Ninth Circuit slaps down another Trump executive order

Discussion in 'West Mall' started by NJlonghorn, Dec 11, 2018.

  1. NJlonghorn

    NJlonghorn 2,500+ Posts

    Once again, the far-left Ninth Circuit has upheld an injunction invalidating a Trump executive order. This time, the issue involves a statute that says immigrants applying for asylum need not arrive at a designated port of arrival. The statute implements a treaty (to which the US is a signatory) saying that asylum applications should be considered without regard to the applicant's immigration status.

    Rather than take this issue to Congress, President Trump called an end-around. He issued an Executive Order saying that asylum applications should be denied if the applicant arrived along the southern border, but not at a designated port of arrival. In other words, applicants who arrive illegally from Mexico can apply for asylum, but the application will be perfunctorily denied.

    A couple of weeks ago, a Federal District Court judge in California implemented a nationwide injunction against the Executive Order. Trump slammed this judge as a liberal hack, causing Justice Roberts to jump in and defend the judiciary.

    Trump filed an emergency appeal, seeking a stay of the District Court's injunction. But the Ninth Circuit affirmed last Friday, based largely on the fact that it is "the hollowest of rights" to permit an application (because the law says you have to), but then automatically deny it.

    This is yet another in a long line of Ninth Circuit opinions standing in the way of the President's agenda. The difference this time? The opinion was written by a circuit judge (Jay Bybee) who authored the "Enhanced Interrogation" memo, was appointed by President Bush 43, and generally has law-and-order, conservative credentials.

    A couple of articles on the case:

    Fox News
    ABA Journal
     
    Last edited: Dec 11, 2018
  2. iatrogenic

    iatrogenic 2,500+ Posts

    Looks like a legitimate ruling. Now, however, it has a 90% chance of being overturned base on 9th circuit history.
     
  3. Horn6721

    Horn6721 10,000+ Posts

    So If Trump had not announced the fake claims would be auto denied it would have been ok?

    Just resubmit and don't declare auto reject.
     
  4. Mr. Deez

    Mr. Deez Beer Prophet

    If the claims are actually fake, he could shoot them down even if they're applied for at a port of entry.
     
    • Agree Agree x 1
  5. Mr. Deez

    Mr. Deez Beer Prophet

    They get reversed a lot, because it's a lopsidedly Democratic court and behaves in a pretty partisan manner. Both Clinton and Obama made a ton of appointments to the court. It even has four judges in senior status from the Carter administration still kicking around. If Trump wins reelection, the Ninth Circuit will look pretty different.

    However, they do get affirmed about twenty percent of the time when the Supreme Court agrees to hear the case, because sometimes the liberal result happens to be the legally correct result. Of course, the Supreme Court doesn't even hear .5 percent of the Ninth Circuit's rulings.
     
  6. iatrogenic

    iatrogenic 2,500+ Posts

    80% failure is hideous, and unacceptable in any organization.
     
  7. mb227

    mb227 de Plorable

    It is sad when a court decides repeatedly that a non-citizen has ANY right to process other than to be processed onto a bus and exited from the country. While I have no problem with an asylum application process, they SHOULD have to follow established protocols, to include entering through a designated point of entry.

    The 9th Circuit lunacy is one of many reasons I repeatedly give an acquaintance in California who has tried more than once to get me to leave Texas...I also have a very strong dislike for insane tax practices.
     
  8. NJlonghorn

    NJlonghorn 2,500+ Posts

    I disagree with your post for two reasons:

    (1) What you seem to be saying is that a court should do what is best (or, more accurately, what you think is best). This runs very counter to the traditional, conservative notion that the Court should be applying the law, for better or worse.

    (2) By their very nature, asylum cases often have to be pursued stealthily. A person who is truly persecuted and fears for his or her life can't reasonably be expected to openly stroll up to a legal point of entry. That is why the law in most countries provides that asylum is available no matter how the applicant enters. Of course, as Deez pointed out, asylum shouldn't be granted if there is no basis for it -- but that's not the same as prohibiting an application in the first place.​

    True conservatives on the Supreme Court (Roberts, Cavanaugh, maybe Alito, and maybe Gorsuch) will uphold this decision by the Ninth Circuit. Results-oriented fake-conservatives (especially Thomas, but to a lesser extent Alito and Gorsuch) will vote to overturn the Ninth Circuit.
     
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  9. NJlonghorn

    NJlonghorn 2,500+ Posts

    Would 73% be acceptable to you? Because that's the overall percentage of cases taken by the Supreme Court that are reversed or vacated.

    The Ninth Circuit's rate is around 81%, which is meaningfully higher than the national average, but not nearly as out of whack as some would have you believe. link

    Plus, reversal rates don't really address the correctness of a court's decisions. Instead, it measures the ideological spread between a higher court and a lower court. Throughout the past 20+ years, a majority of the Justices on the Supreme Court have been Republican appointees, while a majority of the judges on the Ninth Circuit have been democratic appointees. Thus, you'd expect a higher reversal rate. If the Democrats ever again get a majority on the Supreme Court, you can count on the reversal rates flip-flopping, with conservative circuits getting reversed more than liberal circuits.
     
    • Winner Winner x 2
  10. Horn6721

    Horn6721 10,000+ Posts

    " By their very "nature, asylum cases often have to be pursued stealthily"
    using that metric we can automatically deny 99% of the horde .
     
  11. iatrogenic

    iatrogenic 2,500+ Posts

    A 73% failure rate is horrible as well. That failure doesn’t justify the idiocy of the 9th circuit if that’s what you’re shooting for.
     
    Last edited: Dec 13, 2018
  12. Mr. Deez

    Mr. Deez Beer Prophet

    I'm no defender of the Ninth Circuit, but the statute is pretty clear and says what it says. They shouldn't be overturned just because we may not like the result.
     
  13. bystander

    bystander 10,000+ Posts

    So to this legal layman it sounds as if Trump decided that the caravan et al (hence specifying the port of entry in the executive order) is abusing our asylum laws and he wanted to mass deny them instead of forcing our immigration officials to deny them one at a time (assuming their review of the application was vetted properly) meaning he shouldn't have made the executive order and instead just let the line build up.

    Take a number.
     
  14. Mr. Deez

    Mr. Deez Beer Prophet

    Yes, he should have just let the line build up.

    Honestly, this is one of these issues on which everybody is right and everybody is wrong in some key areas and not just laymen. I got into a Facebook discussion with two lawyer friends of mine. One does God's Work like I did and another was an immigration and asylum attorney who should obviously be an expert on this stuff. Both are liberal Democrats. The personal injury lawyer posted some idiotic news article demonizing Trump for the tear gas incident, and he railed about how "illegal" Trump's actions are because the people were being denied entry. The immigration attorney chimed in and basically agreed - said we had to let these people in and apply for asylum and cited to the statute at issue in this case.

    Obviously, my default position would be to defer to an asylum attorney on this sort of thing, but I looked up the statute. Sure enough, it doesn't require an asylum seeker to have entered through a port of entry, so everybody agreed that the executive order was illegal.

    However, they were basically arguing that it was illegal to stop anyone from crossing the border if they planned to seek asylum regardless of how they were trying to enter. I brought up the actual text of the statute which clearly doesn't go anywhere near that far and asked both lawyers if they had any legal basis (statute, case law, regulation, etc.) to support that conclusion, and that question immediately ended the discussion. Crickets. Neither one of them had a damn thing. They were just talking out their asses.

    Here's the bottom line at least as far as I can tell. The law basically makes the port of entry the normal and preferred way for someone to seek asylum. However, if you entered illegally, that doesn't bar you from seeking asylum. The statute is pretty clear on that. Some on the Right (including Trump) don't get or choose to ignore this part.

    Here's what the Left gets wrong or chooses to ignore. The fact that you want to or might want to seek asylum (or that liberal journalists say you want to seek asylum) doesn't give you the right to enter other than through a port of entry. Intent to seek asylum is not a "cross the border for free" card. We can bring to bear the resources of the federal government (including deadly force if necessary) to stop you - even if you plan to seek asylum. Crossing outside a port of entry is still against the law.
     
  15. Mr. Deez

    Mr. Deez Beer Prophet

    The real failure rate isn't anywhere near that high though, because so few of their rulings actually get heard by the Supreme Court. The Court only receives about 7,000 - 8,000 petitions for certiorari in a given year. Only about 3 percent of those are granted. Last year, the Ninth Circuit heard about 75,000 cases. You can do the math. It's a pretty tiny subset of its work that's actually getting reviewed by the Supreme Court.

    Does that make the Ninth Circuit a good court? No. It's absurdly and very predictably partisan. It had the law on its side in this case, but if it didn't, it probably still would have found a reason to screw with the Administration because it's hostile to it.

    It's also too big, and that would be true even if the judges had more integrity. Other circuits have a real en banc process - meaning litigants who lose when only a panel of judges hears their case can petition the entire court to hear the case. The Ninth Circuit can't do that, because it has too many judges. You can't have 29 judges hearing a case. It would be a ****-show.
     
  16. bystander

    bystander 10,000+ Posts

    Thanks for the usual comprehensive answer. My take is this:

    Everybody knows they are coming over in mass and have for decades. Asylum is now a new tool in their arsenal. Coming over illegally with asylum to be played as some sort of last minute parlay trump card as shouted by Keira Knightly in Pirates of the Caribbean is tactical and exploiting our laws. I believe they have been coached. They have found a loophole and Trump is pissed because they refuse to stop coming over so he did what he did. Then we have the Left who suddenly believe in the law calling him down on this. They don't care to help with the problem. Only enable it.
     
  17. NJlonghorn

    NJlonghorn 2,500+ Posts

    I agree with all of what Deez says in both of his posts above. In particular, I agree with the following:

    I would add (and Deez may not agree on this) that the Fifth Circuit is equally horrible. For every time a partisan-left opinion comes out of the Ninth Circuit , there's a partisan-right opinion from the Fifth Circuit. There are other circuits that have a significant partisan tilt, but none as large as those 2.

    What's important to note is that the horribleness of a circuit court is not tied to its reversal rate. If the Supreme Court ever falls into the hands of 5 liberals, the Fifth Circuit's reversal rate would skyrocket and the Ninth Circuit's would plummet. And this would have nothing whatsoever to do with whether either court was good or bad.
     
    • Like Like x 1
    Last edited: Dec 13, 2018
  18. NJlonghorn

    NJlonghorn 2,500+ Posts

    That's not at all what I'm shooting for. The Ninth Circuit is a horrible court, mostly because of its extreme, partisan-liberal slant. What I am "shooting for" is that the Ninth Circuit would still be horrible if most of its partisan-liberal cases were affirmed by a partisan-liberal Supreme Court.
     
    • Like Like x 1
  19. Mr. Deez

    Mr. Deez Beer Prophet

    Mostly agree and sorta disagree. Both circuits are applying laws, constitutions, etc. that were written primarily by Right-leaning legislatures (at least by modern standards), so the Fifth Circuit doesn't have to butcher the written law as often to force the outcomes it wants. That at least gives the illusion that it's a more principled court than the Ninth Circuit is. However, when it needs to butcher the written law to force its preferred outcome, it's just as willing to do it as the Ninth Circuit is.

    I haven't followed either of these courts with great specificity for a few years, but Priscilla Owen and Don Willett are both on the Fifth Circuit and were previously on the Texas Supreme Court where they were both hideously partisan. They followed the law when they felt like it, but if they had to wipe their asses with it to make the preferred special interest win, they they didn't hesitate to do so. I know a lot of people like Willett because he's a funny guy and has an entertaining social media presence, but as a judge, he is and has always been a disgrace and a political hack.
     

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