9th Circuit Upholds Block of Travel Freeze, Jeopardizing National Security

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A three judge panel from the Ninth Circuit Court of Appeals refused to lift District Judge James Robart’s temporary restraining order (TRO) that blocks the Trump administration from implementing its temporary travel freeze. (See FAIR Legislative Update, Feb. 7, 2017) In a unanimous “per curiam” order, the appeals court denied the Justice Department’s (DOJ) request to reinstate the 90-day freeze on entry of individuals from countries that are hotbeds for terrorism and the 120-day freeze on refugee resettlement. (State of Washington v. Trump, Feb. 9, 2017 at 3) The three judges to rule against the Trump administration were William Canby (Carter appointee), Richard Clifton (George W. Bush appointee), and Michelle Friedland (Obama appointee).

In another blatant example of judicial activism, the Ninth Circuit essentially created new law to rule against the executive order. First, the court found that the states of Washington and Minnesota have standing (a requirement to bring a lawsuit) on the extraordinary basis that the state universities are “harmed” by the claim that some students and professors might be unable to attend the universities during the travel freeze. (Id. at 8-13) Ironically, buried in the middle of the 29-page decision the appeals’ court says, “Within our system, it is the role of the judiciary to interpret the law” as it then proceeds to legislate from the bench. (Id. at 14)

Outrageously, the judges determined that all non-citizens, including those who have no connection to the country, are entitled to constitutional protections. “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they apply to all persons within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary, or permanent,” the court wrote while citing cases that involved people already in the country. (Id. at 20-21)(internal quotations omitted) “The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel,” the court wrote. (Id. at 19) The court’s reasoning is flawed for many reasons. While all persons within the U.S., including illegal aliens, are entitled to varying levels of due process based on their status, the executive order is merely canceling visas and excluding people before they enter. Thus, the Fifth Amendment’s Due Process Clause does not apply. Significantly, the court’s claim that illegal aliens have an unfettered “right to travel” is contrary to established law. For example, in a 2001 case a federal court ruled, “It would be curious indeed if the law gave illegal aliens a fundamental right to travel about this country when their mere presence here is a violation of federal law.” (John Doe No. 1 v. Georgia Dep’t of Pub. Safety, 147 F.Supp.2d 1369, 1373 (N.D. Ga. 2001))

Continuing its biased attack against the Trump administration, the Ninth Circuit essentially said the White House was lying that the executive order does not apply to LPRs. Shortly after the executive order was issued on January 27, the White House clarified that green card holders were not subject to the travel freeze. (See FAIR Legislative Update, Jan. 31, 2017) Despite this clear statement, the court wrote, “At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents.” (State of Washington v. Trump, Feb. 9, 2017 at 21) “Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order,” the judges continued. (Id. at 22) “Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” (Id.)(emphasis added)

Similar to Judge Robart’s ruling (which contained no legal analysis), the Ninth Circuit fails to even mention the relevant statute that clearly authorizes the travel freeze. Section 212(f) of the Immigration and Nationality Act (INA) states, “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.” (INA § 212(f); 8 U.S.C. § 1182(f)) Unsurprisingly, the Ninth Circuit is the most overturned appellate court. For example, in 2012 the Supreme Court reversed 86 percent of the rulings it review from the Ninth Circuit. (See Fox News, Feb. 9, 2017)

President Trump and key Republican lawmakers blasted the Ninth Circuit’s politically motivated opinion. “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!,” Trump tweeted shortly after the ruling was announced. (President Trump’s Twitter) “’Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute.’ A disgraceful decision!,” Trump added Friday morning in reference to the courts’ failure to mention INA Section 212(f). (Id.) Senator Tom Cotton (R-AK) declared, “President Trump’s order to temporarily pause the refugee program and travel from seven war-torn countries is plainly legal under the Constitution and our immigration laws. No foreigner has a constitutional right to enter the United States and courts ought not second-guess sensitive national-security decisions of the president.” (Cotton Press Release, Feb. 9, 2017) Congressman Trey Gowdy (R-SC), a former federal prosecutor, added, “No one familiar with the 9th Circuit Court of Appeals should be surprised at today’s ruling. The 9th Circuit has a well-earned reputation for being presumptively reversible.” (Gowdy Press Release, Feb. 9, 2017) “It seems clear to most of us – not on the 9th Circuit Court of Appeals – there is no right to come to this country for non-citizens of the United States.” (Id.)

Legal scholars agreed. Appearing on MSNBC’s “Hardball,” Harvard Law Professor Emeritus Alan Dershowitz—of O.J. Simpson murder trial fame—said, “Look, this is not a solid decision. This is a decision that looks like it’s based more on policy than on constitutionality. There are many, many flaws.” (See Breitbart News, Feb. 9, 2017) Similarly, CNN Legal Analyst Paul Callan said on “AC360” that “what has surprised all the lawyers who have looked at this decision is that what the court said here is that the state of Washington, because it brings students into its universities, it brings customers into its restaurants, is the representative of virtually anybody across the world who’s not an American citizen…. Why would they have standing to appear in our federal court, and argue that the U.S. Constitution protects their rights? I think the court overreached.” (See Breitbart News, Feb. 9, 2017)

It is unclear how the Trump administration will respond. Generally, the administration has three procedural options: appeal to the Supreme Court; request an en banc hearing before the entire Ninth Circuit; or return to Judge Robart’s court to litigate the merits of the executive order’s legality. The DOJ said it is “reviewing the decision and considering its options.” (Law360, Feb. 9, 2017) During a Friday press conference with Japan’s prime minister, President Trump said “We are going to keep our country safe” and “will be doing something very rapidly having to do with additional security for our country.” (The Hill, Feb. 10, 2017) Citing unidentified sources, MSNBC’s Joe Scarborough claimed the White House is drafting a new executive order with “more specific language.”

In the meantime, national security continues to be at risk as individuals we cannot properly vet are admitted into the country while the travel freeze remains blocked. In fact, 77 percent of the 1,100 refugees resettled in the U.S. since Judge Robart’s ruling are from the seven countries named as hotbeds for terrorism. (Washington Times, Feb. 9, 2017)

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Content written by former Federation for American Immigration Reform staff.

23 Comments

  1. avatar

    From The Japan Times:

    Record 10,910 refugee applicants face abysmal odds of acceptance in Japan

    by Reiji Yoshida

    The number of foreign people who applied for refugee status hit a record high of 10,910 last year, up 44 percent from the previous year, the Justice Ministry said Friday.

    Indonesians topped the list.

    In 2016 Japan only accepted 28 refugees, an increase of only one from the previous year.

    Officially, despite its rapidly shrinking population, Japan has not accepted unskilled workers.

    But it has introduced a category under which a large number of unskilled workers — known as “trainees” — have been allowed to enter, and Japan also allows those here with student visas to work up to 28 hours per week.

    • avatar

      Do we have to take refugees?? is there some kind of eternal American policy that we are forced to take in so many refugees per month or year? or are we keeping some promise made to the world by the previous administration? It that is the case, then what hinders the entire African continent from claiming refugee status and showing up at US port of entry?

  2. avatar

    Is a supermarket chain “harmed” if the government deports the illegals that are picking tomatoes on farms that the chain buys from, forcing it to pay a couple cents more per tomato to legal workers? There is no end to the possibilities here.

    These judges are simply the extension of the proclamations of Mr. “I’ve got a phone and a pen” and they don’t care what the law says. The law is clear, crystal clear. Don’t like it? Work to have it changed but you cannot ignore it. This is a prime example of legislating from the bench.

    • avatar

      Check n balances the system is working, stop crying like a baby…If unanimous that means that are correct. … N the AG was reinvicdicated. As long as our Constitution n history is concerned …. They screwed up m..Watch the scholars rKj n debate they all agree …. He has the power to impose it but not to be unconstitutional. I

      It appears they will try again so this time try will learn to do the right thing that is to go against the bad guys n not a whole nation …

      • avatar

        Nothing to be upset .M..Just a step forward to do it correctly. N not to coarse people into giving up their resident …. Things do not appear to be like it is mm.n the AG was right n did her job as a Real American ….. Stood up against like our forefathers would have done

          • avatar

            Read my feedback n your response….This is you main improvement you need to do about yourself…U never understood what I meant.

            “I just Happen”… N if I did not change it that means u wat it that way……PRA dice freedom n sense if space….The world doesn’t run as per what you think you see…..

            The same with all this situation….. Wrong perception of reality n freedoms…..

          • avatar

            If I did not change it it means I left it that way……Nothing wrong with it …..The above is just feedback for you to reflect on….I respect you n your opinion s it dies not mean I agree at all times.. .
            Also I understand what you meant but u never tried to infer n realize I do it that way……Interesting for you n me….. Something new everyday to learn, realize. Be aware if or be reminded of Leland….. That also goes for me…..So to accommodate n not making u feel uncomfortable from now on……Will say “that is me”… at the end of my feedback … ..

          • avatar

            N not the least….My apologies not my intention what you inferred by it…Only a different name w a different device … A say of life…Freedom to choose …

    • avatar

      **** Tight Leland

      The Supreme Court overturns 83% of the 9th Circuit appeal cases….its not a slam dunk Trump win, but almost.

      And other GREAT news, the GOP [Dems too?] Senate/Congress is getting off their bottoms and earning their tax dollar pay like Trump [although I don’t believe Trump even gets a government salary]. The GOP is drafting a bill to smash up the liberal biased 3rd Circuit Court by creating a larger 12th Circuit, liberal Washington State, etc. are being assigned neutral judges IOWs, assuming the brand new bill flies. They’re using the heavy 3rd Circuit case backup and necessary work distribution as a neutral political reason to block Dem backlash.

      Other new great news….just tweak the old Executive Order [change a paragraph and delete] and publish it soon again….its a possibility and we’ll learn more news about it soon.

      Meanwhile….Devos took over the Education budget and Sessions rule of law is in place….what does that mean to the “dinosaur” sanctuary states and cities? Plenty, the hypothetical stripping of illegal aliens from the public school budget alone saves approximately $10K/yr/student federal tax dollar support from Education….think about that you open border rich elite…your cheap illegal slaves can’t keep their children in public schools. They can pay for their own private charter school, perhaps that will be legal under Devos….LOL….welcome to commercial rate $20/30/hr house cleaners, gardeners and care givers [with 40 hour weeks and health care too] you greedy open border rich tax evaders. Teacher unions will have to lose dues….LOL

        • avatar

          A lot of people are crying the blues over that woman who got deported for using a stolen Social Security number, calling it a “victimless crime”. There is a victim. Frequently the owner has problems with things like loans, credit, and even getting a passport. And SS will not even tell you if someone else is using it, much less tell you who it is. It should be a law that the first person recorded as being issued that number should have the right to know if someone else is using it and who it is.

          • avatar

            Not accurate n precise …. otherwise they lose the SS or they get caught…..in their majority the owner benefits from the taxes paid to the System…..

          • avatar

            Exactly Leland

            Add the Big Three Credit Bureaus and Banks that know that FELONY identity fraud is rampant among hoards of illegal aliens, yet could care less about this anarchist behavior. Shame on them all!

            Lock ’em up???

  3. avatar

    I would love to know what Japan’s prime minister thinks of all the dumb people in this country who think it’s a great idea to bring refugees from terrorist hotbeds into this country. I am sure they laugh at the dumb Americans who beat them in World War 2 but since then have ruined their own country.

    After all, they get to go back to the incredibly safe Japan that hasn’t had a single terrorist attack carried out by an Islamic terrorist, because the Japanese aren’t dumb enough to bring these people into their country. We won World War 2, but it looks the Japanese won the peace.

      • avatar

        What exactly is a “sweeoer”? I can see why average test scores of American students in all areas tested continue to fall further and further behind advanced countries like Japan and are trending down closer towards countries like Mexico.

        • avatar

          So you are saying a Japanese is more advanced than you are…you might be right .. I can see that.

        • avatar

          how about o = p? and a typo n did not bother to fix it? just to see your deficient vision and imagination……