By Scott Weiser
President Trump is considering his options in response to the outrageous ruling by the 9th Circuit Court of Appeals against his temporary travel ban. One of the options the President acknowledged is that he can simply make the case moot by withdrawing the original Executive Order (EO) and issuing another more compliant one that addresses the issues the court brought up.
This would be a huge mistake. As I pointed out in my last editorial, the 9th Circuit Court has created a constitutional crisis by claiming that it has the authority to render judgement sua sponte, which is to say all on its own without any case or controversy properly before it, on President Trump’s motives for exercising his statutory authority to ban immigration from seven nations.
While the 9th Circuit claims it has jurisdiction this is simply not the case. In order for it to have jurisdiction the judge in Seattle who set this crisis in action would have to have jurisdiction to hear the complaints made by Washington and Minnesota, which he didn’t.
Worse, the 9th Circuit did not restrict itself to determining whether or not the Seattle court had jurisdiction, instead it improperly applied a de novo standard, which means that it decided all on its own to expand the inquiry beyond the bounds of the executive order itself and the claims made by the states as to standing, which is what the Justice Department argued in its appeal. Instead it shoehorned an inquiry as to the motives and intentions of the President in creating the EO so it could “preliminarily” rule on the merits of the issue in order to keep alive a case that by every legal measure should have had a stake driven through its heart by the original Seattle District Court.
In doing so the 9th Circuit set itself up in direct opposition to the Separation of Powers Doctrine and it unlawfully intruded upon the Executive Branch’s authority to act on matters of national security without having to petition the courts for permission to do so.
This is not a small matter at all, it’s a very serious intrusion into President Trump’s authority performed by a rogue court that had no standing to do what it did.
The danger is that if President Trump simply withdraws the EO and issues another one that is compliant with the issues raised by the 9th Circuit he will be seen as capitulating to the court and will both appear weak and will be leaving in place a court ruling that will be cited in the future by liberal activist judges as justification for further intrusions on executive authority, even though the case was never reviewed on the merits.
Trust me, this will happen because that’s exactly what the 9th Circuit did in its ruling. It cited many cases that sound like plausible justifications but really aren’t. One particularly important case, Landon v. Plasencia, was cited by the court as supporting the contention that “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens.”
The problem here is two-fold: First, the states don’t have standing to make procedural due process claims on behalf of their inhabitants in the first place. Only an individual who has been denied due process has such standing. Second, these due process rights only accrue, as the 9th Circuit itself said, “to all ‘persons’ within the United States.”
The whole point of the EO was to prohibit people who are not in the United States from coming here, not to eject or deport those who have a legal right to be here who are in fact on U.S. soil and therefore are accorded due process rights. Aliens and refugees don’t have due process rights unless and until they make it here, and the President has plenary authority granted to him by Congress to prevent them from making it here, which is exactly what President Trump did.
In order to prevent endless future attempts by liberal activist federal judges, of whom there are many, to interfere with the President’s national security decisions improperly, using specious precedents and open defiance of Supreme Court rulings President Trump absolutely must take this case to the Supreme Court, where he will almost certainly win 8-0 even without a Justice Gorsuch, in order to wipe out the 9th Circuit Courts outrageous violation of the Separation of Powers Doctrine as if it never occurred.
This is necessary for the future protection of Executive authority over immigration and national security against direct attacks by rogue liberal activist federal judges.