Friday, February 10, 2017

The Ninth Circuit decision - a roundup of views

David French at NRO on the court's view that state universities' loss of brainpower from being deprived of immigrant students and faculty is a valid reason to issue the ruling:

this ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants — merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. While the standing ruling might be more credible if applied to individual immigrants whose exclusion from the country causes specific and identifiable harm to the state, here the court used the possibility of specific harm to confer general standing on states to act on behalf of immigrants as a class. This is extraordinary. 
French again on the court's observation that no jihadist attacks have been carried out in the US by people from these countries:

Putting aside, for the moment, the administration’s inexplicable failure to include in the executive order or the record the extensive documentation and evidence demonstrating the threat of jihad from the seven identified countries (including terror attacks in the U.S., plots in the U.S., and a record of plots and attacks abroad), whether an attack has been completed in this country is not the standard for implementing heightened security measures. The president doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike. Indeed, that’s the goal of national defense — to prevent attacks, not respond after the carnage.
French concludes by saying that the administration ought to take a chill pill and consider how to fight "from higher ground" rather than rushing to the Supreme Court.

James Pierson at The New Criterion   on how the current atmosphere of polarization and shrill rhetoric in our nation have obscured the actual modest scope of the EO:

The executive order, while entirely defensible and appropriate as an exercise of the President’s Article II powers, has gotten caught up in a frenzied over-reaction that has overwhelmed and obscured the constitutional and security issues at stake in the controversy. The order in fact is fairly modest as these things go, suspending admissions into the country for brief periods of 90 or 120 days while the government evaluates the process by which applicants from those seven countries are screened and admitted. It is not a “travel ban” nor a “Muslim” ban, as some are saying; nor is it a ban on legal immigration into the country nor a closing of the borders. Least of all does it represent a symbolic demolition of the Statue of Liberty. But that is what is being said, and the extreme voices are drowning out the sane and moderate ones, which increasingly seems to be par for the course in American politics at the present moment.

Hans von Spakovsky at Fox News on the one federal judge who has understood the perfectly legitimate exercise of executive-branch authority embodied in the EO:

So far in the numerous lawsuits that have been filed against this EO, the only Federal judge to get it right is Nathaniel Gorton of the District Court of Massachusetts.  He analyzed the relevant statute, 8 U.S.C. §1182(f), and concluded that the EO is fully within the president's authority: "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.'"  Contrary to the Ninth Circuit, Gorton says the EO is "facially legitimate and bona fide."

May have more later as I continue to poke around.

My own two-cents' worth: Discouraged, but not surprised. How often does the Ninth Circuit Court of Appeals get anything right?

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