Posted on 02/07/2017 7:02:57 AM PST by SeekAndFind
As our Monday editorial details, there is every reason to believe that the eventual ruling of the Ninth Circuit federal appeals court will control the outcome of litigation over President Trump’s temporary travel ban on both aliens from seven countries and refugees. A three-judge panel of the Ninth Circuit is considering the Justice Department’s appeal of a temporary restraining order issued by Seattle federal district judge James Robart, which suspends the ban. The panel has announced that it will hear oral argument on Tuesday.
The Ninth Circuit’s determination is likely to be dispositive because there are currently only eight justices on the Supreme Court, a situation that will obtain until the vacancy created by Justice Scalia’s death is filled. It is assumed that the four left-wing justices on the Court (Justices Ginsburg, Breyer, Sotomayor, and Kagan) would vote to uphold Judge Robart’s lawless restraining order. I believe that is an entirely reasonable assumption because, as I’ve been arguing for years now, the Supreme Court operates more like an unelected super-legislature than a judicial tribunal. Like Robart, the politically “progressive” justices make decisions based on the desired policy result, not the law.
This proclivity has led to an assumption, oft repeated in the commentariat, that the Supreme Court would deadlock 4–4 on the case, meaning that the decision of the lower court, the Ninth Circuit in this instance, would stand. I suspect that, for conservatives and other defenders of the executive order, that might be overly optimistic. Notwithstanding that the law is clearly on Trump’s side, there is a very good chance that the swing justice, Anthony Kennedy, would vote with the left-wing bloc – meaning that the administration could lose 5–3 in the High Court.
As anyone who was measuring the Atlanta Falcons for Super Bowl rings late in the third quarter will tell you, the prognostication game is an uncertain business. Still, you may get my drift if you think about the legal theory supporting Trump’s order, and then consider Kennedy’s majority opinion in favor of constitutional habeas corpus rights for alien enemy combatants in the controversial 2008 case of Boumediene v. Bush.
The main principle underlying Trump’s executive order is that the political branches of the federal government have plenary authority over border security, particularly as it pertains to aliens who could pose a threat. There is little or no legitimate role for the courts. The Supreme Court has long recognized that “it is undoubtedly within the power of the Federal Government to exclude aliens from the country,” and that even American citizens and their belongings may be searched without judicial warrants due to the sovereign imperative of “national self-protection.” (I’m quoting the Court’s 1973 decision in Almeida-Sanchez v. United States, which cites many of the Court’s relevant precedents.)
To summarize: Since (a) aliens have no enforceable judicial right to enter the U.S.; (b) the president has constitutional authority to act against potential foreign threats to national security; and (c) Congress, which has indisputable power to prescribe the requirements for alien entry into the country, has delegated to the president sweeping power to deny the entry of aliens whose presence – in the president’s judgment – would be detrimental to the U.S., that should be the end of the matter. The matter is outside judicial responsibility and there is therefore nothing for the courts legitimately to review.
But is that how Justice Kennedy would see it?
Boumediene involved alien enemy combatants who were captured and held outside the United States, at the Guantanamo Bay naval base that is technically sovereign Cuban territory. Unlike the aliens affected by Trump’s order, the vast majority of whom presumably mean the United States no harm (and many of whom had been given legal permission to enter prior to the order), the Boumediene aliens had no contacts with our country except to make war on us.
They also had no constitutional right to judicial review of the commander-in-chief’s wartime decision to detain them as enemy combatants. There was Supreme Court precedent explaining how detrimental to national security it would be to empower the enemy to use judicial proceedings to second-guess and undermine wartime command decisions. And Congress, just two years earlier, had — at the Court’s request — enacted a law (the Military Commissions Act of 2006) that addressed the detention of combatants. In that law, Congress, using its constitutional authority to control the jurisdiction of the federal courts, directed them not to entertain any habeas claims by the alien combatants (although it did grant a narrower path to judicial review).
Justice Kennedy nevertheless joined the Court’s left-wing bloc to rule against the Bush administration and Congress’s clear statute. (The bloc then included Justices Souter and Stevens, later replaced by Justices Sotomayor and Kagan.) Kennedy wrote the majority opinion and, as I observed at the time, turned on its head the venerable doctrine of separation of powers that undergirds our constitutional system.
Previously, separation of powers meant we are a democracy, not a judicial oligarchy. That is, if a particular subject matter is committed by the Constitution to the political branches of government that are accountable to the people, then the judiciary – which is not similarly accountable – must respect this limitation on its authority and refrain from intruding. Kennedy, however, held that “the exercise of [executive] powers is vindicated, not eroded, when confirmed by the Judicial Branch.” By his lights, there is no subject insulated from judicial review: It is the judiciary, not the Constitution, that ultimately determines the legitimacy of government action.
Kennedy, moreover, further rationalized the judicial usurpation of presidential and congressional prerogatives on the ground that the case involved imprisoning “a person.” This eviscerated any distinction between Americans and non-Americans. A court’s jurisdiction over a person presupposes that the person in question has a legal right to judicial review. Alien enemy combatants captured and held outside the United States in wartime had no such right . . . at least until Kennedy and the left-wing bloc wove one out of whole cloth.
Regardless of how deeply rooted is the constitutional principle that border security is a plenary power of the political branches, I am not convinced that Justice Kennedy will be much impressed. He is hostile to limitations on judicial power and skeptical, to say the least, that the distinction between citizens and aliens is of much consequence.
I am completely confident that the Trump administration should prevail as a matter of law. But I am not much more confident that it would prevail in the Supreme Court than that it will in the Ninth Circuit.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.
Kennedy needs to retire. Half of the SCOTUS needs to retire, for that matter.
It’s not even close, 9th circuit ruled correctly on immigration last time, and they will again.
If we lose, maybe Sessions should fire their staff, and sell their office building out from under them.
Most Americans -- including many Democrats -- are on Trump's side on this one.
What if Trump orders the head of DHS to enforce the ban regardless? The Dems will try to impeach him, which they’re going to do anyway, and let it all play out.
Excellent article. Thank you for posting.
Rumors say he’ll retire in June. Also, all these media idiots fail to understand that this TRO is a TRO. Temporary restraining order expires soon, so Trump wins no matter what.
I believe Trump is playing them with this nation ban EO. After the courts affirm the President has the authority over immigration, they’ll have no leg to stand on when he starts deporting illegal aliens and tackling H1B visas.
This is an Uber depressing article ...
I fear that our Courts do not understand their role as arbiter of the law. They instead want to rule. How does President Trump nudge them back to their role and re-establish the balance and respective roles of the courts, executive, and Congress. We elected President Trump to change things, yet the court stands there and one judge thinks they have power to stop. Blood on their hands if anyone dies while they posture.
Isn’t it interesting how we all know how ALL of the liberal judges will vote on every single issue? Every one will be politicized and no matter what the law says EVERY Democrat appointed judge will be 100% in lock step with whatever the current Democrat position is. Every time. Yet we still act as if the courts are fair and impartial.
If the route of tyranny keeps being followed by the Left and the Judiciary, the only solution will ultimately be at the point of a bayonet and everyone will wonder how we got to that end game.
And DHS needs to move at a glacial speed on immigrant applications from those countries. “yes judge we are processing those visa applications, we expect to have them completed by May of 2018. Like the State Dept providing hillarys emails. Like the Obama DHS providing data to the judge on “child” immigrants from Mexico.
DRAG YOUR FEET.
Expires on the 21st. Except this hearing can do away with the “temporary” part of the decision which means they can file cert....but doesn’t men the court will even except the case.
“What if Trump orders the head of DHS to enforce the ban regardless?”
Comply with the judges order.... process one visa per week.
Agree. What has been blocked are in-country implementations of his EO. The ‘process’ of receiving-in these people does not start with just here, in-country.
Money for embassies and consulates to process these visa is one area that could be severely limited in funds and resources.
Personally, I’d close most of our foreign consulates and confine visa production to the single country embassies. These outlying consulates are just a hotbed of elitist parking areas for future SoS sappers IMO. One ambassador, ONE consulate. We should also further limit foreign consulates in this country.
Yes...but they are effectively naked in the wind whereas they are predictable. Trump knows the art of war well and will win. I’m just impatient!
Look at the long picture, people. Every unlawful hissy fit from the Left simply makes 2018 elections go more for Trump’s agenda.
> “Still, you may get my drift if you think about the legal theory supporting Trump’s order, and then consider Kennedy’s majority opinion in favor of constitutional habeas corpus rights for alien enemy combatants in the controversial 2008 case of Boumediene v. Bush.”
McCarthy is comparing apples and bananas.
The Boumediene v. Bush case pertained to Habeas Corpus of prisoners held indefinitely in Gitmo. It merely allowed prisoners to PETITION for Habeas Corpus, not to be granted Habeas Corpus.
And if the court would grant Habeas Corpus, it followed that the prisoner would argue why they should be released and if such argument was successful, the prisoner would be released back to their home country or a country willing to take them.
What President Trump is doing is entirely different and his action is entirely separate from any Habeas Corpus challenges by 28 USC 2241 (e)(1) which means no court has jurisdiction over his decision.
And if SCOTUS with Kennedy should give stuff their middle fingers up America’s butt and decide against the President, then fine, all visas are revoked to and from countries the President specifies and to individuals on a case by case basis.
Should Kennedy lead the leftist dunces to take over the issuance of visas and by that, take over the international and foreign policy of the United States, then it’s time for President Trump to pack the frickin high court with some real nasty sonofabitch conservatives.
But even Kennedy is not so stupid. He along with Breyer might spend a night in a ranch house in Texas.
Who is your real boss? Your real boss is not the person above you on the organizational chart. Your real boss is the person who can punish you for not obeying his orders, and protect you when you DO obey his orders. The bureaucrat manager cannot fire somebody, unless a judge agrees. The judges, then, are the real rulers.
The only solution is to eliminate civil service rules.
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