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Five 9th Circuit Judges Eviscerate the 'Fundamental Errors' in Ruling Against Trump's 'Muslim Ban'

Five judges of the U.S. 9th Circuit Court of Appeals went out of their way to denounce the "fundamental errors" in the February decision of a three-judge panel which effectively stopped President Donald Trump's first executive order temporarily halting immigration from seven Muslim-majority countries, attacked as a "Muslim Ban." The five judges denounced the panel's ruling as a "clear misstatement of law," and argued that they had an "obligation to correct" it for the record.

"We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress," the judges declared. They argued that the panel's February ruling constituted clear judicial activism which undermined the separation of powers.

The three-judge panel — Judges William C. Canby Jr (a Carter appointee), Richard R. Clifton (a George W. Bush appointee), and Michelle Friedland (an Obama appointee) — unanimously denied the Trump administration's motion to throw out a federal judge's temporary restraining order on the executive order.

Judge Jay Bybee (a George W. Bush appointee) wrote the scathing rebuke of their ruling, joined by Reagan appointee Alex Kozinski and George W. Bush appointees Consuelo María Callahan, Carlos Bea, and Sandra Segal Ikuta. Bybee's dissent followed the arguments of a Boston judge who ruled for Trump's order and other critics of the prior panel decision, including liberal law professors and writers Jonathan Turley, Alan Dershowitz, and Jeffrey Toobin.

Bybee argued that the original 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 judgement of the political branches."

Citing case after case demonstrating the limits of judicial review over immigration actions, Bybee declared that the 3-judge "panel's errors are many and obvious," so much so that "the panel's clear misstatement of law justifies vacating the opinion."

The key case suggesting that the original panel should have ruled against the temporary restraining order is the 1972 Supreme Court case Kleindienst v. Mandel. In that case, the Court ruled that a U.S. attorney general (in this case Richard Kleindienst) has the right to refuse an alien's entry into the United States, since he has been empowered to do so in the Immigration and Nationality Act of 1952.

Mandel established the principle that "when the Executive exercises 'immigration authority' on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion."