Yesterday, the 9th U.S. Circuit Court of Appeal upheld a lower court’s suspension of President Donald Trump’s travel ban on people from seven Middle Eastern and African countries. I have been contending, as have others, that under the Constitution the appeal court had no business interfering with the executive functions of the presidency. The appeal court’s motivations were political. Is that true or just partisan bluster?
Here are some resources for readers to use to confirm my position, which I believe reflects our Constitution.
1. The Constitution invests the president with the power to execute the laws and the acts of the Congress (Article II, Sec. 1; Article II, Sec. 3).
2. The Constitution names the president Commander in Chief and invests him with the power over our armed forces (Article II, Sec. 2), i.e., our common defence (our Founding Fathers used the British spelling). The president’s role as Commander in Chief bears the burden of the work of those armed services and the diplomatic efforts (Article II, Sec. 2) to “execute” (i.e., to pursue or perform to completion) the overarching purposes of the Constitution: a. “form a more perfect union”, b. “establish Justice”, c. “insure domestic Tranquility”, d. “provide for the common defence”, e. “promote the general Welfare”, f. “and secure the Blessings of Liberty to ourselves and to our Posterity… (Preamble).”
To whom do those overarching purposes apply? The Preamble answers that those purposes apply to “We the People of the United States”, who gave their consent to be governed thusly. Does the Constitution mandate that people who are not citizens of the United States be covered by those purposes? No, it does not. If the federal branches of government were to operate in such a manner as to treat foreigners as if those overarching purposes applied to them, such operation would contravene the specific definition made by the Constitution.
Constitutional rights can be implied by virtue of the language, tenor, and pattern of thought transmitted by the Constitution. We know the Founding Fathers did not want to enumerate every right of a citizen for fear that the absence of mention would be taken to mean a right did not exist. However, the possessors of those rights cannot be implied. The possessors are “we the people of the United States”, i.e., citizens. Slaves cannot. Foreigners cannot. When slaves were liberated and confirmed liberated by amendments XIII, XIV, and XV, the Constitution was changed and blacks became citizens, as they should have been from the start. The Constitution only makes citizens of those born and naturalized into the United States, ergo, Constitutional rights only pertain to them. Analysis by a writer on redstate.com not only misses this key point, but is faulty. The writer desired to justify the reasoning of the 9th Circuit so he could lay the blame on Trump’s administration.
Not all criticism of Trump is anti-Trumping, but the redstate.com writer needed to blur who enjoys the rights of citizenship and misplace the weight and application of due process so he could blast the administration. He completely ignored the statutory powers duly legislated by Congress that authorize both the power and purview of the president and others in respect to inadmissible aliens, the exceptions, and the methods for dealing with those exceptions. He did not have a feel for the facts and the law, but he did have a feel for the way the 9th Circuit thinks, or misthinks, so he was correct on how they would come down.
Below I provide some resources, including my own analysis.
Did the 9th Circuit Court of Appeal render a sound decision? According to Harvard Law Professor and Democrat Alan Dershowitz, no. Here is the video link to an interview he gave to MSNBC:
Did the 9th Circuit basically overstep its bounds and make up new law? Here is a report on Fox News and commentary from that network’s Judicial Analyst, former federal judge Andrew Napolitano:
Finally, allow me to deal with the notion that the 9th Circuit stands on firm ground anyway because of its demand for due process for those whose visit or return trip to the United States was blocked by the president’s travel ban.
In addition to the Constitutional mandate and powers invested in the president, Mr. Trump owns authority conferred on the office by Congress and its statutory law, Title 8 U.S. Code Section 1182(f). Paragraph “(f)” comes after a ton of inadmissibility situations and rules, including exceptions, to state flatly that:
“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.”
Congress, a bunch of lawyers, aided and abetted by tons of legal counsel, enacted into law this policy that grants the president authority to “suspend” or “impose restrictions” “he may deem to be appropriate” on entry to “any aliens”, “all aliens”, or “any class of aliens” when “the president finds” their entry “would be detrimental to the interests of the United States”.
Please note that Section 1182 deals with “Inadmissible Aliens”, and the other paragraphs in the section provide the exceptions to their provisions under the inadmissibility law. Paragraph (f) contains no exceptions. None. Zero. Zilch. It is intended to be that way and is written that way. The president finds what is detrimental to the interests of the United States (interestingly, take note, 9th Circuit, no mention is made of a requirement for a level of exigency, though the circumstances listed are exigent), and he suspends or restricts accordingly for a period of time.
In short, the federal statute gives the president broad power and discretion; the 9th Circuit doesn’t want the president to have it. The 9th Circuit thinks IT should have that power.
Constitutionally and statutorily, the 9th Circuit has abused and misplaced the question of due process, first, because the travel ban does not affect citizens of the United States, and second, because the nature of a suspension or restriction, including as described in paragraph (f), is its atypical, abnormal, nonstandard employment to meet an exigent situation, one that is determined by the president and for which there is no review by any court. In other words, any court would be out of bounds second-guessing the president on whether or not what he found was really detrimental to the interests of the country. That is not the purview of the judicial branch, Constitutionally or statutorily.
Third, if we were to assume for the sake of argument that noncitizens enjoyed the right of due process in respect to entry into these United States, that due process would be applied after the effect of the ban, not before it, otherwise what would be the point? If a person with a deadly, contagious disease challenges a ban on his entry into the country, we’re not going to suspend the ban so he can come into the country, contaminate us, then determine at a due process hearing that he didn’t have justification to enter! That’s neither Constitutional nor rational. It certainly isn’t safe.
The ban is temporary, not permanent. It’s not a penalty or punishment; it’s a security measure. It isn’t intended to last forever, only as long as the situation that generated it persists. We make our own citizens undergo searches and seizures at airport checkpoints without due process because they are a security measure. If we held due process for every citizen before they entered the walkways to airport gates, we would have to kiss security measures goodbye. We often do the same at stadiums and concerts and, get this 9th Circuit, courthouses!
That’s right. We don’t hold due process hearings before someone enters your 9th Circuit stenchhouse of extremism and judicial tyranny. You search ’em and seize ’em without any hint of wrongdoing or suspicion and ask questions later. Ain’t any due process about it. Hypocrites! You don’t even live up to your own standards. You protect yourselves but spit on the president’s efforts to protect common American citizens.
Not a surprise, really. The 9th Circuit’s extremism, politics, partiality, and plain old discombobulation have led them to ignore or even reject their own precedents, such as in the restaurant tipping cases (http://www.restaurant.org/News-Research/News/U-S-court-of-appeals-for-the-ninth-circuit-overtur). A man dressed up as a woman – painted face and lips, stockings and heels and all – is still a man. A wolf in sheep’s clothing is still a wolf. And a politically, ideologically motivated ruling is just that no matter the “legal questions” and legalese with which a panel of “judges” dresses it up.
The 9th Circuit Court of Appeal is a bench of usurpers and tyrants burglarizing the executive branch because they want to obstruct the implementation of the president’s policies, policies that would increase American safety. They have violated the checks and balances of the Constitution so that they could impose their globalist will. The holy 9th Circuit’s will be done, and they say, “To hell with law and order, and checks and balances, and judicial restraint, and America first!”
Thank God Jeff Sessions was finally confirmed as attorney general in spite of delaying tactics by the obstructionist Democrats who want the country to fail and their defeated ideology to be made mandatory. He’ll help save the day.