With the first order, the 9th Circuit judges made an undergraduate law school error. They conflated policy with legality. Two separate issues. The Constitution and the law permitted the Court to rule on the second, but not the first. However, they ruled on policy which they had no authority to rule on, and completely ignored the only issue they were authorized to rule on – legality.

The Constitution, in Article I section 8, gives Congress authority to legislate the issues of immigration. Then, Congress delegated this authority, in large part, to the President in the “Immigration and Nationality Act of 1952″. The Court can rule on whether a President’s actions are in accordance with the Constitution and this law.

Note that nowhere in the Constitution or the law is there any provision for the Courts to decide immigration policy. The authors of the Constitution gave Congress the responsibility to decide immigration policy, which then delegated much of it to the President, not the courts.

So the Court royally screwed up. They ruled on policy which they have no authority over, and ignored legality. And, the executive order is by all measures legal.