Judicial Overreach Concerns Grow
Progressives cheered when Ninth Circuit judges blocked President Trump’s travel ban, even though the constitutionality of the move was clearly problematic. The usurping of power by one branch of government over another, however, can lead to disastrous consequences. One need only look at the recent news from Venezuela to understand where this can lead.
The high court of that South American nation, (which, despite its vast oil wealth has been impoverished by a dictatorial socialist government) has dissolved the National Assembly. The Court and President Nicolás Maduro are in concert, and the legislative branch was the last vestige of dissent. Those opposed to Maduro’s strongman rule captured a majority of the National Assembly in 2015 as Maduro’s crushing economic mistakes and political oppression worsened.
The extraordinary move is not one sanctioned by Venezuela’s constitution. Similarly, the recent rulings of the U.S. Ninth Circuit restricting President Trump’s executive orders regarding travel from nations presenting a threat of terror fail to recognize the American Constitution’s Separation of Powers. Indeed, they rest on premises that even a first year law student should recognize as being without merit.
Joseph Klein, writing for Front Page, outlines why the Ninth Circuit has acted above its authority:
’The exclusion of aliens is a fundamental act of sovereignty,’ the Supreme Court concluded in a 1950 case. ‘The right to do so …is inherent in the executive power to control the foreign affairs of the nation…Congress reaffirmed the president’s power with respect to decisions excluding aliens in the Immigration and Nationality Act (“INA”), which was originally enacted in 1952, and has been amended several times, including in 1996. The following language has remained intact: ‘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.’
(8 U.S.C. § 1182(f)).
In an excellent analysis in the Daily Wire, Ben Shapiro notes that the logic behind the Ninth Circuit decisions could invalidate “virtually all immigration law.” Allowing a state to sue in federal court on the grounds that there could be potential harm to some of its citizens would open the door to the disuniting of the nation. What could Washington do that doesn’t have some potential impact on the states? The Court complained that the federal government did “little more than” state the fact that it has an interest in preventing terrorism. Have the judges not been aware of instances such as 9/11, and the numerous other assaults? The Court also seems to establish a brand new interest not found in the Constitution—protecting the due process rights of illegal aliens, a right that doesn’t exist.
Finally, in a repudiation of common sense as well as common law, the Court pinned its decision not on the actual executive order in question, but on the campaign and other comments of President Trump.
And therein lies the heart of the matter. This is not a ruling of law, it’s a statement of political opposition to the winner of the 2016 election, a piecemeal attempt to impose the personal views of Ninth Circuit judges over the lawful results of an election. It is, in essence, quite similar to what was done in Venezuela.
Originally published on the New York Analysis of Policy and Government.