The 21st Century Dred Scott Decision

It has never taken much to make monkeys out of the Ninth US Circuit Court of Appeals. These preening liberals frequently assert judicial power they do not have in ways that makes the Supreme Court ask “Why do we have a Ninth Circuit, anyway?” But the order on the Travel Ban Executive Order (TBEO) reaches new heights of insanity in terms of judicial arrogance and is a naked confiscation of executive power in the guise of a judicial order.  Click on the order and read it, but be warned: you’ll need a drink afterward.

In its initial paragraphs the Court says:

Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.

Slip op 3. The question here is how could the government make a showing of its likelihood of success on the merits of the appeal when the case should not even be in court on grounds of standing? How could the government make the case for its success when the Court will neither acknowledge the President’s lawful authority under statute (8 USC § 1182) to ban entire classes of aliens at any time on his authority alone? In effect, the judges here are acting like the three monkeys and are refusing to see, hear or understand the government’s argument. And, it gets worse.

In its analysis of standing, the critical inquiry in this case, the Court said:

The district court preliminarily concluded that significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an Executive Order that the States were likely to be able to prove was unlawful.

Slip op at 6. The article III standing requirement, found in the Constitution is triggered if even one person’s legitimate rights are impaired. How the Court goes about resolving the standing issue, though, is perplexing. First, it articulate the standards correctly:

The Government argues that the district court lacked subject matter jurisdiction because the States have no standing to sue. We have an independent obligation to ascertain our jurisdiction, Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006), and we consider the Government’s argument de novo, see, e.g., Hajro v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1098 (9th Cir. 2016).

***

The “gist of the question of standing” is whether the plaintiff has a sufficiently “personal stake in the outcome of the controversy” to ensure that the parties will be truly adverse and their legal presentations sharpened. Massachusetts, 549 U.S. at 517, (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

Slip op 8-9. In other words someone, somewhere must suffer a real and concrete injury. This doesn’t mean something may happen, it means something has happened or is certain to happen in the future. It does not permit a court to speculate rampantly about what may or may not happen. It also demands that the injury happen to the person asserting standing.  So how does the state justify the challenge to the order?

The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law. See, e.g., Hontz v. State, 714 P.2d 1176, 1180 (Wash. 1986) (en banc); Univ. of Minn. v. Raygor, 620 N.W.2d 680, 683 (Minn. 2001).

Slip op at 9. In other words, the states are asserting the rights of their corporate educational entities, and a bunch of unnamed potential employees, none of whom have rights of citizenship or permanent residence.  The idea that the state can assert the potential future injury of students from not getting instruction from yet-to-be hired professors to teach unnamed courses is as attenuated as it gets.  It does not provide standing.   The state’s first assertion of this injury, however, takes the form of two “visiting scholars.”

According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States

Slip op at 10. Oh, geez, lets all sit down and have a good cry.

Here’s what we know about the “visiting scholars” – they’re from a country affected by the travel ban, they seek employment as a visiting professor. They are aliens, unentitled to the rights of citizenship. While they may obtain certain due process rights the moment they step foot on US soil, they have no rights to anything while sitting in Slay-The-Infidel-land. Thus, these two scholars, as non-citizens, securely outside the United States, and with no rights under treaty or other international compacts, do not have due process rights in the United States.

They cannot access the courts here to have their rights adjudicated because the United States District Court does not have jurisdiction over them in Herdacamelstan. No worries though, the Ninth Circuit Court of Appeals is about to throw open the doors of US Courts to everyone, even including Osama Bin Laden if he were still alive, to allow them to seek entry to the US, so long as they have some attenuated affiliation with a college or university. The Ninth Circuit said:

Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the rights of the students, scholars, and faculty affected by the Executive Order. See Singleton v. Wulff, 428 U.S. 106, 114- 16 (1976) (explaining that third-party standing is allowed when the third party’s interests are “inextricably bound up with the activity the litigant wishes to pursue”; when the litigant is “fully, or very nearly, as effective a proponent of the right” as the third party; or when the third party is less able to assert her own rights).

Slip op at 10-11. Okay, let’s think about this. First, third party standing requires the state’s interest to be “as effective a proponent of the right” as the third party, when the third party is “lesser able” to assert its rights. So, in order to assert the third party’s rights under third party standing, the third party would first have to have some kind of due process rights. Which they do not have. Because they are not here. Because the President under 8 USC § 1182 can lawfully exclude them. Because the statute provides no means for judicial review of the president’s plenary authority here. So if they do not have rights, how can a third party assert what someone doesn’t have. If I don’t have $5 in my bank account, my wife can’t spend it at the store. It’s the same principle. Again, while citing the law correctly, the Ninth Circuit bends over backwards to misapply it. They claim this is similar to the famous Griswold case:

Likewise, doctors have been permitted to assert the rights of their patients. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965).

Slip op at 11. Here’s the problem. The patients in Griswold were US citizens in Connecticut (where you’re a US citizen, you just don’t have any Second Amendment rights). They could easily have asserted their own rights. They just needed to file suit to do it. How’s Abdul Hac bin Ramenoodle (does it strike you as odd that the names always sound like someone battling a hairball?) over in Syria going to assert his rights in this case if he is denied entry. He can’t. The same way German soldiers could not assert their due process rights in US court when they were captured in Germany. Those rights did not exist – except in the Ninth Circuit (which, truth be told, may be interpreting a different Constitution).

But the Ninth was not through. “Think about the children.” Yes, the college students who might be deprived of the scholarly lectures of these folks from Syria. God knows that there is no Washington State academician, or really an academic anywhere in the US, who might be hired to teach these students. No, only someone from the Daniel Pearl School of Tolerance in Syria can be expected to impart the proper amount of wisdom and sagacity needed in Washington State. That’s how the Ninth Circuit concludes that:

The students’ educational success is “inextricably bound up” in the universities’ capacity to teach them.

Slip op at 12. So, at the outset the entire exercise in jurisdiction falls apart for lack of standing. The people seeking visas or admission to the country have no rights to seek entry, and the president has the unilateral authority to prevent entire classes of people from entering. In fact, here’s the statute that speaks on that subject, and that provides no basis for judicial review:

(f)Suspension of entry or imposition of restrictions by President

8 USC § 1182(f)

But, in spite of this, the Ninth Circuit concludes:

And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement.

Slip op at 12. There are so many different mistakes, miscited cases, errors in logic, and flat out misrepresentations in this opinion that you have to wonder if the Ninth Circuit remembers what happened on September 11, 2001. The fact is that while we aspire to be better than every other nation on earth, that does not mean that we need to let in every damned person who wants in.

Civil liberties are important. But American citizens also deserve due process like foreign miscreants do, only they deserve it more. They deserve the right to exclude from their homeland those who have no interest in assimilating and whose intent in coming here is to cause harm. The Ninth Circuit’s ruling will go down next to Plessy v. Ferguson and the Dred Scott decision as one of the worst opinions written in American law. And the judges will continue to enjoy lifetime appointments. And that is the worst travesty of all.