Robert
Barnes wrote this article. He is a trial lawyer with high profile wins in
constitutional, criminal, and civil law. You can follow him @Barnes_Law.
In a ruling issued on Wednesday afternoon, a federal judge, and Obama appointee, Derrick Watson, prevented the President of the United States from
enforcing his own executive order to protect the nation from migrants from
terror-riddled countries.
The judge then prevented every other judge and
every other state from following the President’s order, the judge making
himself a one-man Supreme Court and substitute President.
The judge
then held that American universities and immigrants living here can prohibit
America from ever limiting immigration from
Muslim-heavy countries, claiming the First Amendment gives Muslim-dominant
nations a right of immigration to America.
Such arrogance and abuse of
authority sound familiar? Such First Amendment favoritism toward Islam sound
familiar? Well, Obama did appoint this judge, and a rule of thumb with federal
judges is they tend to mirror the psychologies of the man who appointed them.
The judge’s ruling is completely lawless, mirroring Obama’s deep state allies in
his shadow government’s attempt to sabotage the Trump presidency. There is no
precedent for the court’s order. In fact, every precedent is against the
court’s order; just read the detailed logic and scholastic citation of proper
governing legal authorities from the decision of a moderately liberal Boston
judge who upheld every part of Trump’s prior order.
To give you an idea of how
lawless the decision is, just try to find the analogous case the Hawaii judge
cites for his ruling; there is none, not one single prior example of another
judge ever doing what this Judge did to the extent he did it.
To give
you another example of how baseless the court’s ruling is, even liberal law professors and
scribes criticized the more limited Ninth Circuit decision that this Hawaii
judge goes far beyond. Liberal law professor Turley noted Trump should win a challenge against that
ruling. Liberal democrat professor Alan Dershowitz noted the same.
Liberal law scribe Jeffrey Toobin conceded the same.
Here are a few reasons why:
First,
nationwide injunctions for non-party plaintiffs are not supposed to happen. A
district judge presides over his district, not the nation. He should not
overrule other judges, nor dictate his opinions on the whole nation. The law
does not make him a single judge Supreme Court. The Supreme Court itself warned against issuing any relief not individually and
specifically necessary to the plaintiffs before the court. Noting that “neither
declaratory nor injunctive relief can directly interfere with enforcement of
contested statutes or ordinances except with respect to the particular federal
plaintiffs,” the Supreme Court warned against extending its reach beyond “the particular
federal plaintiffs” in the case.
The Ninth
Circuit itself even admits this. The “principles of comity” compel
that a court should not grant national relief when doing so would “create
tensions” with courts in other circuits and “would encourage forum shopping.”
The Ninth Circuit further reinforced that:
“A federal court…may not attempt to determine the rights of parties not before
the court.” What kind of case was that the Ninth Circuit saying not to extend
your ruling beyond the plaintiffs in front of you? An immigration case (Nat’l Cir. for Immigration Rights v. INS, 743 F.2d 1365 (9th Cir. 1984).
The Ninth Circuit repeated this principle again and again. That is why the Supreme Court reversed a California judge’s order just
like this Hawaii judge’s order — imposing a national ban beyond his
limited district jurisdiction of the parties before him.
Second,
there is no constitutional right to a visa or a right of immigration or
emigration. A quick recap of key Supreme Court decisions explains why. Aliens “outside the country
receive no constitutional protection.” The Supreme Court repeatedly held an
alien seeking initial admission to the United States “requests a privilege, and
has no constitutional rights regarding his application, for the power to admit
or exclude aliens is a sovereign prerogative.” Thus, the President “may shut out aliens” whenever the President determine
such “entry would be prejudicial to the interests of the United States.”
Congress
expressly authorized this Presidential action in the one statute the Ninth
Circuit tried to hid in its prior decision, cited above at 8 U.S.C. 1182.
The actions of the President in respect of enforcing this law “are largely immune from judicial inquiry or interference.” This
is because the Constitution entrusts “the power regulate immigration”
exclusively “to the political branches of the Federal Government.” As
the Supreme Court recently reiterated during Clinton’s presidency: judicial “deference to the
Executive Branch is especially appropriate in the immigration
context” given the “sensitive political functions that implicate questions
of foreign relations.”
Admission
into America is a privilege, not a right. Congress gave the President broad
statutory authority to exclude any aliens he saw fit to. A full recitation of that
law is useful, because it is the one law the Hawaii judge, like
the Ninth Circuit, hid from:
(f)Suspension of entry or imposition of restrictions by President
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. Whenever the Attorney
General finds that a commercial airline has failed to comply with regulations
of the Attorney General relating to requirements of airlines for the detection
of fraudulent documents used by passengers traveling to the United States
(including the training of personnel in such detection), the Attorney General
may suspend the entry of some or all aliens transported to the United States by
such airline.
The law
is clear in the power it gives the President, in the statute cited above — 8 U.S.C. 1182(f).
Like the Ninth Circuit decision before, the Hawaii judge goes out of his way to pretend this statute does not
exist. Indeed, it is never addressed in any real way in the court’s entire opinion (much of which appeared pre-written prior
to the oral argument).
Just as we have a right to decide
which strangers enter our home and who sleeps next to our daughters’ bedroom or
eats our family’s food, we as a country enjoy the democratic right to decide
who enters our country, who lives next to us as a neighbor, and who enjoys the
fruits of our ancestral inheritance. The Hawaii Obama judge went much further
in the opposite direction: he claimed an immigrant here has a right to bring in
whatever other immigrants he wants, even citizens from terror-riddled,
Sharia-law-supporting, failed, corrupted states that cannot vet or screen
would-be aliens entering America. Ask San Bernardino how that worked out.
Third,
the First Amendment does not apply to foreign aliens. That is how we kept terror-minded anarchists out of the nation
and sabotage-minded communists out of the nation. That is how every President
for more than a century limited migrants based on ideology or statehood. That
is why we were much more successful than Europe in limiting the
anarchist-inspired violence (that led Europe into World War I) and in limiting
communist internal sabotage (that led much of eastern Europe into communist
totalitarianism).
Every federal court followed that process in limiting
immigration from Muslim-terror nations after 9/11. This Hawaii court’s decision
directly conflicts with those Circuits; but, per usual, it never even mentions
any of those authorities. As the Second Circuit noted: “one major threat of terrorist attacks comes from
radical Islamic groups. The September 11 attacks were facilitated by violations
of immigration laws by aliens from predominantly Muslim nations. The Program
was clearly tailored to those facts.” This court’s ruling would overturn all of
that, and basically claims every president since Teddy Roosevelt violated the
First Amendment in our immigration policies.
Put
simply, the Hawaii federal judge ruled that because the imam was Muslim and
his would-be migrant visas wish-list came from Muslim-dominant nations, the First
Amendment gave him a special right to bring whomever he wanted into the
country, even from terror-riddled countries in security compromised states the
President recognized as a direct threat to the peace of the people.
The First Amendment has never applied
to a right of immigration of foreign aliens, nor does it compel religious
favoritism toward Muslims. This is the new left’s interpretation of the
Constitution, and it is as perilous to our politics as the deep state within
and radical Islam abroad.
The Hawaii Obama judge didn’t
interpret the Constitution; he rewrote it, usurping to himself the sole power
to control borders, then delegated the exercise of that power to a Muslim imam
and his free visa wish list. The judge dishonored the rule of law in his order
and disrespected our legal traditions and governing legal authorities in his
reasoning for it. He effectively declared himself king and executioner.
Meet the new left’s America:
foreigners first, Muslims preferred, law last, elections irrelevant.
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