Seeing the Round Corners

March 6, 2017

THE DANGERS OF JUDICIAL ACTIVISM

   The ruling by the 9th U. S. Circuit Court of Appeals on President Trump’s executive order temporarily banning visas from seven Islamic countries has been referred to by some news release organizations as an “another example of federal courts grabbing power from the legislative and executive branches in violation of basic separation-of-powers principles.”

   Remember, the theory in the separation-of-powers principles provided for in the United States Constitution provide that courts are to interpret laws, not make them. There are so many specific points the 9th Circuit Court ignored, it is mind boggling at how it could uphold the district court’s ruling.

   Here are a few salient points worthy of consideration as the rhetoric continues:

  1. “8 U.S.C. Section 1182 (f) [of the U. S. Constitution] 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.’”
  2. The 9th Circuit Court discussed its concern that the “executive branch is failing to provide due process to aliens barred from entry into the U. S.”
  3. The President’s executive order was clear that it did not apply to permanent residents of the United States.
  4.  A statement by the 9th Circuit Court said:  “No evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States” was rebutted by a Washington Examiner journalist, Byron York.
  5. “Last year, the Senate Judiciary subcommittee on immigration and the national interest released information showing that at least 60 people born in the seven countries had been convicted – not just arrested, but convicted – of terror-related offenses in the United States since September 11, 2001.” 
  6. Recent cases exampled by “the case of Abdul Artan, a Somali refugee who wounded 11 people during a machete attack on the campus of Ohio State University last November.”

   8 U.S.C. Section 1182(f) was analyzed by federal judge Nathaniel Gorton of the District Court of Massachusetts. His conclusion:  “The decision to prevent aliens from entering the country is a ‘fundamental sovereign attribute’ realized through the legislative and executive branches that is ‘largely immune from judicial control.’”

Think of these question(s) as you read on:  

How can illegal aliens who don’t live in or have never lived in the U. S. have constitutional rights or a constitutional right to enter the U. S.?

How can illegal aliens thus have due process rights if they are refused entry into the U. S. if they have never lived in the U. S.?

The 9th Circuit Court ignored the relevant statute(s) instead voicing its concern over the executive branch failing to provide due process to aliens barred from entry into the United States.

The 9th Circuit Court further ignored the provisions of 8 U.S.C. (f) 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.’”

The 9th Circuit Court also gave “no deference to the President’s policy determination that a temporary suspension is necessary to ensure that adequate vetting procedures are in place.”

LATE BREAKING NEWS:  Just prior to deadline for today’s column, announcement was made that Iraq has been deleted from the original seven countries included in President Trump’s executive order.

The reader's comments or questions are always welcome. E-mail me at doris@dorisbeaver.com.