This is a very informative article about the 29-page opinion handed down yesterday by a unanimous three-judge panel.
This decision was meant to let Trump know that we have a government in which the President does not have unlimited power. No imperial presidency.
The administration argued that the Oresident’s executive order could not be reviewed by the courts. The judges disagreed.
“The administration made the argument that the case was not even reviewable, despite ample precedent from the George W. Bush years. In its most memorable line of the opinion the judges held, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” The court pointed out that even in the immigration and national security realms the political branches are subject to judicial review. Given the president’s recent public hectoring and threats to hold the court responsible for any terror attacks if it upheld the lower court’s order, the court had every reason to eviscerate the claim of what amounts to executive supremacy. (One wonders if the president’s noxious attack on the judiciary also encouraged the three-judge panel to make the ruling unanimous.) ”
Diane Ravitch's blog 
Diane…thanks for getting all this out to readers. This article of a fine point of the law is vital to how the 9th Circuit decided to uphold the lower court. Trump seems to think that Executive Orders gives him the unlimited powers of a King…or of a dictator. It is a relief to see that some real law and order is prevailing.
On the other hand, the anointing of Pruitt and Price borders on criminal. Price has been shown to be doing insider trading for his own benefit, and still the Repubs, overlooked that illegal behavior. Now, we who have earned our Social Security should be shaking in our boots.
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As odious as I find most of Jennifer Rubin’s views to be, I’ve got to give her credit that she’s consistent as a NeverTrumper. That’s worth something these days.
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Diane,
A huge thank you for this information.
This needs to go viral.
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Reblogged this on David R. Taylor-Thoughts on Education.
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(One wonders if the president’s noxious attack on the judiciary also encouraged the three-judge panel to make the ruling unanimous.) ”
I hope not, only because the principle of living under the “rule of law” is seriously undermined by making this a personal matter and that would also give some credibility to the horrible attacks of Trump on the judicial system.
I do think the judges used legal language to justify their decision and also to give a lesson to the Trumpsters and public on the powers of the executive and judicial branches in our constitutional democracy. Comments from media gurus in law say that the executive order is a case of “poor lawyering.”
The most worrisome aspect is Trump’s determination to blame these judges for terrorist attacks, in addition to being indifferent about the misinformation and myths circulating, like the Bowling Green Massacre.
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Laura…rarely do I disagree with you, but have to stand up for the completely independent decisions of the three judges of the highly respected 9th District Appeals Court. Each of these judges gave clear, concise, and carefully researched opinions, and unanimously agreed to uphold the lower courts decision.
There is NO inkling of personal opinion based on Drump’s ‘put down’ of them and of all judges which he has been doing for many months. The ‘so-called’ president has NO understanding of basic civics and that our whole system is based on three EQUAL sections of government, the Judiciary, the Congress, and the Executive, as with the principle of checks and balance so vital to democracy.
I would not even speculate that these high court members of the judiciary would stoop to Drumpf’s level of childish playground retribution. Many of the media read this blog…so I suggest not giving them anything to chew on.
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On closer reading, I think I owe you an apology, Laura. I just saw the 1/2 quote mark…so assume you and I are on the same page as we generally are. I have become even more boringly pedantic in the past week of working with the RESIST movement and jumped the gun on this comment.
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YES
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So each responder here looked up the 1952 but if not – McCarron – Walter Act – “Suspension of entry or imposition of restrictions by the President, whenever
the President finds the entry of aliens or any class of aliens into the US would be detrimental to the interests of the US. The President may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants”
And each of you looked up the Exec Order? So I find some of the conversation about the ruling out of place .
I agree the roll out was too quick and impacted green cards etc.
Any attempt by Trump or others to stop immigration, get control over it, becomes a call racism and bigotry.
Common sense is lost – I believe, if one hasn’t read Trump’s Exec Order one should because there are items being discussed not related to but inferred – even by the Black Robe liberals on the 9th Circus. “Intent” has no jurisdiction for Robart and the 3 judges to make a decision about the Order before them – that is not their jurisdiction or issue.
The court found that “the States have offered evidence of numerous statements by the President about his intent to implement a ‘Muslim ban.’”
Numerous statements before election? Overreach – this doesn’t belong as an issue in the court – no legal basis on the Order.
The word Muslim never mentioned in the STAY. Yes, the countries originally listed by Obama admin are majority Muslim but the 7 only make up about 15% of all Muslims in the world.
In then weighing the “irreparable injury” that might be done by staying the ban, the court observed that the administration provided “no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” In biting criticism, the court found, “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.” This too was a complete failure of lawyering – the judges don’t have any intel to make that decision
The court, to its credit, reminded the administration that presidents have ample, but not unlimited, power. Constitutional restraints still apply to the president, even on national security. Yes, but they forgot the 1952 ruling, but history also notes that the courts can be over ridden. 9th Circus routinely is the most overturned court in the U.S. In 2012, the Supreme Court reversed 86 percent of the rulings it reviewed from the ninth.
. I don’t know if the implementation of this thing was not up to speed. None of that matters when you go to down to the law!
And even if there had not been 80 different terrorists get into this country from these seven countries — which there have been — it doesn’t mean that there won’t be, and it doesn’t mean that the administration doesn’t have intel showing that they’re trying to. The courts can’t possibly know any of that. That is why, among many other reasons, they are not constitutionally charged to police national security. But Judge Robart is presumed to know more than the president, presumed to care more than the president, and it’s presumed that the president’s stupid.
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Yes Trump supporter..js….the last sentence of your proclamation is what I believe. Judge Robarts is FAR more intelligent and highly educated than Drumpf, and yes, many Americans and people world wide presume that Drumpf is both STUPID, as in uninformed/under educated, and dangerously opinionated, and crazy.
And 19 hell bent terrorists from other than these stated banned countries named in his ban, got into the US and blew up the WTC, the Pentagon, and caused over 3K Americans to die a violent death.
Why, when Saudi Arabia gave us not only Bin Laden and his family, but also 15 of the bombers of the WTC, and others from Morroco and Egypt, were these countries exempt from Drumpf/Bannon’s ban?
And who are you and how do you set yourself up to presume the rest of us are uninformed?
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I never set myself up in that position – a presumption on your part – I just asked a question because the conversations of the group are alluding to a Muslim Ban – which I couldn’t find the wording in the STAY, and the consideration of the 1952 act wasn’t even addressed by Robart or the 9TH Circus. And the “noxious” attacks seemingly are for anything Trump – enmity by many regarding anything Trump has seemingly pushed a number into the “unhinged group”Lea
A split in this nation is beginning to look like a civil war. The latest CNN/ORC poll, 67 percent of those identified as “Trump supporters” do not want to allow Syrians into the U.S., compared to just 28 percent of non-supporters — Americans look they are choosing teams and following or opposing their leaders. One positive for Trump is that the issue has been magnified and focused on and has been expanded to security issues as well as Sovereignty and borders – the latter 3 are overshadowed by concerns of humanity
Both the judge in Washington State and the San Francisco-based circuit court have now refused to recognize the authority of Congress and the president to make this national security decision.
Neither the judge in Washington State nor the court has offered anything approaching a detailed discussion of 8 U.SC. §1182 (f), the law which specifically gives the president authority to suspend the entry of any aliens into the U.S. if he believes their entry would be “detrimental to the interests of the United States.” Unless this statutory provision is unconstitutional, the president has acted completely within the law.
The Ninth Circuit gives lip service to the fact that “courts owe substantial deference to the immigration and national security policy determinations of the political branches – an uncontroversial principle that is well-grounded in our jurisprudence.”
Inexplicably, it then proceeds to give no deference to the president’s policy determination that a temporary suspension is necessary to ensure that adequate vetting procedures are in place.
The court also gives no deference to the decision of Congress to delegate its plenary power over immigration to the president on this issue.
The Ninth Circuit also claims that there is “no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” But as Washington Examiner journalist Byron York reports, that’s simply not true. In fact, there is plenty of this sort of evidence:
Last year the Senate Judiciary Subcommittee on Immigration and the National Interest released information showing that at least 60 people born in the seven countries had been convicted — not just arrested, but convicted — of terror-related offenses in the United States since Sept. 11, 2001. And that number did not include more recent cases like Abdul Artan, a Somali refugee who wounded 11 people during a machete attack on the campus of Ohio State University last November.
Instead of discussing the relevant statute under which the president acted, the Ninth Circuit instead engages in an extensive discussion of its concern that the executive branch is failing to provide due process to aliens barred from entry into the United States. While it can certainly be argued that permanent resident aliens may have certain due process rights before their residency status can be cancelled, the White House has already said the order does not apply to permanent residents.
The court’s apparent opinion that other aliens who don’t live in the U.S. have due process rights if they are refused entry can only be true if they have a constitutional right to enter the U.S. That is an absurd proposition yet that is the end result of the court’s opinion: that a foreign alien can demand a hearing and due process rights if one of our embassies refuses to give the alien a visa.
So far in the numerous lawsuits that have been filed against this EO, the only Federal judge to get it right is Nathaniel Gorton of the District Court of Massachusetts. He analyzed the relevant statute, 8 U.S.C. §1182(f), and concluded that the EO is fully within the president’s authority: “the decision to prevent aliens from entering the country is a ‘fundamental sovereign attribute’ realized through the legislative and executive branches that is ‘largely immune from judicial control.'” Contrary to the Ninth Circuit, Gorton says the EO is “facially legitimate and bona fide.”
Lea, I did not rush to judgement. Robert is not a “conservative” in the sense that he did not follow the Constitution or law of the issue before him but proffered an opinion on the political view. Authoritarian – how about an individual that read the 1952 McCarron act and then compared the exact wording of the EO…Intent is not the issue to be decided
“Whether or not a Federal judge is liberal or conservative in their political leanings often does not influence his or her adherence to The Constitution, precedent, and the rule of law.” I think you might want to see all the opinions that this court has been overturned –
Ellen – your 3 to 4 paragraphs represent the inability of one to deal with the issues and therefore dives to the sewer of negative adjectives in hopes of addressing the initial issue at hand – shameful and BTW your 2 cents – isn’t worth a wooden nickel … it is amazing the TOLERANCE this group claims to push and a different view drives the anger further to a boiling point – and this on a blog to discuss education and children.
So he writes a new order –
If we get the tax break promised – corporate and individual and we see more money in our pockets it still wouldn’t satisfy a lot of you….
I
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JS
Your rush to judgment and circular reasoning are typical of a person unable to reason legally. Judge Robarts is a conservative judge. Often authoritarian types like yourself misunderstand the truly conservative mind. Whether or not a Federal judge is liberal or conservative in their political leanings often does not influence his or her adherence to The Constitution, precedent, and the rule of law.
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Thank you (JS) for a well thought out defense of the presidents order and why, once again the 9th circuit court will be over turned. Other judges on that court are requesting a “do-over”. I doubt that they would desire this had they felt that justice was done. How are the judges and lawyers suppose to know the security threats that these 7 countries have inflicted on this nation? National security is the responsibility of the president and foreign affairs is his arena–not the Courts or even the legislature. He is mandated to enforce our laws. Let congress change immigration laws if they don’t want a batch of temporary executive orders.
This order was not well thought out–action for actions sake, unfortunately. If this presidential order is rewritten, you can bet it will mention, legal residents, students and humanitarian medical cases. It should be made clear and delivered sooner than later. The premise of this order was lawful and constitutional.
This president needs our help–not violence, riots and constant obstruction. It is simply not right. Many people adamantly disagreed with President Obama but he did not face this kind of obstruction , hatred, rioting, violence and bigotry from the media, democrats, students and republicans as President Trump has. Give this guy a chance and yes, Betsy DeVos (who we largely disliked) as well. We owe it to the country and future of the republic.
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April,
I don’t think the Three-judge panel order will be overturned because Trump argued that the judiciary can’t review his executive order. That is a constitutional challenge to the judiciary. So far he lost at the first level (a judge appointed by George W. Bush) and the appellate level (2 of the 3 judges appointed by Democratic presidents, one by a Republican), unanimous decision. I would not be surprised if the entire 9th Circuit rules unanimously against his Muslim ban. First, because his lawyers say that his executive order is “unreviewable,” a direct challenge to the judisry as a co-equal branch of government. And second, because it is easy to assemble evidence that the intention was to exclude Muslims.
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President Barack Obama is a man of distinction. A Harvard Law School Graduate, married to a Harvard Law School Graduate, with a Patrician ability to talk effortlessly, with humor, and with the highest of intelligence, with people both locally and on the world stage, and to win respect. He taught Constitutional Law at U. of Chicago, and whether one agreed with him or not, he never insulted people not degraded them. And is self made, not a product of a rich father who set up him with multi millions of dollars.
Donald Drumpf, the ‘so called’ president, is a buffoon and a con man who worships only himself and money, and who cannot construct and utter a complete sentence. He is totally self aggrandizing and he insults everyone, he lies so often that no one can deal with him, he is ignorant and proud of it, he surrounds himself the worst sort of wealthy MEN who want to join him in his bigotry and his desire to take over America and to rule as an oligarchic dictator. He belongs in a side show or in prison for the multitude of damage he has done in his lifetime. His third wife is an uneducated nude model who has had so much plastic surgery that she is unrecognizable from her real younger self.
To compare these two men, April, shows your own weaknesses, for this false president who is not my president, could not function without his coterie of terrible advisers whose collective intentions are as dangerous to the United States as any group in our history.
I view you and JS, and others like you, as my enemy, and the enemies of American democracy. And as my friend, Duane, used to say, that is my two cents worth.
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April: You say: **”The premise of this order was lawful and constitutional.” The assumption of such premises given to a President is that the President will be reasonable and responsible in his decision-making. What you and many others are missing is that: Trump is not. Instead of being genuine in his interest, he is using his position and the law to forward what he knows is unlawful and unconstitutional–his racism, bigotry,religious bias, and fear mongering. If you cannot see that, many others do, including me.
And now we are finding that he colluded with another state, Russia, to fix the election. You might want a cheater and a consummate liar who is becoming more and more “mental” as we speak, as our president, but I certainly don’t. I learned that rule in kindergarten, and so did you. Why did you abandon it?
And your reference to Obama is not even close to equivalent. Even if there were a double-standard at work here (there is not), it’s no defense for one person’s crimes to claim that someone else did the same thing. On that score, we would have no one in prison.
Besides all that, we have become the laughing stocks of the world. And we are way past “give the man a chance.” Rather, open your eyes?
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Trump is now finding out why America is ALREADY GREAT. It’s HIM who is trying to destroy it.
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So Van Jones has Bill Maher on CNN and some Black Preacher Trump supporter expresses his concern about terrorism. Apparently a man dressed in Black with a skull cap and a long Beard goes into a Cheese Cake factory and tossed a bomb. The restaurant that he has eaten in. So Van Bill what should we do about it .Part of the story is that they answered him.
Gee someone tossed a bomb in the middle of the Muslim ban and Trump didn’t declare Martial Law. Which sent me to Google.
Make sure your sitting down as you read it.
http://www.pasadenastarnews.com/general-news/20170203/how-internet-hysteria-turned-smoke-spouting-pyrotechnic-device-at-pasadena-cheesecake-factory-into-an-imaginary-bomb
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Look at the third or fourth paragraph. What an egotist.
Linda
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Travel Ban Decision..a new twist re 9th Circuit
by Rachel Stockman | 6:16 pm, February 10th, 2017 490
“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.
On Thursday night, in a big blow to the Trump administration, a panel of three Ninth Circuit federal judges refused to lift a stay which was issued by Seattle federal Judge James Robart.
Earlier today, Trump indicated that he did not plan to appeal the Ninth Circuit’s decision to the U.S. Supreme Court or request an en banc review by the full Ninth Circuit panel. Instead, his attorneys said they planned to fight the case on the merits in the lower federal court. But then minutes after one White House official said the Trump administration would not appeal to SCOTUS, White House Chief of Staff Reince Priebus told The Washington Post that they are actually still “reviewing all of our options in the court system.” Regardless, 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. Some legal experts contend however that it is unlikely that a majority of judges (most of whom were appointed by Democrats) would agree to this.
lastic, ”
8888888888888888888888888888888888888888888888888888
Some of my legal friends wonder if the three judges are getting death threats.
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Ellen, there was a news story last night that the three judges who stayed the ban had increased security due to threats. I am not worried about a hearing by the full 9th Circuit Court, because the 3 judges recognized Trump’s direct threat to the judiciary. I suspect the entire Circuit Court would rule against his claim that the president’s executive order cannot be reviewed. The Supreme Court would likely do the same. That’s why he may not appeal.
So his next move is to step up deportations.
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Diane: . . . and he is angry with California–hence, that’s where his vindictiveness will manifest.
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Catherine…in LA this week, the INS has been sweeping parents and grandparents up at work and at home and on the street. Children are coming home from school to find NO ONE there. It is a moral travesty.
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I just heard that immigration officials are following school buses in Hispanic neighborhoods in Texas. Presumably to find parents.
Is this how a police state begins?
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Ellen Lubic I think I’m going to be sick.
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Today, Saturday, the photo of my State Senator, Kevin de Leon, looks decades older than only weeks ago. He stated openly this week that half his family is undocumented. He is a strong Dem leader and I hope one day he is on the national political stage. But you can see the toll this roundup of peaceful hard workers who are a major building block of California’s economy, and are his ‘extended’ family so to speak, is taking on him…and on many of our Latino leaders.
The wonderful woman I am supporting and working to elect to the LAUSD BoE, Lisa Alva, who Diane and NPE endorsed, teaches in the inner city in a 90% Latino/Chicano neighborhood, and her students are also suffering with the tremendous fear of their parents and grandparents being deported. Even the ‘Dream’ students on my university campus and nervous wrecks and cannot concentrate from fear of deportation.
Yet Drumpf, the fascist liar who is our ‘so called’ president, can still give support and comfort to Putin who is planning a new war which he said only days ago.
Drumpf and his family and cohorts must be pouring their ill gotten gains into the munitions industry so they can profit off sending Latino and Black kids to war as they build up the US military in order to side with Putin as he marches into the Baltic nations….and morons and greed mongers just say “give him a chance”.
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Ellen – your comment referencing the LA Times in reply to” Catherine…in LA this week, the INS has been sweeping parents and grandparents up at work and at home and on the street. Children are coming home from school to find NO ONE there. It is a moral travesty.” Is FAKE NEWS – you jumped the shark again! and BTW the raids were planned prior to Trump becoming press – that means you need to to cry at the feet of the former Pres B Hussein O. and to add to the issue the raid was picking up illegals with a crime/felony and the number was less that previous ICE raids under B Hussein O
NBCNEWS FEB 11 2017, 12:46 AM ET
ICE Says California Immigration Raids Planned Before Trump Orders
by PHIL HELSEL, ANDREW BLANKSTEIN and THE ASSOCIATED PRESS
These 2 medias are not Trump lovers and lean left but I abbreviate the article for your edification – It is an education blog – no?
“Immigration and Customs Enforcement on Friday pushed back against claims by some groups that a series of raids the agency said targeted criminals in several states were connected to President Donald Trump’s executive orders.
David Marin, ICE’s field office director for enforcement and removal operations in greater Los Angeles, said an enforcement sweep in California was in the planning stages “before the administration came out with their current executive orders.”
The agency said more than 160 were arrested in the five-day operation in the Los Angeles area, which focused on “criminal aliens, illegal re-entrants, and immigration fugitives.” It said that 200 people were arrested in the operations in Georgia and the Carolinas.
“I find it particularly galling that after misleading the media yesterday, ICE would today lecture the public about the dangers of ‘false reporting,'” state Sen. Kevin de Leon, a Democrat, said in a statement. “If ICE is looking for the culprit to yesterday’s panic they need only look in the mirror.”
Immigration activists decried the raids. The immigration enforcement agency said that the “enforcement surge” was routine.
“The rash of recent reports about purported ICE checkpoints and random sweeps are false, dangerous, and irresponsible,” ICE said in a statement.
The agency conducted operations in Southern California in 2015 that resulted in 240 arrests, and in July it arrested more than 100 people, ICE has said. Of the 160 arrested in California this week, the agency said around 150 had criminal histories and that “many of the arrestees had prior felony convictions for serious or violent offenses.”
Hope you enjoy the security provided by this –
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jscheidell Thank you for your note. So glad I don’t have to worry about Trump taking out his vindictive tantrums on California. Whew!
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