Tag Archives: Ninth Circuit

Politics Undermine U.S. Courts, Part 2

The New York Analysis of Policy & Government concludes its two-part look at how politics are undermining confidence in the impartiality of American courts.

 The Daily Signal characterizes the change in composition of the courts as a revolution that has been “comprehensive, dramatic, and under the radar…”

The Washington Times worries that our court system has become politicized. “The Obama administration flooded it with activist judges that ruled in favor of advancing liberalism, to the detriment of our national sovereignty. So it’s no surprise the courts would work to stop Mr. Trump’s agenda.” In 2003, that newspaper wrote: “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.”

In an excellent analysis in the Daily Wire, Ben Shapiro  notes that the logic behind the various 9th Circuit decisions could invalidate “virtually all immigration law…The Court also seems to establish a brand new interest not found in the Constitution—protecting the due process rights of illegal aliens, a right that doesn’t exist.”

Joseph Klein, in describing an initial 9th circuit travel ban ruling, commented in Front Page that  “… therein lies the heart of the matter.  This is not a ruling of law, it’s a statement of political opposition to the winner of the 2016 election, a piecemeal attempt to impose the personal views of Ninth Circuit judges over the lawful results of an election.”

How serious a threat is this? 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.”

Last year, as reported in the Weekly Standard, Supreme Court Justice Ruth Bader Ginsburg’s engaged in an outburst against Donald Trump that was roundly criticized by people of all political stripes. “Insofar as her comments suggested a clear bias about cases that could come before the Supreme Court, they were clearly a mistake and a departure from the norms of Court behavior…Justice Ginsburg later apologized…For a long time it has been clear that the four Democratic-appointed Supreme Court justices generally vote in lockstep on political issues of importance to the president. When there are public calls for bipartisanship on the Court, this is invariably code that one or more Republican-appointed judges should vote with their Democratic-appointed colleagues. And they often do, as in the case of Obamacare and college affirmative action. It never means the opposite.”

The Obama Administration’s diminishment of the objectivity of American Courts was blatant. A Stanford Law Review article describes it:

“Congress and the President [Obama] have belittled the Court. President Obama told the public at the 2010 State of the Union address that ‘the Supreme Court reversed a century of law’ with its Citizens United decision and suggested that the Court opposed honest elections. The ensuing image was even more damaging. With 48 million Americans watching, the camera panned to a cadre of expressionless Supreme Court Justices sitting in the front row…Politicization of the Court is dangerous because it primes the public for a power grab by the political branches. If the Court loses authority to check political power and make unpopular decisions, it cannot enforce the Constitution with the same effectiveness. Without enforcement of the Constitution, Congress is free to invade constitutional rights and exceed its lawful powers.”

Politics Undermine U.S. Courts

The New York Analysis of Policy & Government takes a two-part look at how politics are undermining confidence in the impartiality of American courts.

The recent action by 9th Circuit U.S. Judge Derrick Watson limiting President Trump’s travel ban has implications far more broad than that affecting a single executive order.

Tolerating a judge (from the Circuit which has more of its decisions overturned than any other area) who issued a ruling that conforms to his political preferences rather than legal precedent or statutory and constitutional law undermines the entire concept of an impartial legal system.

The lack of legal merit in Judge Watson’s decision is clear.

As noted in the Daily Caller regarding a prior 9th Circuit ruling on the travel ban “The power over immigration is exclusively reserved to the Congress, and its power is plenary, which means total, complete and unreviewable. Congress delegated certain powers to restrict immigration to the President by enacting 8 U.S.C. § 1182(f), which says that when the President (any 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 is authorized to ‘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.’ Having granted this authority to the President, only Congress can revoke it and no federal court, not even the Supreme Court has the power to interfere in that presidential authority short of challenging the constitutional power of Congress to delegate certain of its plenary powers over immigration to the President. It is simply not within the power of any state to interfere with such a presidential decision, as immigration-control advocates found during Obama’s tenure in office. Obama did exactly the opposite, he ordered our Border Patrol officers NOT to deny entry to any aliens who illegally entered the United States, and when Arizona and other states challenged this policy in court on exactly the same sort of grounds of detrimental impacts to the people of Arizona caused by rampant and uncontrolled illegal immigration, Obama simply invoked the plenary federal power over immigration policy and did nothing to secure our borders.”

In response to the 9th Circuit Court judge’s decision, Attorney General Jeff Sessions stated on media outlets that “I got to tell you it is a point worth making that single sitting district judge out of 600, 700 district judges can issue an order stopping a presidential executive order that … is fully constitutional designed to protect the United States of America from terrorist attack….I really am amazed that a judge … can issue an order that stops the President of the United States from what appears to be clearly his statutory and Constitutional power.”

Lawnewz described the appropriate criticism, by five respected jurists, of a prior 9th Circuit Court decision. They pointed out the deep legal problems with travel-ban related actions of the 9th Circuit, including “its a-historicity, it’s abdication of precedent, and its usurpation of Constitutionally delegated Presidential rights…claiming a consular officer must be deferred to more than the President of the United States; claiming first amendment rights exist for foreigners when the Supreme Court twice ruled otherwise; the claim that people here could claim a constitutional right for someone else to travel here, a decision specifically rejected by the Supreme Court just a year ago…They go on to identify other ‘obvious’ errors. [the decision]…’never once mentioned’ the most important statutory authority: section 1182(f) of title 8…[as well as failing to refer to] the important Presidential power over immigration that all courts, Congress, and the Constitution expressly and explicitly gave him in all of its prior precedents.”

Stream.org  points out that  “…the politicization of the courts was one of the most profound actions of the Obama Administration.” The publication emphasized that “Sen. Charles Schumer (D-NY) gloated in 2014, ‘one of the most profound changes this Congress made was filling the bench’ with Obama’s appointments of federal judges. He went on: ‘This will affect America for a generation, long after the internecine battles on legislative issues are forgotten…Obama got 329 federal judges appointed to the circuit and district courts, all lifetime appointments.”

The Report concludes tomorrow.

Judicial Overreach Concerns Grow, Part 2

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

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.

Judicial Overreach Concerns Grow

The New York Analysis of Policy and Government presents a two part examination of judicial overreach in relation to the President’s travel ban executive orders. 

Progressives cheered when Ninth Circuit judges blocked President Trump’s travel ban, even though the constitutionality of the move was clearly problematic.  The usurping of power by one branch of government over another, however, can lead to disastrous consequences.  One need only look at the recent news from Venezuela to understand where this can lead.

The high court of that South American nation, (which, despite its vast oil wealth has been impoverished by a dictatorial socialist government) has dissolved the National Assembly.  The Court and President Nicolás Maduro are in concert, and the legislative branch was the last vestige of dissent. Those opposed to Maduro’s strong-man rule captured a majority of the National Assembly in 2015 as Maduro’s crushing economic mistakes and political oppression worsened.

The extraordinary move is not one sanctioned by Venezuela’s constitution. Similarly, the recent rulings of the U.S. Ninth Circuit restricting President Trump’s executive orders regarding travel from nations presenting a threat of terror fail to recognize the American Constitution’s Separation of Powers. Indeed, they rest on premises that even a first year law student should recognize as being without merit.

Joseph Klein, writing for Front Page, outlines why the Ninth Circuit has acted above its authority:

“’The exclusion of aliens is a fundamental act of sovereignty,’ the Supreme Court concluded in a 1950 case. “The right to do so …is inherent in the executive power to control the foreign affairs of the nation…Congress reaffirmed the president’s power with respect to decisions excluding aliens in the Immigration and Nationality Act (“INA”), which was originally enacted in 1952, and has been amended several times, including in 1996. The following language has remained intact: “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.” (8 U.S.C. § 1182(f)).

In an excellent analysis in the Daily Wire, Ben Shapiro  notes that the logic behind the Ninth Circuit decisions could invalidate “virtually all immigration law.” Allowing a state to sue in federal court on the grounds that there could be potential harm to some of its citizens would open the door to the disuniting of the nation.  What could Washington do that doesn’t have some potential impact on the states? The Court complained that the federal government did “little more than” state the fact that it has an interest in preventing terrorism. Have the judges not been aware of instances such as 9/11, and the numerous other assaults? The Court also seems to establish a brand new interest not found in the Constitution—protecting the due process rights of illegal aliens, a right that doesn’t exist.

Finally, in a repudiation of common sense as well as common law, the Court pinned its decision not on the actual executive order in question, but on the campaign and other comments of President Trump.

And therein lies the heart of the matter.  This is not a ruling of law, it’s a statement of political opposition to the winner of the 2016 election, a piecemeal attempt to impose the personal views of Ninth Circuit judges over the lawful results of an election.  It is, in essence, quite similar to what was done in Venezuela.

The Report concludes tomorrow

Ninth Circuit Puts Politics Over Law

There is a reality surrounding the Ninth Circuit Court’s upholding of a stay on President Trump’s temporary travel ban: It is based on that Court’s political preferences, and not on the law. It is a reflection of an ongoing and desperate attempt by the left to nullify by disruption and force the election of 2016.

There is no Constitutional provision, no statutory law, and no legal precedent that could reasonably be cited as the justification for the opinion.  There is not even political precedent to back it up.  Former President’s Carter and Obama, during their tenures in office, engaged in similar acts, without facing the obstacles now levied at the current Administration. President Bill Clinton deported 12 million illegal aliens, without the opposition of the same forces that seek to discredit Trump.

The Constitution has no provision allowing the courts to set this type of policy.  Further, Statutory law Title 8, Section 1182 of the U.S. Code explicitly, clearly, and undeniably provides the president with this authority.  The Court ignored both facts in its decision. A first-year law student would be given a failing grade if he or she wrote a moot court opinion without noting those key facts.

This blatant judicial abuse is a clear challenge to the entire concept of a nation governed by law, not mob rule. It is, in essence, an attempt to repeal de facto the Constitution’s separation of powers and the entire framework devised by the founders of the nation.

Supporters of this inappropriate move have frequently cited the “rights” of nonresident aliens in the matter.  That argument is also, quite bluntly, ridiculous as well. A nonresident alien has no standing to challenge a U.S. law.  If that were the case, American government would be held eternally hostage to the rest of the world; U.S. sovereignty would effectively cease to exist.

Since the left unexpectedly lost the election of 2016, it has engaged in repeated attempts to nullify the lawful result through means of mob rule. Those disappointed by the outcome have taken to the streets and campuses of the nation, engaging in violence and mass disruption in what has amounted to a collective temper tantrum aimed at overturning the ballot. The College Fix  reports that conservative-leaning students face intimidation on campus. Numerous reports of pressure on students to conform with the leftist views of university leaders have been noted, as well.

It’s all part of a growing trend—the left has not hesitated to threaten the personal safety and constitutional rights of those that dare to lawfully oppose their actions and goals.

Rather than rely on peaceful discussions, facts, or the political process to advance their agenda, leftists have, since election day, engaged in intimidation in their attempt to gain by mob rule what they didn’t achieve at the polls. It should not be overlooked that there have been 12,000 tweets calling for the assassination of President Trump. Even before he took the oath of office, there were calls for his impeachment.

In an effort to raise emotional hysteria instead of factual arguments, leftists have attempted to impose a false narrative of a president who is anti-female, and anti-gay. The charges are so startlingly false that they serve as clear examples of the desperation of a movement that, despite having substantial control of the national agenda for the prior eight years, has failed to achieve any gains for the American people, and has left much of the nation in a far worse state than when they won the White House.

One of the most publicized and well-organized but utterly false attempts to rouse mass protests over the new Administration has been the “women’s march,” symbolized by knitted pink hats. It is ironic that over the past eight years, the actions of President Obama in breaking prior precedent by negotiating with at least one terrorist group, the Taliban, utterly escaped the ire of those who have ordained themselves spokespersons for women’s rights. The Taliban, as have other Islamic extremist groups whom the former President has been reluctant to confront honestly, has engaged in acts amounting to the mass intimidation, murder and mutilation of girls and women who merely seek to go to school, get medical care from male physicians, or simply live with some measure of equality.  This somehow escaped the notice or concern of organized women’s groups.  It should not escape notice that Linda Sarsour, as noted by Breitbart, was a principal organizer for the women’s march.  She is well known, Breitbart notes, for her “anti-feminist views and outrageous attacks on anti-Sharia women leaders.”

However, those same groups eagerly organized mass demonstrations, starting just one day after the inauguration, against a new president who has vehemently opposed those heinous acts.  Obviously, the motives have less to do with women’s rights than with the standard goals of left-wing politics.

A similar approach can be seen in attempts to portray the new administration as being biased in matters affecting the LGBT community. As noted in The Hill, “There are no signs that the LGBT community will be in the crosshairs of a Trump administration. In fact, that evidence is just the opposite.”

The tactic the left is engaging in is clear. Rouse popular hysteria by false claims of attacks on various groups. File bogus claims in courts willing to defy Constitutional and statutory law to achieve political goals (the highly politicized Ninth Circuit, notes the Gateway Pundit  has been overturned more than any other similar jurisdiction “a startling 19 times (79 percent), in 2010, three times as many reversals as most circuits had cases before the Supreme Court. The same pattern continued in the 2011 (71 percent) and 2012 terms (86 percent), when the Ninth Circuit was reversed more than twice as many times as most circuits had cases before the Court.”

The left’s  willingness to abandon law, the Bill of Rights, the Constitution, and even common civility in its attempt to discredit the legal result of the 2016 election, and the collusion of the Ninth Circuit in that pursuit, deserves universal condemnation.