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

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

  1. The blatant disregarding of the law by the courts opposing the executive order cannot be criticized too extensively. Those political judges have created the potential for a constitutional and foreign policy crisis in which judges usurp the powers of the other branches because they disagree with their motives.

    I applaud the dissent. I dont think it was harsh enough, particularly in the face of Reinhardt’s self righteous braying. It is unfortunate they felt the need to defend their brethren from the richly deserved criticism. I dont recall any such defense raised for SCOTUS after Obama’s dishonest and disrespectful Citizens United blather at his SOTU address, but perhaps the opportunity didnt present itself.

    Given that it is both stupid and reckless to assume there will not be terrorists entering with the refugees, Trump should play these stupid games with politicized judges. He ought to kick it up a notch by giving SCOTUS 10 days to review and reverse before he orders enforcement regardless of the lower courts. Court rules of procedure be damned – sauce for the goose ….

  2. Someone please help me on this:

    Article 3, Section 2, Par. 2, of the U.S. Constitution clearly states:
    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. (parsing and emphasis mine)

    The plaintiffs/appellees in this case are the State of Washington and the State of Minnesota.

    Why, therefore, was this case not kicked to the curb by the District Courts and the 9th Circuit Court of Appeals as not having been filed in the proper venues? Does no one pay attention to the Constitution or the Federal Rules of Civil Procedure anymore? Why cannot all of these decisions on this matter by the lesser courts be simply vacated, since those courts lack the authority to rule on them?

    Can someone far more versed in the law please explain it? I know I’m not the only person to have raised this question.

    • elephant4life: “Why, therefore, was this case not kicked to the curb by the District Courts and the 9th Circuit Court of Appeals as not having been filed in the proper venues? Does no one pay attention to the Constitution or the Federal Rules of Civil Procedure anymore?”

      That’s a great question, and one I didn’t know the answer to it before now (at least this is my opinion as to the reason), so thanks for bringing it up.

      Regarding why this action was brought in federal district court as opposed to the Supreme Court is that the Supreme Court has original but not exclusive jurisdiction in all but one of those types of cases enumerated in Article III: Only between two states are lawsuits exclusive to the Supreme Court under 28 USC sec. 1251(a))

      State of Washington, et al., v. Trump, et al., was brought against Trump as the President, along with various agencies and the United States of America. Because the United States of America was a party, the Supreme Court had original jurisdiction, but it wasn’t exclusive per sec. 1251(a). I’d imagine that’s because, for example, all federal criminal actions would end up being heard (rather peddled off to a magistrate) by the Supreme Court sitting as the trial court if it had both original and exclusive jurisdiction. It’s a much more efficient method for determining cases in which the Constitution gives the Supreme Court original jurisdiction, and I’m sure the Court is more than happy to acquiesce in this instance to Congress meddling with what is and isn’t within the Court’s original jurisdiction to hear. The Supreme Court’s docket is overloaded as it is.

      My $0.02.

  3. Well there are 5 honest Judges left on the 9th circuit willing to uphold their oaths of office, the Constitution, and the Rule of Law. Shocking that there are only 5. I appreciate their criticism of President Trump attacking their political dishonest peers but their very dessent makes clear how lawless & 100% political their extreme left wing fellow Judges have become. When Judges violate their oaths, their duty, and the rule of law to impose their personal politics on the entire nation they become Judicial Tyrants, not Judges. They deserve criticism & Condemnation from everyone including the President. However their homes & forthright dessent are a far worse attack on their lawless fellow Judges than anything the President could say because it makes clear how badly they have violated their oaths, the Constitution, and their duty.

  4. Well there are 5 honest Judges left on the 9th circuit willing to uphold their oaths of office, the Constitution, and the Rule of Law. Shocking that there are only 5. I appreciate their criticism of President Trump attacking their political dishonest peers but their very descent makes clear how lawless & 100% political their extreme left wing fellow Judges have become. When Judges violate their oaths, their duty, and the rule of law to impose their personal politics on the entire nation they become Judicial Tyrants, not Judges. They deserve criticism & Condemnation from everyone including the President. However their homes & forthright descent are a far worse attack on their lawless fellow Judges than anything the President could say because it makes clear how badly they have violated their oaths, the Constitution, and their duty.

  5. I am not a legal expert so I can only judge the merits of this based on this article and others as presented. But it seems to me this is a wildly inappropriate action on the part of these judges. They effectively have decided they will decide what actions our elected leaders can take based on their political views. This is usurping our election process. I am no Trump supporters but I view these cases with extreme concern. I am not typically one to reflexively scream “impeach the judges!”, but in this case, I must say I think this would be appropriate. The three branches of government are co-equal, it seems some judges decided that is no longer the case and the judiciary rises above the other branches. I respect the role of the judiciary within the bounds they are permitted to act and this seems a grotesque violation of their constitutional position. Judges are NOT supposed to be ruling based on their political views, and that appears to be what happened here. This is a black mark on the judiciary. My hope is that the more sober minded judges find a way to slap this down but I am concerned this will not happen. However if other judges do stop this madness it would be reassuring that overall cooler heads prevail among most judges, but I am not seeing that yet. If this continues I think Congress should take actions within their rights to stop this if the judges wont. I am deeply disturbed by these judges actions and my usual high (overall) confidence in our judiciary has been shaken. If judges make rulings based on the fact the president said mean things to them, they need to be removed as they are no longer judges but political actors who are not subject to the people’s will in the electoral process. I hope something happens to rectify all this and restore my flagging confidence in our judiciary.

  6. The 9th Circuit would seem to be on a short list for disbanding. Presently and previously I only read comments about impeachment of demonstrably political judges. At no time have I read or heard comments that urge criminal prosecution; there are criminal color of law statutes that apply to those who maliciously abuse their authority that specifically includes judges. I have first hand experience with the NJ District Court and the 3rd Circuit that both covered up evidence of a failed attempt to imprison me for ten years demonstrably because I was calling attention to local judicial corruption. Both of those courts dismissed my litigation but made no mention whatsoever to a false police allegation that was meant to imprison me, made no mention whatsoever to my jury acquittal of the imprisonable offense, and made no mention whatsoever to the evidence of police perjury regarding the false allegation, and made no mention of the link between the false allegation and the exercise of free speech…..this evidence assured my trial win but was covered up. Lynch ignored the evidence, and I suspect that Sessions’ DOJ will be just as corrupt.

  7. If Congress couldn’t/wouldn’t impeach Barack Hussein Obama, what makes you think they would even try to lmpeach any judges ?

        • Paul, “half-breed”?

          This begs the question what genetic arrangement that you know of allows you to be a legitimate purebred? Political borders? Marriage?

          Wake up, man!

          • Obama was the issue of Honolulu’s haolie professional-business class (with a leavening of expat-in-Java). ‘Ere he was 20 years old, he knew nothing of any component of black American society from palpable experience. His principal connection to that society is that he married into it. His wife is a striver who appears to have no interest in the features of her solid working-class upbringing (and also suffers from something more common, a defensive addiction to display goods). They lived in a section of Chicago near the University which is just this side of a gated community. Their limited circle of friends is drawn from the ranks of old-line mulattish patricians.

            • Yes, where the likes of Joe Biden embraced Obama as their demographic Messiah, a “clean” black man who spoke proper and even erudite English, Jesse Jackson aptly pointed out in the 2008 primary season that Obama was not an African-American and shared none of that experience nor had he earned any street cred. But, quite apparently, his black skin, the only contribution made by his mother’s African sperm-donor, sufficed to earn the patriotic and near universal embrace of African Americans that continues to this day.

              In truth, the only demographic Obama relates to and serves is the academic elite that finds patriotism and other traditional values as “so twentieth Century” and lacking in cosmopolitan sophistication. In many respects, Obama is a “Man without a Country” with attitudes that may recommend him as a future Secretary General or belatedly justify that unwarranted Nobel. But they are in no way appropriate for the leader of this or any other nation state.

              • Not so much the ‘academic elite’ as the higher education apparat. Obama never showed much interest in scholarship or its production. He’s the deputy dean of students plonked down in the White House.

          • Steve Groen – the para explains itself. Obama is just as white as he is black. In fact, he is more white than black. He was raised white (or in a white home and periodically by his white mother). He threw all of them under the bus at later points.

            • He made rather repellent use of a vignette regarding his ailing octogenarian grandmother in 2008. He was was cold to his mother at the end of the day; to be fair, she’d spent much of the previous 30 years asking for it.

        • On a different note, I just read Plutarch’s work on Athenian populist, Themistocles. I’m seeing the modern day parallels. Those entrenched interests are tough to dislodge even when you could use swords, shields and a trireme or two.

          • mespo – I read Plutarch’s ‘Lives’ which I can recommend to all. But it is a bit heavy. He is not big on gossipy anecdotes to lighten the pages. 😉

            • Au contraire. Plutarch relates a story about Themistocles’ daughter who was courted two suitors, by cad with money and a pauper with character. His pithy reply to his daughter’s dilemma: “I prefer a man without money to money without a man.”

              • mespo – Plutarch’s purpose was to write Lives that other people could follow. They were character sketches. Did Plutarch say the daughter was bonking both the dudes? I think not!!!

  8. Congress should do its job and impeach the entire 9th judicial bench on the 9th Circuit and also the judge in Hawaii. Once judges enter the political fight, they are no longer judges. They didn’t even try to hide this fact. Impeach them. Now. Congress, do your job.

  9. Regarding some judges insisting that the ban is a Muslim ban, that the intent of the ban is to exclude Muslims; I have read that a President’s intent should not be used. Supreme Court opinions, have always stated that the use of such intent is not legitimate.

    • So the supreme court has stated that even Democrats, as anti-American and disgusting as they are, still have a right to participate in the political process? Okay, i agree with that.

  10. As to the dissenters’ comments on “overlooked” cases: The Kleindeist and Fiallo decisions did not rule that the Executive has unfettered discretion (Kleindeist: “The government …, urg[es] a broad decision that Congress has delegated the waiver decision to the Executive in its sole and unfettered discretion, and any reason or no reason may be given. … This record, however, does not require that we do so …”; Fiallo, fn. 5: “Our cases reflect acceptance of a limited judicial responsibility under the Constitution even with respect to the power of Congress to regulate the admission and exclusion of aliens…”) .Din involved a specific individual determined to have been involved in terrorist activities, rather than a general ban on all people of a particular country. While people applying for entry do not have a constitutional right to entry, the case law indicates they do have a due process right to have their applications for entry considered on a rational basis, without biases based on the applicant’s race, religion, or national origin.

  11. It sounds to me that the judges ruling seemed to say that every person in the world has constitutional rights, and therefor the right to immigrate unimpeded.

  12. Get rid of the federal judiciary. Un-elected, un-accountable, un-American. Perhaps Congress and the President can team up and reduce their budget to $zero. Whatever it takes to get rid of the black-robed tyrants who are hell-bent on making us all slaves of Islam.

  13. Impeach. That is the only check the other two branches of government have over a judiciary which usurps the prerogatives of the other two branches and unilaterally declares itself the super-legislature or the super-chief executive. Failing to check “bad behavior” only leads to more “bad behavior.”

    • No, Congress can disestablish any and all courts below the Supreme Court, It restrict their jurisdiction and direct the rules of decisions. It can forbid the Supreme Court to us stare decisis when construing the Constitution by directing that all constitutional issues be considered de novo.

      In fact, if the Senate waives its filibuster rule, all of these can be done with just a party line vote in the present Congress.

      • I stand corrected. A more accurate statement would have been that impeachment is the only check the other two branches have on “a judge” (rather than “a judiciary”) who (rather than “which”) usurps the prerogatives of the other two branches.

      • “[Congress] can forbid the Supreme Court to us stare decisis when construing the Constitution by directing that all constitutional issues be considered de novo.”

        I’ve never heard this before. Where does the Constitution provide this authority to require the Supreme Court interpretation of the Constitution in any manner?

      • EK: I suspect tht in these modern times the SCOTUS would invalidate the law that constrained jurisdiction.

        • There is explicit warrant in the constitution. That aside, they’ve got no appropriation, they’ve got no court.

    • The legal/legislative remedies to judicial overreach have already been exhaustively discussed in the subsequent comments. But there is another remedy available to the Executive. As Andrew Jackson noted “Mr. Marshall has made his ruling, now let him enforce it.” The executive can simply ignore the court ruling. While, in theory, the executive could then be impeached, what are the realistic prospects of that happening? In the instant case, the matter would never even get to the Senate for a trial.

      • I agree with this approach. If Mr. Trump believes this is a matter of national security, it’s his duty to ignore the court. The court’s enforcement mechanism is The US Marshall. But he, in turn, reports to the Attorney General who can order them to stand down.

        As for impeachment, even for Mr. Trump, that’s not realistic.

        As I say, if Mr. Trump is truly worried that the terrorist who will commit a mass casualty attack might be admitted at any time, he should simply ignore the court’s jurisdiction even as he appeals it. And as he, himself, identifies strongly with Andrew Jackson, I can’t understand why, if he is sincere, he won’t do precisely that.

          • An even larger portion of the public than merely Trump’s base (you know, the folks that would support him even if he shot someone on Main Street in plain view) is tired of unelected judges substituting their judgment and policy preferences for those in the law. This is a particularly obvious and odious instance of the judiciary questioning the REASONING of the Executive in its conclusions rather than, as provided in the Constitution and law as the only proper purview of the judicial function, the RIGHT of the Executive to make the judgment.

            Trump has consistently proven himself unconventional….why not here? And, as for the MSM being apoplectic…from Trump’s perspective, who cares? They are already a seething cauldron of hate…Trump Derangement Syndrome. They are only preaching to their own choir and it is long past the point of “the boy who cried wolf” for most of the public in the states that would matter in 2018 or 2020. What the coastal enclaves and capital city think of him doesn’t matter a damn and even helps feed the populist us vs. them meme that elected him in the first place. So where’s the downside?

            • Cincinnati Rick – Rachel Maddow crippled the credibility of the MSM with Trump’s tax returns. This is a career ending injury.

  14. The five judges of the 9th Circuit who dissented with their three colleagues who ruled on the Executive Order appear to object to the political decision, not a legal opinion that deserves support. That the party (the Administration) offended by the 9th Circuit’s political decision felt that the judges involved deserved derision is fair and members of the legal profession should not be thin skinned. They discarded their robes with their decision.

    • I read a different article. This one clearly lays out the legal problems with the panel’s decision. It says the panel “brushed aside” what should have been “the clearly controlling” case, plus two other key cases raised by the Justice Department. It essentially says the panel disregarded the applicable case law. If that is not “legal opinion” then we are discussing not a different article, but a different language. The panel finding is childish.

      On a positive note, I am pleased to see the 9th circuit policing itself. More of this is needed to maintain a high bar of judicial performance.

      • There is no such thing as a high bar to judicial performance. Any time the SCOTUS can find the constitution allows the Court to define marriage, or conclude a congressional mandate to the public to buy a product is a tax then the constitution no longer provides any meaningful judicial constraint. Where we are today the Courts simply decide what they want to be the law.

        • “conclude a congressional mandate to the public to buy a product is a tax . . . ”

          SCOTUS found that non-compliance with the ACA’s individual mandate invited the tax and was not a penalty (which admittedly seems like a penalty to me). I too don’t think Congress has the authority to make an individual do anything without some form of action by that individual, including compulsory selective service I might add.

          As for the Court defining marriage, if there’s a fundamental right to marriage, it seems to me that the Court has the right to define it in light of due process and equal protection, and if Congress had the authority to define marriage in the Defense of Marriage Act (which the House Judiciary Committee stated was intended by Congress to “reflect and honor a collective moral judgment and to express moral disapproval of homosexuality”) under the Commerce Clause and/or the Full Faith and Credit Clause, it also seems to me that the Court has the authority to void the Act if a dispute exists as to the constitutionality of Congress’s definition of marriage.

          • The problem is that they didn’t define marriage. They RE-DEFINED marriage, which has meant a matrimonial contract between an man and a woman for millennia. In so doing, they trivialized civil rights law far beyond its original intent, which was to protect former slaves and their descendants from violence, coercion, persecution and discrimination.

          • Because the framers of the constitution clearly had not only gay marriage, polygamous marriage, incestuous marriage, underage marriage etc etc in mind as worthy inclusions in any legal conception of “marriage” when they were drafting the constitution they also wanted to ensure that only unelected Judges with lifetime appointments got primacy in any conflict between their views and the views of the democratically elected House representing the electorate for whom the constitution is supposed to work. Therein lies the slippery slope to totalitarian tyranny and we are already well on the way. We need to stop appointing Judges who have such limitless regard for their own genius and so little regard for the people who pay for their privileged existences.

            • Well clearly you are showing disrespect and a lack of appreciation for the beneficent role of these “men of gold” who guide our Republic, as it did Plato’s. I don’t remember him describing them as cloaked in black robes but perhaps that is merely an incidental modern embellishment.

    • >The five judges of the 9th Circuit who dissented with their three colleagues who ruled on the Executive Order appear to object to the political decision, not a legal opinion that deserves support.

      I like how you use the word “appear” to try to hide the fact that you have no idea what you’re talking about. Read the dissent. They are objecting on numerous legal grounds. Here’s a snippet: “To be clear, the panel made several other legal errors. Its holding that the States were likely to succeed on the merits of their procedural due process claims confounds century-old precedent. And its unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world.”

      • You misread my comment. I agree with you. I said “appear” because the dissenters did not say expressly “the panel’s ruling is political, not legal.” However, as you quote, their words strongly suggest they believe this.

        Your use of the phrase “you have not idea what you are talking about” is needlessly snide and childish. Especially when you are restating what I said.

        • What are you yammering about? I was responding to someone else. Are you sockpuppeting or something?

          >Your use of the phrase “you have not idea what you are talking about” is needlessly snide and childish. Especially when you are restating what I said.

          Maybe you’re just touchy and eager to lash out at others? Given that I wasn’t even addressing you, this seems likely.

          • Albert: Always a good idea to start the comment with the name of the person you are responding to. (And I do know that a preposition is a bad thing to end a sentence with.)
            Jim B

            • >Albert: Always a good idea to start the comment with the name of the person you are responding to. (And I do know that a preposition is a bad thing to end a sentence with.)

              I quoted what I was responding to. (I don’t care about ending a sentence with a preposition; I’m not a mid-20th-century schoolmarm.) If he’s too dumb to remember what he wrote, that’s his problem.

    • Appear to object to the political decision? What did you read? My reading is the objected to the original panel making a political decision, not a valid, supportable legal opinion.

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