The Ninth Circuit Court of Appeals is the most frequently overturned circuit in the U.S. by The United States Supreme Court.
Eighty-Six percent of the time. (Source)
Though the liberal district court refuses to rehear the issues, Justice Jay Bybee, a conservative justice discusses additional reasons why President Trumps Immigration will soon become the law of the land.
In addition, an Amicus brief from 16 state attorneys general.
The top legal officials in 16 states, including Pennsylvania and Iowa which voted for Trump, filed a memorandum in support of efforts to halt the travel ban.(Source)
The state attorneys general from these states argue they have standing as the executive order inflicts harm on states, including disruption at state universities and medical institutions.
The states include New York, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, New Mexico, Oregon, Rhode Island, and Vermont, the Commonwealths of Massachusetts, Pennsylvania, and Virginia, as well as the District of Columbia.
Five conservative judges on the San Francisco-based court dissented from that denial of an en banc rehearing, writing an opinion explaining why their court should reconsider the case.
The dissent by written by Judge Jay Bybee, who began his 26-page dissent (Source) by stating, “Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency, and the wisdom of the policy choices made by the President is not a matter for our consideration.”
Bybee quoted a 1950 Supreme Court case which declared, “The exclusion of aliens is a fundamental act of sovereignty.”
The dissenting judges also quoted the relevant provision of federal law, where Congress decided at 8 U.S.C. § 1182(f):
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.
Bybee went on to explain that:
[T]he panel made several other legal errors. Its holding that the States were likely to succeed on the merits of their procedural due process claims confound century-old precedent.
And its unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world.
The Supreme Court held in 1976 that “the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.” The political branches are elected officials in Congress and the White House.
The law requires judges to “distinguish between two groups of aliens: those who are present within our borders and those who are seeking admission,” Bybee continued.
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