Apart from the unremitting attacks on Republicans by paid mobs and Democratic congressmen desperate to help the base forget they lost big time and will continue to do so in 2018, the big news this week has to be the Ninth Circuit Court of Appeals granting itself the right to dictate foreign policy despite the clear words of the Constitution and federal law granting the president the absolute right to preclude entry to any alien he thinks poses a threat to national security.

Following a nonsensical decision by federal court Judge James Robart in Washington state staying the suspension of entry from seven countries, the administration sought to overturn it -- the most popular Trump executive order -- in the Ninth Circuit, the largest and most frequently overturned federal Circuit Court.

In the meantime, the Department of State is bringing in refugees at a furious rate:

1,618 have come in since Trump first signed an EO to pause the refugee program for 120-days -- and less than a week since Judge Robart ruled on a portion of the EO.

Of the 1,618, the following came from countries the Administration was particularly concerned about. And, remember, although there were 7 countries of concern (90 day pause from 6 of them) Syria was to be halted indefinitely:

Iran (84)

Iraq (151)

Somalia (68)

Sudan (24)

Syria (248)

No refugees came from Libya or Yemen, however, 78 came from Afghanistan in less than a week -- a country I maintain should have been included from day one. (This notion that the 7 countries targeted had already been identified by the Obama Administration so, we are told, the Trump team thought they had some sort of PR coup with the media was a dumb idea. The media hardly mentioned it.) 

From the Arab countries the travel ban received some support and no outright criticism. 

In refusing to reinstate the travel ban, a unanimous panel of three Ninth Circuit judges made at least four bizarre rulings and has now established itself as the arbiter of foreign policy. In so overreaching its authority, it will deserve blame if any of the newly admitted refugees engages in criminal wrongdoing or terrorism. As well, it opened the door to major changes in that Circuit and the federal judiciary as a whole.

The Ninth Circuit Errors of Law

1. It improperly granted the states of Washington and Minnesota standing to challenge the travel ban largely on behalf of scholars in their state universities. This dangerously stretches the concept of “standing” to bring suit to a preposterous level and is without any precedent that I am aware of.

2. It claimed to itself the right to determine the legality of the executive order. Based on the president’s understanding and in his sole discretion, the law provides he may admit or exclude from entry based on his view of the interests of the United States.” Under this provision, the Carter Administration barred all entry by Iranian citizens. 

Obama barred entry from Iraq for six months; and the Clinton administration sent Elian Gonzales back to Cuba. As Ann Coulter reminds us, the federal court in the Gonzales case ruled, ”It is the duty of the Congress and of the executive branch to exercise political will,” and “in no context is the executive branch entitled to more deference than in the context of foreign affairs.”

She reminds us as well of the recent court ruling denying Arizona’s right to enforce federal immigration laws then being ignored by the Obama administration:

The court conceded that hundreds of thousands of illegal aliens were arrested in Arizona each year, that they were responsible for "a disproportionate share of serious crime," and that illegals constituted nearly 6 percent of Arizona's population. 

But Arizona was powerless to enforce laws on the books -- if those laws happened to be about immigration. The president's authority over immigration is absolute and exclusive, as part of his authority over foreign policy. 

3. The court inexplicably and without precedent expanded due process rights to citizens abroad from even jihadist and failed states known to be havens for jihads. At National Review David French summarizes this idiocy:

The court is going to stop enforcement of a temporary pause in entry from jihadist and jihadist-torn countries (while in a state of war against jihadist terrorists) because there are “potential claims” regarding “possible due process rights” even of illegal aliens? That’s not deference. Moreover, if you actually follow the cited legal authorities, you’ll see that none of them are on-point with this case, and all of them deal with highly-specific, individual legal claims. Yet the court used this “authority” to grant sufficient due-process rights to potential immigrants to halt enforcement of a wartime executive order motivated by the desire to protect America from the rising threat of jihadist terror. Astonishing.

4. The Court indicated it might consider, in any final determination, Trump’s campaign statements. French remarks, sensibly:

While there is precedent for considering lawmaker motivations in the Establishment Clause context, the consideration of sweeping campaign statements (about a different kind of measure entirely) push that precedent to the breaking point. Finally, and crucially, the court made a statement near the end of its opinion that is deeply, deeply troubling. In discussing the evidence before the court, the panel says this: The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. [Snip] whether an attack has been completed in this country is not the standard for implementing heightened security measures. The president doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike. Indeed, that’s the goal of national defense — to prevent attacks, not respond after the carnage. 

What Next?

As various opinion writers and legal scholars debated what response by the president would be appropriate, especially given the fact that his nominee for the vacant seat on the Supreme Court remains unconfirmed, the general feeling was that it would be wise to simply can that executive order and rewrite one or more in more tightly worded language that includes evidentiary bases for the ban from each country. (It should be noteworthy that there has been no objection to the suspension from Moslem countries themselves.)

Just as those often thoughtful suggestions were written and published, the Ninth Circuit offered up another surprise.

In a rare move, one of the judges on the Ninth Circuit of Appeals has made a request that a vote be taken as to whether the order issued by the three judges Thursday night should be reconsidered en banc, which means before 11 federal judges of the Ninth Circuit. It’s not clear if this means that this judge (who was not named in the order) believes that there are enough votes to overturn the lower court’s decision which put a temporary halt on Trump’s controversial travel ban or if the judge simply wasn’t satisfied with the panel’s decision. Regardless, it is an interesting move that could bode well for President Trump, and throws yet another legal twist into the ongoing court battle between Trump and those trying to prevent his controversial immigration ban from being enforced. [snip] federal judges are allowed to call for an en banc vote themselves even if neither party petitions for a rehearing.

Chief Judge Sidney Thomas of the 9th Circuit Court has instructed both Trump’s DOJ team and lawyers for the State of Washington and Minnesota to file briefs due by Thursday February 16th, stating whether they believe the motion should be considered en banc. To get a rehearing, a majority of the 29 active judges on the court would need to vote in favor.

I don’t think it likely that the largely Democratic court will go for a rehearing. If it does, the decision will likely be significantly altered. If it doesn’t, you can be sure, as Professor Glenn Reynolds notes on Instapundit, those circuit judges unhappy with this nonsensical opinion will write “blistering dissents”

In the meantime, focus once again turns on the overly large reach of the Ninth Circuit, which has long been the subject of Congressional efforts to reshape and break it up into smaller, more responsive, and less overburdened circuit courts.  

Congress has the Constitutional right to determine the number of lower courts, the size of their composition and even the scope of their jurisdiction. It takes only a majority vote in the House and Senate. Just maybe, one judge on the circuit -- the one who asked for a rehearing en banc-- read the Constitution and remembered this.

Advantage Trump

From the Conservative Treehouse:

President Trump never really needed the majority parts of the executive order to carry out the security agenda.  However, using the [executive order] provided a highly public approach toward showing the American electorate he was fulfilling a campaign security promise. Tightening the visa approval process and executing “extreme vetting” doesn’t require anything except a policy and procedural change.

If President Trump does nothing, the underlying challenges to the Executive Order continue forward in the courts, while he gets his SCOTUS pick – Gorsuch -- on the bench.  If he so chooses, the DOJ can eventually bring the case to the Supreme Court, where almost everyone admits the Ninth Circuit and Judge Robart’s decision will be overturned and all of the protestation from the left will have been for naught.

In the interim of the slow case proceeding, ANY instance of violence and terrorism provides President Trump the opportunity to use his bully pulpit -- and Twitter -- to hang the occurrence, foreign or domestic, like a millstone around the neck of Democrats up for elected office in 2018.

There is no downside on the domestic security agenda for President Trump; however, the Democrats are fraught with fear that something might just happen.  Ultimately, THIS, the politics behind the entire construct, is the reason for the ninth circuit tonight asking for an en banc hearing of their own judicial ruling...

In the Meantime

The White House has indicated we’ll find out its next step concerning this matter in the coming week.

ICE has conducted raids of illegal immigrants in six states and the media is seeking out the most sympathetic of them to evoke an emotional, rather than a rational, view of the problem of swamping the country with undocumented aliens, most of whom are a drain on already hard-pressed government treasuries and resources. Naturally, none of these sob stories seem to involve the 200 Cubans detained as a result of Obama’s refugee ban from Cuba. To the press, the woman who travelled here without a visa or her children and then smuggled them in and had six more, deserves more sympathy than the two working-parent family struggling to pay taxes for mama’s benefits. Nor are we to concern ourselves with the Cubans who traveled here under a longstanding policy which was abruptly halted by Obama to curry favor with communist dictators who would certainly jail or execute them if they’re returned.

Ms. Feinstein Regrets

I read through tears of laughter the report that Senator Dianne Feinstein regrets supporting Harry Reid's changing of the Senate rules that is permitting the Trump nominees’ confirmation by a mere majority -- killing the opportunity for Democrats to filibuster them as they could have under the former, longstanding Senate rules. That’s what happens when the Thousand Year Democratic Reich only lasts for eight years.