The Ninth Circus strikes again!
Last night, the far-left activist judges of the Ninth Circuit Court of Appeals upheld a ruling by a lower court that temporarily struck down President Trump’s order that applicants for immigration to our country from seven terrorist states be subject to extreme vetting.
Like the lower court ruling, the appellate decision was bereft of any meaningful legal reasoning and was a politically motivated outcome-based decision. I am firmly convinced that these leftist judges abhorred the policy and determined to substitute their own preferred policy.
This outcome was no surprise. Indeed, it was expected from the most left-wing activist court in the country.
The Ninth Circuit Court of Appeals is often referred to as the “Ninth Circus” or the “Nutty Ninth” because of its propensity to legislate from the bench rather than engage in actual, you know, judicating.
Of the 25 active judges on this court, 18 were appointed by Democrats. The decisions by this court are so notoriously ridiculous that fully 80% of the decisions from the 9th Circuit that are accepted by the Supreme Court on appeal are reversed.
An 80% reversal rate. Think about that. How arrogantly activist would a court have to be to get reversed in four out of every five cases and still continue to legislate from the bench?
Last night’s decision upholding the injunction on President Trump’s immigration restrictions from terrorist countries – countries that were so designated by the Obama administration, by the way – is so arrogant that it should even shame the judges of the Ninth Circus.
Centuries of law have established that the president has wide latitude – almost unchecked discretion – to determine who may and may not enter our country. This makes perfect sense given that the president is specifically tasked with safeguarding our national security.
For a court to presume to exercise greater power than the president in making these policies is not just arrogant – It’s dangerous.
The court appears to be saying that this immigration restriction is impermissible because it targets Muslims. This is self-evidently false. The policy does not cover the vast majority of Muslims across the world, and it does not specifically target Muslims at all. It covers people – all people of every religion – from seven countries that are hotbeds of terrorism. The fact that all seven of those countries are predominantly Muslim does not make the policy anti-Muslim, as any jurist worthy of the name would understand.
This ruling will be reversed by the U.S. Supreme Court.
I am well aware that the Supreme Court currently is equally divided between four Republican-appointed conservative justices and four Democrat-appointed liberal justices. And I am also well aware that a tie vote leaves the Ninth Circus decision in place.
But the Supreme Court will not deadlock on this matter.
Since the death of Justice Antonin Scalia, Chief Justice John Roberts has worked diligently to find ways to avoid 4-4 splits, and for the most part he has been successful. He will be successful in this instance as well.
I see two likely ways that this case will be resolved by the Supreme Court, and both would constitute reversals of the Ninth Circus decision.
First, I think it is very possible that Justice Elena Kagan, President Obama’s former Solicitor General, will side with the conservatives on this question of presidential authority. Of all of the justices, she is the one with the most firsthand experience working directly for and with a president, and I believe that experience likely gave her a respect for preserving presidential authority under the Constitution. She might not like President Trump, but she does respect the Office of the Presidency and will not want to issue a ruling that would tie future presidents’ hands on a subject that goes to a president’s core plenary powers.
If I’m wrong about Justice Kagan and she is inclined to side with the liberals against the Trump policy, then a separate way for Chief Justice Roberts to reach a majority that reverses the Ninth Circus would be to avoid the issue of presidential authority altogether. They can do this by deciding the case on completely different legal grounds.
Before the court even considers the question of whether the Trump policy is constitutional, the court first must decide whether the State of Washington had standing to bring this legal challenge in the first place.
The State of Washington brought the challenge based on its assertion that businesses located there have suffered harm from the immigration policy. But there is no legal principle that allows a state to sue based on the interests of certain individual constituents.
If there is no majority among the eight justices on the question of the constitutionality of the policy, I believe Chief Justice Roberts will seek a majority of justices to rule that the case is not properly before the court in the first place because the State of Washington did not have standing to bring this challenge.
Such a decision would restore President Trump’s immigration restriction but would leave the question of its constitutionality unresolved and subject to challenge by other parties who might have standing to bring such a challenge. But even if that happens, there is a good chance that Supreme Court nominee Neil Gorsuch will be confirmed and seated by the time such a challenge finds its way back to the Supreme Court.
So, yes, the Ninth Circus struck again with the latest in its long history of absurd decisions. But let not your heart be troubled. This decision will be reversed by the Supreme Court.
Author: Ken Falkenstein
Ken Falkenstein is the Managing Editor of Committed Conservative and brings a wealth of experience and expertise in public affairs to the job. Ken served in the U.S. Army in the last years of the Cold War as a Russian linguist for military intelligence and the NSA. After leaving the Army, he earned his degree in Secondary Education from Old Dominion University, where he also wrote a popular column in the student newspaper.
Upon graduation, Ken worked as a Legislative Aide to two Republican members of the Virginia House of Delegates. Ken also served as Corresponding Secretary of the Young Republican Federation of Virginia, managed several successful political campaigns, and managed governmental affairs operations for a local Realtor association.
In 1995, Ken moved to Washington, DC to serve as a Legislative Assistant to Sen. John Warner (R-VA). While working for Sen. Warner, Ken attended law school at night, earning his J.D. with honors from the George Mason University School of Law (n/k/a The Antonin Scalia Law School). Since that time, Ken has practiced as a civil litigation attorney, including serving for three years as an Associate City Attorney for the City of Virginia Beach, Virginia.
Ken previously was a contributor to the highly-regarded political blog Bearing Drift and was a weekly co-host of The Steve Batton Radio Program. In 2016, Ken ran unsuccessfully for the Virginia Beach School Board. Ken is also a former President of the Down Syndrome Association of Hampton Roads.
Ken now lives outside of Denver, Colorado with his wife, Kim, and three sons, Adam, Dylan, and Joshua, who has Down syndrome. Ken’s writing is motivated and informed primarily by his concern for his kids’ future.