by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Hans von Spakovsky highlights in a National Review Online column the judicial experts who argue that President Trump’s immigration order is legal and constitutional.
What kind of judges fill the ranks of the federal judiciary these days? More often than not, unfortunately, it’s the kind who refuse to follow the law and the Constitution, and whose biases and personal views distort their decision-making. …
… But there are also some very good federal judges, and five of the best joined together in a stirring dissent released March 15 that explained in detail why the president has acted fully within the law and the Constitution. Their dissent should be required remedial reading for the federal judges assigned to all of these cases. It was filed in a Ninth Circuit Court of Appeals decision that denied en banc review (review by the entire court) of the astonishing recent decision by a three-judge panel; the three judges refused to throw out the injunction issued against the original executive order by a district-court judge in Washington State.
In a dissent written by Jay Bybee and joined by Alex Kozinski, Consuelo Callahan, Carlos Bea, and Sandra Ikuta, the judges explain why the panel’s decision was full of errors that “confound Supreme Court and Ninth Circuit precedent” that will make it impossible for the district courts “to know what law to apply in the future.” Moreover, they note, the personal views of federal judges should be “of no consequence.” “Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency, and ‘[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.’”
The dissenters then proceed to do what the judges who have ruled against the administration have not done: They give a detailed explanation of the constitutional and federal statutory provisions that provide the authority for the president’s actions, as delegated to him by Congress, and the long string of court decisions upholding that authority — and not just U.S. Supreme Court decisions, but also prior decisions in the Ninth Circuit itself that were unashamedly ignored by the three-judge panel.