The
9th Circuit Court of Appeals decided not to take any judicial notice of
terrorist organizations in Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen.
The court insists that these nations must be presumed to have no terrorists
until the Trump administration proves otherwise. I believe this presumption of
innocence for countries is a judicial first, but it makes sense for the most
liberal appeals court in the US. The lack of proof of terrorist activity in
these 7 countries is the basis of the 9th Circuit Court of Appeals upholding
the injunction against Trump's immigration ban. Like the
Red Queen in "Through the Looking Glass," sentence first, trial
afterwards. They decided on the outcome, then worked backwards to
find a justification. Permit me to demoralize these judges by saying that
ignoring terrorist presence in these countries destroys their credibility and
authority. You really need blinders to come to this conclusion. I would call it
a willful suspension of reality.
The
facts of the case are that Trump banned entry for citizens of 7 countries.
The countries are Iraq, Iran, Syria, Libya, Somalia, Sudan and Yemen.
The countries are not named in the executive order itself. Instead
they are incorporated in the order by reference to a law, "countries referred to in section 217(a)(12) of the INA, 8 U.S.C.
1187(a)(12)." These nations were all singled out as exceptional
security risks in the Terrorist Prevention Act of 2015 and its 2016
extension. The list came from President Obama's Homeland Security
Department. The order applied to all citizens of these countries.
It did not mention religion.
The
9th Circuit Court of Appeals upheld the injunction by saying that the Trump
Administration had not presented any evidence that these counties had
terrorists in them. Given that the list of countries was taken from two
laws passed by Congress, there should not have been any requirement to prove to
the 9th Circuit that these countries harbor dangerous
terrorists. Congress and the President
have both made that finding. The
original judge that issued the injunction did not present any legal reasoning
at all to justify his decision in his 7 page opinion.
The law, the Immigration Act of 1924, as amended in
1952, says, "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."
As
far as religion being a qualification for entry, it has been used that way in
the past. It's part of having a well founded fear of persecution. I
know a lot of former Soviet Jews who were granted visas to the US because of
their religion, which made it hard for them to live in the Soviet Union.
Nobody thought that was unlawful discrimination. The Lautenberg Amendment,
enacted in November 1989, lowered
the burden of proof of persecution for Soviet Jews, Evangelical Christians, and
members of the Ukrainian Catholic and Ukrainian Autocephalous Orthodox Church
to obtain refugee status to the United States.6 These groups would have "strong
likelihood of qualifying for admission to the United States as refugees because
their groups have a history of persecution." It required immigration
officers to consider whether "historical circumstances" might give
refugees a "credible basis for concern," rather than the
"well-founded fear" they had been required to prove. Some believed
the amendment made every Soviet Jewish emigre a potential refugee.
The
9th Circuit Court of Appeals has found that foreigners, who have never ever
been to the US, have a right to enter, which the President of the US can't take
away even though he is authorized by law to do so when he believes they may be
a threat to national security.
Perhaps any federal judge in a lower court who has been reversed on three cases (3 strikes) in the final case outcome, whether in the Appellate Courts or the Supreme Court, should be subject to removal by a majority of both Houses of Congress. This would take a Convention of the States, but it would be a way to check judges who repeatedly ruled on what they would like the law to be, rather than what the law is. I think if the rule were in place today, the 9th Circuit would have very different judges.