The Justice Department left with doubts after arguing President Trump’s executive order limiting immigration from 7 majority-Muslim countries.
But even August E. Flentje, the Justice Department’s lawyer, sensed he was not gaining ground with that line of argument. “I’m not sure I’m convincing the court,” Mr. Flentje said.
The Ninth Circuit Court of Appeals wants to clip Trump’s wings. Their demeanor, words, and body language indicate that they’ve already made up their minds as to how they’ll rule, now they just have to find a way to do it with a straight face. Somehow, they have to invent a scenario in which Martians have a right to live in Spokane.
Their task will be difficult, because the law is clearly on the president’s side. Rich Lowry‘s excellent analysis refutes Judge Robart’s ruling in three key points.
- First, Judge Robart is trespassing on a core executive responsibility. “The exclusion of aliens is a fundamental act of sovereignty,” the Supreme Court held in the 1950 Knauff case, “inherent in the executive power to control the foreign affairs of the nation.”
- Second, it’s hard to get around the relevant federal immigration law, which says, “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.”
- Finally, aliens residing outside the United States have no right to come here.
In order for the Ninth Circuit to find against Trump’s EO, they’ll have to either trespass against clear legal precedent, or find some odd approach, such as the right of judicial review for judicial review’s sake.
“Are you arguing, then, that the president’s decision in that regard is unreviewable?” Judge Michelle T. Friedland asked a few minutes later.
Mr. Flentje paused. Then he said yes.
The judges may flip the script here. Instead of focusing (as they should) on whether Robart’s initial ruling was legally unsupported (it was) and inappropriate (it was), they’ll go back to the premise of judicial review. They’ll force the Trump administration to prove that the immigration halt was necessary, which of course can’t be easily proven to those who think it isn’t.
They’ll have to, out of whole cloth, invent some right of aliens to move to Washington state and reside there, and thereby invent a harm to the citizens of Washington state if those aliens are barred from doing so, even for 120 days. They won’t specifically enumerate that right, but they’ll assume it by inference. Then they’ll ask the Trump administration to defend its violation of those rights. It will be a totally absurd ruling.
The Supreme Court would be derelict in its duty to not immediately overturn such a ruling. But politics may intervene. Depending on how the Ninth Circuit legal eagles and their clerks and researchers craft their ruling, it could be a slam dunk 8-0 reversal, or it could result in a long wait while Judge Gorsuch is confirmed.
Either way, the ruling will be an entertaining piece of fiction as to how Martians have a right to live in Spokane.