February 12th, 2017

Why the 9th Circuit’s decision on the TRO is dangerous

I think that this may be the best article I’ve read on the subject. It’s behind the WSJ paywall, but I got to it by using this link helpfully provided by RealClearPolitics.

Here’s an important summary quote at the end, but I suggest you read the whole thing to see the reasoning that leads up to that conclusion:

The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.

37 Responses to “Why the 9th Circuit’s decision on the TRO is dangerous”

  1. Paul in Boston Says:

    Impeach the judges involved, then break up the 9th, which is within the powers of Congress, and form three or four smaller courts. Also make certain that no curent judge on the 9th is reappointed to any court anywhere in the US.

  2. OM Says:

    Paul in Boston:

    That are options to be considered, although I’m not sure how barring all judges in the 9th circus from later appointment in higher courts would be worked out. Collective punishment? There are checks and balances in our republican from of government, sometimes they are even used.

  3. OM Says:

    I would also posit that the WSJ is not an echo chamber of the right wing.

  4. expat Says:

    It seems that Rothbart doesn’t even read the papers about what is going on with these refugees. He doesn’t know about the stashes of blank passports found in ISIS-controlled areas or te number of “refugees” in Europe found with passports from several countries. Nor does he know tat “refugees” have been coming across the Mediteranean to Europe for years.
    Yesterday, my husband and I travelled to Mannheim by train, switching in Frankfurt. You can’t believe the number of North Africans and Somalis we saw roaming through the train stations. They were young guys, not the mothers and babies you see on TV. Europe is just starting to try to get a handle on tis situation. Does anyone belive that Yemen, Sudan, or Syria is capable of this? Furthermore, I doubt that any were Islamic theologians, but I bet they grew up in a strong-man culture where women are treated like s*it.

  5. Griffin Says:

    I still couldn’t get through the paywall at that link so forgive me if this is discussed in the article. I heard somebody opining that it isn’t to far from this opinion for the case of a president and Congress declaring war on a country and then having some state file suit on behalf of a state university that may have students potentially involved in the war. Then some judge could actually block a war declaration. Seems incredible far fetched but in this environment who knows.

  6. Paul in Boston Says:

    OM, judges will have to be appointed to the new courts. Simply leave the old ones off the list. Not too hard to do if the Repubs control the Congress.

  7. neo-neocon Says:

    Paul in Boston:

    Let me remind you of something I’ve often written, which is that impeachment doesn’t mean much unless you can convict. And there is absolutely no possibility of these judges being convicted in the Senate even if they were impeached in the House, and they would be well aware of that and they would never resign.

    Also, be careful what you advocate. The law states, “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

    Take a look at that website I just linked to. Only 15 federal judges have ever been impeached. Four were acquitted. Three resigned before a trial. That means that eight were convicted. Their crimes were things like perjury, bribe-taking, tax evasion, showing favoritism in appointments, intoxication on the bench, and “refusing to hold court and waging war against the United States government” (that last was a judge in Tennessee during the Civil War).

    Not only would your suggestion fail in terms of conviction, but it would set a dangerous precedent, too: impeaching a judge not because of misconduct but because you think his/her decision is a bad one.

  8. neo-neocon Says:

    Paul in Boston (also OM):

    As for Paul’s second suggestion—creating new courts and “leaving the old ones [judges, that is] off the list”—and his idea that it “wouldn’t be very hard” because the Republican Congress would approve the judges—I believe he is making another error.

    Yes, they can create new courts and change things around. But they can’t just leave the old ones off the list, as far as I can see. For example:

    Court of appeals and district court judgeships are created by legislation that must be enacted by Congress. The Judicial Conference (through its Judicial Resources Committee) surveys the judgeship needs of the courts every other year. A threshold for the number of weighted filings per judgeship is the key factor in determining when an additional judgeship will be requested. Other factors may include geography, number of senior judges, and mix of cases. The Judicial Conference presents its judgeship recommendations to Congress.

    A bona fide argument can be made for splitting the 9th up and creating two courts, because the 9th is unusually large and unwieldy. But no valid argument can be made for leaving some of the judges already appointed to the 9th off the new list. That is the equivalent of impeaching them without any sort of trial at all. That would set another terrible precedent. It would also obviously be taken as an attempt to thwart the law about lifetime appointment of judges except for impeachment.

    See also this.

  9. Irv Says:

    The real problem with this ruling is the damage it does to the judiciary. This is a self-inflicted wound much like the IRS, EPA, Justice Department and so many other government agencies did to themselves during the Obama administration.

    The most damaging thing about the Obama administration was not his policies or his crony capitalism. The worst thing was the destruction of the faith the people had in almost every agency of government.

    Now the lower judiciary has joined in with what Roberts did to the Supreme Court with his Obamacare decision, so that the only agency of government that anyone has any faith left in is the military.

    This goes right along with the self-inflicted wounds that the mainstream media, Hollywood, and the civil rights organizations (among many others) did to their professions the last 8 years.

    It’s hard to be an idealist in this day and age.

  10. Big Maq Says:

    All I can say is a YUGE “THANK YOU!!!” to our “brilliant 3D – chess playing” POTUS.

    @Paul – Sounds very much like a political witchhunt, with implications far more reaching than this possible precedent identified.

    And, when the dems eventually do get a trifecta majority control, then what?

    You might as well argue for abolishing elections and appointing trump as our dear and true leader for your proposal to have any chance at working out. (Would trump finally get a kimboy jong-un haircut then?)

    We can fantasize about such things, but, in our democratic system, it comes back to convincing a majority.

    Using force as such just continues the escalation (as each side has to “correct” past and present “wrongs”) until one side eventually shuts it all down, and the Republic is no more – very much part of why Ben Franklin thought it was / is such a challenge to keep it.

    Why not replace Scalia’s seat, and, if need be, take up the issue there?

    Or better yet, be exceedingly much smarter about EOs to solve problems (perhaps other means / alternatives are available?), and use a little more thought into rolling them out.

    In the meantime, trump has four years worth of lower court appointments and the dems are (self-inflicted) without the filibuster to oppose any.

    While the 9th’s decision was “unprecedented” (were they just setting a “negotiating position”), going far out on a limb, if it were taken to SCOTUS with Gorsuch there, do we think it would stand? Doubtful.

    But, if we are throwing out EOs “to see what sticks”, then we ought not be surprised when judicial surprises happen. Seems the MO for trump’s chief “strategist” anyway…

  11. Big Maq Says:

    Several responses before I even got this one off. Y’all are much faster writers!

    “The worst thing was the destruction of the faith the people had in almost every agency of government.” – Irv

    Whole heartedly agree. (surprised? 😉 )

    Problem is, trump’s approach (assuming we could even all agree to all his policies and governance, whatever they end up being and leading) is looking to be just as damaging, and potentially more so, on this front.

    Probably even more reason, then, to hold trump and co as accountable as we wanted to hold obama and co, and eschew the blue vs red team politics.

  12. Chester Draws Says:

    We’ve seen how the Democrats decision to go nuclear on appointments back-fired on them.

    If Trump takes the same route with Judges, then that option will also be open to the next president. Who might be Democrat.

    If judges are too political, the best way to deal with them is to put them on a circuit (or equivalent) that has no political element. Family court, say.

  13. OM Says:


    Thanks for the “sobriety check.” The devil is always in the details. How to deal with politicians in black robes when they are not elected is a problem in civil societies.

  14. Griffin Says:

    Another scary part of this ruling is the part where they claim Trump’s campaign bluster about a Muslim ban means that this EO is a Muslim ban. Imagine all the things that would now be unconstitutional if we went by this standard.

  15. OM Says:

    Orange hair, red spherical noses, big shoes too? Welcome to the 9th circus.

  16. neo-neocon Says:

    Chester Draws:

    These are federal judges, duly appointed and approved by Congress. They can’t be put on Family Court (or traffic court, for that matter). These are not federal courts.

  17. Paul in Boston Says:

    Neo, you win. But how then does one go about punishing judges who step way out of bounds and make political decisions? Why should they be immune from any restraint?

  18. M J R Says:

    Big Maq, 6:15 pm — “We can fantasize about such things, but, in our democratic system, it comes back to convincing a majority.”

    Disagree. Controversies may sometimes come back to convincing certain people situated in certain places in certain circumstances.

    Our system is a representative republic in the large [Electoral College and all that], and in the not-as-large, it may be different things in different places at different times, including sometimes -slash- often a majority rule. No?

    In any event, majority rule is very often a myth, sez M J R; and even when it’s not a myth, it’s at least not necessarily the best way to determine courses of action.

  19. neo-neocon Says:

    Paul in Boston:

    One can’t punish a judge for making a bad decision, particularly if there aren’t enough votes in the Senate to convict that judge. And what would be the charge? Stupidity? That would be opening up Pandora’s box.

    However, there still is an answer, although it might not be an easy one. The answer is that the legal system is an entire system, and politics is involved as well in terms of appointing judges and approving them. Not a perfect system to be sure, but perhaps as good a system as any of us could devise. The answer is that one judge, two judges, or even a few judges can’t collapse the whole system unless we decide it will.

    Even the Supreme Court has been overruled by subsequent Supreme Court decisions (Dred Scott). In the case of the 9th Circuit, its decisions have been reversed many times. That’s one check that’s built into the system. Another check is political—we elect the people who choose the federal judges (president) and the people who approve them.

    For example, now that Trump is president, he gets to choose many many federal judges. I wrote a post yesterday about how one president—Obama—has changed the tilt of the federal court system. Trump will have a chance to change it back.

    That doesn’t mean damage can’t be inflicted in the meantime. It does mean that as voters we have a responsibility to take all of this into account.

  20. AesopFan Says:

    The falling dominoes of un(?)intended consequences reminds me of the telling question in Citizens United:


    “On March 24, 2009, Deputy Solicitor General Malcolm Stewart told the U.S. Supreme Court that the federal government had the lawful power to ban books if those books happened to mention the name of a candidate for federal office and were published in the run-up to the federal election in which that candidate was competing.

    “It’s a 500-page book, and at the end it says, so vote for X, the government could ban that?” asked an incredulous Chief Justice John Roberts. Yes, the deputy solicitor general conceded, according to the government’s theory of the present case, the government could indeed ban that book. “We could prohibit the publication of the book using the corporate treasury funds,” Stewart said.”

  21. TommyJay Says:

    There may have been a case of a Supreme Court decision being overturned subsequently by the Supremes, but I’m pretty sure that Dred Scott is NOT an example. Dred Scott IS an example of a Supreme decision being ignored by the President. Mr. Lincoln chose to issue travel visas to the freed slaves in spite of Dred Scott deeming them to be non-citizens.

    However, the overturning of Dred Scott required the 13th, 14th, and perhaps the 16th post civil war Amendments.

    This is not the first time I’ve heard this use of Dred Scott as an example, but it’s not true. I don’t know where it comes from.

  22. TommyJay Says:

    I meant to say the 13th, 14th, and 15th Amendments. Sorry, the dog gave me a licking attack midstream.

  23. parker Says:

    I think, as someone who was not a djt fan, that it was rather obvious to me (an Iowa farm boy rooted in flyover country) that the judicial branch has no standing when it comes to who (as an individual or as a group of individuals from any and all regions of the globe) may enter or should be booted out of the USA. That authority is first and foremost granted to the executive branch and secondly congress.

    Any POTUS should tell the judicial branch “you and what army?” when it comes to the division of authority granted to the 3 branches. Ironically, the judicial branch has shown it to be the most lawless.

  24. TommyJay Says:

    Entering the earlier discussion: There is no way impeachment convictions can be pulled off. But, the 9th circuit is the most overturned court in the circuit court system by far, the WSJ article not withstanding. The recent Peruta decision is a blatant violation of the Supremes Heller decision. It has truly run amok.

    So Trump should not just say that it has gotten too big and needs to split into smaller sizes. He should dissolve it because it has run amok and he has the data to prove it. Then two new courts called the 14th and 15th circuits could be created with all new or mostly new judges. A judge is not guaranteed to have his/her job for life if the court itself ceases to exist. Furthermore, I would suggest locating the courts in places like Reno, NV or Boise, ID; not San Fran. or Seattle, or LA.

    I don’t think one can underestimate the cowardice of some of these would-be autocrats. Let them live in communities that might be hostile to the subversion of our legal system.

  25. neo-neocon Says:


    I wrote quickly, and although I was trying to convey the idea that even SCOTUS decisions are not necessarily forever, you are indeed correct that Dred Scott was overturned by amendment rather than another SCOTUS decision.

    There have been many many SCOTUS decisions that have been overruled by other SCOTUS decisions, however. See this for a list.

  26. Phil Christensen Says:

    Let’s not dress it up. The 9th Circuit is engaged in sedition.


  27. Big Maq Says:

    “majority rule is very often a myth … it’s at least not necessarily the best way to determine courses of action.” – MJR

    Who said anything about simply following majority rule?

    You missed a huge point.

    A POTUS can have 5% approval rating, but if they can manage a majority in Congress to either agree with, or otherwise not block, his (within Constitutional boundary) actions, they effectively become the law of the land.

    The problem is keeping those in place.

    There are ONLY two paths to ensuring that.

    1) Abolish elections and keep “your guy” in power, or

    2) The majority of the voting populace buy into, or hold your set of ideas as the best ones to govern by, resulting in renewed majorities in Congress and, hopefully, the WH.

    Seems to me, there is this HUGE assumption underlying much of trump’s most fervent (and blind) support, that “the results will speak for themselves”, thus all will be “forgiven” in the process to get there.

    There has been and is plenty to point to that should shed doubt on that proposition.

    Though I very much would like to see the good outcome become true, much of trump’s behavior seems aimed to please his base, and, debateably, to intentionally cause a reaction in those that are opposed to him.

    This weekend, I think it was Meet the Press, they talked of a recent poll that showed equal split from those Committed to trump, those who Conditionally support trump, those who are Curious about trump (so could be convinced to back him), while 35% are dead Opposed to trump.

    Just ignoring the concerns of the rest of those folks (sans the Opposed), alone, will likely alienate them. trump has to go beyond pleasing his base to grow his support.

    If he doesn’t convert overwhelmingly those who are Conditional, and reach into the Curious, 2018 could see a reversal of electoral fortunes.

    Further, judging from much of trump’s campaign, if some of his proposals get implemented to the extent he indicates, it can cause a downturn that overwhelms any good he may accomplish with tax reform / reduction, regulatory reduction, etc..

    To say nothing of the risk of some international incident through a rushed decision and rash reaction.

    So, the prospect for his net “results” could well be a mixed bag, if not a serious downside.

    It’s a shaky proposition / bet that the “results” would speak for themselves, with no “net” beneath to provide some “benefit of the doubt” (trump’s already lost a lot of goodwill) buttress.

    This might well lead to a 2020 revolt, where, even the weakened dems could muster up a marginal victory for POTUS (not unlike trump’s) and take back (or retain from 2018) Congress.

    Then what?

    Will any of the good trump did / does last?

    Or will they be as fleeting as obamacare and obama’s EOs (the last POTUS who played to his base)?

  28. Big Maq Says:

    “Any POTUS should tell the judicial branch “you and what army?”” – parker

    No, unless what we want is to expand beyond this Overton Window on Constitutional boundaries wrt executive powers, and make it real.

    When the next dem POTUS has their turn at bat, we’d love having done that even more than the dems love having killed the fillibuster for judicial appointments.

    As mentioned in comments above, there are plenty of avenues for the POTUS to pursue.

    First, is to reconsider this whole EO. I doubt trump could let go of using an EO altogether, given the challenge he must feel personally, and the need to do something splashy.

    But, if he does, maybe his team can craft a much stronger and more sound one, using “extreme vetting” by his staff across all affected functions, and then prepare for a competent rollout.

    IOW, do it right the first second time.

  29. Yankee Says:

    A bad decision from the 9th Circuit, but not wholly unexpected, considering the trend of the judiciary with other decisions, and the preference of many on the Left for open borders.

    But this is just the start, as while we may use the term “activist judges”, the reality is that any court can only hear cases that come before it, and all the initiative for action is on the side of Mr. Trump and the Congress.

    Lots of things can be done:
    1. Other executive orders (just with a little fine-tuning)
    2. Changes to current immigration law passed by Congress
    3. Congress choosing not to appropriate any money for refugee programs, or else limiting it (power of the purse)
    4. Appointing other judges to the Supreme and appellate courts (Ginsburg is 83, Kennedy is 80, and Breyer is 78)
    5. Congress can split up the 9th Circuit, and create new circuits (which is long overdue)
    6. Judicial review is not an issue if Congress passes a law restricting the jurisdiction of the courts (jurisdiction stripping)
    7. Public speeches by President Trump explaining his policies and why he is right (the bully pulpit)
    8. External events

    Other instances of terrorism in the U.S. or Europe will sway public opinion in favor of restricting immigration. And the latest news from Germany is that Chancellor Merkel is considering paying refugees to return to their home countries.

  30. Sergey Says:

    It seems to be a major problem in many democratic states: judical oligarchy becoming politicized and meddling into government policy, with no legal measure available to reign them in. Recently many such judical decisions were taken by Israel Supreme court on status of settlements, and the whole apparatus of state paralyzed and incapable to prevent uprooting of families and destruction of their homes with no avail for anybody involved except so-called human-rights defenders, openly hostile to the state.

  31. Big Maq Says:

    @Yankee – nice list

  32. Big Maq Says:

    Warning, topic change!

    Much of the coverage here has been with this one EO (how can it not be? – one of the consequences), so there isn’t anywhere to give a heads up on this.

    One of the most anticipated promises has been tax reform.

    Here is an article with some details on how that is shaping up. Looks good!

    Treating capital investment as an expense, alone, can spur a large increase in business investment (i.e. instead of taxes, that money goes to things that may provide some jobs one way or another).

    Expect a lot of complaints on the left about how this benefits the rich and corporations.

  33. Montage Says:

    The Ninth Circuit had nothing to say about The Immigration and Nationality Act of 1952 that has the provision: “Suspension of entry or imposition of restrictions by President”. That provision gives the President a lot of leeway in matters of immigration. It has been used by all Presidents since 1952 except Truman [who vetoed the law, which was overridden by Congress, where Democrats had the majority in both houses btw].

    The issue, however, is that Trump is the first to apply a blanket ban to everyone from a specific country [or region]. So the Ninth Circuit looked at that, as well as things that Trump said when he was campaigning and they read that as a ‘Muslim ban’ not just a ban of people from a particular region. Therefore, they saw religious discrimination. So they relied more on the First and Fourteenth Amendments than on the provision of the 1952 Act.

    Therefore, the easy fix would be for Trump [and his team] to rewrite the order in a way that the courts will accept. I’m sure they are doing that.

  34. neo-neocon Says:


    Trump is not the first to apply a blanket ban to a country.

    And the seven countries are not a “region.” Turkey, Pakistan, Saudi Arabia, Oman, Egypt, Ethiopia are in that same region and are not included.

    Carter banned immigrants from Iran during the hostage crisis.

    A Court cannot “see” religious discrimination because of prior statements a year earlier and an intent to issue a ban that is different, when the present ban obviously does not involve banning Muslims. That is (as I wrote in another context) charging Trump with thought-crime, minus anything in the current EO that has to do with said thought-crime. It is a very dangerous precedent the court would be setting.

    I do agree that Trump should just rewrite it. I thought it was carelessly drafted in the first place.

  35. John Dough Says:

    Once the Supreme Court is again full, I believe this 9th circuit court ruling needs to be adjudicated to again place the decision making power over immigration back in the hands of the Executive Dept.

  36. Richard Saunders Says:

    The IRS has a procedure called “nonacquiescence,” under which the Service announces it will not follow a court decision. In the case of a lower court decision. the announcement directs IRS personnel not to follow the decision in handling taxpayers’ cases. In the case of a circuit court of appeals decision, the IRS will follow it only in that circuit. The Department of Homeland Security should immediately promulgate temporary and proposed regulations adopting the same policy and applying it to this case.

  37. parker Says:

    There are precedents both stautory and judicial rulings that do not require any given POTUS to seek approval of the judicial branch when it comes to the topic of immigration/entry of aliens, even aliens with visas or green cards. This is, once again, the judicial branch engaging in politics. That is not their job.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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