The New York Analysis of Policy and Government concludes its review of the Ninth Circuits’ overreach.
Critics of the U.S. Court of Appeals Ninth Circuit decisions on President Trumps’s travel ban executive orders have been blunt, and rightly so.
Robert Charles writing for Fox News notes that “The U.S. Court of Appeals, Ninth Circuit, has issued one of the most ill-conceived, poorly reasoned opinions in memory, even for that notoriously activist Circuit…Whether motivated by antipathy for the president, love of limelight, or just fundamentally misconceiving their role, the Court stumbles into embarrassing contradictions, makes baseless assumptions, shows indifference to law and history… The job was simple: Decide whether, given the President’s Article II prerogatives and authority as “Commander in Chief,” a single federal judge – one of 3,294 – can issue a sweeping, conclusory, nationwide “temporary restraining order” (TRO) halting implementation of a national security Executive Order (EO). If the TRO was unjustified, the Ninth Circuit was duty-bound to issue a “stay,” effectively ending the TRO and permitting implementation by the Department of Homeland Security of the EO. Instead, they ducked, and insensibly upheld the TRO. They played to the street, and tried a legalistic putsch. Fortunately, the opinion is likely to be reversed by the Supreme Court – but that will be a while…”
Matt O’Brien, writing in Lifezette called the decision “ a deliberate attempt to shift control over immigration from the executive and legislative branches to the judicial branch in order to grant foreigners a constitutionally protected ‘right’ to enter the U.S. The 9th Circuit’s decision is way off-base.” He notes that “The Supreme Court has previously held that federal courts are prohibited from hearing cases asking them to declare illegal the exercise of a power that the Constitution assigns exclusively to the other branches of government. This rule is referred to as the ‘Political Question Doctrine.’ It preserves the separation of powers by keeping the courts from assuming functions that should be performed by the legislature or the executive. The role of the courts is to interpret and apply the law, not to set the national security agenda, conduct foreign affairs, or craft our immigration policies.”
Daniel Horowitz, author of the study Stolen Sovereignty, wrote a Conservative Review article in which he expressed his deep concern over the actions of the Ninth Circuit relating to the Travel Ban, noting that its actions:
- Allows ANY and ALL refugees to enter the U.S.
- Stops President Trump from executing the law, which Congress passed
- Circumvents Congress’ authority. Invents new constitutional right for non-citizens
- Encourages ‘judge shopping’ to assert tyrannical authority over congressional and executive branches
- Ignores American history, law, and tradition
- Furthers what modern courts have done at chipping away American sovereignty
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Horowitz proposes several means to address the Ninth Circuits abuse: “Congress must use its [Constitutional] power and immediately move to strip lower courts of jurisdiction to grant rights to any foreign national to enter or remain in the country against the law unless statute explicitly preempts the president’s action. This way, plaintiffs would have to appeal directly to the Supreme Court, which only has the bandwidth to deal with a limited number of cases. Nobody can dispute Congress’ supremacy over the lower courts because Congress created them. Alternatively, Congress, which has complete control over the administrative procedures of the courts, could prevent lower courts from issuing nationwide injunctions against immigration enforcement acts outside of their respective districts and circuits.”
Horowitz believes the House of Representatives should bring articles of impeachment against rogue judges.
Professor Robert Gagnon quotes Thomas Jefferson’s concern with excess power given to federal judges: “Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . .The opinion which gives to the judges the right to decide … not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” (Letter to Abigail Adams, September 11, 1804)
A more recent but similar thought could be found in a 2003 Washington Times editorial: “One of the greatest contemporary threats to the survival of republican government arises from the courts. Increasingly, judges are behaving like black-robed autocrats, not simply ruling upon the law, but making law…outrageous cases…suggest our American system of separated powers, checks and balances, is seriously out of balance…The Framers limited the power of the courts just as they did the powers of the other two branches of government.”
The Courts are not the appropriate forum for the debate over President Trump’s travel and immigration policies.