9th Circus

Detailed analysis by Dan McLaughlin:

[T]he most important dog that didn’t bark here is presidential power. The court’s opinion did not conclude, or even suggest, that Trump lacked the power as president to issue the order. It didn’t resolve that issue in Trump’s favor; it was just assumed it, since it ruled against him on other ground. …

[T]he court found that the government was not likely to win its case – the standard on a preliminary injunction, before all the evidence has been heard – on whether the executive order gave adequate due process protections to “lawful permanent residents and non-immigrant visaholders” who were barred from the country, again ignoring the fact that the Administration has stopped enforcing the order against lawful permanent residents and the fact that the states were also looking to enforce the injunction on behalf of refugees and others who had yet to be granted visas. The Supreme Court, in its 2015 decision in Kerry v. Din, left open the question of whether there is any due process right for foreign nationals to challenge the denial of a visa; Justices Scalia, Thomas and Chief Justice Roberts thought not, and in that case, Justices Kennedy and Alito didn’t take a position on the issue because they found that adequate due process had been provided in that case. But the Ninth Circuit never addressed why people without an existing visa might have due process rights. …

[T]he court rejected the government’s argument that a refugee ban was urgent, given the lack of any evidence submitted thus far in the case to support urgency. That’s a bit of a Catch-22, since any evidence of imminent national security threats is likely classified and not properly offered to judges and litigants without security clearance, but the Administration should reconsider whether it has evidence of a more broad-based nature to support the breadth of its travel bans. Much of the opinion’s coda deals with how early it is in the case, and how little opportunity any judge has had to give real review to any evidence. If the Trump Administration should learn one lesson from this debacle, it’s that courts won’t accept bluster in place of evidence from an administration with which the judges are disinclined to sympathize. The court reached some bad rulings, but as the saying goes, hard cases make bad law. The Administration should try to avoid letting its cases be so hard when they don’t need to be. But it should also be prepared for the fact that the courts are not likely to give it a fair shake.

Read the whole thing.

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A good remedy would be to break up the 9th Circuit. Fox News reports.

As judges on the 9th Circuit Court of Appeals weigh the legality of President Trump’s immigration executive order, a Republican push to split up the controversial court — and shrink its clout — is gaining steam on Capitol Hill.

Republican Sens. Jeff Flake and John McCain of Arizona introduced legislation last month to carve six states out of the San Francisco-based court circuit and create a brand new 12th Circuit.

They argue that the 9th is too big, too liberal and too slow resolving cases. If they succeed, only California, Oregon, Hawaii and two island districts would remain in the 9th’s judicial fiefdom.

Right now, Flake said, the circuit is far too sprawling.

“It represents 20 percent of the population — and 40 percent of the land mass is in that jurisdiction. It’s just too big,” Flake told Fox News on Wednesday. “We have a bedrock principle of swift justice and if you live in Arizona or anywhere in the 9th Circuit, you just don’t have it.”

Flake says it typically takes the court 15 months to hand down a decision.

“It’s far too long,” he added.

Conservatives have mocked the 9th Circuit for years, often calling it the “Nutty 9th” or the “9th Circus,” in part because so many of its rulings have been overturned by the U.S. Supreme Court.

The court has a reputation as one of the most liberal in the country, in large part because of its makeup. Eighteen of the court’s 25 active judges have been appointed by Democrats.

Complete story.