The Ninth Circuit’s Decision, Enjoining the President’s Executive Order, Temporarily Suspending Refugees from Entering Our Country Who Reside in Failed States, Was Legally Wrongheaded. Who Really Was Behind the Filing of the Lawsuit? What Is the Basis for The President’s Order? And, Why Did the Ninth Circuit Block Implementation of The President’s Order?
PRESIDENT TRUMP HAS HIS WORK CUT OUT FOR HIM.
President Trump has promised to get our House in order. This is no small task given years of disassembling through the insidious machinations of Bill Clinton, George Bush Senior, George Bush Junior, and Barack Obama. These lackluster U.S. Presidents of the past decades have supported doctrines of liberal democracy, globalization, multiculturalism, and debilitating military interventionism and entangling alliances—all of which have, together, devastated the financial well-being of our Nation, and have denied to hard-working, proud Americans the financial and physical security they deserve—the financial and physical security they might have had but through the implementation of destructive trade policies and through seditious collusion with foreign Countries to keep our borders open; and through seductive psychological conditioning and indoctrination, designed to produce mass confusion in the public psyche—inverting and substituting the ideal of nationalism for the flawed notion of internationalism; the ideal of protectionism for the corporatists’ dream of globalization; the ideal of individualism for the morass of mass conformity and alien inclusiveness; the ideals expressed in Judeo-Christian morality for amorphous cultural and moral relativism.
Through incessant, monotonous, repetitive sloganeering and messaging by the mainstream media, Americans are urged, even cajoled, to view patriotism as jingoism, national pride as nativism and racism, and love of Country and concern for one’s Nation and one’s Countrymen, first and foremost, as selfish parochialism.
These past U.S. Presidents support the precepts of utilitarian consequentialism, an ethical position anathema to the Founders of our Republic and inconsistent with the import of the Bill of Rights. These Past U.S. Presidents worked to undermine our free Republic and worked to undermine the U.S. Constitution even as they declared, disingenuously and hypocritically, to support our free Republic and our Constitution. They have forsaken the American public, implementing policies that benefit a small, exceedingly powerful and ruthless, cunning and duplicitous, secretive and sinister, extraordinarily wealthy, elite coterie of internationalist globalist benefactors, hell bent on undermining and ultimately destroying the very concept of the Nation State—our Nation State—working vigorously behind the scenes to dissolve our Nation’s sovereignty; weakening our Nation’s laws; doing nothing to secure our borders against waves of illegal migrants and criminal gangs and refugees and Muslim terrorists; spending frivolously on wars they have no intention of winning; involving our Country in innumerable foreign escapades that have nothing to do with our national security; throwing billions of our tax dollars to foreign countries that give us nothing in return except millions of their own wretched citizens who drain our own wealth and resources; and slowly moving our Country in the direction of an EU style social, political, economic construct through implementation of secretive international trade deals that harm our small businesses, destroy our manufacturing base and leave millions of hard-working Americans destitute. Not surprisingly they, and their international benefactors, are yet working, behind the scenes, taking every opportunity to frustrate the policies of President Donald Trump, sowing dissension, creating discord, inciting violence, vilifying our President, blocking our President at every turn—doing everything in their power to prevent him from doing his job, to prevent him from succeeding on behalf of our Nation and on behalf of its citizenry.
The quick, violent, and virulent assault on the President’s January 27, 2017 Executive Order is a case in point. President Trump implemented this Executive Order for the legitimate purpose of protecting this Nation and its citizenry from acts of Islamic terrorism, sweeping across Western Europe, lest the unmitigated horror descending upon the EU work its way into the U.S.
The title of the President’s Executive Order is: “PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES.” What does the January 27, 2017 order say? The principal purpose of the President’s Executive Order is laid out clearly, comprehensively, cogently, and candidly in the first three paragraphs:
“The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.
Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.
In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including ‘honor’ killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”
The President should be commended for issuing this Order. The danger our Nation and our People face from Islamic terrorism isn’t hypothetical. It is real. The President of the United States has a duty to secure our borders against threats to our National Security and threats to the American citizenry.
The duty of a U.S. President does not extend to salving a person’s feelings where demonstrable threats exist to the security of our Nation. President Trump has demonstrated a conscientious desire to protect this Country from harm—to protect this Country against the very harm destroying the fabric of social and political order in the EU. Yet, instead of standing behind Trump, Democrats in Congress attack this Order, and they blast the President for implementing it.
Internationalist globalist forces drum up public resistance to the U.S. President’s Executive Order with the avid assistance of the insistent, quarrelsome and vocal mainstream media. Where are the Republicans in all of this? Most are staying acutely silent, apparently afraid to show backbone. Instead of actively supporting the U.S. President, Republicans remain, for the most part, complacent, thereby lending support to those who would place this Nation’s security at risk—a risk that the Democratic Party candidate, Hillary Clinton, deemed perfectly acceptable. Other Republican members of Congress openly castigate the President, rather than come to his defense. As for the Democrats, they are rabble rousing, unabashedly inciting the unruly ignorant mob to agitate. The mainstream media, not content to report the news, has declared war on our President, using every opportunity to engage in confrontation with the President, castigating him, and disrespecting him, attempting to demean both him and his policies.
Some elements within the federal bureaucracy—diehard fans of Barack Obama, still raging over Hillary Clinton’s defeat, are skirting with subversion and sedition because they have pointedly said they will not work with and on behalf of the United States President. That is reprehensible. Openly confronting the U.S. President cannot be condoned, much less encouraged. If Government bureaucrats disagree with the President, they should at least keep their mouths shut. They should not use their position as a soapbox to openly defy the President of the United States. If they cannot or will not work with the U.S. President, then they should resign from Government employment. That is the honorable thing to do. It is the only correct and proper thing to do if they do not wish to work with the President. Imagine an individual in the private sector openly defying his or her superior. How long do you think that person would remain at their job?
THE EXECUTIVE ORDER IS LAWFUL, CONTRARY TO THE DECISION OF THE NINTH CIRCUIT.
This Executive Order is lawful. The principal duty of the U.S. President is mentioned in the oath he takes as set forth in the Article 2, Section 1 of the U.S. Constitution: “Before he enter on the execution of his office, he shall take the following oath or affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.’”
Two of the laws the U.S. President must faithfully execute, which provide the impetus and legal ground for this Executive Order involve immigration. One is 8 U.S.C. § 1182, titled, “Inadmissible Aliens.” 8 U.S.C. § 1182(f) says, in pertinent part, “Suspension of entry or imposition of restrictions by President. Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
This Statute gives the President clear authority to suspend the refugee program and to take any action he deems necessary to prevent individuals who may pose a threat to our national security from entering our Country. That action includes precluding from entering our Country those denizens, residing in Countries that are failed States and otherwise openly hostile to our Nation and its citizens. Such failed States pose a true threat to the safety and the security of our Country and its People and to our National interests. Terrorists can and will infiltrate into this Country through the waves of refugees whom they follow, if these terrorists are given the opportunity.
Another Statute, 8 USCS § 301, titled, “General authorization to delegate functions; publication of delegations,” authorizes the U.S. President to delegate responsibility for implementing his Executive Order to, inter alia, appropriate officials in the Executive Branch. In this instance, the head of the Department of Homeland Security (DHS) is tasked with carrying out the Executive Order, suspending penetration of our Country by denizens of Countries adverse to our interests.8 USCS § 301, says:
“The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President (1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President: Provided, that nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions.”
Now, the internationalist globalist elites don’t like this Executive Order because it conflicts with their goal to seed disruption in our Country as they have seeded disruption in the EU. They seek to undermine the security of the United States, slowly whittling away at our National Sovereignty, paving the way for ultimate dismantling of our Nation and its Constitution, eventually surreptitiously taking over our Country. Still, these internationalist, globalist elites have little power to harm this Nation and its citizenry now that their puppet, Hillary Clinton, lost the U.S. Presidential election and is politically dead. Where, then, does the power of these singularly powerful, immensely wealthy, abjectly ruthless, and intensely private, secretive, sinister creatures lie?
These “elites” still control the mainstream media. What does the mainstream media comprise? The mainstream media comprises major newspapers, including, inter alia, the New York Times, the Washington Post, the Financial Times, the Guardian, the Wall Street Journal, the Los Angeles Times, and the Chicago Tribune. It includes major broadcast networks like ABC, CNBC, MSNBC, CBS, CNN, NPR, and PBS, and, yes, FOX network too—various gatekeepers on the right and on the left of the political spectrum. Yet, with the election of Donald Trump, this same mainstream has now fallen out of the mainstream. It has devolved into the voice of the extreme. As it has castigated the weblogs that supported Trump during the election cycle as being unruly, this same mainstream media has itself grown unruly. It has become increasingly boisterous, vituperative, obstreperous, sanctimonious.
This mainstream media has lost any semblance of dignified restraint and measured tone in reporting. It disrespectfully denigrates the Office of the U.S. President at every turn because its owners, the internationalist globalist “elites” who rule the EU quietly with an iron fist behind the scenes, failed—which, for them, was an unbelievable turn of events—to seat their puppet, Hillary Clinton, in the White House. But, the American people have turned a deaf ear to the nonsense spouted by the mainstream media.
What else do these internationalist, globalist “elites” have up their sleeve? They can, as we have seen, orchestrate mass marches and they can foment violence and chaos through the use of agents provocateur, buttressed by legions of ignorant Americans quick to jump of the cliff like willing lemmings as soon as they hear the appropriate buzzwords that flood the soft tissue of their mush-filled brains. These internationalist, globalist elites work hand in hand with subversive political groups like the George Soros Group, MoveOn.org, and the Groups, Code Pink, and Black Lives Matter.
But, the American people have really nothing to fear from an unruly mob. For, the police, and the military, and, most importantly, an armed citizenry can contain an unruly mob. The Second Amendment still exists much to the chagrin of those that seek to do away with the Bill of Rights. And the American people need not fear the lurid nonsense spouted by the mainstream media that is growing increasingly unimportant and extraneous as the messages it conveys are clearly out of the mainstream.
But the internationalist globalist elites can still manipulate the Judiciary. That is problematic. The mainstream media and an unruly mob do not constitute a Branch of Government. But, the Judiciary does. While the internationalist globalist elites won’t be able to compromise the U.S. Supreme Court once the U.S. Senate confirms Neil Gorsuch, still the third Branch of Government encompasses, today, more than the U.S. Supreme Court. The Judiciary comprises eleven U.S. Circuit Courts of Appeal and over ninety lower U.S. District Courts. The Judiciary also includes a few specialized lower federal courts and several federal administrative boards.
FORUM SHOPPING DISPOSSESSES THE U.S. PRESIDENT OF HIS ABILITY TO PROTECT THIS NATION AND THE AMERICAN CITIZENRY FROM THREATS TO NATIONAL SECURITY AS THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HAMSTRINGS THE PRESIDENT.
Less than a week had passed from the date of the signing of the President’s Executive Order to protect this Nation against intrusion into our Nation by Islamic terrorists, when the State of Washington—apparently at the behest of outside influences—filed a Complaint seeking declaratory and injunctive relief. The case was filed in the U.S. District Court for the Western District of Washington.
The U.S. District Court issued a TRO (Temporary Restraining Order), placing an immediate hold on execution of the Executive Order. A TRO is an extraordinary legal remedy. It is one Courts do not routinely issue. Courts do not routinely issue injunctions because Courts wish to give each side an opportunity to present facts and law in support of their position. In the absence of a full adversarial trial on the merits, injustice may occur. Therefore, a party seeking immediate relief—through preliminary injunction or TRO—must satisfy stringent tests.
POLITICAL MATTERS ARE NOT APPROPRIATE MATTERS OF JUDICIAL INQUIRY
THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IS NOT CONTENT ON TELLING PRESIDENT TRUMP WHAT THE LAW IS; IT TELLS THE U.S. PRESIDENT HOW TO DO HIS JOB!
THE SEQUENCE OF EVENTS LEADING TO THE DECISION OF THE U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, AFFIRMING THE DECISION OF THE U.S. DISTRICT IN PLACE.
The State of Washington, evidently taking its cue from the internationalist globalist elites who seek to undermine our free Republic, our Constitution, and our National Security, lost no time in preparing and filing a formal Complaint, seeking to preclude President Trump from implementing his travel ban. The Plaintiffs’ First Amended Complaint was filed on February 1, 2017.
The Plaintiff State of Washington was joined, in the First Amended Complaint, by the Plaintiff State of Minnesota. The State of Washington, alleged, in principal part, that the President’s Executive Order is unconstitutional because it violates the Establishment Clause of the First Amendment. The State of Washington also alleged that the President’s Executive Order violates The Immigration and Nationality Act, 8 U.S.C. § 1152(a)(1)(A), because that Act, as Plaintiff alleges, prohibits discrimination in the issuance of immigrant visas on the basis of race, nationality, place of birth, or place of residence. The State of Washington further alleged that the President’s Executive Order is discriminatory, violating the Due Process and Equal Protection Clauses of the Fifth Amendment.
The State of Washington also alleged the President’s Executive Order violates the Administrative Procedures Act, 5 U.S.C. §§ 553 and 706(2)(D), because, as the State of Washington asserted, federal agencies must conduct formal rule making before engaging in action that impacts substantive rights. Lastly, the Plaintiff, State of Washington alleged the Executive Order violates the Tenth Amendment because, as the State of Washington asserted, “the Constitution prohibits the federal government from commandeering state legislative processes.”
But, notwithstanding the bare recitation of these naked allegations, how is the State of Washington, as Plaintiff, in the suit, specifically harmed? Let’s see. The State claims:
THE STATE OF WASHINGTON ALLEGES THAT THE PRESIDENT’S EXECUTIVE ORDER HARMS THE STATE IN THE FOLLOWING WAYS:
“Washington’s interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health, is a quasi-sovereign interest.
Washington also has an interest in ensuring that its residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law.
Washington’s interest in preventing and remedying injuries to the public’s health, safety, and well-being extends to all of Washington’s residents, including individuals who suffer indirect injuries and members of the general public.
Immigration is an important economic driver in Washington. Many workers in Washington’s technology industry are immigrants, and many of those immigrant workers are from Muslim-majority countries.
Many companies in Washington are dependent on foreign workers to operate and grow their businesses.
The technology industry relies heavily on the H-1B visa program, through which highly skilled workers like software engineers are permitted to work in the United States. Washington ranks ninth in the U.S. by number of applications for high-tech visas.
Microsoft, a corporation headquartered in Redmond, Washington, is the State’s top employer of H-1B visa holders and employs nearly 5,000 people through the program. Other Washington-based companies, including Amazon, Expedia, and Starbucks, employ thousands of H-1B visa holders.
Washington-based companies, including Amazon, Expedia, and Starbucks, employ thousands.
The market for highly skilled workers and leaders in the technology industry is extremely competitive. Changes to U.S. immigration policy that restrict the flow of people may inhibit these companies’ ability to adequately staff their research and development efforts and recruit talent from overseas. If recruiting efforts are less successful, these companies’ abilities to develop and deliver successful products and services may be adversely affected.
Microsoft’s U.S. workforce is heavily dependent on immigrants and guest workers. At least 76 employees at Microsoft are citizens of Iran, Iraq, Syria, Somalia, Sudan, Libya, or Yemen and hold U.S. temporary work visas.
There may be other employees with permanent-resident status or green cards. These employees may be banned from re-entering the U.S. if they travel overseas or to the company’s offices in Vancouver, British Columbia.”
The State thereupon asks, inter alia, for the Court to enjoin the Defendants, Donald Trump, President of the United States, and John Kelly, Secretary of the Department of Homeland Security, from implementing the Order. This means the State requests the U.S. District Court to issue its own Order preventing the President from exercising the President’s duty to faithfully execute the laws of the U.S., prior to an adversarial proceeding that would give the President and the Secretary of DHS an opportunity to be heard in open Court.
THE DISTRICT COURT SHOULD NEVER HAVE ISSUED A TRO, ENJOINING THE U.S. PRESIDENT FROM CARRYING OUT HIS EXECUTIVE ORDER THAT WAS DESIGNED MERELY AND ONLY TO PROTECT THIS NATION AND THE AMERICAN PUBLIC FROM REAL HARM POSED BY THOSE INDIVIDUALS ENTERING THIS COUNTRY FROM SEVERAL NAMED COUNTRIES THAT HARBOR TERRORISTS.
The U.S. District Court should have summarily denied issuance of an injunction. Why? Injunctions are extraordinary remedies.
Courts generally frown on issuing injunctions because injunctions amount to ex parte action. That means a Court renders an injunction prohibiting a Party against whom the injunction is issued from engaging in a particular action. The Court that issued an injunction is operating on the say-so of one party without bothering to hear from the other party against whom the injunction is issued. That is not how our legal system is meant to function. Our system is an adversarial system of justice. This means that each Party to a lawsuit is promised an opportunity to be heard, to present evidence in his or her behalf, and to have an opportunity to challenge the veracity of the allegations made against that Party. When a Court issues an injunction on the allegations proffered by one Party before the other Party has had an opportunity to be heard, the adversarial system of justice is dispensed with, and justice is denied the Party whose rebuttal arguments are never heard. This is bad enough where individuals stand to lose much in the way of their individual rights under the law. It is absolute insanity where, as here, the entire Nation and its citizens are placed at risk due to the action of one judge, operating out of one Court who orders that his injunction be given nationwide effect.
WHAT IS THE LEGAL MECHANISM FOR ISSUING A PRELIMINARY INJUNCTION?
In the Ninth Circuit, A Court will issue an injunction—in the instant cast—the most extraordinary injunction—a Temporary Restraining Order (TRO)—when the Court is satisfied: one, that a Plaintiff is likely to suffer irreparable harm if the injunction isn’t issued immediately, and, two, the Party that seeks an injunction is likely to win on the merits, and, three, the equities tip in favor of the Party seeking an injunction, and if, four, issuance of an injunction is in the public interest.
All four factors must be present. But, looking at just one factor here, namely, that Plaintiffs here, the State of Washington and the State of Minnesota, will, as the Court has determined, be irreparably harmed if the Court does not immediately prevent implementation of the U.S. President’s Order, the Complaint is devoid of anything concrete that so much as suggests the States would suffer irreparable harm if the Court does not enjoin the U.S. President and DHS from implementing the Executive Order. Yet, the District Court itself acknowledged, in Washington v. Trump, 2:17-cv-00141 (W.D. Wash. Feb. 3, 2017) that a preliminary injunction—of which the TRO is one type—is an extraordinary remedy that may only be awarded upon a clear showing that a Plaintiff is entitled to such relief, prior to a full-blown trial on the merits. But where in the Court’s Opinion ordering a TRO, in the context of the allegations of the Complaint, is there any indication that the Plaintiff would be irreparably harmed if the TRO isn’t issued?
There isn’t any and that is reason enough for the Court to refrain from issuing a TRO. Then, too, there is nothing in the Court Opinion to buttress the Court’s finding that the State of Washington is likely to win the case on the merits. Moreover, the idea that the equities tip in favor of the Plaintiff is absurd on its face. How can one State possibly argue, with a straight face no less, that its claimed economic interests—not so much its own but that of a private Company, namely and especially that of the technology Company Microsoft—and that its claimed interest in protecting the Constitutional rights of individuals, who are not even citizens of the United States, and its claim of a public interest that is purportedly harmed by the U.S. President’s Executive Order, are all greater than the concern the President of the United States has for the security of the Nation and for the life and safety and well-being of the citizens of this Nation as a whole, thereby warranting, according to the U.S. District Court Judge, the awarding of an injunction, enjoining the U.S. President from carrying out his duties, under Article II of the Constitution, on behalf of this Nation and on behalf of its People?
THE U.S. PRESIDENT RESPONDS TO THE U.S. DISTRICT COURT JUDGE’S ISSUANCE OF AN INJUNCTION
On February 3, 2017, the President of the United States filed his emergency motion to the United States Court of Appeals for the Ninth Circuit, asking the Ninth Circuit to overturn the District Court’s issuance of a TRO. The President made clear that his Executive Order was a lawful exercise of his complete and absolute control over the admission of aliens into this Country. The President pointed out that the District Court had issued a sweeping injunction in the absence of any legal analysis. Essentially the District Court simply mouthed the platitudes for issuance of its TRO without explanation of how the State of Washington and Minnesota met their burden of proof, thereby begging the very question at issue: whether the Plaintiff States had provided a convincing showing of hardship in the absence of issuance of an injunction. Indeed, rationally, sensibly, one would think that the U.S. President’s Executive Order, predicated on his duty to protect the Nation against outside threats to this Nation and to its citizenry, would outweigh the States’ insistence that its personal economic interests and the economic and financial interests of a few private businesses, and the interests of non-citizens are harmed by the President’s Order and therefore must be protected. The State of Washington is essentially saying: “The United States be damned. The economic concerns of Microsoft and the concerns of non-citizen refugees count for more than the safety and well-being of the Nation and its people as a whole.” Certainly, more serious interests are at risk when a Court enjoins a U.S. President from acting on behalf of the Nation and the American People, which, after all, was the reason the President issued his Executive Order in the first place. Evidently, the Ninth Circuit didn’t think so.
The President also argues in his Motion that the Plaintiffs have not even presented a convincing argument that they have standing to present a case against the President and the Secretary of DHS, apart from the naked claim that the Court has subject matter jurisdiction over the case. The District Court itself proclaimed subject matter jurisdiction over the case when the Court should properly have questioned its jurisdiction because a State cannot properly bring suit to enforce purported rights on behalf of its citizens based on a State’s estimate of its citizens’ relationship with the federal government. In other words, it is for the citizens themselves to bring suit against the federal government, to vindicate rights, if they feel the federal government has violated their Constitutional rights. But, the U.S. District Court never questioned its own jurisdiction in the case. At the very least the Court could have and should have asked each of the Parties to the action to submit briefs on the standing issue. Instead the Court assumed it had subject matter jurisdiction and obligingly gave the State whatever it wanted, irrespective of the law.
It must be pointed out that, in the first instance, a Federal Court must determine whether it has subject matter jurisdiction to even hear a case brought by a plaintiff before it–as required under Article III of the U.S. Constitution–before that Federal Court proceeds pell-mell to hear a case at all. In the matter before the Court, the Court assumed the State of Washington had standing and accepted at face value the allegations made in support of enjoining the United States President from carrying out his duties under Article II of the Constitution. A hearing on standing should have at least have been ordered prior to any consideration of issuance of an injunction against the U.S. President. The Court did not do this, and the President properly brought up the issue of standing in its Motion asking for emergency relief from the effect of the TRO, when it filed its Motion with the United States Court of Appeals for the Ninth Circuit. Citing United States Supreme Court precedent, the U.S. President correctly pointed out, in the Motion, citing legal precedent, that, “an order barring the Executive Branch from enforcing a Presidential Executive Order inherently imposes harm on the public, by thwarting the legal effect of the public’s chosen representative.” Yet, the U.S. District Court, in awarding Plaintiff States a TRO, opined that, the “States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” Think about that for a moment. The Court is saying that an inconvenience to a State’s residents in the areas of employment, education, business, family relations, and freedom to travel, count for more than the life, well-being, and safety of the citizenry of the entire Nation.
You would think the United States Court of Appeals for the Ninth Circuit would not only reverse the lower Court’s awarding of the TRO to Plaintiff States but would have chastised the District Court for awarding the TRO at all. Instead, the Ninth Circuit, in State of Washington vs. Trump, No. 17-35105 (9th Cir. Feb. 9, 2017), denied the Defendants’ Emergency Motion for a Stay pending appeal, the effect of which was to affirm the District Court’s awarding of a TRO to the Plaintiff States, Washington and Minnesota. The Ninth Circuit said, citing a U.S. Supreme Court case: “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)). “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of the particular case.’” Id. (quoting Virginian, 272 U.S. at 672-73) (alterations omitted). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34. The Nken vs. Holder case dealt with the meaning of 8 USCS § 1252(f), titled, “Judicial Review of Orders of Removal.” The Nken vs. Holder case has nothing to do with the present case. In Nken, the Petitioner, an alien, sought to stay his removal from the U.S., pending review of the removal order, but the Respondent, Attorney General, asserted that the alien could not meet the stringent requirements for a stay under 8 USCS § 1252(f). The alien appealed the judgment of the United States Court of Appeals for the Fourth Circuit, which denied the stay and the alien then appealed the adverse ruling to U.S. Supreme Court. The high Court affirmed the decision of the Fourth Circuit, denying the alien’s motion for a stay, pending the appeal of his removal from the United States.
THE NKEN CASE IS INAPPOSITE AND THE NINTH CIRCUIT MISUNDERSTANDS AND MISAPPLIES FEDERAL STATUTE, WHEN IT REFUSES TO ISSUE A STAY OF THE U.S. DISTRICT COURT’S RULING, ENJOINING THE PRESIDENT FROM IMPLEMENTING HIS SUSPENSION OF REFUGEE, SEEKING EMIGRATION TO THE UNITED STATES FROM HOSTILE COUNTRIES.
The Ninth Circuit misapplies 8 USCS § 1252(f), titled, “Judicial Review of Orders of Removal.” The applicable section, titled, “Limit on injunctive relief,” says, “(1) In general. Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of chapter 4 of title II [8 USCS §§ 1221 et seq.], as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such chapter have been initiated. (2) Particular cases. Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” The prohibition on Courts against use of a stay here, even where hardship exists, applies to aliens who seek to prevent a Court from removing them from this Country, pending their appeal of a final removal order. In other words, aliens can’t claim hardship to prevent their removal from this Country on a final order in the absence of clear and convincing evidence that execution of the removal order is prohibited by law.
In the instant case the President’s Motion for a stay of the District Court’s TRO has nothing whatsoever to do with the import of the Statute, 8 USCS § 1252(f). And the Nken case has nothing to do with the case before the Ninth Circuit, here. An alien isn’t seeking to prevent his or her removal from this Country. Rather, the President is precluding, temporarily, aliens, citizens of failed States that are known to harbor Islamic terrorists, from entering our Country. Moreover, even if 8 USCS § 1252(f) did extend to the President’s Executive Order, which it doesn’t, the District Court’s TRO is not a final order.
By its nature preliminary injunctions, such as a TRO, are interim orders—they are not final orders on the merits. And this TRO deleteriously impacts the security of this Nation and the security of its citizenry. The Ninth Circuit is grasping at straws, citing law that has no bearing on the issuance of a TRO against a U.S. Presidential Executive Order, as the Ninth Circuit has, apparently, made up its mind before the fact to allow the U.S. District injunction to stand.
Furthermore, constitutional rights do not apply to aliens. Aliens are, by definition, individuals who are not citizens. Due process concerns and equal protection concerns do not apply to non-citizens. No one who is not a citizen can claim legal right, under the Fifth Amendment, to enter our Country. Yet, the Ninth Circuit makes this very determination, essentially deciding the case on the merits to justify and sanctify the lower Court’s awarding of a TRO, with nationwide affect, on behalf of two States whose standing to bring suit against the U.S. President is tenuous at best.
IT IS NOT THE PRESIDENT WHO HAS INTRUDED UPON THE DOMAIN OF THE JUDICIARY IN VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS, BUT RATHER, IT IS THE JUDICIARY, HERE, THAT HAS BY ALL ACCOUNTS, IMPROPERLY INTRUDED UPON THE DOMAIN OF THE EXECUTIVE AND, IN SO DOING, HAS UNDERMINED THE SEPARATION OF POWERS DOCTRINE AND HAS MADE DIFFICULT THE PRESIDENT’S DUTY TO FAITHFULLY EXECUTE THE LAWS OF THIS NATION, AND, HAS, AS WELL, JEOPARDIZED THE SECURITY OF THIS NATION AND THE SAFETY AND WELL-BEING OF ITS CITIZENS.
In a seminal case, decided well over two hundred years ago, Marbury vs. Madison, 5 U.S. 137, 1 CRANCH 137 (1803)—a case that all first year law students of accredited law schools study in depth, the Chief Justice of the United States Supreme Court made clear the role of the Judiciary in our THREE BRANCH SYSTEM OF GOVERNMENT. The Chief Justice, John Marshall, made clear the defining role of the Judiciary. He said, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” Thus, the Chief Justice made clear that while Congress shall make the laws of this Nation, and the President shall faithfully execute the laws of this Nation, it is the role of the Judiciary—and the role of the Judiciary alone—that shall determine what the law is. That specific role clearly demarcates a singular prerogative of the Judiciary if any doubt had previously existed as to the specific singular prerogative of the Judiciary.
But, Marbury vs. Madison does not stand merely for the proposition that, in so asserting a specific defined role for the Judiciary upon which neither the President nor Congress may lawfully tread, there are not also areas in which the Judiciary, for its part, must not tread. Clearly, when laying out the scope of judicial inquiry Chief Justice Marshall was also circumspect in laying out the limits of Judicial inquiry—the parameters beyond which the Judiciary must not tread. The Chief Justice stated, “Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Expounding further, the Chief Justice stated, “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This office, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.”
It is a curious matter today that the Press, which isn’t a Branch of Government at all, often operates as if it is one, explaining as the voice of conscience—which it has little of—and the voice of reason—which has none of—how it is that, in its opinion, the U.S. President has overstepped his bounds of legal authority. The Press can, perhaps, be excused its excesses. It has long since lost credibility. But, the Ninth Circuit, for its part, should know better. It would have done well to read Marbury vs. Madison before rendering its decision in the latest case on the U.S. President’s temporary travel ban. Had the Ninth Circuit done so, it would have realized that it had transgressed the bounds of propriety by telling the President what his duty is, rather than more ably considering what its own duty is. Had the Ninth Circuit given more thought of the limits of judicial inquiry, it would have refrained from engaging in political matters where it has no business going, having no cognition of the dangers this Country faces from the outside—to which the U.S. President is particularly able to deal with and is charged to deal with—and unmindful of the dangers to the Constitution itself creates, on the inside, having failed to heed to its rightful purpose—namely, interpreting the laws of this Nation, and not telling the President what his job is and how he is expected to do that job and what he is expected to refrain from doing.
The issuance of a TRO by the U.S. District Court of the Western District of Washington, in the absence of any demonstrative legal basis to do so, is an example of a Court improperly intruding on the legitimate authority of the Executive to faithfully execute the laws of the Land. The Ninth Circuit would have done well to remind the U.S. District Court not to intrude on Presidential prerogative. Instead, the Ninth Circuit makes matters worse by affirming the lower Court’s decision. The decision isn’t just wrongheaded from a legal standpoint, having misinterpreted the law. It is wrongheaded in another sense entirely. For the Ninth Circuit has taken a political matter—one wholly outside the purview of the Courts—and has turned it into a legal one, thereby improperly intruding on a domain completely outside Judicial review and outside Judicial prerogative. The President is right.
The President’s Executive Order, faithfully executing the laws of Congress is unreviewable. The Ninth Circuit, in defiance, of the clear separation of powers, decided to review the Executive Order anyway. Moreover, the Ninth Circuit takes into account matters wholly outside the allegations of the Complaint, relying, in great part, on biased newspaper accounts and editorials to support the District Court’s issuance of a TRO. The Ninth Circuit also improperly considers remarks the President made in his campaign—essentially nothing more than rhetoric. But, the Ninth Circuit then uses those remarks against the President, arguing that the Executive Order follows from religious bias toward Muslims. That is patently ridiculous.
The purport of the President’s Executive Order, on its face, is designed to protect this Country and its citizenry from the very problem facing the EU as a result of having taken in waves of refugees from the Middle East—many of whom have engaged in acts of terrorism across Europe. The President has taken a proactive stance, rather than a reactive stance, to protect American citizens from physical harm. The Ninth Circuit gives that matter no thought.
The mainstream media, for its part, shows its abject ignorance of our laws and jurisprudence, and ignorance of the separation of powers doctrine by asserting bombastically that President Trump’s Executive Order is unconstitutional and that the President, rather than the Judiciary, has ignominiously encroached on the powers of the Judiciary by referring to the U.S. District Judge for the Western District of Washington as a “so-called Judge.” The admonition on the part of the President hardly constitutes encroachment on the Separation of Powers. Improper issuance of a TRO, made all the worse through affirmance of the District Court’s Order by the United States Court of Appeals for the Ninth Circuit, however, does.
Hopefully, Judge Gorsuch will soon be confirmed by the U.S. Senate, and the U.S. Supreme Court will put matters right. For this Country teeters on the brink of anarchy wrought by those who would insinuate odd notions of morality into the framework of our Constitution and thrust into the public’s psyche alien ideas, devoid of reasoned, sensible reflection.
Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.