gen. Porter ordering him to return his son from the US Army as he had enlisted while underage. Porter arrested Murphy’s lawyer when he attempted to serve the writ and the placed Judge Merrick under house arrest to prevent him from hearing the case. The other DC Circuit judges, incensed, took up the case and ordered Gen. Porter to appear and show cause why he shouldn’t be disciplined. The show cause order was delivered to US Marshal George Phillips on October 22, 1861 for service on the General. Ever cautious, Phillips asked Secretary of State Williams Seward what should be done with the order, to which Seward replied: “The President instructs you that the Habeas Corpus is suspended in this city forbids you to serve any process upon any officer here.” The order was never served. Congress later removed all the judges who had defied the President and Merrick was released from custody in December 1861.

      They don’t make Presidents like Lincoln anymore but apparently, there are lots of Judge Merrick’s around.

      1. It’s is an interesting story, but only the last portion of it has been related by mespo, for some reason, and he made it appear as though the judges of the District of Columbia had committed malfeasance, which they hadn’t.

        Habeus corpus can be suspended only when “in cases of rebellion or invasion the public safety may require it.” It’s a pretty clear and concise triggering clause with the exception of which political branch gets to use it, and the Supreme Court has the authority to determine that issue, just as with the President’s authority to exclude immigrants.

        Murphy’s son, James, enlisted in May, 1861, as a minor without the knowledge or consent of his parents.

        In April, 1861, Lincoln suspended habeus corpus in Maryland, which gave us Ex Parte Merryman. Merryman was accused of illegal activity against the governmen. He was arrested and held in military detention.Chief Justice Roger Taney opined that because the only reference to habeus corpus is in Article I (pertaining to Congress’s authority), Lincoln’s suspension of habeus corpus in Maryland was void because only Congress can suspend habeus corpus. Rather than use the civil-court process, Lincoln used military orders to arrest and detain Merryman against his 4th Amendment right against unreasonable search and seizure, 5th Amendment right to due process, and 6th Amendment right to a speedy trial. Taney actually had a transcript of the opinion delivered to Lincoln.

        Through the summer of 1861, Congress did not authorize Lincoln’s suspension of habeus corpus. Then in September, Lincoln imprisoned one-third of the Maryland General Assembly without charges.

        On October, 19, 1861, District Court Assistant Judge William Merrick of the District of Columbia issued the writ of habeus corpus to bring James Murphy before the court.

        On October 23, 1861, however, without declaring martial law, President Lincoln suspended the writ of habeas corpus in the District of Columbia as it related to military affairs, rendering the writ unenforceable in securing the release of minors from military service.

        Thereafter, on October 31, 1861, in ex rel. Murphy v. Porter, the DC Circuit like Assistant Judge Merrick, presumably following the precedent set in Ex Parte Merryman, ordered General Porter to appear before the circuit court to explain his refusal to bring James Murphy before the trial court.

        The moral here is that all of these judges were appropriately performing their duties.

        It goes without saying we haven’t been invaded since 1814, and we haven’t had a rebellion since 1860 through 1861 when 11 of the 33 states decided they weren’t in the Union after all, but Lincoln was refusing to release minors from active military duty when the majority of these writs of habeus corpus were based on underage enlistments.

        It wasn’t until March, 1863, that the Habeas Corpus Suspension Act, authorizing Lincoln to suspend habeus corpus, was signed. It “abolished the circuit court, district court, and criminal court of the District of Columbia, and replaced them with the Supreme Court of the District of Columbia, which had the effect of removing the judges who had ruled in United States ex rel. Murphy v. Porter from the bench.” There never were impeachment proceedings against these judges.

        The idea of impeaching judges for what can only be considered their good-faith determination in civil disputes whether in cases of habeus corpus or immigration without showing malfeasance, however, is just political puffery if not calculated deception.

  9. the goof expanded surveillance so much that we now know your TV can spy on you. Oh sorry that goof was your goof Obama. The same goof that passed a law putting these countries on the terrorist concern list. Where were you then? Oh I think I just found another goof.

  10. Jack Ruby makes a great point regarding current precedent in light of circumstances like Korematsu regarding Japanese-American internment during WWII. Judge Kozinski’s opinion that the President has unbridled authority “so long as there is one facially legitimate and bona fide reason for the President’s actions. . .,” given due process and equal protection considerations, should not and cannot be permitted to end the inquiry under one broad stroke of the President’s pen.

    Putting aside the substance of the dissenting opinion, I find it remarkable that the dissenters commented when there was no request for an en banc hearing. What is the difference between Justice Ginsburg commenting off the record and the 9th Circuit dissenters freely commenting on the record with a rambling opinion when there was no request to determine the issue?

    1. I think bloviating for bloviating sake (Ginsburg) is different from this current subject, but that’s just me (no sarcasm). Also, comparing the comments would show a distinct difference, IMO. Ginsburg made personal attacks.

      1. I think Trump is doing a fine job in undermining the OoP. Really, really. He did so well on Tucker Carlson show that he exposed the source of the White House leaks. Much said, little done.

      2. Opposition one expects. The courts have no business doing anything but adjudicating disputes, not engaging in social policy manufacture.

  11. Although I am tough on attorneys, the legal profession has honorable people. JT is one of them and these dissenting judges do as well.

  12. The 5 judge “statement” gives some good perspective to the overall problem.
    If the Japanese bombed Pearl Harbor tomorrow and an executive order was issued to lock up all persons of Japanese descent living in California, even American citizens born in America who of that ethnic variety, then would that EO stand up in the United States Supreme Court,
    Korematsu would have to be over turned.

    The blog should have a discussion about Korematsu.

  13. It is nice to see a little sanity on the Ninth Circus. For those who are asking, I think one or more of the judges asked for an en banc hearing, which was denied. I think there are going to be some battles in some of the courts after this.

    1. I’m wondering about some sort of brand as are used on cattle to differentiate between a real judiciary as part of and under ‘control?’ of the Judicial Branch and the those rogue courts congressed sprinkled in their scientific adminsitration experiments. Deep Judge Horizon the one’s with no oversight inspections.

    1. The original ruling was poorly written and an undue amount of weight on campaign statements. While the left cheers that today because Trump, as with so many things be careful what you wish for. It’s conceivable in the future that decisions like this could lead to campaign statements becoming actionable. Obama said he was going to close down Gitmo. Can we sue him for fraud now that campaign statements aren’t just the words of a politician?
      There’s this terrifying idea, mostly on the left but growing on the right that the law should serve a purpose other than the law. The law is supposed to be equal regardless of who it may or may not be serving at the moment. When social justice replaces the blind application of the law we’re all in trouble.

      1. Yes – politicizing the courts – very dangerous. When politics trumps law, the courts are plunging us into a place where freedom and security are both placed well below political correctness. Not a pretty place.

        1. The courts were politicized between 1937 and 1973. A revival of democratic institutions is going to require gelding the ba******.

      2. “…Obama said he was going to close down Gitmo. Can we sue him for fraud now that campaign statements aren’t just the words of a politician?…”

        Bravo. There’s more lies from this pathological liar Obama: “I shall end the wars in Iraq and Afghanistan.” How many trillions of USD, how many lives (both innocent foreign civilians and “guilty” American soldiers) were slain, and how many humans were maimed for the eight year reign of terror under Obama. (Yes, of course Trump makes it worse now sending more “boots on the ground” in Syria, and more arms for the Al Saud crime syndicate to commit war crimes in Yemen. I call American soldiers “guilty” because they sign up willingly to kill against the Constitution, which forbids POTUS from declaring war and gives this right only to Congress.)

        Further: if the Constitution applies to foreigners, then the 66,000 innocent civilian non-combatants the US murdered in Iraq should sue the USA and Baby Bush. Per the Snowden docs, the al-CIA-da admits to the above slaughter, the real number of course being at least 10x higher. Further, of course “Peacenik” Obama added greatly to this number, especially in his and Clinton’s Libya mayhem, which continues today. Google images for “Libya rubble.” Last year there were many weeks in which thousands of Libyans fled for Italy on rafts and make shift flotation devices, hundreds dying horrible, tortured drowning. For a second by second forensic account of the torture of drowning, read Sebastian Junger’s toward the end of “The Perfect Storm.”

        I challenge readers to top this for best Hollywood movie line, spoken with gusto by John Lithgow playing bad guy Eric Qualen after he shoots his “girlfriend” point blanc because she’s no longer of use: “Kill a dozen, you’re a mass murderer. Kill thousands, and you’re a conqueror.”

      3. I very much agree with your comment. Both parties make foolish decisions without thinking about the long term effects. I knew the Democrats would regret eliminating the filibuster, but they all danced with glee at the time due to the short term political victory. My hope there is more sober thinking people on the left that can see the danger in what happened here. My hope is, like eliminating the filibuster, they can see how supporting these judges and their rulings will come back to bite them when conservative judges start ruling based on political beliefs, not the law.

  14. Darrren,…
    – I made about 5 attempts to reply to TIN. It just kept asking me to log in, and that it was a “duplicate comment, it looks like you already said that”.
    But it would not post. It it’s handy, please try to restore the comment I (just) tried to post. Thanks

  15. This post assumes a familiarity with the process that I don’t have, so it’s hard to follow. What “panel” is JT referring to? I admittedly haven’t followed the proceedings all that closely, so maybe I shouldn’t bother at this point…..I thought that a Left Coast judge enjoined the travel restriction, and his decision was upheld by the Ninth. Then the WH revised the order, but a Hawaii judge nonetheless enjoined the second version……So now it’s presumably on to the Supreme Court.

    Congress may need to curtail the jurisdiction of the District Courts. It’s irrational for a D.C. judge in Seattle or Hawaii to have authority to interfere with Executive Orders concerning national security issues.

    1. TIN…
      This is my understanding of this 5 judge dissent….
      The 9th Circuit has 29 judges (25 currently, with 4 vacancies).
      5 of those 25 judges disagree with the previous decisions of the 3? judge 9th circuit panel that upheld the District Court’s ruling against the original Trump executive order.
      Unless the 9th circuit hears an appeal from the Trump administration with a majority of all 25 judges reversing the previous ruling against the original travel ban, the original ruling stands.
      I may be missing something here and I welcome clarification.
      With the revised executive order now in play, I don’t see that this dissent from 5 judges has any real meaning.
      And even in the absence of the revised Trump travel ban, either a majority of the 25 judges would have to overrule the 9th Circuit panel that shot down the original executive order, or ANOTHER panel of judges would have to set aside the decision of the original panel that ruled against Trump.
      In short, it looks to,me like 5 (of the 25) 9th Circuit judges disagree with the previous ruling of the panel that rules against Trump.
      This 5 judge dissent seems meaningless to me as far as having any real effect on either of the Trump administrations travel bans.
      Again, I welcome any corrections/ clarifications.

      1. Haven’t practiced before 9th Cir. in while. But majority of judges in active status must agree to encourage bank hearing. Number of judges on that panel is 11, not 25. Prof. Turkey is correct that option I no o n was unusual particularly given absence of request for en banc hearing. What has happened, regretfully, is that our citizens on both sides of political spectrum are seeing courts as just another political branch, particularly on high profile cases. Language of statute or constitutional provision/precedent irrelevant to partisans. This perception has been confirmed by what appears to be bloc voting by Supreme Court. Indeed, reporting on dissent pointed out that all judges were Republican appointees. Kaminski, for one, has been a paragon of independence, writing and speaking on the tragedy of wrongful convictions. What also may have happened here is that initial panel of Clifton, Canby, Friedland, may have concluded that Trump could not be trusted to follow the law, sequencing as he did no comprehension of the role of courts under our Constitution -a view that may have led to a “moral” but legally sloppy opinion that may well be a precedent with which the Ninth Circuit will have to struggle and distinguish down the road. Finally, I likely will disagree with many opinions that future Justice Gorsuch will author, but I hope that I’m correct in predicting he may decide a number of cases differently than he would have addressed the issue as a legislator.

        1. I’m not an attorney but I ruefully come to the conclusion that the judiciary is another political branch, and has always been so. SCOTUS decisions throughout history are littered with political decisions that are justified legally. It is the exception as opposed to the rule where Justices stop interpreting the law through their political prisms. I love the law less the more I learn about it.

          1. “I love the law less the more I learn about it.”

            I understand your statement but the law is not the problem. It is the people that write the laws and those that support them. The law is necessary in civil society but it must not exceed its original purpose: to secure the people’s rights to life, liberty and property. Frederic Bastiat’s book “The Law” should be required reading for every high school student. Bastiat writes:

            “The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.”


            1. The law is a wonderful ideal. I grew up in awe of it. My favorite TV show was The Paper Chase with Professor Kingsfield my first hero. It took a while to learn the law in reality is not what I originally imagined. In addition to those who create and support them. I would add those who appointment Justices to advance their own desires. It’s how we get a Dred Scott or Plessy vs Ferguson, or Citizens United. It’s how Brown vs. Board of Education is accompanied by “with all deliberate speed.” Even when the law was right the implementation and justice was deferred. Even now a polarized SCOTUS is a given. Based on politics and not the law. #sad

              1. The law is not just an ideal but a realty, written or unwritten, in civil society or in nature. Inject man’s sinful nature into the equation and we get what we have today; a rule of law stretched by competing worldviews that distort the original purpose of the law. Somewhere in there is the “Law” but it has become largely unrecognizable. This is so much the case that in the event a sitting President actually dares to follow the law as written, he is treated as an enemy of the state.

                All of this reminds of a question W. Edwards Deming would ask organizations that wanted to “improve” processes within their organizations without first understanding how they were supposed to work: “How could you know?” The implication being you cannot improve something if there is no identified standard to measure it against.

            2. I find that it is even less the law that has been written, but the people in power ostensibly administering it, who game it or downright break it when gaming doesn’t do it.
              There needs to be better avenues for pushback and unbiased/unaligned reviewing to correct for when the laws are arguably broken.

              1. I agree Gary, especially when those administering it strategically abuse it knowing full well it is not going to survive a court challenge. It then requires a lawsuit, lower courts, appeals and so on to work the process and hopefully justice prevails. In the meantime, as in the case of the IRS targeting, the damage has been done.

        2. ”What has happened, regretfully, is that our citizens on both sides of political spectrum are seeing courts as just another political branch, particularly on high profile cases. Language of statute or constitutional provision/precedent irrelevant to partisans. ”

          yes I agree… not a lawyer, merely an observer and reader.

          And agree with this as well:

          ”-a view that may have led to a “moral” but legally sloppy opinion that may well be a precedent with which the Ninth Circuit will have to struggle and distinguish down the road. ”

    2. There is a bill going up that would strip the court of decisions regarding immigration. It should be left up to the immigration courts and not done this way.

      1. Immigration Courts. Is that one of those Fourth Branch Courts that Congress foisted for care and feeding on the Executive Branch or is it a real judiciary?

  16. As noticed where was the left stream media on this piece of news. How does this affect, if at all the original, now moot and the current one judge ruling.

    The circuit courts in their various makeups work for a certain geo-judicial area. WHY should their rulings have any force above their own level?. A nationiwide ruling is the purview of the Supreme Court. Something is wrong with this setup.

    1. “WHY should their rulings have any force above their own level?”

      It should not, but somehow this is what our courts have become. It is a usurpation.

      Usurpation – the exercise of power not granted – is not legitimated by repetition. The people, as John Adams inscribed in the Massachusetts Constitution of 1780, are ever entitled to demand of their magistrates an “exact and constant observance” of the principles of the Constitution, above all, to exercise no powers not granted.

      No one ever asks these judges to point to the source of their authority. Not at the trial level, nor at the appellate level. – On appeal, only errors of the court are examined. No attorney dare claim that the court exceeded their authority.

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