As many already know, liberal judges across the U.S. have blocked president Trump's travel pause on countries with high levels of terrorist activity, with other judges upholding his Executive Order, such as a Virginia judge asserting that Trump "has unqualified authority to bar physical entry to the United States at the border."
After the first Executive order was blocked by activist liberal judges playing politics rather than applying the law, Trump issued another EO addressing the terminology concerns used to block his first, to which was again blocked by a judge in Hawaii.
Today the 9th Circuit of appeals will hear the case, which is what many of us watching this play out have been waiting for, because observers fully expect the 9th circuit to uphold the ban, but the Trump administration could not ask for a Supreme Court review until an appellant court has issued a ruling.
The reason most experts believe the 9th circuit will uphold the ban and rule against the Trump administration is because the three judges that will be hearing the case, Michael Daly Hawkins, Ronald Gould, and Richard Paez, are all Clinton appointees.
THE GOAL IS TO GET THE CASE HEARD BY THE SUPREME COURT
The reasons the Trump administration and those supportive of the travel pause want the case to be reviewed by the Supreme Court are two-fold.
First and foremost, the lower courts that have blocked the travel pause, ignored U.S. Statute 8 U.S.C. 1182(f), which states "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."
The second reason that the the 9th circuit, known to be one of the most liberal appellant courts in the country, which will be hearing the appeal, has an 80 percent reversal rate by the Supreme Court in cases where the Supreme Court agreed to review controversial rulings from the 9th.
Eight of out of 10 cases from the 9th Circuit reviewed by the Supreme Court are overruled, according to a 2010 analysis published by the American Bar Association. The 9th Circuit, which is known for its liberal tendencies, has the second-highest reversal rate of the 13 appellate courts below the Supreme Court.
Even the "Clinton News Network" (CNN) was forced to report that legal scholars, such as George Washington University School of Law Professor Jonathan Turley, says that historically the law has sided with presidents on issues of border issues so he thinks it could be hard for the Supreme Court to reverse President Trump's immigration travel ban." (Source)
Other legal experts agree:
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as the immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
Rappaport asserts in The Hill that "President Trump did not exceed his statutory authority over alien admissions with the directives in the EO, and that he issued it to protect the United States and its citizens from foreign nationals who intend to commit terrorist attacks in the United States."
Peter Spiro, professor of immigration and constitutional law at Temple University, despite disagreeing with the EO itself, stated in the NYT that the executive order is constitutional.
In a surprising move, five judges (including the highly respected former Chief Judge Alex Kozinski) filed a dissent to the motion for rehearing. The blistering dissent showed that a significant number of Ninth Circuit judges strongly disagreed with the decision of the panel. (Some judges may have not approved of the panel decision but did not see the need for a rehearing). As previously raised by experts, the strongly worded dissent belies the claim that the original executive order was legally unsustainable. To see this type of vociferous dissent in a withdrawn appeal is remarkable in itself but it also shows the depth of opposition to the panel’s decision among other judges.
The dissenting judges objected that there is an "obligation to correct" the “manifest” errors of the panel. It called those errors “fundamental” and even questioned the manner in which the panel reached its decision with a telephonic oral argument. The dissent raised many of the problems that various commentators have raised, including myself. The lack of consideration to opposing case law, failure to address the statutory authority given to the President, and the sweeping dismissal of executive authority are obvious flaws. (These problems are also apparent in the ruling in Hawaii, though it was based on establishment rather the due process grounds) The dissenting judges refer to the “clear misstatement of law” in the upholding of the district court. so bad it compelled “vacating” an opinion usually mooted by a dismissed case.
The judges said that the panel simply “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972). Indeed, the panel noted that the panel missed entirely the rulings in Kerry v. Din, 135 S. Ct. 2128 (2015) and Fiallo v. Bell, 430 U.S. 787 (1977). In a statement that is particularly probative of the Hawaii ruling, the Supreme Court in Mandel recognized that first amendment rights were implicated by the executive action but found that "when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment 11 interests of those who seek personal communication with the applicant."
The blocking of the President of the United States, from doing his job in protecting the country, has been considered by many to be one of the most egregious cases of judicial misconduct and political activism by liberal judges, and is precisely why the Supreme Court exists.
These are the exact types of cases the Supreme Court generally agrees to review, to be the final arbitrator.
While it is expected the 9th circuit will not rule in favor of the Trump administration, legal scholars agree the Supreme Court will follow the law which gives the president the authority to implement the travel pause as laid out in the Executive Order, and most also agree the Supreme Court will accept the case.
That request for a review by the Supreme Court can not even be made by the Trump administration until the appeal has been heard and ruled on.... and today is the day we have been waiting for to bring us one step closer to highlighting how overt the liberal judicial activism has been across the country.
Note - In February, Republicans in Congress pushed a bill to break up the "nutty 9th circuit" and president Trump has spoken about it as well. The Oral arguments start today at 12:30 pm ET, and can be seen below, via C-Span.
Watch: 9th Circuit Oral Argument -- State of Hawaii v. Trump (C-SPAN)
In February, Senator Jeff Flake spoke about breaking up the 9th, explaining that they have been attempting to do so since 1941, because that one appellant court covers 20% of the U.S. population. (Seen below)