March 20, 2017

HANS A. VON SPAKOVSKY: Why Trump’s Immigration Order Is Legal and Constitutional.

As I have written on a number of occasions, the district-court and appellate-court judges in these cases have ignored the federal immigration-law provision that gives President Trump the authority to issue this order. They’re also ignoring prior precedents from the U.S. Supreme Court upholding the power of presidents to suspend the entry of aliens into the United States. And they have made unjustified findings that the order violates the establishment clause of the Constitution and was intended to discriminate on a religious basis.

But there are also some very good federal judges, and five of the best joined together in a stirring dissent released March 15 that explained in detail why the president has acted fully within the law and the Constitution. Their dissent should be required remedial reading for the federal judges assigned to all of these cases. It was filed in a Ninth Circuit Court of Appeals decision that denied en banc review (review by the entire court) of the astonishing recent decision by a three-judge panel; the three judges refused to throw out the injunction issued against the original executive order by a district-court judge in Washington State.

In a dissent written by Jay Bybee and joined by Alex Kozinski, Consuelo Callahan, Carlos Bea, and Sandra Ikuta, the judges explain why the panel’s decision was full of errors that “confound Supreme Court and Ninth Circuit precedent” that will make it impossible for the district courts “to know what law to apply in the future.” Moreover, they note, the personal views of federal judges should be “of no consequence.” “Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency, and ‘[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.’”

Read the whole thing, but it’s obvious that en banc was denied solely because the decision would not stand greater scrutiny — pure politics.