By overtly targeting Muslims with a travel ban, President Trump put himself at odds with U.S. treaties and other legal agreements, ensuring his latest legal setback in federal court, writes legal scholar Marjorie Cohn for JURIST.
By Marjorie Cohn
After a federal district court judge and a unanimous three-judge panel of the Ninth Circuit Court of Appeals ruled that Donald Trump’s Executive Order (EO) instituting a travel ban was likely illegal, the president suspended it and issued a new EO on March 6.
President Trump addressing a joint session of Congress on Feb. 28, 2017. (Screen shot from Whitehouse.gov)
On March 15, a federal judge granted a temporary restraining order in Hawaii v. Trump et al., halting the operation of the new EO nationwide. U.S. District Judge Derrick K. Watson found that plaintiffs met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief.
When the case is heard on the merits, the legality of the new EO, which categorically suspends immigration from six Muslim majority countries to the United States, should be assessed in light of U.S. treaty and customary international law, according to an amicus brief filed in the case.
Eighty-one international law scholars, including this writer, and a dozen non-governmental organizations with expertise in civil rights law, immigration law or international human rights law (amici) argue in their amicus brief that the new EO threatens discrimination that would run afoul of two treaties. They are the International Covenant on Civil and Political Rights (CCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).
When the United States ratifies a treaty, it not only makes the U.S. a party to that treaty; it also becomes U.S. domestic law under the Supremacy Clause of the Constitution, which says treaties “shall be the supreme law of the land.” Courts have a duty to restrain federal executive action that conflicts with a ratified treaty.
Customary international law develops from the general and consistent practice of states. It is part of federal common law and must be enforced in U.S. courts, whether or not its provisions are contained in a ratified treaty.
Under the Constitution’s Take Care Clause, the President must “take care that the laws be faithfully executed.” This means Trump has a constitutional duty to comply with our legal obligations under both treaty and customary international law.
“[T]he Immigration and Nationality Act and other statutes must be read in harmony with these international legal obligations pursuant to the Supremacy Clause of the Constitution and long established principles of statutory construction requiring acts of Congress to be interpreted in a manner consistent with international law, whenever such a construction is reasonably possible,” amici argue. “In this case, the international law obligations . . . reinforce interpretations of those statutes forbidding discrimination of the type threatened by Sections 2 and 11 of the EO.”
International Covenant on Civil and Political Rights
The United States ratified the CCPR in 1992. Article 2 prohibits “any distinction, exclusion, restriction or preference” based on religion or national origin, which has “the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing,” according to the United Nation Human Rights Committee (HRC), the body charged with monitoring implementation of the CCPR.
Article 2 prohibits discrimination against the family as well as individuals. “The family is the natural and fundamental group of society and is entitled to protection by society and the State,” Article 23 says. The HRC has opined that states have an obligation to adopt appropriate measures “to ensure the unity or reunification of families, particularly when their members are separated for political, economic and similar reasons.”
Many immigrants and refugees flee their countries of origin and come to the United States to reunify with their families. The CCPR protects them against discrimination based on religion or national origin.
Amici state in their brief, “Restrictions on travel and entry caused by the EO that impose disparate and unreasonable burdens on the exercise of this right violate CCPR article 2.” According to the HRC, although the CCPR does not generally “recognize a right of aliens to enter or reside in the territory of a State party . . . , in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.”
Thus the non-discrimination mandates and protection of family life in the CCPR “should be considered by courts in interpreting government measures affecting family unification,” the brief says.
Article 26 prohibits religious and national origin discrimination and guarantees equal protection in any government measure. These provisions are not limited to individuals within the territory of the state party and subject to its jurisdiction. So immigrants need not be physically present in the United States to enjoy the protection of Article 26.
Moreover, the non-discrimination requirements enshrined in the CCPR also constitute customary international law. In 1948, the United States approved the Universal Declaration of Human Rights (UDHR), which is part of customary international law. The UDHR forbids discrimination based on religion or national origin, guarantees equal protection of the law, and protects family life against arbitrary interference.
International Convention on the Elimination of All Forms of Racial Discrimination
The United States ratified CERD in 1994. That treaty also prohibits discrimination based on religion or national origin. “Racial discrimination” includes any distinctions and restrictions based on national origin. Article 1 specifies that states can only adopt “nationality, citizenship or naturalization” policies that “do not discriminate against any particular nationality.”
Like the CCPR, CERD does not limit its non-discrimination provisions to citizens or resident noncitizens. “While CERD does not speak specifically to restrictions on entry of nonresident aliens,” the brief says, “the general language of CERD expresses a clear intention to eliminate discrimination based on race or national origin from all areas of government activity.”
In Article 4, CERD provides that states parties “[s]hall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.” This includes discrimination based on national origin. The Committee on the Elimination of Racial Discrimination, the body of independent experts that monitor the implementation of CERD, interprets Article 4 as requiring states to forbid speech that stigmatizes or stereotypes noncitizens, immigrants, refugees and those seeking asylum.
International Law Should be Considered in Evaluating the EO
“Those international law principles require courts to reject any attempt by the President to define classes based on national origin or religion, and then to impose on those classes disparate treatment, except to the extent necessary to achieve a legitimate government purpose,” amici wrote.
Their brief continues, “The EO … makes an explicit distinction based on national origin that, unless necessary and narrowly tailored to achieve a legitimate government aim, would violate US obligations under international law.”
In effect, the EO makes a distinction based on religion. All six of the listed countries have majority Muslim populations. As the brief says, “the EO does not suspend immigration from any state with a non-Muslim majority.”
Amici also argue that international law is relevant to Section 11 of the EO, which requires the Secretary of Homeland Security to “collect and make publicly available” information relating to convictions of terrorism-related crimes, government charges of terrorism, and “gender-based violence against women” by foreign nationals. But the EO does not require publication of this information on U.S. citizens.
“By mandating that the Secretary publish pejorative information about noncitizens without comparable information about US citizens,” amici wrote, “Section 11 makes a suspect distinction based on national origin.”
Section 11 “may bear on the intent to discriminate, because the decision to publish derogatory information about noncitizens alone is stigmatizing, and appears to be motivated by a desire to characterize noncitizens as more prone to terrorism or gender-based violence than US citizens.” Moreover, “a measure designed to stigmatize noncitizens cannot be proportionate and thus violates article 26 of the CCPR and articles 2 and 4 of the CERD.”
Thus, amici “request that the Court consider US obligations under international law, which forms part of US law, in evaluating the legality of the EO.”
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website at http://marjoriecohn.com/ and follow her on Twitter @MarjorieCohn. [This article first appeared at the Jurist, JURIST http://www.jurist.org/forum/2017/03/marjorie-cohn-international-law.php]
Whenever I read “Muslim ban” my eyes begin to tear. This name came from the Blah Blah Channel (BBC) type media, and has nothing to do with reality. None of the countries in the list is even close to be in the top 5 Muslim countries.
Syria, Iran, Yemen, Somali, Sudan, Libya. You look at this list and the first thing you think of is that those countries are chosen by some religious criteria? You must be kidding me – Muslim ban. The only somewhat sound argument that could be made against the ban is that USA destroyed any coherent form of government in those countries in the first place.
I think the whole purpose of the ban was for Trump to show that he is following his campaign promises. That’s all. He choose those countries because the ban won’t have any real effect (tell me how often do you see a Somali refugee who can pay 1000$ for a plane ticket?)
And whenever people bring up things like “international law (IL)” you can immediately say that they ran out of arguments. IL doesn’t exist for at least a decade. As we can see, right now there is only the rule of the strong. UN resolutions are basically ignored by every country which is capable of having its own foreign policy; and those who aren’t, are forced to follow the resolutions since they are the weak ones.
“While CERD does not speak specifically to restrictions on entry of nonresident aliens,” the brief says, “the general language of CERD expresses a clear intention to eliminate discrimination based on race or national origin from all areas of government activity.”
This is a reach and and an overly broad interpretation of the treaty language. Black messiah Hussein Obama did the very same thing in 2011 that Trump is attempting with his EO so why wasn’t his version challenged in federal court and the fake news media in an uproar but they are when Trump attempts it? The bottom line is that the federal judiciary is largely comprised of left wing activist judges whose role is to legally spar and parry with a duly elected non-leftist president like Trump so he’s unable to implement his agenda. Further, Marjorie Cohn and leftists wish to flood America with masses of third world aliens but hide behind dubious legal pretexts to make it appear that they’re just dispassionate observers committed to the rule of law.
The decision to temporarily or permanently ban the issuance of visas from certain nations is the undisputed role of the executive branch and some obscure international treaty with general language does not abrogate or supersede the powers of an American president.
Well Ken (is the “H” for Hitler?), Jesus are you for real? Your source’s stated mission is to “…examine the ideological threat that Islam poses to human dignity and freedom.” And the 3000 Americans you site is the number killed on 9/11. You got any evidence from the past decade?
I will make one correction, I should say right wing extremists instead of white supremecists, although I really have no problem lumping the two together. My point remains that the threat of Muslims has been greatly exaggerated and we as Americans have far greater threats to worry about. Here is some more RECENT evidence:
2015 study by New America: “White supremacists and anti-government radicals have killed 48 Americans…versus 26 killings by Muslim radicals, according to a count by New America, a Washington research center” In explaining why the public is relatively unaware of this truth it states, “Each time it [right-wing, radical violence] comes up, there’s a tendency to dismiss it as lone actor, mental health issues,”
http://www.washingtontimes.com/news/2015/jun/24/majority-of-fatal-attacks-on-us-soil-carried-out-b/
2013 study by US News and World Report: “Of the more than 300 American deaths from political violence and mass shootings since 9/11, only 33 have come at the hands of Muslim-Americans, according to the Triangle Center on Terrorism and Homeland Security…during that period, 180,000 Americans were murdered for reasons unrelated to terrorism. In just the past year, the mass shootings that have captivated America’s attention killed 66 Americans, ‘twice as many fatalities as from Muslim-American terrorism in all 11 years since 9/11,’ notes Kurzman’s team.”
In a 2015 New York Times article, University of North Carolina Professor Charles Kurzman and Duke Professor David Schanzer found that Islam-inspired terror attacks accounted for 50 deaths since 9/11, but that “right-wing extremists averaged 337 attacks per year in the decade after 9/11, causing a total of 254 fatalities.”
And just to correct you, I am white…I just see how my government likes to scare us whites into supporting never ending war for profit. Sorry so long…I am sure you have to get back to watching FoxNews.
“Well Ken (is the “H” for Hitler?), Jesus are you for real? Your source’s stated mission is to “…examine the ideological threat that Islam poses to human dignity and freedom.” And the 3000 Americans you site is the number killed on 9/11. You got any evidence from the past decade?”
Wrong. 9/11 killed approximately 2800. And yes, there is an abundance of evidence from the past decade if you simply looked at the breakdown by the source I provided. Muslim violence in the last 10 years far outpaces anything committed by far right/anti gov’t or white supremacist groups. Here is a listing of far right & white supremacist related violence from the looniest left wing, “white people are literally the devil” site I could find in Slate.com.
http://www.slate.com/blogs/the_slatest/2015/06/18/white_extremist_murders_killed_at_least_60_in_u_s_since_1995.html?cq_ck=1486485587473
Since 2006, Muslims in America have killed 129 people and injured 402 (389 + 13 from the 2016 OSU attack by the Somali Muslim). (source: Religion of Peace)
Since 2006, right wing/anti-government & white supremacists have killed 48 people and injured nobody. Note: wicked white supremacists account for only 18 of the 48. (source: Slate)
So the disparity is staggering and even more so when you consider Muslims are only 1.25% to 1.50% of the U.S. population while whites are 60-62% of the general population. They account for an astounding 73% of all “terrorist” related murders since 2006 which means they are overrepresented by 4867% when compared to right wing attacks.
“2013 study by US News and World Report: “Of the more than 300 American deaths from political violence and mass shootings since 9/11, only 33 have come at the hands of Muslim-Americans”
The authors of this “study” are just trying to whitewash and minimize Muslim violence by comparing it to other crime categories.
“…but that “right-wing extremists averaged 337 attacks per year in the decade after 9/11, causing a total of 254 fatalities.”
This is total crap and something only a loony left SJW type would accept at face value. There is absolutely no explanation about the methodology used to arrive at this dubious assertion. This claim is sharply contradicted by the listing of right wing attacks compiled by loony left wing Slate which I included above.
“And just to correct you, I am white…I just see how my government likes to scare us whites into supporting never ending war for profit. Sorry so long…I am sure you have to get back to watching FoxNews.”
You are a self hating white man who takes the side of every race and religion except his own. I am against our Middle East boondoggles but that doesn’t mean all Muslims are innocent and incapable of doing bad things. And it’s ok if you are addicted to CNN and MSNBC, two of the biggest fake news sources in America. You’re probably still convinced the Russians “hacked” the election which speaks volumes about your critical thinking ability.
Again your “source” has an overt bigoted agenda. And no I don’t accept Russia hacking at all. I said nothing that would suggest I do. The fact that you would draw such a conclusion with NO evidence speaks volumes about YOUR critiical thinking ability. It makes me think you must be a birther and a flat earther. Your racist attitudes, probably coupled with some mental illness has caused you to have no objectivity. I would never pretend to be of the most eloquent and knowledgeable commenters on this site. Reading your comments however, truly forces one to sink to a depth rarely seen here. I feel sorry for you. FYI, I won’t be wasting another minute to read anymore of your racist rants. Please do not breed (of if you have, please no more!). God help us all. Done.
So sources trying to cast aspersions on an entire race of people in whites and falsely claim that we’re much more prone to terrorism than Muslims aren’t themselves bigoted?
A racist is anyone winning an argument against a liberal. Since you lost the debate and got busted on using dubious claims you now resort to name calling, insults and charges of racism and bigotry. That’s what I’ve come to expect from lefties who are mostly frustrated, unemployed losers and pajama boys.
I could continue with insulting you but I don’t want to make you cry and don’t want to sink to your very low standards as an individual.
Five dead and 40 wounded by Muslim extremist in London terrorist attack. Some of the wounded still may die. Add that to the tally.
You’re probably feeling pretty dumb about now.
Ms Cohn has not applied the intent of these treaties properly in the context of the stipulations in the Executive Order. CCPR Part II, Article 2 Para 1 indicates the the State Party is to ensure the rights recognized by the covenant “within its territory and subject to its jurisdiction”. Similar language is used in the CERD ensuring protection against discrimination “within [the State Party’s] jurisdiction.”
In attempting to establish appropriate vetting processes that can discriminate between individuals that wish to enter the US to pursue lawful and peaceful endeavors (family reunification, business, education, residence, employment) and those that intend to pursue criminal and harmful acts, the President is legally authorized to stipulate travel restrictions and entry restrictions on any foreign national for any length of time necessary. In the interest of allowing entry to those individuals that are reunifying with family during the temporary travel ban applied to the six terrorist plagued countries, the EO authorizes certain immigration officials the latitude to waive the travel and entry restrictions. In fact there are several examples given in the EO Section 3 (c) where waivers to the travel restrictions may be given.
The argument that this EO is discriminatory based on religion, race, or national origin for that particular purpose is disingenuous and ignores its stated purpose, rationale, and legal justification. Allowing such arguments to prevail ignores a nation’s ability to control its borders and the entry of foreign nationals and immigration rules established in the interests and security of its own residents.
Ms Cohn’s entire argument is specious.
It is “disingenuous” to pretend the EO would successfully separate those refugees fleeing US backed carnage in their homelands from actual terrorists. It is “disingenuous” to pretend this EO targets the countries who have sponsored countries from where the most “foreign terroristic” harm has come to us (i.e. Saudi Arabia). In fact the most instances of terrorism are carried out by domestic white supremist in this country, so perhaps we should ban all white travelers (and/or deport all whites), unless they can show us they have never spoken to anyone who knows a terrorist. You see how slippery this can get?
I’m not sure how the EO does either of the things to which you are referring, so I agree, I would not pretend that EO does either of these things. The vetting process is what separates refugees in peril from secreted terrorists among them. At least it would if it were possible that the six named countries had a capable and cooperative government. Which they don’t. Which is why they are on the list. Until the vetting process is made robust enough to account for these countries capabilities or their cooperation can be relied upon, there can be no confidence in vetting travelers from these six countries.
Saudi Arabia has a fully functioning government that has been very cooperative in vetting travelers wishing to visit the US. For the stated purposes of the EO, there is no need to include Saudi Arabia.
I’ll take your last suggestion as an attempt at reductio ad absurdum argument, but, no, I don’t see your point.
This is the problem with the voting politic in this country…no memory or a selective memory that conveniently forgets the failures of their own respective parties…Democrat and Republican. You seem to totally forget that most of the 9/11 hijackers were from Saudi Arabia and we now know supported by their government, thanks to the release of the missing 28 pages, see “Letting Saudi Arabia Off the 9/11 Hook” on this site. Our focus is always being misdirected away from power and you seem to be falling in line with the other sheep. If we were really serious about preventing the next 9/11 we would look no further than our own government who at best was so incompetent as to ignore the intelligence available indicating a plot was in the works or at worst the deep state was actually involved or merely turned a blind eye. Either way nobody could argue that our government through their unwillingness to hold Saudi Arabia or the Bush Administration accountable, do not have blood on their hands regarding 9/11, while they tell scared Americans we need to suspect people of Muslim nations. To argue this is “disengenuous” in the extreme.
And just to make it clear that I have no faith in objectivity on the part of Democrats, I am aware that under Obama we saw record numbers of deportations. Democrats were completely quiet about this and it is easy to see why.
My point about domestic white terrorists is just to point out again how we are always being misdirected and that our government is not really working towards preventing terrorism. As long as the American public is scared of terrorist, the more we give them a blank check to fight never ending unwinable wars, which makes business great for the MI Complex. In fact we know that policies like the Muslim ban will only be used as a recruitment tool. Anybody could see if Trump were serious about preventing terrorism, and wanted to learn the lessons of 9/11 he would look no further than US intelligence and US/Saudi relations. To believe otherwise is falling victim to misdirection which is accomplished by exploiting your own xenophobia to completely internalize this delusion. Make no mistake, the travel ban increases the likelihood a terrorist in Saudi Arabia will catch a plane to New York.
“Saudi Arabia has a fully functioning government that has been very cooperative in vetting travelers wishing to visit the US. For the stated purposes of the EO, there is no need to include Saudi Arabia.”
And yet 15 of the 19 9/11 hijackers were Saudi nationals who passed through this “functioning” system. To be fair, the U.S. also shares the blame since I believe most of them had wildly overstayed their student visas at the time of the attack. The female San Bernadino shooter/terrorist also was in possession of a Saudi passport, so once again their “functioning” system failed again.
Since it’s difficult to predict when a Muslim will go full on whack job we should just to ban them all and encourage most of the rest to emigrate.
“In fact the most instances of terrorism are carried out by domestic white supremist in this country, so perhaps we should ban all white travelers (and/or deport all whites),”
Mohammed, or is it Jeremy? That is a false claim and even though there have been attacks staged by embittered whites the resultant frequency of attacks and death toll pales in comparison to acts of Muslim terror on U.S. soil. Muslims are only 1.25% of the U.S. population but committed 6% of the terror attacks between 1980-2005 according to FBI statistics which means they are overrepresented by 480%. Whites comprise 62% of the population but terror attacks by “white supremacists” are so few that they are in the category of “other” at 16%. If you’re a math whiz this means whites are underrepresented by almost a factor of 4. Between 1980-2005 66% of terror attacks were committed by Latino and left wing groups.
Since 9/11 over 3000 Americans have been killed or injured by Islamic radicals:
http://www.thereligionofpeace.com/attacks/american-attacks.aspx
Please provide evidence that evil white supremacists have bested Islamic radicals regarding lethality of terror attacks.
Trump’s first travel ban was not unconstitutional, and not a Muslim ban. The 9th Circuit 3-judge panel’s decision was political, not legal. It disregarded the controlling Supreme Court and 9th Circuit precedents. Its premises were political hallucinations, not law. Likewise Seattle federal district judge Robart’s temporary restraining order and the temporary restraining order of Hawaii federal district judge Derrick Watson.
Also, the first travel ban order did not violate any federal statute, but was supported clearly by one federal statute [ 8 U.S. Code § 1182(f), https://www.law.cornell.edu/uscode/text/8/1182 ], as was determined by a Massachusetts federal district judge. The same is true of the second travel ban order.
Had Trump appealed to the Supreme Court, the 9th Circuit 3-judge panel decision would have been overturned.
That 3-judge panel decision might have been overturned by the 9th Circuit sitting en banc, had Trump sought and obtained en banc hearing.
[En banc means by the whole court, though in the 9th Circuit, “whole” does not necessarily mean whole, but may (and most often does) mean 11 judges (usually the Chief Judge and ten others). Federal Rules of Appellate Procedure, Ninth Circuit Rules, Circuit Rule 35-3, http://cdn.ca9.uscourts.gov/datastore/uploads/rules/rules.htm ]
As this comment outlines below, two days ago (15 March 2017), five 9th Circuit judges would have overturned the earlier decision of the 3-judge panel of the 9the Circuit, had the case not become moot (according to the 3-judge panel).
Trump did not need to remove the ban of Iraqis or even green card or visa holders who were or are outside the U.S. and its territories during the operation of the order. In some cases, a green card holder would be entitled to a due process hearing of whether that person deserved exception. But otherwise banning such person does not violate the U.S. constitution or any U.S. statute or any international law.
COMPARE, e.g., the following U.S. Supreme Court decisions AND the other U.S. Supreme Court decisions those decisions reference:
Knauff v. Shaughnessy, 338 U.S. 537 (1950), https://supreme.justia.com/cases/federal/us/338/537/case.html
Shaughnessy v. Mezei, 345 U.S. 206 (1953), https://supreme.justia.com/cases/federal/us/345/206/case.html
Harisiades v. Shaughnessy, 342 U.S. 580 (1952), https://supreme.justia.com/cases/federal/us/342/580/
Landon v. Plasencia, 459 U.S. 21 (1982), https://supreme.justia.com/cases/federal/us/459/21/
Jay v. Boyd, 351 U.S. 345 (1956), https://supreme.justia.com/cases/federal/us/351/345/
INS v. Phinpathya, 464 U.S. 183 (1984), https://supreme.justia.com/cases/federal/us/464/183/
“For enhanced understanding of why the 9th Circuit 3-judge panel’s and Seattle district court judge Robart’s opinions were utterly wrong, treasonous, and causes of the judges’ impeachments and removals form office (and for better understanding of why Trump’s travel ban Orders are lawful and not unconstitutional), see, here-below, my report of the dissent of five 9th Circuit judges, and see also the following:”
http://www.limitstogrowth.org/articles/2017/02/10/professor-john-eastman-9th-circuit-flouts-immigration-law-and-presidential-authority/
http://antidiary.com/video/watch/vid47J0M0zDwKupFEc
http://bloviatingzeppelin.net/reacting-to-the-ninth-circuit-opinion/
http://dcwatchdog.org/its-coup-detat-by-9th-circuit/
The “it-really-is-a-Muslim-ban” propaganda’s premise is factually untenable because neither travel ban Order bore any language that discriminated against Muslims. The premise is legally is untenable because of a very-long-standing rule of construction: A legislator’s or rule-maker’s or Executive Order promulgator’s personal motives are irrelevant; only a rule’s actual language or, in some cases, it’s FORMAL, OFFICIAL history (e.g., formally recorded legislative history), may be considered by a court.
Never in the entire history of the United States had such an argument been credited, until, for purely political reasons, the 9th Circuit 3-judge panel and Seattle federal district judge Robart gave such argument ILLICIT respect. Always the law has rejected such arguments.
The legal (including constitutional) matter is what Trump’s Order actually says and what those words mandate or authorize. No more; no less; naught else.
The 9th Circuit 3-judge panel and judge Robart acted well beyond the bounds of judicial authority — to undermine Trump’s Presidency. The Hawaii federal district judge followed the 9th Circuit panel’s illicit lead. The five judges pursue a judge-implemented coup d’état. The judges ought to be impeached, removed from office, and prosecuted.
Now, two days ago (15 March 2017), the 9th Circuit 3-judge panel rendered an opinion that the case had become moot because Trump moved to dismiss its appeal seeking stay of Judge Robart’s patently unlawful order granting temporary restraining order against Trump’s first travel ban Order.
One 9th Circuit judge issued a statement concurring in the Opinion that the case was moot. That concurrence was purely political and embarrassed the 9th Circuit. The statement included the judge’s feeling “proud to be…independent and courageous,” which translates as that judge’s being revolutionary seeking the overthrow of our lawfully elected government.
But five 9th Circuit judges dissented from the denial of hearing en banc. They observed that the 3-judge panel’s initial decision (rendered 9 February 2017) was very seriously wrong:
“We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.
“We should have exercised that discretion in this case because the panel made a fundamental error. It neglected or overlooked critical cases by the Supreme Court and by our court making clear that when we are reviewing decisions about who may be admitted into the United States, we must defer to the judgment of the political branches.”
The five judges observed also that the 3-judge panel’s decision was “unreasoned” and a “clear misstatement of law” and “ignore[d] the realities of our world” and that the 9th Circuit was obliged to correct the ultra vires action of the three judge panel:
“Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress. We will yet regret not having taken this case en banc to keep those lines of authority straight.”
The five 9th Circuit judges’ dissent will be published. The dissent’s full text is available here:
http://cdn.ca9.uscourts.gov/datastore/general/2017/03/15/17-35105%20en%20banc.pdf
The 3-judge panel’s members must be impeached, removed from office, and prosecuted. So must Judge Robart (Seattle-based federal district court) and Judge Derrick K.Watson (Hawaii federal district court).
My main comment includes this paragraph:
“Also, the first travel ban order did not violate any federal statute, but was supported clearly by one federal statute [ 8 U.S. Code § 1182(f), https://www.law.cornell.edu/uscode/text/8/1182 ], as was determined by a Massachusetts federal district judge. The same is true of the second travel ban order.”
The Massachusetts federal district judge’s Order is avaialable here:
https://d279m997dpfwgl.cloudfront.net/wp/2017/02/Gorton-order.pdf
Loup-Bouc – thank you for your great comments! As you said, this was purely political, NOT legal.
CORRECTION
My main comment includes this paragraph:
“For enhanced understanding of why the 9th Circuit’s and Seattle district court judge Robart’s opinions were utterly wrong, arguably treasonous, and surely cause of the judges’ impeachments (and for better understanding of why Trump’s travel ban Orders are lawful and not unconstitutional), see, here-below, my report of the dissent of five 9th Circuit judges, and see also the following:”
The paragraph ought to be this:
“For enhanced understanding of why the 9th Circuit 3-judge panel’s and Seattle district court judge Robart’s opinions were utterly wrong, treasonous, and causes of the judges’ impeachments and removals form office (and for better understanding of why Trump’s travel ban Orders are lawful and not unconstitutional), see, here-below, my report of the dissent of five 9th Circuit judges, and see also the following:”
I’m no lawyer, and legal-talk tends to give me a headache. Marjorie Cohn’s arguments tend to make sense to me, but I fear that if the other side of the aisle got hold of me for 15 minutes they could flip me around. In my opinion Trump’s motor-mouth is what got him into this situation. That, and his bull-headed determination to have his way. The latter reminds me of his loopy and fanatical desire for The Mexican Wall.
This is the part of the essay which really aggravates me. The US has legal obligations under both our internal Congress-passed legislation and International laws we’ve taken on as our own. Torture is a crime in both jurisdictions, but Bush the Dumber ignored all that law and tortured anyway. The Black Wonder who was supposedly a law professor didn’t prosecute.
US law forbids any of our money going to nations violating the Symington Amendment banning “U.S. economic, and military assistance, and export credits to countries that deliver or receive, acquire or transfer nuclear enrichment technology when they do not comply with IAEA regulations and inspections”, yet everybody from Ricard Nixon to the present day POTUS have violated that US law. It’s the selective enforcement of the laws which really ticks me off.
Side note: Google Search went totally limp on me when I attempted to locate the actual name of the law. I’ve noticed that more and more – touchy subjects related to Holy Israel just won’t be found with Google. I had to use duckduckgo search instead, and it was an instant “bingo” situation with the exact same key words cut/pasted to their search bar.
Zachary…
I agree with you completely about the violations of past presidents; they all do it with maybe the exception of JFK who once he realized what he was doing stopped it. Despite his foolish initiation of an embargo on Cuba, he was probably the best man to ever inhabit the White House, which got him killed for his efforts. There is a book on his endeavors to help the nations of Africa out of their poverty stricken cultures. as far as I know that didn’t go over well with the American Right Wing either…
As to your issues with Google, I saw in a tech wire this morning for my field of software engineering that Google is now putting in place algorithms that will determine for the user what is “honest” content.
And what did they use for their classic example? The “Holocaust”… This means that for people like me who study this subject in-depth as part of his own interest in military studies any site that promotes an alternative to the standard narrative will be pushed down in the search results while sites like the “History Channel”, which is notoriously biased, will be moved to the top of such searches.
I have been reading about this promotion by Google for some time and now it appears it is being implemented.
DuckDuckGo, which I use extensively, uses the Google algorithms but does not maintain any user information since they do not do any advertising, which is the cover that Google uses to feed everyone’s data to government agencies. However, I do not know if they can modify the search algorithms for their own requirements.
Well, there you have it. The word “international” was used 21 times in this article, another grand example of an attempt at supranational law. “Supranational” definition: having power or influence that transcends national boundaries or governments. Can you say “one world government”? Anyone?
“When the United States ratifies a treaty, it not only makes the U.S. a party to that treaty; it also becomes U.S. domestic law under the Supremacy Clause of the Constitution, which says treaties “shall be the supreme law of the land.” Courts have a duty to restrain federal executive action that conflicts with a ratified treaty.”
This is why the TPP and TTIP trade treaties were deemed so dangerous, because your own sovereign courts no longer have any say; they are subservient to the international treaty, to supranational courts. Nation? What’s that?
Who set up these treaties? Who was behind them, and why? Might be illuminating to look at that history.
This needs to go all the way to the Supreme Court. Do you have sovereignty over your own nation, or what? Lay the facts – all the facts – on the table, including the history of WHO was instrumental in setting these supranational laws up. Anyone wanting to write a good book, here you go!
I wasn’t aware that the Executive Order (which is a 90-day “temporary” ban) specifically stated the word “Muslim”. The Lautenberg Amendment didn’t specify “Jews” either, yet:
“In the year 1992, according to an article in The Christian Science Monitor, the United Nations High Commissioner for Refugees estimated that there were 16 to 17 million refugees worldwide of whom the U.S. planned to fund the admission of 122,000, half of whom were to come from the Commonwealth of Independent States (states of the former Soviet Union), with approximately eighty percent of that number being Jewish applicants. The UNHCR pointed out at that time that almost no one emigrating from the CIS was a refugee as defined by the U.N., but that “once an individual asserts that he is a member of the covered class and asserts that he has been persecuted or has a fear of persecution, that individual shall be deemed a refugee. […]
Charles Kamasaki, Executive Vice-President of the National Council of La Raza, in an article in the American Jewish Committee publication Latinos and Jews pointed out that “the admission of former Soviet Jews” under this “special” status meant that “former Soviet Jews were eligible for eventual permanent resident status as well as access to cash assistance, language courses, and job-training programs normally provided only to bona fide refugees.” He added, “To some Hispanic advocates, the inequity was obvious.”
https://www.blackagendareport.com/content/two-tier-us-immigration-lautenberg-amendment-legacy
In that case, a particular group was favored without it looking like they were. Funny how that works.
Well, there you have it. The word “international” was used 21 times in this article, another grand example of an attempt at supranational law. “Supranational” definition: having power or influence that transcends national boundaries or governments. Can you say “one world government”? Anyone?
History has shown a need for government in one form or another or there would be anarchy, which does not lead to some form of Utopia as hippies and others like them would suggest. Anyone who doesn’t like government should be thrilled with Donald Trump and Republicans who are waging an all-out attack on government. No more EPA to protect the people from polluted water and air, no more government to provide aid to the poorest among us, no more government to provide health care to people who can’t afford thousands of dollars a year for prescriptions. Kick them off the third-rate Obamacare program and let them fend for themselves with the more abysmal Ryan-Trumpcare plan. And that is just for openers. Look out those on Medicare and Social Security you might be next.
Government isn’t the problem as Ronald Reagan and other charlatans have suggested. It is the quality of the people elected to govern and those who elect them that counts.
There are people on this planet who can take actions that affect other nations beyond their own national borders in a detrimental way. That makes some form of international governance essential.
You don’t like government? OK. Let your kids do whatever they want. Abandon your role as the governing body in your own home – and lotsaluck on that one. That’s government at its most basic level. The dream of an American empire is government at the ultimate level in a form that will be a disaster.
Bill Bodden – where did I say I don’t like government? Of course we need a government. What we don’t need is a supranational government.
Yes, let’s bring it down to a family; as you say, that’s government at its most basic level. Say I’m a good parent (which I do try to be) who enjoys guiding and teaching the children, getting them to school on time, making nutritious meals for them, watching out for them, helping them with their homework, with lots of time for laughs and tickles. I want them to become strong, independent, self-reliant individuals with good reasoning skills. When as a family we’re confronted with problems, we usually discuss how best to go about fixing them. Once everyone gives their opinions, if there is no consensus, I, being as fair as I can be, while looking out for the greater good of the family, am left with the final decision. I make it. I’m the President (it’s a tough job).
According to the above article, that’s not gonna fly, is it? No, no, no, in that situation my decision is not final because I have someone else above me who is overriding my decision. Someone else (maybe someone who has a vested interest in a particular outcome) is making the decisions for me. Great! My parent badge has just been ripped off, and I’ve been relegated to dishwasher second-class. To boot, half of my neighbors are protesting outside my house, breaking my windows, and telling me that I must abandon control of my family because someone (some higher-up) has now got my back. Maybe they start telling my children lies about me (with no evidence at all) in order to turn them against me as well. Well, sorry, no.
Do you have a family, or not? Do you have a nation, or not? Or do you really have an international government, created by some vested interests? Because if that’s the case, then you might as well fold up the voting booths, call a press conference, and tell the people that their voice is no longer needed because some outside force that they never agreed on is now calling the shots. How do you think that’s going to go over?
The country is called the United States of America. It’s not called the United World. At the present time, there are far too many entities that sit above national governments, and every year it gets worse and worse. Do you have sovereignty, or not?
What we don’t need is a supranational government.
But we do need some form of international governance. We are agreed on there being a need for government, and I’m sure we agree that government should be composed of people with generally recognized moral and ethical principles.
A family with good standards has governance in the form of the parents. Where there are many families we have city government. Where many cities and states are concerned we have state, regional and national governments. So what do we do in the case of many nations. Surely, the same principle applies if in a different form. The United Nations was designed to make decisions that would create harmony, or at least avoid conflict, among the many diverse nations on the planet. Whatever failures have devolved in the UN are not the fault primarily of the UN’s structure but of the people with power to influence its functions. Something similar can be said of the European Union.
Let’s face it…nation states are almost irrelevent. Multi-national corporations do not care where they get their money. 16 of the richest people in the world have as much wealth as the lower half of all humanity…and they will do everything they can to make sure governments continue to write laws that funnel the rest of the money up to them. Soon there will be a ban on anyone making less than 1 billion dollars a year. The rich are not more important than anybody else or the planet. WE need an international effort to rid ourselves of these parasites by demanding people, planet, and peace are placed before profit. Baby steps through electing officials that serve these parasites will not do it. Radical change is required when we have gone so radically off course. We need a resource based economy as proposed by Peter Joseph.
As shown in this article, if the Trump Administration is actually interested in stopping terrorist attacks on American soil, they are completely targeting the wrong nations:
http://viableopposition.blogspot.ca/2017/02/terrorists-in-homeland.html
Interestingly, a significant number of convicted terrorists were natural-born Americans.