A Mistaken Post-Script — From One Faction Of The Ninth Circuit: In An Echo, On Muslim Ban 1.0

First, this 26 pager is not law, in any sense. It is the view of only one member of the Ninth Circuit, on appeal. [Amended version, here.]

But in fairness, I’ll post the entire PDF, here. I do so in part to make sure readers who’ve follow this less closely than I have won’t be. . . led astray. Ultimately, the Hawaii TRO (or a later preliminary injunction) opinion is likely to come before this same Ninth Circuit.

And this dissent was filed as Ban 1.0 was closed out, in the Ninth Circuit tonight. But we may yet see this sort of erroneous reasoning raised there — against enjoining Ban 2.0. [In fact, Mr. Trump echoed the most silly parts of it tonight, as he spoke in Nashville — of the “overreach of the courts,” in entering the Hawaii TRO on Muslim Ban 2.0. So we must be vigilant. Ever vigilant, against false premises, like these.]

In sum, the dissenter simply leaps from the 1952-era INA, to the 2000s and later versions, ignoring the 1965 INA amendments we have discussed here at some length. [And I should be clear that tonight, Judge Walton in Hawaii specifically reserved on the INA arguments, settling on the Constitutional violations first.]

The more fundamental error, in my view though, is that the dissenter simply ignores the way in which First Amendment claims must be handled, in the face of clear evidence of an impermissible motive on the part of the Executive Branch. The Executive is not sanitized, just because it acts on an immigration measure. In fact, that is when the First Amendment must be most jealously guarded.

It is fair to say that there has never been, in our modern post WWII era (1940s and later) a case with such blatant evidence of invidious religious discrimination, and nationality discrimination, directly from the mouth of the Commander in Chief. In public, and in repeated written statements. So this case is unlike any in the modern era — but the US Supreme Court’s First Amendment jurisprudence here is clear, and stretches back more than a century. The dissenter simply ignores it. So his view will not carry the day, when this reaches the Supremes. But we should be careful, between now and then, not to be dissuaded.

As he closes, he does make a very solid point — to personally rebuke Mr. Trump directly, about ad hominem attacks on federal judges, thus:

. . . .Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge [Ed. Note: that would be Judge Robart, imaged at right] and our colleagues were out of all bounds of civic and persuasive discourse — particularly when they came from the parties [Ed. Note: this means Mr. Trump, personally].

It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. . . .

Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all. . . .

Indeed, we were, are and remain a nation of laws, not just petty, small-handed, old white men. Now you know. Be vigilant about your rights, lest you lose them. Sleep well one and all — I’m in the air all day tomorrow — off grid, as it were. . . .

नमस्ते

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