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theodore M I R A L D I mpa ... editor, publisher, writer
Sunday, February 12, 2017
Trump The 9th CIRCUS
Congress has the power to constitute — and
reconstitute — the federal courts. That’s a power it
might consider using.
Before we get started, let’s agree on three things which are inarguable.
First, that the U.S. Constitution vests plenary power in the President of the United States where foreign policy is concerned. Federal law, moreover, defines that power to include immigration. Section 212(f) of the Immigration and Nationality Act of 1952 states:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
Therefore, if Donald Trump believes that people from Trinidad and Tobago, or Sri Lanka, or Iceland are bad news for the United States of America, regardless of the quality of his analysis in forming that belief, he is given power under federal law to ban those people from coming to the United States.
And if Donald Trump should draw from a list of countries compiled by his predecessor — it was the Obama administration which made a finding that Libya, Somalia, Sudan, Iraq, Iran, Syria and Yemen cannot or will not facilitate the quality of vetting of immigrants and refugees satisfactory to a proper diminution of risk of terrorism — and issue a proclamation pursuant to that 1952 law suspending entry by people from those countries, then under the law the issue is closed until such time as Trump wishes to reopen it, or Congress wishes to change the 1952 law.
On either a temporary or even permanent basis so long as Trump or a successor who shares his beliefs sits in the White House.
Second, there is no constitutional right of a foreign national to enter the United States. Constitutional rights of foreign nationals commence upon their arrival in America, which is commonly interpreted as clearing customs and immigration bottlenecks at ports of entry.
Someone in Somalia who would like to relocate to Kearney, Nebraska, or Many, Louisiana, has no right under the U.S. Constitution or any other federal law to do so — such would be the exercise of a privilege allowed by the American government in the person of the president of the United States. That our government has been exceedingly generous in granting those privileges has no bearing on whether they have become rights.
And third, the immigration order put forth by the Trump administration, regardless of the reader’s judgment as to its wisdom or drafting, is not dissimilar to previous orders issued by Trump’s predecessors. Barack Obama barred entry for six months by Iraqis in 2011; Jimmy Carter banned Iranians during the hostage crisis. Indeed, each of Trump’s predecessors have issued bans of some kind on travel to or from various countries based on some assessment of risk.
Given those three inarguable items, the Ninth Circuit, or Ninth Circus as it’s frequently called given its atrocious record of being overturned, nevertheless upheld a restraining order issued by a federal judge in Seattle containing virtually no law on the essential basis that Trump’s order and rhetoric on immigration wasn’t suitably politically correct.
This is part and parcel of the kind of leftist politics which has infested the Ninth Circus in lieu of legal reasoning, and at some point a straw will break the camel’s back.
Perhaps there’s no time like the present for it, and perhaps Congress should step in and fix the problem. When appellate judges routinely ignore federal law as written and impose their politics in its place, we are no longer a nation of laws. And with so egregious an affront, perhaps an example should be made.
The federal courts are vested by Article 3, Section 1 of the Constitution, which provides: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Accordingly, those inferior courts, including the Ninth Circuit, have been built through federal statutes.
And those statutes, and the courts they have produced, can be changed.
In 2004, the Republican-led House passed a bill to break up the Ninth Circuit into three separate entities — one encompassing Hawaii and California, another to include Alaska, Oregon, and Washington state, and a third covering Arizona, Idaho, Montana and Nevada. Democrats in the Senate shot down the plan, which was advertised not as a response to the poor legal decision-making of the Ninth Circuit but rather due to the its vast geography. That effort came amid a decade-long advocacy by Newt Gingrich, who in 2002 began suggesting abolishing the Ninth Circuit after it ruled “that ‘one nation under God,’ in the Pledge of Allegiance, was unconstitutional.”
Gingrich’s idea was for Congress to subpoena the judges making what he called “anti-American” rulings and demanding they defend them under legal and constitutional justification — and if the answers weren’t satisfactory, to abolish the courts those judges inhabit.
He was laughed at for his ideas, and castigated by a pair of Bush-era attorneys general in late 2011 for such a radical view. And five years on, thanks to the Ninth Circus the president of the United States is apparently not able to exercise powers plainly given him by the Constitution and federal statute.
Most legal analysts seem to believe the Supreme Court, even in its current 4-4 ideological split, will overturn the ruling the judges in San Francisco issued on Thursday. That remains to be seen. But after eight years of packing by a lawless president in Obama, that ruling shows Gingrich’s case is even stronger than it was when he was rebuked for it — and clearly, than when he began making it.
It’s time to start talking about whether the circus should leave town. Trump was elected because the American people, particularly those of us who don’t live on the West Coast and don’t care to be governed by its mandates against our will, are ready for change.