Negative Framing

I trust you understand I’d not normally quote National Review, a fountain of ‘Fake News’, lies, and bias, but I found this piece instructive in understanding the magnitude of the victory in the Ninth Circuit yesterday.

The Ninth Circuit’s Power Grab
National Review Editors
February 10, 2017 1:04 PM

The Ninth Circuit’s decision against President Trump’s immigration order is worse than wrong. It is dangerous.

To review, Trump issued an executive order blocking entry by refugees and aliens from seven Muslim-majority countries. The travel restriction is to be short-lived: a period of months while better vetting procedures are developed. The administration, moreover, did not pluck the seven countries from its allegedly anti-Muslim imagination. They were cited in a statute enacted by Congress and signed by President Obama, based on the richly supported conclusion that these countries — Iran, Iraq, Syria, Yemen, Libya, Somalia, and Sudan — are riven by anti-American jihadism, besides having governments that are either non-functional or implacably hostile to the U.S., rendering any efforts to screen their citizens uniquely difficult.

A federal judge in Seattle, James Robart, issued a temporary restraining order against the travel ban at the behest of two states, Washington and Minnesota, run by Democratic governors. Now, the Ninth Circuit has upheld this single, unelected jurist’s usurpation of the power to make American national-security policy.

According to the three-judge panel, even illegal aliens, to say nothing of aliens holding non-immigrant visas or permanent-resident status, have due-process rights against government actions to protect Americans from foreign threats. Therefore, the president and Congress (i.e., the branches of government constitutionally responsible for national security) may not take such actions unless and until the judiciary (the branch with no such responsibility) has approved those actions.

That aliens are not citizens and have no constitutional right to come to the United States is apparently superseded by their newfangled “right” to be welcomed into the United States courts. And even if they are not here already, even if they remain in the far reaches of the globe, this alien “right” may be asserted by state governments. The states’ interest in having foreign students and scholars at their public universities, we are told, outweighs the public’s interest in excluding aliens who may be terrorists, law-breakers, public charges, or hostile to our Constitution and culture.

The unanimous ruling is the type of lunacy with which the Ninth Circuit has become synonymous. It is also the inevitable result of a turn-of-the-century judicial power grab in the realm of national security.
…
Because the travel ban was announced without warning on a Friday, the court was offended by the Trump administration’s haphazard implementation of the executive order. It led to chaos at the nation’s airports as aliens with lawful visas were denied entry. The judges took particular umbrage at the administration’s reckless application of the exclusion, at least initially, to lawful permanent-resident aliens — essentially, green-card holders who make America their home, are already subjected to thorough screening, and are considered “U.S. persons” for most legal purposes.

Nevertheless, the poor implementation is an issue entirely separate from what ought to have been the president’s indisputable legal authority to impose temporary restrictions on non-Americans for the purpose of improving vetting. And even on the matter of implementation, the Ninth Circuit churlishly refused to credit the administration with relenting on the exclusion of green-card holders. In the Ninth Circuit’s world, there’s no problem with a single lawyer in a robe imposing his national-security preferences on the entire country, but a directive by the White House counsel is insufficient to instruct executive enforcement agencies that the president has decided to exempt lawful permanent residents from his own order.

Plainly, the panel was hardwired to rule against the administration. This is further evidenced by its overwrought intimation that because candidate Trump spoke on the campaign trail of implementing a “Muslim ban,” the order by President Trump, which manifestly is not a Muslim ban, might nevertheless be intended as one.
…
The political branches’ plenary authority to control alien entry into the United States, and the heightened deference owed by courts to the national-security judgments of the political branches, are precisely at stake in the matter of President Trump’s executive order. As the case inevitably heads to the Supreme Court, is it too much to hope, even in a post-Boumediene world, that the justices will remember their protestations of modesty? Or are we all living in the Ninth Circuit now?

Ahem. There is no action by either the Executive or Legislative Branches that is not subject to Constitutional scrutiny by Judicial Review.

See Marbury v. Madison (1803).