The 9th Circuit Court & State of Washington breach judicial boundaries by attempting to usurp both the Constitutional and Congressional provisions of authority applicable to the Office of the President. Key positions alleged, in opposition to the Presidents Executive Order (EO), are as follows:
(1) Violation of the “Establishment” Clause.
(2) Violation of the “Equal Protection” Clause.
(3) Cause of “Irreparable Harm” to those Persons, as a result of the EO, whose return to the State of Washington was either delayed or prevented.
(4) A direct challenge to the vested authority of the Presidential to enact said EO.
The facts, on each point, are these: Both the “Establishment” (1st Amendment; ostensibly the targeting of a religion) lacks foundation as the seven targeted Nations represent a significant minority when compared to the Muslim population in Countries not subject to the ban. The “Equal Protection” Clause (14th Amendment) would not apply to persons who have not previously established legal entry into the U.S. There is not Constitutional provision which insures unfettered access to the U.S. in defiance of its Laws or do the rights therein extend to Persons outside of the U.S.
On the subject of “Irreparable Harm” the applicability of this argument requires a bit more information; “Irreparable Harm” is a condition that arises that can’t be reasonably resolved by alternative means. For example: A person, on their way to having a heart transplant, is delayed and given the time-sensitivity of the donor-hearts viability the organ is reassigned to the party next in line and the initial recipient dies as a result. This circumstance rises to the standard of “Irreparable Harm” whereas a delay which amounts to a mere inconvenience, tone deaf as it may seem, is not.
Even the challenge to the Presidents well established Authority, particularly in the area of National Security, is apocryphal particularly because this authority is sanctioned, comprehensively, by Congress and well codified by numerous statutes. So then, aside from whether one agrees or disagrees with the Policy which lies behind this Executive Order there are critical questions that come to mind and here are just two that are the most urgent of all:
(1) Is it appropriate for Courts to move past their purpose of adjudicating the Law and into the realm of articulating, thru the judicial authority of the Court, a political objective (a.k.a., Judicial Activism)? I believe the answer is Absolutely Not!
(2) Do individual States have the right to usurp the functions of the Federal Government in the performance of its Constitutionally mandated and/or appropriately codified authority at the expense of or risk to the other States or the population as a whole?
Given the dominant authority of the “Supremacy” Clause clearly this is not a right licensed by the Constitution to the individual States. On merits alone this legal challenge lacks merit, but it does illustrate the extent to which the Opposition will go on fulfilling its stated (sole) objective which is to challenge and disrupt the President’s agenda regardless of the merits of its purpose.
There is no coincidence that the most liberally compliant Court (Washington State), one located in the District of the most frequently overturned Federal Court (the 9th Circuit Court of Appeals), was to be the favored portal for forcing the challenge and for one simple reason: any other Court, functioning on the merits of the Law and Judicial temperance, would have been far more scrupulous in their actions by filtering the matter thru appropriate judicial review and not on the temporal impulse of fascist political hyperbole. Don’t be surprised that the 9th District Court continues its propensity for judicial misconduct and the case finds a fast-track to the Office of Justice Kennedy at the Supreme Court. Whether or not he decides the matter on his own or defers to the opinions of the entire court, as yet, remains unknown.
In the end, on the merits of established law, the President authority would, as it should for any President under similar circumstance, prevail. The American Public, regardless of their political preferences, must guard against the abuse of the judicial process. It is an absolute necessity the separation of powers designed into our system of government be faithfully preserved and nowhere is this more important than in the Courts.
There is no escaping the reality that Officers of the Courts have personal political opinions and preferences as to policy however, in the capacity of a Jurist, these attributes, when tethered to the function of preserving the uniform and faithful application of the law, are incompatible with the function of the Court. Without it you truly do observe conditions of Irreparable Harm scaring the higher ambitions of the Courts.
The following are a select group of responses to questions/comments received after the original article was published. We believe you will find them of interest.
#1: Just one question: Why is Saudi Arabia NOT on the list? Also, where have I heard this before: “Opposition will go on fulfilling its stated (sole) objective which is to challenge and disrupt the President’s agenda regardless of the merits of its purpose.”? Good for goose, good for gander?
The Imperfect Messenger Foundation: The primary reason for Saudi Arabia, and many other Countries that one would expect should be subject to the same restrictions, is that they have a national security apparatus/database (on par with the Orwellian schemes of the U.S. and much of the E.U.) that is searchable whereas no such feature exists in each of the 7 named. As to your second comment, in part, I agree, but in the areas of Nominees and Judicial Activism (which is far more dangerous/threatening to the Country) I respectfully disagree.
Curtis C. Greco, Founder
