The Alice in Wonderland court, convened to find out who stole the Queen’s tarts, has been the epitome of judicial absurdity since Lewis Carroll wrote the story in 1865—until the court rulings on President Trump’s executive orders, that is.
The court Alice found herself in, at the end of the story was reassuring at first: she identified all the trappings a court should have—a judge (the King of Hearts), jurors, witnesses, prosecuting and defense attorneys (Tweedledee and Tweedledum).
As SparkNotes.com explains it: “She sees the Wonderland court as a true court of justice, viewing the institution of law as a refuge of sanity in which an objective and undeniable truth will prevail.” But, “The trial mocks the legal process. The importance of trivial points supersedes core issues of right and wrong, innocence and guilt.”
At the end, the King calls for a verdict, but the Queen insists on “Sentence first—verdict afterwards!” And of course, the sentence of choice would be: “Off with his head!” Alice finally grasps that “You’re all just a pack of cards!” and awakes from the most famous dream ever.
The Queen’s command is a lot like judges who, seeking to administer an off-with-his-head sentence to the president, come up with reasons to justify a verdict leading to that sentence. Any expectation that decisions by leftist judges on Trump’s immigration executive orders would be guided by logic and the law turn out to be a dream.
The February 3rd ruling by the Ninth Circuit’s three-judge panel, denying the government’s motion to stay WA Judge Robart’s decision on the first EO, was embarrassingly lawless; so much so that there was a move for the full Ninth Circuit to reconsider the denial, en banc (by the full court). Unfortunately, a majority of their judges voted against it.
However, five judges from the same circuit recently ripped the panel’s decision to pieces in a scathing dissent from the denial of reconsideration. It includes a detailed history of “the source of Congress’s and the President’s authority to exclude aliens.”
The judges include the highly-respected Alex Kozinski; Jay Bybee, who wrote the dissent; Consuelo Callahan; Carlos Bea and Sandra Ikuta.
Details of the dissent reveal just how extreme the 3-judge panel’s opinion was, and by implication the district courts’ decisions were:
It neglected or overlooked critical cases by the Supreme Court and by our court [the Ninth] making clear that when we are reviewing decisions about who may be admitted into the United States, we must defer to the judgment of the political [elected] branches. That does not mean that we have no power of judicial review at all, but it does mean that our authority to second guess or to probe the decisions of those branches is carefully circumscribed.
It is … an “uncontroversial principle” that courts must defer to the political judgment of the President and Congress in matters of immigration policy. The Supreme Court has said so, plainly and often. [For examples, see page 9 of the dissent.]
The panel did not recognize the “critical distinction” between people seeking admission to our shores and people already in America, wrote Judge Bybee, for the five. “The panel’s decision is not only inconsistent with clear Supreme Court authority, but the panel missed a whole bunch of our own decisions as well.
“Authority to second guess or to probe the decisions of [the elected branches] is carefully circumscribed,” he said. How do judges know when it is allowed and when it is not?
Bybee wrote, “the appropriate test for judging executive and congressional action affecting aliens who are outside our borders and seeking admission is set forth in Kleindienst v. Mandel. On pages 11–14 of the dissent , the judges detail how the Ninth Circuit panel misused and violated the precedent of Mandel. And the district courts did, as well.
In this SCOTUS case, Mandel, “a Marxist journalist who had been invited to address conferences at Columbia, Princeton, and Stanford, among other groups,” was refused a visa. He and various professors sued, under the First and Fifth amendments.
“The Court first made clear that Mandel himself, ‘as an unadmitted and nonresident alien, had no constitutional right of entry.’” Then, it established “The appropriate test for judging executive and congressional action affecting aliens who are outside our borders and seeking admission”:
Once the executive makes a decision ‘on the basis of a facially [on its face] legitimate and bona fide reason,’ the courts may “‘neither look behind the exercise of that discretion, nor test it by balancing its justification against’ the constitutional interests of citizens the visa denial might implicate.
More than one SCOTUS decision upholds Mandel as the appropriate test. The most recent was Kerry v. Din (2015). It involved Din, a U.S. citizen, who claimed the government’s refusal to grant her Afghani husband a visa violated her own constitutional right to live with her husband. The Ninth Circuit agreed with her, but the Supreme Court overruled it, sending the case back to the Ninth. The Ninth subsequently ruled in a 2016 case, Cardenas v. United States that Justice Kennedy’s decision was controlling.
The Ninth Circuit’s 3-judge panel was so keen on achieving the desired outcome that it ignored this decision of its own court, only the year before.
Considering the above, it’s also clear that the judges in Washington State, the Ninth Circuit panel, Virginia, Hawaii and Maryland were serving ideology—not justice—when they ruled to block the president’s executive orders.
Both executive orders were issued for a clear, stated “legitimate and bona fide reason.”
The revised executive order, 13780, states at the outset, in Section 1(a): “It is … the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP [the refugee program].” Is that not a good reason?
The travel ban therein involves six countries, of which the president says:
“Nationals from the countries … warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats. Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government’s willingness or ability to share or validate important information about individuals seeking to travel to the United States.”
The district judges were forbidden by the Mandel precedent to look further, to divine the Administration’s “secret motivation.” As the five judges quoted above put it:
“Even if we have questions about the basis for the President’s ultimate findings—whether it was a “Muslim ban” or something else—we do not get to peek behind the curtain. So long as there is one ‘facially legitimate and bona fide’ reason for the President’s actions, our inquiry is at an end.”
It is appropriate to look behind the decisions of these courts, however. This is not about a children’s story, but national security. Besides having the fatal Mandel flaw, they used bizarre standards that point to a “sentence first, verdict later” philosophy. Watson accepted that one of the plaintiffs, Imam Ismail Elshikh, had standing, which led to inappropriate use of the Establishment Clause, because of him and his family “having to live in a country … where there is the perception that the Government has established a disfavored religion.” See details here, on page 24.
Equally bizarre was Judge Watson’s order enjoining not only the paragraphs in Sections 2 and 6 that dealt with the travel ban or the refugee suspension, but all the many paragraphs, including the president’s order to “conduct a worldwide review” [Sec. 2(a)] to ascertain what kind of info might be needed from “each foreign country” to determine that visa applicants are not security or public-safety threats, and his order to reduce the number of refugees in fiscal 2017 to 50,000 [Sec. 6(b)]. These are obviously functions that belong to the president.
According to DiscoverTheNetworks, NAIT: “Has had close ties to … the Muslim Brotherhood and is a “financial subsidiary” and “constituent organization” of the Islamic Society of North America (ISNA). DTN says this, of ISNA: “Enforces extremist Wahhabi theological writ in America’s mosques.”
That’s enough right there, but the reader is urged to read all about ISNA, in measuring Dr. Elshikh’s statements and ideology. Don’t overlook the section on “Ties to the Muslim Brotherhood and Islamic Extremism.” Both NAIT and ISNA were named in the Muslim Brotherhood’s declaration of war against America—its ”Explanatory Memorandum ”—on a list of the Brotherhood’s likeminded allies dedicated to “eliminating and destroying the Western civilization from within.”
We also learn that Virginia’s attorney general, Mark Herring, who brought a lawsuit against the first EO has a disconcerting partnership with a familiar Muslim group. On March 17th, Townhall.com reported that:
“The Council on Islamic Relations, better known as CAIR, has announced the terrorism linked group will host a town hall meeting Friday night with Virginia Attorney General Mark Herring. The town hall will center around opposing President Trump’s executive order temporarily barring refugees and visitors from Somalia, Yemen, Syria, Libya, Iran and Sudan to the United States.
Townhall goes on to say: “CAIR has been tied to the terrorist organization Hamas, which sends suicide bombers into Israel and encourages knife attacks. CAIR was also an unindicted co-conspirator in the Holy Land Foundation trial.”
Discover the Networks said this: “Terrorism expert Steven Emerson, citing federal law enforcement sources and internal documents, characterizes CAIR as ‘a radical fundamentalist front group for Hamas.’”
Herring and attorneys general of fifteen other states, in apparent insurrection against established law, vowed to fight the president’s first executive order. His recent tweets show he thinks he’s part of some grand “fight.” Here’s one:
— Mark Herring (@MarkHerringVA) March 16, 2017
It seems that the Ninth Circuit panel and district judges in Washington State, Virginia, Hawaii and Maryland were prepared to cast jurisprudence in the mud to help out.
All this proves the president cannot rely on getting a fair decision in court. If Mr. Trump is to carry out his very sane immigration objectives, Congress must do its job—strip the courts of jurisdiction over immigration. Perhaps then, we can escape the fate Europe has suffered from Muslim migration. Read about how that can be done, and read about Europe too, here.
What you can do
Now is the time for We the People to assert ourselves, or we will wind up like Europe. Share this message. Then call these people, leaving a clear message:
Speaker Paul Ryan: Phone: (202) 225-3031 or (202) 225–0600 <6> to leave a message after hours.
Majority Leader—Kevin McCarthy: (202) 225–4000
Majority Leader Mitch McConnell: (202) 224-2541.
Asst. Majority Leader John Cornyn: (202) 224-2934 <2> to leave message; <3> to reach staff.
Republican Conference Chmn. John Thune: (202) 224-2321