Ninth circuit opinion on Trump executive order an example of sloppy and poor legal rationalization

More surprising was just how sloppy the opinion was. It was weak on facts. Weak on law. Weak on analysis. Heavy on conjecture and supposition and misspeak. It’s clear the judges were simply going through the exercise of writing an opinion so they could get to the outcome they wanted. The problem is, the outcome they wanted is, legally speaking, wrong.

Traditionally, courts have respected the separation of powers doctrine, which provides that Congress and the president have exclusive authority to regulate immigration and handle sensitive matters of national security. Courts have generally shied away from interfering in these areas, which is why the Guantanamo Bay detention facility continues to hold prisoners involved in 9/11. Especially on national security matters, courts generally stay out of the discussion. This court did not. It jumped right in, and provided an incorrect and misguided analysis.

One of the first things you learn in law school is to determine the proper standard of review when looking at a case. On page 13 of the opinion, the Ninth Circuit Court stated it is “an uncontroversial principle” that it must give “substantial deference to the immigration and national security policy determinations of the political branches.” However, by page 14, the court made deference to the executive branch seem like a mere suggestion.

Next, generations of law professors teach lawyers to look to the controlling law to provide guidance on what an appropriate outcome should be. Here, the law is very clear. In 8 USC 1182(f), passed in 1952, Congress gave the president the power to “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 President finds that the entry . . . [of such persons] would be detrimental to the interests of the United States.” This is plain as day. It’s been enforced since 1952. Unless the court somehow found this law to be unconstitutional, it is very clear that President Trump’s executive order was on firm footing.

Unfortunately, the court didn’t mention this law even once in its 29-page opinion. It didn’t even hint at the law’s existence as the basis for the executive order, even though multiple presidents (including President Obama) used the same law to exclude entire classes of people from the country, and the executive order referenced the law multiple times.

Instead of focusing on the strong powers granted the president by relevant law that has been found valid for the past 65 years, the court chose to focus on the specific constitutionality of the executive order itself, as if it had no legal basis whatsoever.
There is more.

 It is hard to imagine a more poorly thought out judicial opinion.  The legal work would be embarrassing for a law student.  How did these people ever get appointed to the appellate bench?  They are in effect finding a statute unconstitutional that they do not even deem to mention.  This opinion is embarrassingly absurd.


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