The 9th Circuit Ruling is Something Conservatives Should be Cheering

While those who blindly follow Trump are whining about a threat that is in the grand scheme of thing insignificant, the actual ruling place some key provisions of the Constitution back into their proper place after they have been eroded for by both liberals and those who claim to be conservative.

The first great part is that the Tenth Amendment is back.  The court ruled that individual states have standing to challenge federal authority when it affects occupants of their states.

We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.

This, properly pursued could be used to give states the power to challenge one bad federal order and regulation after another.

Second the system of checks and balances was put back first and foremost when the court ruled that courts have the authority to review actions of the executive branch. The Trump administration, like any petty dictator was claiming its rules were unquestionable, but the court called bullshit on this and reaffirmed that every branch not can be checked by the other two branches but that this one one of their chief duties.


In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.

Third, the rule of law was placed again at the forefront when the court ruled that as the White House has no respect for the rule of law and has already been shown to be a bunch of pathological liars who can’t be trusted, their word is worthless, just like their terribly written EO that can’t be enforced based on its terrible wording and certainly can’t be enforced the untrustworthy word of Trump stooges. The court ruled only enforceable law is law and the inconsistent whims of petty people don’t count:


Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.


Fourth, and probably most important they ruled correctly that rule of law is not something Americans are entitled to, but when dealing with the US government at any level every human being is entitled to due process.

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel,408 U.S. 753, 762-65 (1972).

If conservatives choose to correctly embrace this part of the ruling they will end any chance for populists, progressives, and liberals to put race baiting and the politics of identity into politics.  This part of the ruling makes the only qualification for the protection of law is that you need to be human.  The only correct way to bring about the idea of “All men are created equal.”

 Finally, in another hit to the ill use of executive power when the court decided that while it was unclear if Trump’s bigoted remarks qualify the EO for a violation of the First Amendment, that the default position should be that when in doubt decide that the government is in the wrong:

 The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.

The ninth circuit is not known for making particularly good decisions.  But conservatives should choose to embrace this one as it has the basis for returning the Constitution to it’s proper place as the center of a government of law not men.


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Categorised in: Constitution, Political

2 Responses »

  1. And, you do not see continuing judicial activism as a threat to the Constitution? Your legal analysis is flawed.

  2. Upholding the Constitution and blocking unconstitutional action is not Judicial activism, it the entire reason for the court. Thinking the court is not there as a check is the threat to the Constitution and the act not of patriots but of fascists.

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