COMMENTARY: Rebuke of Rogue Judges Signals Victory for Travel Ban


President Trump issued two Executive Orders requiring a temporary ban on immigration from a short list of Middle Eastern countries. Federal District Court judges issued temporary restraining orders (TROs) that invalidate both presidential orders. The judges claim that the ban discriminates on the basis of religion and national origin. A three-judge panel from the 9th Circuit Court of Appeals refused to reinstate the ban. Although they had no authority to do so, a handful of liberal judges have effectively shut down the executive branch of the federal government.

The air is beginning to clear. Five judges from the 9th Circuit Court of Appeals have issued a dissent that obliterates the legal basis for the District Court rulings. This opinion is not binding on the issue but it does forecast a big win for the administration. In the federal court system, the District Court is the lowest. Appeals from District Court go to the Circuit Court of Appeals, and finally to the Supreme Court. The five Court of Appeals judges hope that the administration will continue to appeal the District Court rulings so they can be overturned.

The dissenting five-judge panel referred to the District Court decisions as full of “manifest” and “fundamental” errors. What follows is a breakdown of the panel’s opinion in everyday English for the benefit of the average reader who has not attended law school.

  1. The temporary restraining orders violate existing rulings by the Supreme Court and the Circuit Court of Appeals. The precedents say that so long as there is one bona fide reason for the president’s action, it is not reviewable by the courts. If a reason is given by the president, a judge cannot overturn an Executive Order because he/she does not agree with the reason. In this instance, the countries identified by the president had all been previously identified by either Congress, the Secretary of State, or the Secretary of Homeland Security as areas of concern because of terrorist activity. “The President’s actions might have been more aggressive than those of his predecessors,” the dissenting opinion declared, “but that was his prerogative.”
  2. In addition to ignoring legal precedents, the District Court rulings ignored the applicable statute, section 1182(f) of title 8, that gives the president power over immigration. That statute states quite clearly 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.”

  1. The panel rejected the argument that the ban amounts to discrimination against Muslims based on their religion. A recent ruling from the Court of Appeals affirms that the president’s ban does not discriminate against Muslims. The reason: non-Muslims from the designated countries are subject to the same restrictions as Muslims. If a Christian from Yemen tries to enter the US, he falls under the same ban that applies to Muslims from Yemen. And if it is a ban on Muslims, the courts still cannot challenge the president’s decision:

“Even if we have questions about the basis for the President’s findings—whether it was a ‘Muslim ban’ or something else—we do not get to peek behind the curtain.”

  1. Claiming that foreigners have first amendment rights is contrary to Supreme Court rulings. The court has held that due process and equal protection do not apply to non-US citizens. Persons in the US cannot claim a constitutional right for foreigners to travel to the US.
  1. A judge cannot demand that the president produce classified information to explain his decisions. The Supreme Court has ruled “the President does not have to come forward with supporting documentation to explain the basis for the Executive Order. The government may provide more details ‘when it sees fit’ or if Congress ‘requires it to do so,’ but we may not require it.”

More to the point, the five justices have exposed the destructive tendency toward overreaching by liberal members of the judiciary.

 “Whatever we, as individuals, may feel about the President or the Executive Order,” the panel stated, “the President’s decision was well within the powers of the presidency… We cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy.”

According to attorney Robert Barnes, writing in Law Newz:

“As the five judges wisely note: the great losers of the [lower court] decision are those that believe elections matter and the rule of law deserves respect, as both were sacrificed for results-oriented judges who ignored the law and evaded the historical precedent to try to reverse the policy outcome of the recent election.”

A survey by Rasmussen Reports found that 68% of Americans support the president’s order and believe the courts should abide by legal precedents and the Constitution. The rejection of Trump’s travel ban is an example of how the judiciary ignores the law in order to play politics. My hope is that the dissenting opinion represents a movement by the judiciary to reform itself.

Ed Brodow

Ed Brodow is a negotiation expert, political commentator, and author of In Lies We Trust: How Politicians and the Media Are Deceiving the American Public.

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