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Thursday, February 9, 2017

The Ninth Circuit Rules; No Surprise, They Get It Wrong

The Ninth Circuit Court of Appeals upheld the TRO issued by a Seattle judge stopping the enforcement of President Trump's order temporarily stopping admission of people from seven countries with major terrorism problems.  The decision of the Ninth Circuit is no surprise.  It is the most reversed and, by far, the most liberal circuit court in the country.  Nevertheless, it is rather sad that this decision was issued when it is so clearly incorrect.

Let's break this down into a very simple few points:

1.  The Constitution gives the president great control over foreign policy.
2.  Federal statutes expressly authorize the president to limit or bar entrance by any class of foreigner in furtherance of national security concerns.  The relevant law that grants this authority was passed when Harry Truman was president.  It has been used repeatedly since then by president after president.  The previous time was when president Obama barred entry into the USA by refugees from Iraq in order to make sure that no terrorists were admitted in the refugee flow.
3.  The executive order does not discriminate on the basis of religion.  For example, Muslims from countries other than the seven in question are not affected.  Similarly non-Muslim in the seven countries are barred.
4.  The law is also quite well established that people outside the USA who are neither American citizens or green card holders do NOT have constitutional rights.

So let's stop there.  The people bringing the lawsuit claim this is a Muslim ban which violates the establishment clause of the First Amendment.  That's nonsense.  There is no religious test in the order.  That means there is no problem under the First Amendment.

Second, there is no problem of denying people equal protection of the law under the Fourteenth Amendment.  American citizens and green card holders are not affected by the executive order.  Others outside the country have no constitutional rights.

In short, there is no way that the plaintiffs can prevail on the merits of their claim.  That alone requires that the TRO be dissolved.  The Ninth Circuit is not even close to being correct.

1 comment:

fastcarken said...

Time for Trump to dissolve the present Travel Ban by executive order and write a new one which can not be adjudicated in this way.