Here we go again. Another episode of “Judge Knows Best,” the ongoing series about judges who found in the U.S. Constitution, among many things, the right to abortion and the inclusion of same-sex couples in the definition of “marriage.”
You don’t have to be a constitutional lawyer to see that this decision was so political that it smells from coast to coast.
This is from Hans A. von Spakovsky, a senior legal fellow at the Heritage Foundation and former Justice Department official:
A three-judge panel of the Ninth Circuit Court has repeated the mistakes made by the district court judge who stayed President Trump’s executive order (EO) temporarily suspending visas from seven terrorist havens.
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.
Beyond the constitutional debate, there are some common sense matters to consider:
1) Do you really want judges second-guessing presidents like this? After all, do justices get security briefings as the president does?
2) Didn’t the Founding Fathers make the president the commander in chief so that someone would be responsible for the defense of the country?
It’s time for the Supreme Court to act unanimously and remind the 9th about the role of the judiciary. I understand that “activism” is sexier than just interpreting the law. At the same time, it’s the latter that’s their job.