March 19, 2017

Judicial Piracy and Plunder of America’s Immigration Law

Timothy Birdnow

Thomas Jefferson letter to Charles Hammond
August 18, 1821

It has long, however, been my opinion, and I have never shrunk from its expression . . . that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; . . . working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.

It has been rightly pointed out by a number of individuals that Federal law gives absolute authority to the President of the United States in matters of immigration and determinations of the national security implications of said immigration and travel. Despite this fact, a Federal judge has blocked the Trump administration from implementing temporary travel restrictions on citizens of countries that pose a potential security threat to the United States. (This after Mr. Trump attempted to accommodate the 9th Circuit Court of Appeals by changing the terms of the order to comply with the Court's demands.) The word overreach is far too tame for what this judge and the 9th Circuit have done; it is a complete usurpation of power.

First, some background; the Trump travel ban was originally struck down by Judge Ann Donnelly of the Eastern District of New York, a woman appointed by Barack Obama in 2014 and by Judge James Robart in Seattle. It was then upheld by the most ridiculous court in the land, the 9th Circuit, which took the view that since Mr. Trump promised to restrict Muslims from coming here he is somehow a bigot and not entitled to fulfill his pledge, law or precedent be damned. In other words, the Court simply disagreed with Trump's views. After reworking the order (with the help of legal experts) another judge - Hawaii punchy Derrick Watson - who was a 2013 appointee of Osama’s and an old colleague of the former Il Duce at Harvard Law.

According to the U.K. Guardian:

"There are indications, though, that Watson’s viewpoint may have been further influenced by his Hawaiian heritage and his long record of advocacy for immigrant rights and civil rights. While with a San Francisco law firm in the early 2000s, he devoted hundreds of hours to pro bono cases defending the rights of Mexican restaurant workers being held in slave-like conditions and to landlord-tenant disputes.

The complaint filed by Hawaii’s attorney general against the Trump travel ban contained an explicit reference to some of the most painful chapters in the islands’ history – the Chinese Exclusion Acts and the imposition of martial law and internment of Japanese Americans following the bombing of Pearl Harbor. At the time, the US supreme court upheld the government’s argument – similar to Trump’s – that it had the executive authority to defend national security as it saw fit. But the court’s ruling in Korematsu v United States has since been described as a "stain on American jurisprudence” and has been widely repudiated in federal court rulings if never explicitly overturned."

End excerpt.

Do they really want to discuss the Chinese Exclusion Act? Well, legal precedent is not on their side here.

In Fong Yue Ting v. United States (1893) The Supreme Court ruled that The U.S. has the right to refuse to admit a foreigner and to compel a foreigner to leave and that deportation (or refusal of admittance) is not a punishment but a right of sovereignty held by the U.S.

The syllabus to the ruling reads:

"The right to exclude or to expel aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign nation.

In the United States, the power to exclude or to expel aliens is vested in the political departments of the National Government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the Judicial Department is authorized by treaty or by statute, or is required by the Constitution, to intervene.

The power of Congress to expel, like the power to exclude, aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the Judiciary to ascertain any contested facts on which an alien's right to remain in the country has been made by Congress to depend.

Congress has the right to provide a system of registration and identification of any class of aliens within the country, and to take all proper means to carry out that system.

The provisions of an act of Congress, passed in the exercise of its constitutional authority, must, if clear and explicit, be upheld by the courts, even in contravention of stipulations in an earlier treaty"

End .

Then there is this:

1) Due Process does not require judicial fact-finding.
(2) Knauff: Π an alien wife of a U.S. citizen. Finding of court was that she was inadmissible and was excluded from entry. The Court classified her admission as a privilege rather than a right and characterized the exclusion of an alien as a fundamental sovereign act "inherent in the executive power to control the foreign affairs of the nation.”
(3) If entry would be prejudicial and alien is determined to be a danger then reasons can be kept secret as to why alien has been denied access.
(4) "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” (p.47)


In short, the Courts do not have jurisdiction here.

And then there is Shaughnessy v. United States ex rel. Mezei. In Shaughnessy the Courts ruled that THEY do not have authority to allow a resident alien back into the country - only the Attorney General can make the determination.

Held: the Attorney General's continued exclusion of the alien without a hearing does not amount to an unlawful detention, and courts may not temporarily admit him to the United States pending arrangements for his departure abroad. Pp. 345 U. S. 207-216.

(a) In exclusion cases, the courts cannot retry the Attorney General's statutory determination that an alien's entry would be prejudicial to the public interest. Pp. 345 U. S. 210-212.

(b) Neither an alien's harborage on Ellis Island nor his prior residence in this country transforms the administrative proceeding against him into something other than an exclusion proceeding, and he may be excluded if unqualified for admission under existing immigration laws. P. 345 U. S. 213.

(c) Although a lawfully resident alien may not captiously be deprived of his constitutional rights to due process, the alien in this case is an entrant alien or "assimilated to that status" for constitutional purposes. Kwong Hai Chew v. Colding, 344 U. S. 590, distinguished. Pp. 345 U. S. 213-214.

(d) The Attorney General therefore may exclude this alien without a hearing, as authorized by the emergency regulations promulgated pursuant to the Passport Act, and need not disclose the evidence upon which that determination rests. Pp. 345 U. S. 214-215.

End excerpt.

What is especially galling is that Barack Obama banned immigration from the same Muslim countries that Trump has now done - and there was no outrage as we are now witnessing. According to Townhall Trump is using the Visa Waiver Program Improvement and Terrorism Travel Prevention Act - signed into law by Barack Hussein Obama - to restrict travel from the very countries Mr. Obama designated.

There was nary a peep from the activists posing as judges in this case about Obama's program.

Ignored completely is U.S. code 1187 which clearly grants the Director of Homeland Security the authority to ban certain foreign nationals from traveling to the U.S. without a Visa (as refugees do.) .

Of course, there is code 1182 which reads in part:

(A) In general Any alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in—
any activity (I) to violate any law of the United States relating to espionage or sabotage or (II) to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,
any other unlawful activity, or
any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means,
is inadmissible.


(i) In general

An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.

(and now comes the big kicker_:

(f) Suspension of entry or imposition of restrictions by President

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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

End excerpt.

In Roberto Saavedra Bruno, et al. v. Madeleine Albright The D.C. Court of Appeals said:

" Administrative Conference of the United States, which had
proposed the specific language enacted as s 702(1), explained
that the courts would still refuse "to decide issues about
foreign affairs, military policy and other subjects inappropri-
ate for judicial action." 1 Recommendations and Reports of
the Administrative Conference 191, 225. On the same sub-
ject, the Administrative Conference pointed out that "much of
the law of unreviewability consists of marking out areas in
which legislative action or traditional practice indicate that
courts are unqualified or that issues are inappropriate for
judicial determination." Id.


These considerations underlie the Court's long-standing
recognition that "any policy toward aliens is vitally and
intricately interwoven with contemporaneous policies in re-
gard to the conduct of foreign relations, the war power, and
the maintenance of a republican form of government. Such
matters are so exclusively entrusted to the political branches
of government as to be largely immune from judicial inquiry
or interference." Harisiades v. Shaughnessy, 342 U.S. 580,
588-89 (1952); see also Reno v. American-Arab Comm., 119
S. Ct. 936, 947 (1999). Though it may be "error to suppose
that every case or controversy which touches foreign relations
lies beyond judicial cognizance," Baker v. Carr, 369 U.S. 186,
211 (1962), it is nevertheless "not within the province of any
court, unless expressly authorized by law, to review the
determination of the political branch of the Government to
exclude a given alien." United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 543 (1950).8

In view of the political nature of visa determinations and of
the lack of any statute expressly authorizing judicial review of
consular officers' actions, courts have applied what has be-
come known as the doctrine of consular nonreviewability.
The doctrine holds that a consular official's decision to issue
or withhold a visa is not subject to judicial review, at least
unless Congress says otherwise.9 For the greater part of this

And here is another point to ponder; Donald Trump did not even take this action, but rather the Director of Homeland Security did. The judges in these cases have laid all blame on Mr.Trump, using his campaign rhetoric as their guide. But as this article in The Atlantic pointed out about Barack Obama's DAPA program:

"Here’s the thing: No one should have been confused about "whether the president had lawful authority to [promulgate DAPA].” The president did not—but that’s legally irrelevant. Obama’s legal authority is not at issue in the case. Really. Truly. Not even a little bit. Obama did not take the legally relevant action; Secretary of Homeland Security Jeh Johnson did. It’s a program of which he is the legal author and for which he, not the president, is legally accountable. Politically and institutionally, this is a critically important difference.

Johnson inferred that he had the authority to exercise this program from statutes enacted by Congress. The Homeland Security Act of 2002, for example, explicitly charges the DHS secretary with "establishing national immigration enforcement policies and priorities.” Other statutes suggest Congress approves of deferred-action policies. The arguments for and against the secretary’s use of his powers are complicated and technical, but they are arguments about statutory authority, not Article II of the Constitution or the scope of presidential prerogative. Put simply, the question is whether Johnson is reading statutes properly."

End excerpt.

Get it? Obama was excused from responsibility because Jeh Johnson made the decisions and not his Wonder. But now the blame is being heaped on the President by liberal judges who have no right to make that assumption.

In fact, Trump had few choices open to him, as The Atlantic claims of Obama:

"He could not have forced Johnson to promulgate a program, however; in the face of impasse, Obama would be able only to fire this secretary and try to appoint another. When Obama refers to "his” powers or "my” actions, he mainly insures that all the opposition to the program, both legal and political, will get focused with laser-like intensity on him, rather than Johnson."

End excerpt.

So why couldn't Obama force his DHS Secretary but Trump must? And if John F. Kelly is the architect of this policy why are the Courts holding Mr. Trump's campaign rhetoric to account in their rulings?

This was an absolutely terrible chain of decisions by partisan hacks. The plaintiffs had no standing in the case. Also, the U.S. Constitution is not an universalist document; it is inapplicable to foreign nationals. These courts were not just wrong but criminal in their contempt for American law. Congress should consider impeaching the judges involved.

If Mr. Trump simply ignores these rulings he would be well within his right, but a shift in power in Congress would guarantee his impeachment. There is the rub; this is an impeachment trap, and I suspect the Democrats and their trained bathrobe-wearing gibbons of jurisprudence know it. Trump does not want to walk into the trap. But he may have no choice here.

If the courts get away with this power grab they will have provoked a Constitutional crisis and forever changed the balance of power as it was intended in the Constitution. They have become legal anarchists, judicial pirates. One of the remedies given to the Presidency was to refuse to enforce a court ruling. Alexander Hamilton made that clear in Federalist #78. Obama did that with impunity. But times have changed.

These courts should change the style of their robes; they can keep the black, but they should emblazon the Jolly Roger in a prominent place. They have become little more than pirates, after all.

Posted by: Timothy Birdnow at 11:02 AM | No Comments | Add Comment
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