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Thursday, May 25, 2017

It's No Surprise, But It Won't Stand

The Fourth Circuit Court of Appeals issued its decision in the case to enjoin the Executive Order issued by President Trump instituting a ban on travel to the USA from six countries that have major terrorism problems but which also cannot provide adequate background information to the USA on entrants from their countries.  The Court ruled to continue the temporary restraining order which prevents the Executive Order from being enforced.

I've spent decades following court decisions, most of that time as a practicing attorney.  I've seen some crazy results come from court.  More of the bad decisions came from state rather than federal courts.  Within the federal courts, more of the bizarre results came from trial level courts rather than appeals courts.  That means that today's decision should have been pretty straightforward and it should have followed the law.  That being said, this is perhaps the worst decision I've seen in the last twenty years.  We have a Federal appeals court which has taken the established law and thrown it out so that they could make their substitute their own political decision.

It's worth reading the first paragraph of the decision, which is as follows:

"GREGORY, Chief Judge
1: The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in
 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding  principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order. " (Emphasis added)
It's an amazing decision.  There is no point more well established in law than that a court must look only at the words of a statute, regulation or Executive Order if they are clear.  The court does not get the right to look beyond the clear meaning of the text.   This is an essential part of the rule of law.  It means that each judge has to apply the law in the same way for each person who appears in that court.  Legislative authority in the USA is in the hands of Congress, not the court.  Executive authority is in the hands of the President, not the court.  With this decision, the court usurps both of those powers.  Congress gave the President the power to determine if any class of people must be barred from entry into the country.  The President made that determination.  Now, the court decides that its own views have to be followed rather than the law established by the duly elected authorities.  The court even realizes what it is doing.  It admits that the Executive Order speaks in terms of national security, but then the Court looks beyond the clear words of the order to announce that it can tell the true meaning which "drips with religious intolerance, animus and discrimination."  Strange, isn't it, that the order sets up no religious test.  Christians from Sudan are barred just as are Moslems from that country.  Yazidis from Syria are barred as are Moslems.  There is no religious test.  And as for discrimination, there is, of course, a singling out of potential entrants from six countries.  That is not, however, religious discrimination.  The almost 90% of Moslems who live in countries that do not present national security threats are not barred, but that makes no difference to the court.  It claims that no matter what the words say, it will decide what is truly meant.
This case will almost surely get to the Supreme Court.   It will be reversed.  The result will most likely not be one of those 5-4 decisions either.  The Justices of the Supreme Court will not change the established law which the Fourth Circuit has decided to ignore.
It's a sad day for the quality of the federal judiciary.

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