Posted on 03/17/2017 1:28:34 PM PDT by BulletBobCo
In one of the most ruthless opinions issued of fellow panel judges, five judges from across the political spectrum in the Ninth Circuit went out of their way to issue an opinion about a dismissed appeal, to remind everybody just how embarrassingly bad the prior Ninth Circuit stay panel decision was on Trump’s travel ban. The five judges included the famed, and most respected intellectual amongst the Ninth Circuit, Alex Kozinski. The others included Jay Bybee, Consuelo Callahan, Carlos Bea and Sandra Ikuta. Nobody other than the original panel came to the defense of the original panel decision, a less than promising start for future approvals of district court interference in Presidential immigration policy.
The language of the opinion was almost Scalian: the five Ninth Circuit judges noted their “obligation to correct” the “manifest” errors so bad that the “fundamental” errors “confound Supreme Court and Ninth Circuit precedent.” The district court questioned any judge issuing a “nationwide TRO” “without making findings of fact or conclusions of law” on the merits of the matter and conducting published opinions on seminal matters of national security based on “oral argument by phone involving four time zones.”
Aside from the procedural defects of the process, the five panel jurists then noted the deep legal problems with the panel’s order: its a-historicity, it’s abdication of precedent, and its usurpation of Constitutionally delegated Presidential rights. Mirroring much of the Boston judge’s decision, the five judges then detail and outline what other critics, skeptics and commentators have noted of the prior panel decision, including critical commentary from liberal law professors and scribes Jonathan Turley, Alan Dershowitz, and Jeffrey Toobin. The original 3-judge panel “neglected or overlooked critical cases by the Supreme Court and by our making clear that when we are reviewing decisions about who may be admitted into the United States, we must defer to the judgment of the political branches.” Of particular note, the five panel judges note how the 3-judge panel decision in “compounding its omission” of Supreme Court decisions and relevant sister Circuit precedents, also “missed all of our own cases” on the subject. The 5 judges conclude the panel engaged in a “clear misstatement of law” so bad it compelled “vacating” an opinion usually mooted by a dismissed case.
The five judges note some of the absurdities in the original 3-judge panel decision: 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; and analogous Trumpian kind of immigration exclusion was uniformly approved by Circuit courts across the country in decisions issued between 2003 and 2008. As the five panelists conclude, the overwhelming precedent and legal history reveals a court simply cannot “apply ordinary constitutional standards to immigration policy.”
The five judges don’t quit there, though. They go on to identify other “obvious” errors. As the 5 judges note, the 3-judge panel hid from the most important statute, noting the 3-judge panel “regrettably” “never once mentioned” the most important statutory authority: section 1182(f) of title 8. Additionally, the 3-judge panel failed to even note the important Presidential power over immigration that all courts, Congress, and the Constitution expressly and explicitly gave him in all of its prior precedents.
Unsatisfied with that harsh condemnation, the five judges go even further. The judges concur with the Boston judge’s understanding of “rational basis” review, and condemn the Seattle judge’s and the 3-judge panel’s misapplication and elemental misunderstanding of what “rational basis” is. As the 5 judges note, “so long as there is one facially legitimate and bona fide reason for the President’s actions, our inquiry is at an end.” The issue is whether a reason is given, not whether a judge likes or agree with that reason. That means the executive order sufficed, and no further consideration of the reasons for Trump’s order were allowed.
The five judges still weren’t finished. Next up, the ludicrous suggestion the President had to produce classified and national security information to explain and explicate publicly all the empirical reasons he felt the order needed for safety rationales. As the five judges panel note, judges are not New York Times editors here to substitute for the President at their unelected will. A gavel is not a gun; a judge is not the commander in chief. And, again the 5 panel judges noted the Supreme Court specifically condemned just this kind of demand from judges — demanding classified information to second guess executively privileged decisions. As the court concluded, “the President does not have to come forward with supporting documentation to explain the basis for the Executive Order.”
The panel wraps up its ruthless condemnation of its fellow 3-panel decision by noting their errors are “many and obvious,” including the failure to even “apply the proper standard” of review. As the five judges wisely note: “we are judges, not Platonic guardians,” and the great losers of the 3-panel decision are those that believe elections matter and the rule of law deserves respect, as both were sacrificed for results-oriented judges who ignored the law and evaded the historical precedent to try to reverse the policy outcome of the recent election.
Trump needs to completely change tactics here.
Screw these liberal courts.
Liberals don’t play by the rules and laws that govern our nation and it’s long past time that he stopped doing so as well.
Order CBP and ICE to start enforcing the law according to the EO, courts be damned.
Let them all scream, and care not one tinker’s damn. It’s what he was elected to do.
The five judges included the famed, and most respected intellectual amongst the Ninth Circuit, Alex Kozinski. The others included Jay Bybee, Consuelo Callahan, Carlos Bea and Sandra Ikuta.
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The Five’s pedigree:
Alex Kozinski, 66, Appointed by Reagan 1982
Jay Bybee, 63, Appointed by G W Bush 2003
Consuelo Callahan, 66, Appointed by G W Bush 2003
Carlos Bea, 83, Appointed by G W Bush 2003
Sandra Ikuta, 62, Appointed by G W Bush 2006
This is just CYA.
They realized that they are now the laughingstock of the legal world and their constant political abuses are now out in the open.
And the judge in Hawaii produces his 42 page opinion 2 hours after the suit is filed?
Clearly a pre-conclusion, negotiated with his co-conspirators.
No Federal court EVER moves that fast.
This is all a set up and the so-called impartial judiciary now stands exposed for the criminal fifth column that they are.
The screwball TRO still stands, though, doesn’t it? This opposing opinion by the 5 dissenters, plus a-buck-fifty will get you a cup of coffee most places. IOW, it effectively amounts to less than a fart in a tornado.
From the decision:
“The exclusion of aliens is a fundamental act of sovereignty.”
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); see also Landon v.Plasencia, 459 U.S. 21, 32 (1982).
...what do you expect from an Odungo lacky?
They should ask this judge if he ever met with Odungo
Ok, here we go. This is obviously part of the strategy in dealing with this rogue judge thing. I’d prefer incarceration and charges of treason/sedition, but I’ll wait to see what Trump is up to... Getting interesting.
Fantastic news by the way!
“Wow, that’s about as brutal and thorough a take-down as judges ever do toward their peers. What a massacre!!”
Yeah, I doubt they will be having dinner together any time soon! Trump has three vacancies on the Ninth. He needs to get on with the nomination process immediately. And he should for certain take away the appointment process from the Senators from the states that constitute the Ninth. It’s been a courtesy, it isn’t in law.
Right there with you BKMK
“...Good, now Publicly Demand CONGRESS Impeach and remove these 3 recalcitrant tyrants in black robes....”
Yes! And IF they refuse to do it, then IGNORE the evil, black-robed socialist bassturds. They have no army, they have no law enforcement. They can do NOTHING to him. And IF Congress should decide to maybe grow some balls and try impeachment over it after being requested to deal with it, the People will deal with them. Personally, I don’t think they have the guts to do anything to Trump.
Bottom line: Ignore the POS.
Oh...and don’t give me that “rule of law” BS. I don’t want to split a gut laughing over it. We haven’t had “rule of law” for the past 8 years, maybe longer.
“And the judge in Hawaii produces his 42 page opinion 2 hours after the suit is filed?”
He met with his “old college buddy” Barak Obama the night before. Obama is disturbing crap everywhere he’s able, and with Trump woefully slow out of the blocks getting rid of the holdovers in his administration, he’s simply compounding his own problems.
“They should ask this judge if he ever met with Odungo”
He did, the night before. They went to Harvard together.
Next? Probably the criticized judges calling the “criticizing” judges “poo-poo heads”.
Good for them.
Go after all these bums (nobama, lynch,the hawaiian judge, the maryland (THE Freak state) judge and so forth) for sedition. I hope President Trump beats them with a copy of the Constitution before exiling them.
Rule of Law was over the day Bill Clinton was sworn in as President and Dub got rope-a-doped in the Middle East so that he never overcame that fact. His only real attempt wasn't aimed at restoring the Rule of Law but rather at getting the pigs in Congress to be rational from time to time.
Recall the treatment his people who went before Congress and warned about the coming crisis in the housing market were treated by Baaknee Fwank and the media and you know why he was too concerned about Congress cutting off funding for wars his Neocon clan were running to bother trying again.
The #FakeJudges have destroyed the credibility of the Federal Courts.
They're now #FakeCourts. The government will have to do something drastic to restore credibility.
“Did the useless judge in Hawaii fall on his sword for Obama, or was he given an offer he couldn’t refuse?”
Quite possibly a free one month vacation on Tahiti with you know who.
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