Replace Judges On The 9th (Federal) Circuit Court Of Appeals?

There has been a June 12, 2017 update to this story. For the update, Click Here

With the issuance of President Trump's Executive Order (EO) "PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES", a firestorm erupted.

The progressive left, of course, thought this terrible; the conservatives thought this was the right thing to do. Protests from the left seemed to crop up all across the Nation.

Trump's EO was contested in the (Federal) 9th Circuit Court of Appeals. That court offered the opinion that the EO be put on hold; thereby staying the effectivity of the EO.

With this ruling/opinion the conservatives almost lost their minds - the progressives were ecstatic.

I'm afraid that the conservatives have the edge in this dispute. Here's why.

Having read the court's ruling, it seems to be mostly about the intent or motives of the EO - NOT on the legal merits. Not one instance in the ruling does the actual law justifying the EO appear.

Having also read the EO, the government, in my opinion, failed to state exemptions. For example, people with "green cards", foreign nationals legally entitled to be in or traveling to the US were not exempted. That being said, the actual law on this issue is clear and straightforward.

The most applicable US law on this is found in 8 U.S. Code 1182(f). The applicable passage is repeated here:

(f) Suspension of entry or imposition of restrictions by President

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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

One need not have a Harvard Law degree in matters Constitutional to see that the law is clear. Trump was well within his legal and Constitutional right to effect the EO. This court was in error in its ruling.

Conservatives like to point out that the 9th Court is the most liberal/progressive court in the land. Conservatives also like to point out that clearly 80% of the 9th Court's rulings have been overturned by the Supreme Court (i.e. SCOTUS). This second point is a case of "the devil is in the details".

The facts are that only a small minority of the 9th Court's rulings has been taken to SCOTUS for review. In that small minority, in fact, 80% have been overturned by SCOTUS.

As to the claim that the 9th Court is overly progressive, there is merit to this claim. But, there is a more important issue to consider.

On matters legal, a "code word"/description for the progressive political element is that they believe the US Constitution is a "living document". In fact, it is not and shouldn't be as Justice Scalia rightly pointed out. Such a living document interpretation results in courts being able to adjudicate legal matters based on what they would like the Constitution to mean - or, as progressives like to argue, the Constitution should be viewed based on the changing mores of the day. That concept is interesting when one asks "who gets to define exactly what the mores of the day are?"

Now, along with the 9h Court, there are 12 others with the same level of judicial overview/assessment capabilities. One can easily see that for any given question of constitutionality, based on the living document theory, there could be 13 different rulings - each court deciding on what each would like the US Constitution to mean. This is a recipe for chaos.

Now, one can feel that the current law (i.e., 8 U.S. Code 1182(f)), as written, expands the power of the President too far. And, that's fine to have that opinion. One can challenge that law (any law) as to its being constitutional. SCOTUS can properly adjudicate the issue.

However, an action falling within the scope and letter of existing law, as Trump's EO did, is not subject to viable legal challenge. This is where the 9th Court erred. If taken to SCOTUS, you will see that I am correct in this.

It is very troubling that a federal court seems not to understand this simple aspect of the legal process.

It is my personal opinion that these judges fell prey to the "social justice" mantra offered by many of our progressive-leaning politicians today. An example of which may be found HERE.

In my opinion, again, to avoid chaos in our Nation laws must be followed as written and intended by the laws' creator(s) or they should be changed; but never ignored or construed to mean something other than what the laws say. This policy, as it were, is applicable all the way from traffic laws up to and including keeping our Nation safe.

It appears that at least one judge feels the same way I do on this.

Judges, at any level, who have sworn to uphold the US Constitution and feel that document can mean what they want it to mean should be relieved of their positions. Equality under the law and consistent application of the law is paramount to our Nation.

9th Circuit Court Ruling Update:

The 9th Circuit Court has issued an update regarding their prior ruling re: Trump's "Travel Ban" executive order (see the above article portion).

In their defense of ruling against Trump's Executive Order on a temporary ban of persons from a limited set of terror-infested countries, they offered this (in part):

"Section 1182(f) [of the law] requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States. This section requires that the Presidentís findings support the conclusion that entry of all nationals from the six designated countries, all refugees, and refugees in excess of 50,000 would be harmful to the national interest. There is no sufficient finding in EO2 that the entry of the excluded classes would be detrimental to the interests of the United States."

The actual law [Section 1182(f)], as it exists on the "books" today, is offered in the first half of this article above.

The underlined portion of this recent 9th Court opinion (offered immediately above) is problematic as follows:

1. There is nothing in 1182(f) stating the requirement for support of any conclusion(s) on the part of the president.

2. And, if there were such language, what would constitute sufficiency of said support to meet the unstated intent/beliefs of this court, i.e., the 9th Circurit Court?

We often hear these days that "words matter". Nothing could be more true about words than when dealing with the law.

The only entity with the legal authority to decide what words mean relative to the law is the Supreme Court. And, even it does not claim to speak "ex cathedra". That is why any "rulings" by the Supreme Court are properly called OPINIONS. The Supreme Court has, from time to time, reversed itself on its own prior "opinion".

Now, some may argue that sufficiency should be stated in any law. But, as of right now, it doesn't. If the American people, collectively, view that the law should be updated/changed, THAT can be done.

However, until such time the law, as stated, is THE law and courts, all courts, should weigh their decisions/opinions on what a law, any law, actually says - not what some judges may like the law to mean and/or not based on any specific ideology.