Unrestrained by the strictures of the U.S. Constitution, judges in the 9th U.S. Circuit Court of Appeals have wrested so much lawmaking authority away from the people’s elected representatives in Congress that they are now rewriting U.S. immigration law by judicial fiat, conservative critics say.
Accusing it of relentless liberal bias, Republican lawmakers have tried for years without success to break up the San Francisco-headquartered circuit, which is by far the largest of the 13 courts of appeals, with 29 active judgeships. Within its 15 federal district courts, there are 112 judgeships. The circuit entertains appeals from Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands.
Sometimes called “the nutty 9th” and “the 9th circus” by detractors, the circuit is the most reversed of all 13 federal circuits. Since 2007, at 181 cases, the Supreme Court has accepted more cases from the 9th than any other circuit, overturning 138 of those lower court rulings, according to Ballotpedia.
“They’re not judges; they’re just political activists,” Susan Carleson, chairman and CEO of the Alexandria, Va.-based American Civil Rights Union (ACRU), told The Epoch Times in an interview.
Dan Stein, president of the Federation for American Immigration Reform (FAIR), lamented the sorry state of the 9th Circuit in an emailed statement.
“True to form, President Trump—through his forceful leadership—has made his political opponents within the Judicial Branch identify themselves in ways they never would intend,” Stein told The Epoch Times.
“The composite picture is clear: The Judiciary—with the complicity of the ACLU and allied partisans—is trying to run the nation’s immigration program without regard to the downstream consequences of its politicized judgments.”
In conservatives’ view, the latest outrage came July 2 when Seattle-based U.S. District Judge Marsha Pechman, a Clinton appointee, effectively rewrote a 1996 law requiring the detention of asylum claimants, in a case known as Padilla v. ICE.
As Daniel Horowitz put it at Conservative Review, the judge invented a Fifth Amendment right for claimants to be released on bond and then kept on inventing.
“She went a step further and required that all those within custody receive bond hearings within seven days, that the proceedings of the immigration court trials must be recorded, and that the immigration judges must provide explanations for the basis of denying bond.”
Pechman also defied 130 years of case law by placing the burden of proof “on the government, not on the alien, to show why these people shouldn’t be released.”
Pechman is “creating an impossible situation,” said the ACRU’s Carleson.
“She’s creating law out of whole cloth,” she said. “Judges are supposed to interpret law, not create it.”
“The western part of this country is going to hell in a handbasket. Pity the people who live in the 9th Circuit jurisdictions.”
Federal judges in the 9th Circuit have been slapping down President Donald Trump’s executive actions since he took office—and without any constitutional justification, critics say.
Trump signed Executive Order 13769 on Jan. 27, 2017, which barred the entry of individuals from seven terrorism-plague countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Derided by leftists as a “Muslim ban,” the idea behind the order was to place a brief pause on the admission of aliens from those troubled countries to give the new administration a chance to devise new strategies for dealing with visitors from those countries in ways that enhance U.S. national security.
It wasn’t much different from an executive order former President Barack Obama signed a few years earlier dealing with unstable nations.
Yet on Feb. 3, 2017, Seattle-based U.S. District Judge James L. Robart temporarily enjoined the government from enforcing the order. Days before, federal judges across the country had ruled against the order and blocked the removal of aliens from the country. In the Seattle case, Robart ruled, in effect, that everyone, everywhere on the planet, enjoys due-process rights under the U.S. Constitution, and that courts can second-guess a national security-related executive order based on something other than the actual words in the order.
Eventually, a more carefully worded Trump order, Presidential Proclamation 9645, that accomplished largely the same goals, was validated by the Supreme Court in December 2017. But critics say the president should never have to go such lengths to carry out his essential functions.
They say the law has traditionally been that the president is entitled to great judicial deference when it comes to dealing with foreigners present in the United States. They note that 8 U.S. Code § 1182 states:
“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 … 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.”
In March of this year, a three-judge panel of the 9th Circuit broke new legal ground and defied Congress by ruling that those denied asylum possess a constitutional right to appeal to federal courts for more or less any reason.
“While everyone sleeps, the courts are abolishing all immigration enforcement,” Horowitz titled a column on the legal development.
Earlier this month, another 9th Circuit panel refused to rescind an injunction barring the Trump administration from using, on an emergency basis, $2.5 billion intended for the fight against illegal drugs to construct a wall along the southern U.S. border with Mexico.
San Francisco District Judge William Orrick issued a permanent nationwide injunction against President Trump’s Executive Order 13768, which would have withheld federal funding from sanctuary jurisdictions that refuse to cooperate with U.S. Immigration and Customs Enforcement (ICE). That injunction remains in effect.
This isn’t an exhaustive compilation of what conservatives consider to be immigration law-related overreaches by the 9th Circuit.
“It’s sad that the complexity of Federal immigration, administrative, and Constitutional law have tempted biased judges to try to usurp the management of immigration away from the Executive Branch,” said CAIR’s Stein.
“The public hasn’t got a clue. The judges are doing so while being blind or indifferent to the real world and practical consequences of their mistaken or mischievous judgments. These robed petit potentates are now routinely ignoring clear Congressional intent and statutory guidance. The cumulative result has been border chaos.”
Or as Horowitz put, “Either we push back against judicial supremacism, or we have no country left. There is no middle ground.”
This article by Matthew Vadum appeared July 10, 2019, in The Epoch Times.