The Ninth Circuit Court of Appeals’ absurd ruling against President Trump’s
immigration and refugee executive order contains a bevy of legal problems.
It’s not just a bad political ruling, though it is – it’s bad law. Here are five of
the biggest problems with the ruling:
immigration and refugee executive order contains a bevy of legal problems.
It’s not just a bad political ruling, though it is – it’s bad law. Here are five of
the biggest problems with the ruling:
1. States Suffer “Concrete and Particularized Injury” If Aliens Can’t
Come To University Classes. This is absolutely absurd. It would strike
down virtually any immigration law. All immigration laws restrict classes of
people from entering, numbers of people from entering. Some of those
people would undoubtedly go to university, or teach there. Does this
mean that states can now sue to overturn all immigration laws?
Come To University Classes. This is absolutely absurd. It would strike
down virtually any immigration law. All immigration laws restrict classes of
people from entering, numbers of people from entering. Some of those
people would undoubtedly go to university, or teach there. Does this
mean that states can now sue to overturn all immigration laws?
2. The Federal Government Doesn’t Suffer “Irreparable Injury” If The
Courts Overrule Immigration Policy. The court casually states that while
the government has an interest in combatting terrorism, the “Government has
done little more than reiterate that fact.” The executive branch didn’t explain
sufficiently to the judiciary why the executive order needed to be put into
effect, and so the executive branch has to go home empty handed. Again,
this is ridiculous. Are we supposed to wait to be hit? Would the judiciary apply
this same standard to, say, gun control laws?
Courts Overrule Immigration Policy. The court casually states that while
the government has an interest in combatting terrorism, the “Government has
done little more than reiterate that fact.” The executive branch didn’t explain
sufficiently to the judiciary why the executive order needed to be put into
effect, and so the executive branch has to go home empty handed. Again,
this is ridiculous. Are we supposed to wait to be hit? Would the judiciary apply
this same standard to, say, gun control laws?
3. Everybody Has Due Process Rights. This is perhaps the craziest element
of the ruling: the statement that everyone from lawful permanent residents to
aliens with a visa traveling abroad has due process rights. The court even says
that illegal aliens have due process rights. The Constitution isn’t just for citizens
anymore – which begs the question as to why anyone would bother applying
for citizenship.
of the ruling: the statement that everyone from lawful permanent residents to
aliens with a visa traveling abroad has due process rights. The court even says
that illegal aliens have due process rights. The Constitution isn’t just for citizens
anymore – which begs the question as to why anyone would bother applying
for citizenship.
4. Courts Can Look To Motive Rather Than Text. The court said that they
could look at Donald Trump’s statements during the campaign about a
Muslim ban in order to evaluate this executive order. This is dangerous.
Attempting to read the minds of those who put together laws is far more
arbitrary than reading the text or looking at the application of the law. It's
also amazing that the Ninth Circuit would say this now, but that the
Supreme Court would ignore President Obama saying for YEARS that
Obamacare was not a tax, then rule that Obamacare was indeed a tax.
could look at Donald Trump’s statements during the campaign about a
Muslim ban in order to evaluate this executive order. This is dangerous.
Attempting to read the minds of those who put together laws is far more
arbitrary than reading the text or looking at the application of the law. It's
also amazing that the Ninth Circuit would say this now, but that the
Supreme Court would ignore President Obama saying for YEARS that
Obamacare was not a tax, then rule that Obamacare was indeed a tax.
5. The Court Refuses To Strike Down Portions. Normally, the court works
to avoid striking down entire laws or staying entire executive orders. Instead,
the court just threw up its hands and suggested that it had done its best,
but it couldn’t bother doing a close read.
to avoid striking down entire laws or staying entire executive orders. Instead,
the court just threw up its hands and suggested that it had done its best,
but it couldn’t bother doing a close read.
All in all, the decision is damningly silly. That doesn’t make the executive
order a model of legal brilliance – it’s got plenty of problems I have discussed
elsewhere. But the court’s decision here does more damage to the law than
the executive order, and it ain’t close.
order a model of legal brilliance – it’s got plenty of problems I have discussed
elsewhere. But the court’s decision here does more damage to the law than
the executive order, and it ain’t close.
