By Roger J. Katz, Attorney at Law and Stephen L. D’Andrilli ~ Part 5
New York, NY -(Ammoland.com)- On February 3, 2017, the President of the United States filed his emergency motion to the United States Court of Appeals for the Ninth Circuit, asking the Ninth Circuit to overturn the District Court’s issuance of a TRO.
The President made clear that his Executive Order was a lawful exercise of his complete and absolute control over the admission of aliens into this Country.
The President pointed out that the District Court had issued a sweeping injunction in the absence of any legal analysis. Essentially the District Court simply mouthed the platitudes for issuance of its TRO without explanation of how the State of Washington and Minnesota met their burden of proof, thereby begging the very question at issue: whether the Plaintiff States had provided a convincing showing of hardship in the absence of issuance of an injunction.
Indeed, rationally, sensibly, one would think that the U.S. President’s Executive Order, predicated on his duty to protect the Nation against outside threats to this Nation and to its citizenry, would outweigh the States’ insistence that its personal economic interests.
As well as the economic and financial interests of a few private businesses, and the interests of non-citizens are harmed by the President’s Order and therefore must be protected. The State of Washington is essentially saying:
“The United States be damned. The economic concerns of Microsoft and the concerns of non-citizen refugees count for more than the safety and well-being of the Nation and its people as a whole.”
Certainly, more serious interests are at risk when a Court enjoins a U.S. President from acting on behalf of the Nation and the American People, which, after all, was the reason the President issued his Executive Order in the first place. Evidently, the Ninth Circuit doesn’t think so.
The President also argues in his Motion that the Plaintiffs have not even presented a convincing argument that they have standing to present a case against the President and the Secretary of DHS, apart from the naked claim that the Court has subject matter jurisdiction over the case. The District Court itself proclaimed subject matter jurisdiction over the case when the Court should properly have questioned its jurisdiction because a State cannot properly bring suit to enforce purported rights on behalf of its citizens based on a State’s estimate of its citizens’ relationship with the federal government. In other words, it is for the citizens themselves to bring suit against the federal government, to vindicate rights, if they feel the federal government has violated their Constitutional rights. But, the U.S. District Court never questioned its own jurisdiction in the case.
At the very least the Court could have and should have asked each of the Parties to the action to submit briefs on the standing issue. Instead the Court assumed it had subject matter jurisdiction and obligingly gave the State whatever it wanted, irrespective of the law.
It must be pointed out that, in the first instance, a Federal Court must determine whether it has subject matter jurisdiction to even hear a case brought by a plaintiff before it—as required under Article III of the U.S. Constitution—before a Federal Court proceeds pell-mell to hear a case at all. In the matter before the Court, the Court assumed the State of Washington had standing and accepted at face value the allegations made in support of enjoining the United States President from carrying out his duties under Article II of the Constitution.
A hearing on standing should have at least been ordered prior to any consideration of issuance of an injunction against the U.S. President.
The President properly brought up the issue of standing in its Motion asking for emergency relief from the effect of the TRO, when it filed its Motion with the United States Court of Appeals for the Ninth Circuit. Citing United States Supreme Court precedent, the U.S. President correctly pointed out, in the Motion, citing legal precedent, that, “an order barring the Executive Branch from enforcing a Presidential Executive Order inherently imposes harm on the public, by thwarting the legal effect of the public’s chosen representative.”
Yet, the U.S. District Court, in awarding Plaintiff States a TRO, opined that, the “States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” Think about that for a moment. The Court is saying that an inconvenience to a State’s residents in the areas of employment, education, business, family relations, and freedom to travel, count for more than the life, well-being, and safety of the citizenry of the entire Nation.
You would think the United States Court of Appeals for the Ninth Circuit would not only reverse the lower Court’s awarding of the TRO to Plaintiff States but would have chastised the District Court for awarding the TRO at all.
Instead, the Ninth Circuit, in State of Washington vs. Trump, No. 17-35105 (9th Cir. Feb. 9, 2017), denied the Defendants’ Emergency Motion for a Stay pending appeal, the effect of which was to affirm the District Court’s awarding of a TRO to the Plaintiff States, Washington and Minnesota. The Ninth Circuit said, citing a U.S. Supreme Court case: “A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)). “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of the particular case.’” Id. (quoting Virginian, 272 U.S. at 672-73) (alterations omitted). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.” Id. at 433-34. The Nken vs. Holder case dealt with the meaning of 8 USCS § 1252(f), titled, “Judicial Review of Orders of Removal.” The Nken vs. Holder case has nothing to do with the present case. In Nken, the Petitioner, an alien, sought to stay his removal from the U.S., pending review of the removal order, but the Respondent, Attorney General, asserted that the alien could not meet the stringent requirements for a stay under 8 USCS § 1252(f). The alien appealed the judgment of the United States Court of Appeals for the Fourth Circuit, which denied the stay and the alien then appealed the adverse ruling to U.S. Supreme Court. The high Court affirmed the decision of the Fourth Circuit, denying the alien’s motion for a stay, pending the appeal of his removal from the United States.
The Nken case is inapposite and the Ninth Circuit misunderstands and misapplies Federal Statute, when it refuses to issue a stay of the U.S. District Court’s ruling, enjoining the President from implementing his suspension of refugee, seeking emigration to the United States from hostile countries.
The Ninth Circuit misapplies 8 USCS § 1252(f), titled, “Judicial Review of Orders of Removal.” The applicable section, titled, “Limit on injunctive relief,” says, “(1) In general. Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of chapter 4 of title II [8 USCS §§ 1221 et seq.], as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such chapter have been initiated. (2) Particular cases. Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.” The prohibition on Courts against use of a stay here, even where hardship exists, applies to aliens who seek to prevent a Court from removing them from this Country, pending their appeal of a final removal order. In other words, aliens can’t claim hardship to prevent their removal from this Country on a final order in the absence of clear and convincing evidence that execution of the removal order is prohibited by law.
In the instant case the President’s Motion for a stay of the District Court’s TRO has nothing whatsoever to do with the import of the Statute, 8 USCS § 1252(f). And the Nken case has nothing to do with the case before the Ninth Circuit, here. An alien isn’t seeking to prevent his or her removal from this Country. Rather, the President is precluding, temporarily, aliens, citizens of failed States that are known to harbor Islamic terrorists, from entering our Country. Moreover, even if 8 USCS § 1252(f) did extend to the President’s Executive Order, which it doesn’t, the District Court’s TRO is not a final order.
By its nature preliminary injunctions, such as a TRO, are interim orders—they are not final orders on the merits. And this TRO deleteriously impacts the security of this Nation and the security of its citizenry. The Ninth Circuit is grasping at straws, citing law that has no bearing on the issuance of a TRO against a U.S. Presidential Executive Order, as the Ninth Circuit has, apparently, made up its mind before the fact to allow the U.S. District injunction to stand.
Furthermore, constitutional rights do not apply to aliens. Aliens are, by definition, individuals who are not citizens. Due process concerns and equal protection concerns do not apply to non-citizens. No one who is not a citizen can claim legal right, under the Fifth Amendment, to enter our Country. Yet, the Ninth Circuit makes this very determination, essentially deciding the case on the merits to justify and sanctify the lower Court’s awarding of a TRO, with nationwide affect, on behalf of two States whose standing to bring suit against the U.S. President is tenuous at best.
We present the conclusion of our series on an analysis of events and law leading up to and through the Ninth Circuit’s adverse decision on President Trump’s January 27, 2017 Executive Order, forthwith in part 6.
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