By Villem Maherstein
March 20, 2017 - San Francisco, CA - PipeLineNews.org – On March 15, a five judge panel from the Ninth Circuit - in a very unusual action - almost literally threw the book at a 3 justice panel - from the same Court. The controversy involves two [very similar] executive orders recently issued by the Trump administration, calling for a temporary immigration ban against those seeking entry from a number of terror linked [oddly, Muslim majority] countries.
In the first order the nations subject to the temporary ban were Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen. The second order, essentially what has been characterized by the president as a “watered down version” of the first order, omitted Iraq.
Almost immediately upon issuance, the first order was challenged by two states [Washington and Minnesota] claiming it was unconstitutional and violative of federal law. Washington state’s AG filed suit in Federal District Court and on February 3, Judge James Robart ruled in favor of the plaintiffs and issued a temporary restraining order. In response, the government moved for an emergency stay of the district court’s temporary restraining order while its appeal proceeded. That request was unanimously denied on February 9, 2017 [see, Washington v Trump [No. 17-35105 ] by the above referenced 9th Circuit, 3 judge panel, all lefties - Michelle Friedland, William Canby and Richard Clifton.
Five weeks later, on March 15, there was an unprecedented, not to mention major pushback by a five justice panel from the same band of judicial brothers comprised of Jay Scott Bybee, Alex Kozinski, Consuelo M. Callahan, Carlos T. Bea and Sandra S. Ikuta [source, 9th Circuit Justices ]
It’s hard to describe the 29 page decision as anything but devastating. Even noted liberal Constitutional law scholar Jonathan Turley referred to it as a “rare rebuke," eviscerating the 9th Circuit’s imprudent, clearly politicized approach to the case.
“The dissenting judges objected that there is an “obligation to correct” the “manifest” errors of the panel. It called those errors “fundamental” and even questioned the manner in which the panel reached its decision with a telephonic oral argument. The dissent raised many of the problems that various commentators have raised, including myself. The lack of consideration to opposing case law, failure to address the statutory authority given to the President, and the sweeping dismissal of executive authority are obvious flaws.”
We will attempt to list the major defects the 5 judge panel found, using the decision itself as a syllabus:
1. “The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 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.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993). [source, p. 1, emphasis added unless otherwise indicated]
2. “ The exclusion of aliens is a fundamental act of sovereignty .” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950); see also Landon v. Plasencia, 459 U.S. 21, 32 (1982). [p. 2]
3. “In the Immigration and Nationality Act of 1952, Congress exercised its authority to prescribe the terms on which aliens may be admitted to the United States, the conditions on which they may remain within our borders, and the requirements for becoming naturalized U.S. citizens. 8 U.S.C. § 1101 et seq. Congress also delegated authority to the President to suspend the entry of “any class of aliens” as he deems appropriate:
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 .” [p. 3-4]
4. “Many presidents have invoked the authority of § 1182(f) to bar the entry of broad classes of aliens from identified countries.” [p. 4]
5. At this point the panel noted a serious deficiency in the argument proffered in the Washington State decision where it alleged, paraphrasing, “we can review the Executive Order for constitutionality under the same standards as we would review challenges to domestic policies.” [p. 6]
6. “ the panel made a fundamental error. It neglected or overlooked critical cases by the Supreme Court and by our court 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 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. The panel’s analysis conflicts irreconcilably with our prior cases .” [p.8]
7. “ It is indeed 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 . See, e.g., Mathews v. Diaz, 426 U.S. 67, 81 (1976)” [p. 9]
8. The decision then explains the differences between the rights of immigrants who are already present in the United State [legally or illegally] as contrasted against those “who come to our shores seeking admission,” with those in the former class having additional rights compared to those in the latter class. [p. 10]
9. The justices then illustrated the point using the case of a Marxist journalist who had been invited to speak on a number of college campuses but had his visa request denied. Additionally, and this is important, when the inviting professors claimed that their First Amendment rights were being abridged, essentially because they were deprived the opportunity to hear the journalist, the court, admitting that First Amendment questions were invoked still reasoned against admission:
“It concluded that when the executive has exercised its authority to exclude aliens “ on the basis of a facially legitimate and bona fide reason , the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant .” [p. 11-12]
10. “… the panel’s declaration that we cannot look behind the decision of a consular officer, but can examine the decision of the President stands the separation of powers on its head …With a moment’s thought, that principle cannot withstand the gentlest inquiry, and we have said so. See Bustamante v. Mukasey, 531 F.3d 1059, 1062n.1 (9th Cir. 2008)” [p. 12]
11. The panel then proceeded to a case which arose as a result of the 9/11 attack where, “…the Attorney General instituted the National Security Entry-Exit Registration System. That program required non-immigrant alien males (residing in the United States) over the age of sixteen from twenty-five countries - twenty-four Muslim majority countries plus North Korea - to appear for registration and fingerprinting.”
The case was of course challenged with the Second Circuit limiting its review to the “rational basis standard,” i.e., did the action seem prudent on its face to deal with the very real potential for additional attacks. The petitioner’s case was unanimously rejected, based upon a truly withering array of precedents:
“The Second Circuit thus unanimously rejected the petitioners’ constitutional challenges and “join[ed] every circuit that ha[d] considered the issue in concluding that the Program [did] not violate Equal Protection guarantees.” Id.; see Malik v. Gonzales, 213 F. App’x 173, 174–75 (4th Cir. 2007); Kandamar v. Gonzales, 464 F.3d 65, 72–74 (1st Cir. 2006); Zafar v. U.S. Attorney Gen., 461 F.3d 1357, 1367 (11th Cir. 2006); Hadayat v. Gonzales, 458 F.3d 659, 664–65 (7th Cir. 2006); Shaybob v. Attorney Gen. , 189 F. App’x 127, 130 (3d Cir. 2006); Ahmed v. Gonzales, 447 F.3d 433, 439 (5th Cir. 2006); see also Adenwala v. Holder, 341 F. App’x 307, 309 (9th Cir. 2009); Roudnahal v. Ridge, 310 F. Supp. 2d 884, 892 (N.D. Ohio 2003).” [p. 17-18]
In what we previously referred to as throwing down the gauntlet, the review panel called attention to [what we presume to be] either shoddy work, or worse a politicized decision by the three judge panel, apparently in search of some basis of reasonably establishing its decision.
“ The panel was oblivious to this important history .” [ibid]
12. The panel’s clear misstatement of law justifies vacating the opinion . Applying Mandel here, the panel’s error becomes obvious: the Executive Order was easily “facially legitimate” and supported by a “bona fide reason.” As I have quoted above, § 1182(f) authorizes the President to suspend the entry of “any class of aliens” as he deems appropriate: [p. 20]
In what really constituted the killing broadside, the 5 judge dissenting panel states:
“ So long as there is one “facially legitimate and bona fide” reason for the President’s actions, our inquiry is at an end . As the Court explained in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999):
The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat - or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals - and even it if did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy…” [p. 22].
Thus the pretzel logic of initial ruling is laid bare. What these judges plainly did was to seek post hoc justifications for a decision it had already made. There was no way they were going to allow the executive order to stand even if it mean ignoring nearly 70 years of established precedents or as the dissenting panel termed it, “standing the separation of powers on its head.”
Not only is the preceding an extraordinarily powerfully argued case, its logic is clear enough for the layman to understand [in a meta sense] and we feel that despite what will be a hailstorm of recriminations, misinterpretations, half-truth and simply lies coming from the Deep State media and black-robed toadies, this executive order will eventually stand.
The 9th Circuit, en toto, would do itself a great favor by resolving the matter right here and now because the argument it has advanced is so ridiculous that if it gets to the Supreme Court, it could well be slapped down unanimously.
But then this court seems to be unnaturally fond of a good ass-whipping
Pulling the hijab aside
Regardless of how the aforementioned is eventually decided - and certainly not to suggest that how it is resolved is unimportant - all of this legal maneuvering might be better thought of as a smokescreen, covering much deeper and far darker controversies that few want to truthfully discuss. These all revolve around the question of why would it even be necessary to consider barring immigration from certain nations all of “which just happen to be” Muslim?
Reduced to its most basic level, the answer is that maintaining national security demands it since countries like Yemen, Syria and Iran are net exporters of terrorism. In epidemiology they would be called disease vectors, the routes and pathways whereby pathogens are spread.
In law, sometimes disagreements [usually involving tort actions] that could rise to the level of adjudication can better be fairly and more quickly settled through arbitration, both sides give a little and everyone walks away with the feeling that some sense of justice had been rendered. This is never the case in capital criminal offenses, you have at least one dead body and someone has to be sternly held to legal account, including the possibility of being subjected to the death penalty.
Going back to our medical example it would be the difference between the way the authorities would deal with seasonal outbreak of the flu in a community as opposed to how it would be forced to react to even a single case of smallpox. In the former, there might be a general non-compulsory advisory issued to use antiseptic solutions to wash your hands before and after dealing with the public; in the latter it would call for the kind of full-scale hazmat suit CDC mobilization we saw a few years ago with the Ebola outbreaks. Strict quarantines to the point of temporarily abridging the rights of citizens since the threat would be national and deadly.
Without having to revisit ground which we have thoroughly tilled for many years, we stand by the non-negotiable assertion that Islam is an enemy threat doctrine, an ideology with religious trappings as sacralized in the Qur’an, Hadith etc. We make this determination on the basis of how normative Islam is practiced in all 57 member states of Organization of Islamic Cooperation [OIC].
An unbiased reader would be hard pressed to disagree with the assertion that once a society becomes governed under the legal framework of the Shari’a, Western notions of freedom, liberty and tolerance vanish.
This is not to argue that at a basic level Shari’a states must inevitably and perpetually be at war with the Western countries, but that is not the same as asserting that there is a “peaceful, reformational” form of Islam in which non-believers have the same rights as Muslims.
Some Islamic theocracies, even very harsh ones such as Saudi Arabia conduct business with the West on a daily basis. This is possible because its leaders are educated and pragmatic despite being despots. They see the huge economic benefit that accrues to such commerce. Cash flow is of ultimate importance to the Saudis because a substantial portion of it is used to buy off indigenous Islamic sects who are definitionally sworn to overthrowing the country’s ruling class upon the claim that they are not genuinely Islamic. Also the cash is needed because it is the official policy of the Saudis to spread Islam throughout the Western world by funding thousands of Wahhabist mosques and training the jihadist imams that run those institutions.
In this particular case we have in essence made a bargain with the [oil] Devil that allows the Saudis to continue, despite the cover of commerce, to conduct a soft/stealth or ideological jihad against the West.
So even “peaceful” Muslim nations are by nature very aggressive in spreading Islam absent the sword, it’s just that they see no value in kinetic conflict…at the present time. If Wahhabist/Salafist literalists were to come to power, the nature of this relationship would change overnight.
At one level then, all Muslim nations represent a threat to the non-Muslim world because aggressive da’wa [proselytization] remains a constant. The principle is often thought of as so integral to Islam that it should be considered the "6 th pillar" of the ideology.
In that sense then, “peaceful” Islamic nations share a very important attribute with the former Soviet Union, with da’wa serving the same purpose as communist agitprop, bringing members into the fold through persuasion often born of trickery, when the conditions for violent overthrow and revolution do not exist.
It must be remembered that the absence of generalized warfare is not peace.
Let’s now examine exactly what happens when Muslims are allowed to immigrate to the West. When the numbers are few, they of course represent no direct threat at all, but we are not talking about individual behavior, but rather that of the group.
There seems to be a universal tendency for Muslim immigrants to live in very close proximity in each other, actually in many situations they intentionally create their own ghettoes. Thus they reject all forms of integration - beyond what will be required to receive state aid - and form miniature proto-countries within the confines of the much larger nation. The effect is substantial in that these little societies eventually crowd everything else out and become Shari’a compliant to the extent that they morph into no-go zones. not places where law enforcement seldom chooses to go, but places where local police departments are genuinely afraid to enter for fear of “riling up the natives.” These communities [and we have them in the United States, consider Dearbornistan] then take on the characteristics of ganglands, with marauding young men slowly extending the reach of the ghetto into the outlying community.
Quickly, women are targeted and consequently become fearful of being caught out alone at night. Following a similar trend, criminal activity in the area dramatically increases and the real estate becomes a festering sore.
Such is the case throughout much of Europe, though the media intentionally ignores it as do the various governments. It is a truism across the Continent that increased Islamic immigration correlates precisely with exploding crime rates. Since these people very often come from lawless societies, they bring with them the really horrific type of behavior that is - absent immigration - seldom seen in the West - extreme sexual violence, genital mutilation, honor killings and similar forms of uncivilized medieval behavior.
We have said this often, but it bears repeating. There is a pattern that is very often quickly established once significant Islamic immigration takes place, they immediately start reconstructing facsimiles of the hell-holes from which they fled.
Looking deeper, the picture becomes even more bleak.
Given the tendency of these immigrants to refuse to acculturate, their insistence on creating their own little Shari’a compliant communities and from there venturing forth in what could be called the modern equivalent of raiding parties, it doesn’t really take very many of them to cause serious societal dislocation.
We draw your attention to Europe; in Sweden, Denmark, France, Austria, the German Federal Republic and the UK for example, the number of Muslims in the total society doesn’t exceed 9-10% at most. But that is entirely misleading because, using Amsterdam as an example, even though “only” about 15% of the population is Islamic, Jews fear for their lives. They are constantly harassed and brutalized to the point where Netherlands’ authorities have advised that they leave because the government is unwilling [not unable] to protect them.
In Stockholm at least 20% of the population is Muslim and this along with similar demographic changes in other cities has led to Sweden [where previously sex related crimes were almost unknown] becoming the rape capital of the Western world,.
What we are saying is that Islam might be thought of as being a fissionable material. Until the level of concentration reaches a certain point nothing of much import happens, but when a critical mass occurs the effect is explosive and deadly.
So, working our way around again to the beginning of this piece, limiting immigration from terror prone countries [again, all Islamic] so that “radicals” are kept out entirely misses the most important point.
There really is no minimum threshold beneath which we should feel any compulsion to allow Muslim to immigrate.
Since the law now consists of ignoring the Constitution and just making it up, president Trump might want to schedule a national address, flash one of those 100 megawatt smiles while strolling upon row after row of MIRVed nuke warheads and announce that he is sick and tired of the constant bitching and wailing of Muslimas, the never ending lawsuits, Islamic faith sharing with snake handlers and flea infested illiterate imams appearing on MSNBC and actually stealing the show.
Seriously, banning all Muslim immigration for the period of let’s say 20 years would have a salutary effect, it would deprive the supposedly "peaceful Muslims" of the sanctuary they have always relied upon to save them from the consequences of their death cult.
If that didn’t force them to clean up their act and bring about a genuine, global Islamic reformation, who the hell who would care, nothing would.
At that point there would be great cause for rejoicing; the much maligned alleged Islamophobes of the world would have been proven right and we could finally move on to the really important questions facing mankind, like does the period belong inside or outside the quotation mark…
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