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The 9th circus is at it again

by Greg Krehbiel on 10 February 2017

Liberal and conservative legal views seem to go like this. Liberals talk about whether something is right, according to the way they think of right, while conservatives talk about whether something is legal, according to their reading of the actual law.

When you get a liberal judge, that means that he does mental somersaults to make words seem to say what he thinks they should say.

The 9th Circus Court of Appeals has a long history of this, and leads the pack on having its decisions overturned.

Here is a relatively sane reaction to yesterday’s decision.

The executive order, while entirely defensible and appropriate as an exercise of the President’s Article II powers, has gotten caught up in a frenzied over-reaction that has overwhelmed and obscured the constitutional and security issues at stake in the controversy. …

It is stunning to realize that a single federal judge (out of roughly 700 federal district court judges) can issue a nationwide ruling that blocks the executive branch from acting in a core area of national security.

Stunning indeed. This is not what judicial review should look like.

The author’s conclusion is that Trump should withdraw the order.

It is thus pointless to make the argument before these judges that some presidential decisions are outside the scope of judicial review. They don’t believe that, and since they get to make the call they are bound to call it in their favor.

I don’t know if that’s the right approach. I think the courts need to be put in their place, but I’m not sure what’s the best way to rein them in.

2017-02-10  »  Greg Krehbiel

Talkback x 14

  1. Luis Hernandez
    10 February 2017 @ 12:21 pm

    If it is as critical as Trump says, he should change it so it passes a legal test. If they want to fight under the premise that these actions are “unreviewable,” I think he is going to lose.

  2. Greg Krehbiel Greg Krehbiel
    10 February 2017 @ 1:08 pm

    That’s what the author of the article says. No judge is going to concede that any presidential action is unreviewable by the courts.

  3. Greg Krehbiel Greg Krehbiel
    10 February 2017 @ 2:04 pm

    Pat Buchanan says Trump needs to clip the judiciary’s wings a bit.

    I agree that the judiciary needs to be taken down a notch, but generally speaking I think that’s Congress’s responsibility under Article III Section 2, where it says the courts “shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

    (It specifically says “the Supreme Court,” but further up it clarifies that all judicial power is vested in the Supreme Court, so this would apply to lower courts as well.)

    Trump could refuse to obey a Supreme Court decision (as previous presidents have), but I think that would be tactically unwise in the current situation.

  4. Dave Krehbiel Dave Krehbiel
    10 February 2017 @ 3:05 pm

    Possibly this is Donald Trump’s first “major crisis” as President. he needs to learn how to function as a president, rather than a businessman. He needs to learn how to work with his new team at the White House.

    I for one am happy that this initial “major crisis” is within the American political system and doesn’t involve foreign governments or nuclear bombs or military action.

  5. Ken Crawford
    10 February 2017 @ 3:44 pm

    I think a mistake the article writer makes is to differentiate between appropriate judicial review and judicial over reach. I’d agree with the premise that there is no aspect of the government that is outside of judicial review. That said, the judiciary needs to limit itself (or have it imposed on it) to ruling based on the law and existing precedent and not whether they think something is immoral or what have you.

    Judges aren’t the arbiters of morality, they’re the arbiters of the law. Some how they need to be reminded of that. But the right way to accomplish that is most definitely not to take away aspects of the government from judicial review.

  6. Greg Krehbiel Greg Krehbiel
    10 February 2017 @ 3:47 pm

    @Ken, Congress is able to take something completely out of the purview of the courts.

  7. smitemouth
    10 February 2017 @ 3:58 pm

    I assume you don’t like the courts ruling because you don’t like due process. That is what this is about–especially for people who hold visas.

    We have a man and his family in our church. He is a former Iraqi pilot and air force officer. He was supportive of USAF during the Iraq war and now is here on a visa. He left everything he had and came to the US. He has nothing to go back to in Iraq.

    Let’s assume it’s the day before Trump’s executive order and the man and his wife board a cruise in Houston and go to a few Caribbean islands or Mexico. Now, it’s after the blessed EO has been issued and the man and his wife have returned to port and are disembarking and then are in the line for people with visas. The USCIS guy at the port tells them he can’t let them in because they are Iraqis. What? We can’t let you in sir. Why? The president has issued an executive order preventing it. Why? Because you are a danger? How could I be a danger, I helped USAF and I was baptized an Orthodox Christian and have been one my whole life. How am I a threat?

    Or, take some employees of Microsoft and Amazon who live in Seattle. They have H1-B visas. They drive up to Vancouver for the weekend or an evening. At the border coming back they are stopped and told they can’t come back in to the country. Why? Der Fuhrer has said you are dangerous. In what way? You’re from one of these 7 countries.

    Please note, that the argument made in Washington is that the people, and the companies were harmed without any just or reasonable cause. And, this was all done without any due process of law. Corporations hire people with H1-B visas and they have to pay lawyers and other administrative people to keep track of all this, file paperwork, etc. They also have projects and business that depends on these people. Trump caused damage to these people. They have loss of work and loss of investments in people without Trump even proving in a court of law that a specific person was an actual threat.

    And, believe it or not, a person with a valid visa or green card has actual rights in the United States of America. When those rights are taken away, it has to be with proof and due process of law.

    They could have done it legally, but they are incompetent. They think the President is a fuhrer or dictator. The President is subject to checks and balances as well. If it goes to the Supreme Court, it will probably fail there as well. It’s one I could actually see Scalia siding with the 9th district if he were still alive.

  8. Greg Krehbiel Greg Krehbiel
    10 February 2017 @ 4:08 pm

    I never said I don’t like the courts ruling or that I don’t like due process. I also never said the travel ban was a good idea.

    What I said is that the current manifestation of judicial review — where some district judge can stop a presidential ruling — doesn’t seem like appropriate judicial review to me, and that in general the courts have gone too far.

    And my understanding of the ban (perhaps faulty) was that people like your friend would simply have been subjected to “extreme vetting,” not that they would be barred from entry.

  9. smitemouth
    10 February 2017 @ 4:15 pm

    Yes, because when one agrees with a ruling, they usually title an accordant response with something like “The 9th circus is at it again.” 😉 Really?

  10. Greg Krehbiel Greg Krehbiel
    10 February 2017 @ 4:16 pm

    Ah. Misunderstanding here. I clearly disagree with *this* ruling. I thought you were saying that I don’t like “courts ruling” as some general principle.

  11. RR
    10 February 2017 @ 6:11 pm

    One thing that I don’t understand about this whole case is the argument that Trump’s executive orders discriminate against Muslims and thus are unconstitutional. They may well discriminate against Muslims. However, it would seem to me that foreigners don’t have a right to immigrate to the United States and don’t have the same Constitutional rights as American citizens such as the First and Fourteenth amendments. Presumably, as a sovereign nation, the United States can limit immigration any way it darn well pleases. Granted, that doesn’t necessarily mean that what Trump is doing is correct. But I don’t see how there is such a thing as a right to immigrate to the United States, nor do I see why those seeking to immigrate to the United States can make an appeal to do so based on the Constitutional rights of American citizens have. Where is that in the Constitution?

  12. William
    10 February 2017 @ 7:55 pm

    Here we go again…a war of extremes. Trump has the right “intent” but in his haste, hasn’t taken a thoughtful approach to such a complex issue. Of course, there is danger, but it’s not like the country will cease tomorrow if this “ban” isn’t immediately in place. Meanwhile, we have the Trump haters rejoicing over the court ruling likely because it gives the finger to Trump. Don’t they realize there is a “real” threat to contend with? It appears they are so intent on opposing Trump et. al. that they forget the initial “intent”. I know this is “radical” thinking but how about “big brains” from both sides of the aisle put down their talking points and come together for the common good concerning the safety of American citizens. Just sayin’.

    As for the courts, Ken said it well that they should rule based on the law and existing precedent and not whether they think something is immoral. That said, even when that is rightfully done, I suspect the public will see those rulings through the lens of their political views. For instance, when the courts rule in favor of protecting religious liberty…you can be sure there will be those who will cry foul. Likewise, when the courts rule in favor of protecting rights regarding sexual orientation…you can be sure there will be others who cry foul. So, even when utilizing the Constitution, law and precedence, the courts can find themselves in a Catch-22 situation, depending on the depth the divide.

    All power needs checks, balances and limits. Our current system offers that, if utilized appropriately. Therefore, if it’s indeed proven that the judiciary is legislating from the bench, their wings need to be appropriately pruned…based on a rightful interpretation of law and policy…not on political preference. Otherwise, there is room for differences of view and debate within our system. So, let it continue (and exercised in timely manner) until a decision can be reached that is lawful and in the best interest of all citizens.

  13. smitemouth
    13 February 2017 @ 10:06 am

    @RR some of that may be true, but I can think of cases where it is not true.

    Often in immigration, families are united. It is not uncommon for one person in a family to immigrate, and then later, for the rest of the family to immigrate.

    Say a person immigrates and after 5 years becomes a citizen. Then he wants to bring over his mother or wife or other relative. You tell him, well we can’t bring them over because they are Muslim. However, you say to someone who is Buddhist that it is ok. How are you not discriminating against the Muslim citizen based on religion? According to our Constitution, that is wrong to discriminate against a person based on their religion.

  14. Greg Krehbiel Greg Krehbiel
    13 February 2017 @ 10:24 am

    The not quite honest answer to what you are saying is that the order does not discriminate on the basis of religion, but on the basis of the country they’re coming from. But we all know those countries were chosen in large part because they are majority Muslim.

    However, while we can’t discriminate against a U.S. citizen on the basis of his religion, I don’t think that extends to non citizens. We can discriminate against them for any reason we like.

    And there’s some sense to that. What if a Muslim comes here and become a citizen, then he wants to bring over his four wives?