Posted on 02/06/2017 6:58:34 PM PST by markomalley
If you want to see the difference between a federal judge who follows the rule of law and a federal judge who ignores laws he doesn’t like in order to reach a preferred public policy outcome, just compare the two district court decisions issued in Washington state and Massachusetts over President Donald Trump’s immigration executive order.
Contrary to the “travel ban” label, the executive order temporarily suspended the granting of visas from seven failed and failing countries that are supplying many of the terrorists plaguing the world.
Despite what Judge James Robart of the Western District of Washington says, Trump acted fully within the statutory authority granted to him by Congress. The temporary restraining order issued by Robart on Feb. 3 is unjustified and has no basis in the law or the Constitution.
This fact is obvious from an examination of his seven-page order, which contains absolutely no discussion whatsoever of what law or constitutional provision the president has supposedly violated. That temporary restraining order is now on an emergency appeal before a panel of the 9th U.S. Circuit Court of Appeals.
Contrast that with the 21-page opinion issued by Massachusetts District Court Judge Nathaniel Gorton that was also issued on Feb. 3.
Unlike Robart, who totally ignored the federal statute (8 U.S.C. §1182(f)) cited by Trump in his executive order, Gorton bases his decision denying the temporary restraining order on an examination of the extensive power given to the president under that statute, which gives the president the authority to suspend the entry of any aliens or class of aliens into the U.S. if he believes it “would be detrimental to the interests of the United States.” And he can do so “for such period as he shall deem necessary.”
That is exactly what the president has done. The order signed on Jan. 27 on “Protecting the Nation From Foreign Terrorist Entry Into the United States” suspends for 90 days the issuance of visas to anyone trying to enter the U.S. from seven countries that even the Obama administration identified as “countries of concern” because of their terrorism histories.
This has been done, as Gorton explains and as the administration has made clear, in order to “ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks.”
As Gorton notes, “the decision to prevent aliens from entering the country is a ‘fundamental sovereign attribute’ realized through the legislative and executive branches that is ‘largely immune from judicial control.’”
As the U.S. Supreme Court said in 2004 in U.S. v. Flores-Montano, “The government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.”
In this case, Congress—which under the Constitution has complete authority over immigration—passed a statute providing the president the authority to suspend the entry of aliens into the country.
According to Gorton, in “light of the ‘plenary congressional power to make polices and rules for exclusion of aliens … which pursuant to 8 U.S.C. 1182(f), has been delegated to the president, the court concludes that the government’s reasons, as provided in the [executive order], are facially legitimate and bona fide.”
No federal judge, including Robart, has the authority to substitute his judgment for that of the president when it comes to making a decision on what is detrimental to the national security and foreign policy interests of the nation.
But that is exactly what he did.
Robart’s opinion ends with a claim that seems like a joke.
He says that “fundamental” to his work is “a vigilant recognition that [the court] is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches.”
Instead, says Robart, his job is “limited” to “ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution.”
Yet Robart provides no discussion of the Constitution or the federal statute that applies to this executive order and the actions of the president.
Given that there is no legal basis for his decision and the issuance of a temporary restraining order, the only basis for his decision is his judgment on the “wisdom” of Trump’s executive order.
Gorton recognized the public policy choices being made with this executive order. He discussed the “considerations of both sides with respect to a balancing of the hardships” involved.
On one side, the government is trying to implement “an effective immigration regime that ensures the safety of all Americans,” something that is “undoubtedly difficult.” On the other side, there is a “hardship to the professional and personal lives” of aliens trying to enter the country.
But it is not up to a judge to make that policy choice. The judge’s only role is to review whether the president’s action is authorized by the Constitution and federal law.
There is no question that the executive order meets both of those requirements. We can only hope that the 9th Circuit Court of Appeals follows the law and does not make the same mistake that Robart made.
8 U.S. Code § 1182 - Inadmissible aliens
(f) Suspension of entry or imposition of restrictions by President
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.
POTUS doesn't even need to state a reason: he just needs to say that admission of any given class of aliens is not in the interest of the US. Period.
Could you repl to this???
My “new posts to you” doesn’t seem to be working...Thanks...
Build the wall.
Cut off all public freebies to illegals.
Cut all funds to sanctuary cities/states.
Deport illegals as they are encountered.
Bring back waterboarding.
and #1. Go ahead and make a muslim ban.
Check DOJs reply brief:
Thanks...It came through then...
I’ve been watching a series called Drugs, Inc. It’s a fascinating inside look the drug world.
And no matter what drug, no matter what city, there is one common denominator: Mexican drug cartels.
Robart MUST be impeached.
I see the Brief is more tight now.
This will have to go to the supreme court.
The 9th circuit gets almost every ruling wrong.
It’s the most overturned court in the land.
A willful “mistake” in this case is Sedition.
It’s a Circus without the Pachyderms.
Trump tweet I’d like to see: Dear Judge, Is it ok if I just shoot them on the battlefield, or do I need your permission?
Gotta believe that.
Trump’s EO might be legal and constitutional, but, for the American people, the battle has already been lost.
It would have been so much better if Islam had been formally condemned by Congress as being a political movement and not a religion so that islam could have been banned altogether.
If islam is allowed inside America, America will be lost and it will be the end of the Republic.
Does anyone know of a non-muslim nation, that was infested by islam, and survived in its original constitutional form?
America will disappear if it allows islam to get a foothold in the country just like Europe will disappear.
Islam cannot co-exist with any other philosophy.
All you congress critters had better tell your families not to make any plans for the distant future.
I’ve seen it too. Mexican heroin, meth, pot, cocaine. We may not be at war with them but they’re at war with us.
It’s like living next door to cousin Eddie, if he ran a crack house and walked into your house as he pleased to ‘borrow’ things and assault your family.
Yes, but I am not comfortable with the concession made at the very end (p.11) to exempting from the Executive Order those who have been here and now seek to re-enter. It kind of undercuts 99% of the brief that speaks to the Executive plenary power in matter of alien entry.
Check Kerry and Albrights brief. A stinker.
“Islam cannot co-exist with any other philosophy.”
I refuse to believe that Islam can supplant our philosophy.
It cannot supplant our philosophy but it can force its philosophy on our population by the sword, and it will do so, as it has in any other civilization that it invaded throughout its bloody history.
>Go ahead and make a muslim ban.<
.
To be applied in perpetuity.
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