By Frank Vernuccio
The recent action by 9th Circuit U.S. Judge Derrick Watson limiting President Trump’s travel ban has implications far more broad than that affecting a single executive order.
Originally posted in the New York Analysis of Policy & Government newsletter
Tolerating a judge (from the Circuit which has more of its decisions overturned than any other area) who issued a ruling that conforms to his political preferences rather than legal precedent or statutory and constitutional law undermines the entire concept of an impartial legal system.
The lack of legal merit in Judge Watson’s decision is clear.
As noted in the Daily Caller regarding a prior 9th Circuit ruling on the travel ban:
The power over immigration is exclusively reserved to the Congress, and its power is plenary, which means total, complete, and unreviewable. Congress delegated certain powers to restrict immigration to the President by enacting 8 U.S.C. § 1182(f), which says that when the President (any 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 is authorized to ‘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.’ Having granted this authority to the President, only Congress can revoke it and no federal court, not even the Supreme Court has the power to interfere in that presidential authority short of challenging the constitutional power of Congress to delegate certain of its plenary powers over immigration to the President. It is simply not within the power of any state to interfere with such a presidential decision, as immigration-control advocates found during Obama’s tenure in office. Obama did exactly the opposite, he ordered our Border Patrol officers NOT to deny entry to any aliens who illegally entered the United States, and when Arizona and other states challenged this policy in court on exactly the same sort of grounds of detrimental impacts to the people of Arizona caused by rampant and uncontrolled illegal immigration, Obama simply invoked the plenary federal power over immigration policy and did nothing to secure our borders.
In response to the 9th Circuit Court judge’s decision, Attorney General Jeff Sessions stated on media outlets that:
I got to tell you it is a point worth making that a single sitting district judge out of 600, 700 district judges can issue an order stopping a presidential executive order that … is fully constitutional designed to protect the United States of America from terrorist attack … I really am amazed that a judge … can issue an order that stops the President of the United States from what appears to be clearly his statutory and Constitutional power.
Lawnewz described the appropriate criticism, by five respected jurists, of a prior 9th Circuit Court decision. They pointed out the deep legal problems with travel-ban related actions of the 9th Circuit, including:
its a-historicity, it’s abdication of precedent, and its usurpation of Constitutionally delegated Presidential rights … claiming a consular officer must be deferred to more than the President of the United States; claiming first amendment rights exist for foreigners when the Supreme Court twice ruled otherwise; the claim that people here could claim a constitutional right for someone else to travel here, a decision specifically rejected by the Supreme Court just a year ago … They go on to identify other ‘obvious’ errors. [the decision] … ’never once mentioned’ the most important statutory authority: section 1182(f) of title 8 … [as well as failing to refer to] the important Presidential power over immigration that all courts, Congress, and the Constitution expressly and explicitly gave him in all of its prior precedents.
Stream.org points out that:
… the politicization of the courts was one of the most profound actions of the Obama Administration. (The publication emphasized that) Senator Charles Schumer (D-NY) gloated in 2014, ‘one of the most profound changes this Congress made was filling the bench’ with Obama’s appointments of federal judges. He went on: ‘This will affect America for a generation, long after the internecine battles on legislative issues are forgotten…Obama got 329 federal judges appointed to the circuit and district courts, all lifetime appointments.
The Daily Signal characterizes the change in composition of the courts as a revolution that has been “comprehensive, dramatic, and under the radar …
The Washington Times worries that our court system has become politicized.
The Obama administration flooded it with activist judges that ruled in favor of advancing liberalism, to the detriment of our national sovereignty. So it’s no surprise the courts would work to stop Mr. Trump’s agenda. (In 2003, that newspaper wrote:) One of the greatest contemporary threats to the survival of republican government arises from the courts. Increasingly, judges are behaving like black-robed autocrats, not simply ruling upon the law, but making law … outrageous cases … suggest our American system of separated powers, checks and balances, is seriously out of balance … The Framers limited the power of the courts just as they did the powers of the other two branches of government.
In an excellent analysis in the Daily Wire, Ben Shapiro notes that the logic behind the various 9th Circuit decisions could invalidate:
virtually all immigration law … The Court also seems to establish a brand new interest not found in the Constitution—protecting the due process rights of illegal aliens, a right that doesn’t exist.
Joseph Klein, in describing an initial 9th circuit travel ban ruling, commented in Front Page that:
How serious a threat is this? A 2003 Washington Times editorial:
… therein lies the heart of the matter. This is not a ruling of law, it’s a statement of political opposition to the winner of the 2016 election, a piecemeal attempt to impose the personal views of Ninth Circuit judges over the lawful results of an election.
One of the greatest contemporary threats to the survival of republican government arises from the courts. Increasingly, judges are behaving like black-robed autocrats, not simply ruling upon the law, but making law … outrageous cases … suggest our American system of separated powers, checks and balances, is seriously out of balance … The Framers limited the power of the courts just as they did the powers of the other two branches of government.
Last year, as reported in the Weekly Standard, Supreme Court Justice Ruth Bader Ginsburg’s engaged in an outburst against Donald Trump that was roundly criticized by people of all political stripes.
Insofar as her comments suggested a clear bias about cases that could come before the Supreme Court, they were clearly a mistake and a departure from the norms of Court behavior … Justice Ginsburg later apologized … For a long time it has been clear that the four Democratic-appointed Supreme Court justices generally vote in lockstep on political issues of importance to the President. When there are public calls for bipartisanship on the Court, this is invariably code that one or more Republican-appointed judges should vote with their Democratic-appointed colleagues. And they often do, as in the case of Obamacare and college affirmative action. It never means the opposite.
The Obama Administration’s diminishment of the objectivity of American Courts was blatant. A Stanford Law Review article describes it:
Congress and the President [Obama] have belittled the Court. President Obama told the public at the 2010 State of the Union address that ‘the Supreme Court reversed a century of law’ with its Citizens United decision and suggested that the Court opposed honest elections. The ensuing image was even more damaging. With 48 million Americans watching, the camera panned to a cadre of expressionless Supreme Court Justices sitting in the front row … Politicization of the Court is dangerous because it primes the public for a power grab by the political branches. If the Court loses authority to check political power and make unpopular decisions, it cannot enforce the Constitution with the same effectiveness. Without enforcement of the Constitution, Congress is free to invade constitutional rights and exceed its lawful powers.