Lion of the Blogosphere

State of Washington v. Trump 17-35105 (9th Circuit)

Text of the Per Curiam decision of the Court.

Reading it…

* * *

OK, I believe the opinion goes where no court has gone before, and holds that non-citizens, who are not currently in the United States, now have Constitutional rights to 5th Amendment Due Process and 1st Amendment Free Exercise of religion. (However it should be pointed out that the sides are arguing over a TRO, so this is not a final determination that aliens now have these rights, but a prediction that when this case comes back to the same panel of judges, they will hold that aliens have such rights.)

This seems to be in direct contradiction to Kleindienst v. Mandel 408 U.S. 753 (1972) which held that a Belgian journalist could be denied entry to the United States because he believed in communism.

Did I not warn you that liberal judges would do stuff like this? Republicans in Congress had better confirm Neil Gorsuch ASAP.

* * *

And the two cases cited by the 9th Circuit to support this outrageous decision?

1. Zadvydas v. Davis 533 U.S. 678 (2001). This was a habeas corpus case. The alien was being held in detention too long. It has been long established that non-citizens have certain due process rights if they are present inside the country. It has nothing to do with denying entry to non-citizens.

2. INS v. Chadha 462 U.S. 919 (1983). This was an appeal from a decision by the Immigration Court (which as I previously pointed out is not a real Article III Court, but Congress created a right of appeal to the federal Circuit Court). So once again, the non-citizen was inside the United States and had personal standing. The decision to invalidate an immigration-related statute was based on a very weird separation of powers issue and had nothing to do with non-citizens having rights under the Bill of Rights (except for certain due process rights on account of being within the United States, but which are still more limited that those of American citizens).

Written by Lion of the Blogosphere

February 9, 2017 at 9:34 pm

Posted in Immigration, Law

57 Responses

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  1. Canby = Minnesota, Peace Corps – ’nuff said.


    February 9, 2017 at 9:51 pm

    • Lion, what do you think about this opinion?


      February 9, 2017 at 11:49 pm

      • I think he should WRITE down his opinion instead of recording a 30 minute video. No way I’m going to waste 30 minutes on some guy I never heard of before.

        Lion of the Blogosphere

        February 10, 2017 at 12:00 am

      • Exactly. These self-promoting guys on Youtube should limit themselves to three minutes, max.

        Andrew McCarthy (Larry Auster used to call him the only adult left at Nat Rev), agrees with you:

        I expect he’ll be writing about the opinion in greater depth tomorrow.


        February 10, 2017 at 1:01 am

      • I listened to it. I appreciate someone taking the time to lay out the 9th circuit’s argument in specific terms. 99% of pro-TRO commentary you hear is just “Rights! People have rights! Or something.”

        The main thing that bugged me about this guy is that he kept reassuring us that the rule is not a big deal. “Look, everybody, it’s just a ruling on a motion for an emergency stay of a temporary restraining order!” As if this sort of thing isn’t part of the precedent-building process that finds all kinds of new amendments in the Bill of Rights.

        I was a little surprised to learn that the 9th circuit referred to the “establishment” clause rather than the “free exercise” clause. We are supposed to believe that this 7-country travel ban somehow constitutes the establishment of a state religion? Give me an effing break (“free exercise” clause logic would also be bogus, but for different reasons).

        I’m also very surprised that the 9th circuit referred to the equal protection clause of the 14th amendment. It’s crystal clear that that clause applies to state law, not federal law. Can these federal judges not read? (I don’t really think “equal protection” would limit something like the travel ban anyway, but it should never have come up in the first place).

        Article III, Section 1, people.

        P.S. He also comments that substantive due process is a snooze. I suppose this is true if you are someone who doesn’t really give a snit about what comes about and/or who has a complacent confidence that federal courts will eventually do what you want them to.

        Greg Pandatshang

        February 10, 2017 at 1:03 pm

      • It was stupid not to include a severability clause in the EO.


        February 10, 2017 at 1:17 pm

      • That guy is pretty entertaining. I just watched an interview with him. He says the ruling is a roadmap for Trump to rescind the old EO and sign a new one that will pass muster.


        February 10, 2017 at 9:11 pm

  2. Which non-citizens? All of them, or just ones with green cards or already issued visas?

    February 9, 2017 at 10:04 pm

  3. Is Gorsuch even going to rule in our favor? He is an SJW. I trust Miller but I don’t trust Bannon or Trump.

    The war against the judiciary is going to be a long one. We knew that the court would rule this way so it’s on to the Supremes. We certainly need to be prepared for the possibility that they rule against us.

    Otis the Sweaty

    February 9, 2017 at 10:13 pm

    • Yes, if Gorsuch cucks then I believe we’re going to face a constitutional crisis. There’s simply no way the US can exist if foreigners have an explicit, guaranteed right to come by and stay.


      February 9, 2017 at 10:45 pm

    • Agreed. Gorsuch is a bleeding heart for any plaintiff who says his religious freedom has been impinged. He appears too stupid to recognize that Islam is more an anti-democratic political ideology than a religion.

      Mark Caplan

      February 9, 2017 at 11:19 pm

      • Yup. Cucky Jesus freaks fawn over this shit, but how is it any different from murderers who demand taxpayer-funded sex changes?

        If you doubt Gorsuch’s commitment to the law on this point, and believe he was just standing up for rich Christians, check out the judge’s rulings in favor of men named Andrew Yellowbear and Madyn Abdulhaseeb.

        Andrew Yellowbear is not exactly Neil Gorsuch’s type of guy. He is nobody’s type of guy. Yellowbear is serving a life sentence for the brutal and protracted beating death of his own two-year-old daughter.

        Yellowbear is a member of the Northern Arapaho Tribe, and his federal prison has a sweat lodge in the main prison yard. But Yellowbear is kept separate from the prison’s general population — not because of any disciplinary infractions, but for his own protection. The prison denied Yellowbear access to the sweat lodge, arguing that escorting him there would be too costly and disruptive. A federal district court agreed with the prison and threw out Yellowbear’s suit on summary judgment.

        But when the case came before him, Gorsuch noted that prisoners in protective custody are escorted daily through gen-pop for medical or legal issues. Gorsuch asked “why is this religious exemption offensive to the prison’s putatively compelling no-lock-down interest when other secular exemptions are not?”

        Gorsuch vacated the lower court’s summary judgment and ordered them to hear out Yellowbear’s religious liberty case.

        Then there was the case of Madyn Abdulhaseeb, a Muslim man serving 150 years for rape and burglary. Abdulhaseeb sued the prison for not providing halal meals. Gorsuch ruled in Abdulhaseeb’s favor and, in a concurring opinion, laid out a clear method, based in the text of the two laws, for weighing the state’s interest against the individual’s religious-liberty interests.


        February 10, 2017 at 11:41 am

      • I’ve warned before that cases that seem to support the rights of Christians (which the rightwing celebrates) will also support rights of Muslims and every other weird religious sect.

        Lion of the Blogosphere

        February 10, 2017 at 11:59 am

    • I trust Miller but I don’t trust Bannon or Trump.


      February 9, 2017 at 11:47 pm

      • I trust Bannon’s heart is the right place, but I don’t trust him as a strategist. I see him as more of a bull in China shop, albeit a super smart one, than as a master manipulator.

        Trump is simply unreliable. He has good instincts but is scatterbrained and easily influenced by the cucks he is surrounded by.

        Otis the Sweaty

        February 10, 2017 at 12:57 am

    • Exactly. As soon as I heard that Gorsuch attends a liberal Episcopal Church in very liberal Boulder, Co. I knew we had another David Souter on our hands. He will be a massive disappointment.


      February 10, 2017 at 7:28 am

  4. Let’s hope that the majority opinion is so badly written that the Supremes can drive a truck through it.


    February 9, 2017 at 10:14 pm

    • Such chicken littles here.

      Lion – Can Congress overrule a Supreme Court decision? Not that it will, but can it? I’m thinking of Plessy v. Ferguson, which the SC overruled itself, but 60 years later. If the Congress had wanted to overrule separate but equal, couldn’t it have? I realize it didn’t. This is an academic question.

      I’m still not concerned about Gorsuch. So he attends a church that became liberal. People go to the churches they were raised in for the most part, unless they are Rod Dreher, in which case it changes every five years.


      February 10, 2017 at 10:44 am

      • It depends. Congress can make the unconstitutional constitutional. Sometimes Congress can correct nit-picky defects and create a new statute that accomplishes the same thing.

        Lion of the Blogosphere

        February 10, 2017 at 11:50 am

      • “I’m still not concerned about Gorsuch. So he attends a church that became liberal. People go to the churches they were raised in for the most part, unless they are Rod Dreher, in which case it changes every five years.”

        The Episcopal Church has been liberal for at least 30 years and it embraces every liberal cause that comes along. It’s 100% liberal on every issue imaginable: economic, social, political and cultural. There are no exceptions. Why is he still attending that church?

        Lewis Medlock

        February 10, 2017 at 1:06 pm

      • Tell me about his legal trail. I’m more concerned about that.


        February 10, 2017 at 5:31 pm

      • @Lewis Medlock

        Every mainline Protestant denomination is liberal. Even the Catholics, Mormons and Southern Baptists are anti-Trump and increasingly leftist.

        For unambiguously right-wing religious denominations, the options nowadays are very limited:

        Eastern Orthodoxy
        Hasidic Judaism
        Mel Gibson anti-Rome Catholics
        The Amish


        February 10, 2017 at 5:58 pm

  5. “OK, I believe the opinion goes where no court has gone before, and holds that non-citizens, who are not currently in the United States, now have Constitutional rights to 5th Amendment Due Process and 1st Amendment Free Exercise of religion.”

    It was not clear to me about this. One issue seems to be the Green Card holders that were refused entrance to the country on Saturday. Some were not allowed to board flights and some that arrived in the US were detained by ICE and asked to sign documents giving up their green cards. As far as I know, no one actually signed those forms.

    By Sunday they reversed the position on green card holders allowing them into the US again. The court however says there is nothing to stop Homelands Security from changing the rules again and refuse entry to green card holders. Maybe they are suggesting the US permanent residence deserve due process before stripping them of their permanent residence.


    February 9, 2017 at 10:15 pm

    • The normal rules of standing are that you don’t have standing to invalidate a law that isn’t being enforced!

      Lion of the Blogosphere

      February 9, 2017 at 10:18 pm

    • Green cards and visas can be revoked for any reason or no reason whether that person is standing on American soil or not at the time of revoke.

      Andrew E.

      February 9, 2017 at 10:22 pm

      • Revised: Visas can be revoked for any or no reason. For green cards best to have a reason but at most you need procedural due process rather than the phony substantive due proceeds that bastardizes the 14th amendment.

        Andrew E.

        February 9, 2017 at 11:42 pm

      • Visas are generally only revoked it the person because inadmissible for some reason. They violated the turns of the vias, were found to have lied to obtain the visa, were found to be a security risk. Normally procedures require the vias holder be informed and given the chance to refute the reasons for revoking the vias, but I don’t think this is required.

        I think part of the question is can the president simply declare that all citizens or residents of certain countries are security risks based on his gut feeling.

        What if the president decides all left handed people are a security risk?

        What if the president decides everyone with green eyes is a security threat?


        February 10, 2017 at 12:10 am

      • Just to clarify, a visa does not give you the right to enter the country. The entrance is still at full discretion of border control. That is how it works in pretty much all countries. Now, the green cards are trickier and usually they are revoked only for violating the law and/or for lying on the application. I believe this is where Trump’s EO was not well thought out. Green card holders are presumed to be already vetted by the FBI so denying their entrance in bulk does not make much sense to me.

        Overall though, the situation is not about the laws but about the mass hysteria. Trump seems to be extremely isolated and probably doomed. Unless the army and maybe police backs him and he declares some sort of semi-martial law, he will not be able to implement any meaningful change in the immigration policy. He will, however, repeal Obamacare and further reduce taxes for fat cats. Nobody seems to care about that though.

        Nice blog, dude

        February 10, 2017 at 2:09 am

      • “What if the president decides all left handed people are a security risk? What if the president decides everyone with green eyes is a security threat?”

        Are there any lefthanded and greeneyed countries promoting terrorism against the US?


        February 10, 2017 at 5:27 am

      • “Are there any lefthanded and greeneyed countries promoting terrorism against the US?”

        You need to visit Imaginationland. Just because something is imaginary doesn’t mean it is not real. The leprechaun warned about a terrorist attack.

        Trump promised to protect us from all threats real and imaginary.


        February 10, 2017 at 11:07 am

      • I should point out that the Belgian journalist denied a visa in Kleindienst v. Mandel was just a nerdy egghead and no danger to anyone. If I had to pick the Belgian journalist or a Syrian refugee as a next door neighbor, I would pick the Belgian guy and it would be an easy decision. Nevertheless, he was denied a visa because he supported the idea of communism.

        Lion of the Blogosphere

        February 10, 2017 at 11:56 am

      • “I should point out that the Belgian journalist denied a visa in Kleindienst v. Mandel was just a nerdy egghead and no danger to anyone.”

        The Belgian journalist in Kleindienst v. Mandel was more than just a journalist, he is also described as a Marxist theoretician. In 1969 is published a 2 volume book entitled “Marxist Economic Theory.” He was requesting a visitor visa to speak at a conference, not an immigration visa.

        Immigration law specifically calls out current or former advocates of communism as being ineligible to receive a visa. The immigration law allows the attorney general to waive that section and approve a visa. In this case Nixon’s Attorney General Richard Kleindienst refused to waive the requirement so a visa could be granted. The journalist had visited the US on previous occasions when this restriction was waived, but Kleindienst refused to grant a waive in this case because of “unscheduled activities” on previous visits.


        February 10, 2017 at 3:10 pm

  6. Pat Buchanan, my man. Exciting times.

    Andrew E.

    February 9, 2017 at 10:20 pm

    • That’s an incredibly hard task that Trump probably isn’t up to (and neither is anyone else).

      Some of this reminds me of Joseph Desha, a governor of Kentucky in the 1820s who tried to take on the courts and the university system, to ultimate failure.


      February 9, 2017 at 11:30 pm

      • @ Richard

        1820s Kentucky was very different than the modern US. In that case there was some ambiguity about whom competent, military age males would support in an armed conflict.

        There is no ambiguity now. The military, the police, and virtually all men worth anything as soldiers, will support Trump. He need only give the word, and ICE, the FBI, and almost all red state police will disregard any orders from judges. Give another word, and they might even arrest the judges.

        My only worry is that Trump doesn’t realize he has this power, or that he is afraid to use it. It is monumentally important to the future of our country that left-wing interests be broken utterly. If Trump cannot or will not do this, there will not be another chance.


        February 10, 2017 at 12:10 pm

      • If Trump doesn’t understand yet that he has to destroy the Left utterly he will soon. He and his progeny are now marked for death by the Left. If he doesn’t do what is necessary to prevent the Left from ever coming back into power then his children and grandchildren will be literally hunted down by the Left over the coming decades.

        Andrew E.

        February 10, 2017 at 12:59 pm

      • Trump is now the czar Nikolai II to our communist insurrections. He will try to resolve peacefully as much as possible, but in his final two years if he absolutely has to, he probably knows what is at stake. He will do what everyone from opposites sides of the aisle thought the previous two presidents would do.

        He will become Caesar.

        Paul Ryan's Sickly Old Lapdog

        February 10, 2017 at 9:44 pm

  7. I don’t think the 9th circuit ever actually reaches the merits of any of these claims. They simply claim that the government did not make “a strong showing that [it] is likely to succeed on the merits.”

    I suppose I should actually read the government’s initial emergency motion for a stay (in response to Judge Robart’s temporary restraining order) and its follow-up response to the states’ reply. But I did read the 9th circuit’s ruling, and it merely claims that the government did not make a strong showing that they would succeed on the merits in their claim that visa-holding aliens on foreign soil do not have due process rights under the 5th amendment, nor 1st amendment religious discrimination protections. Which makes me think, if the 9th circuit is telling the truth about the government’s arguments, that the government lawyers were idiots.

    Aliens on foreign soil obviously do not have such constitutional rights, and a competent lawyer could have easily made that case. Centuries of precedent testify to aliens’ lack of such rights. (Although, the 9th circuit is very left-wing, and courts now invent due process rights all the time, in ways that could seriously tie the political branches’ hands on matters of sovereignty—which is especially dangerous as we begin the “third world century.”) Get Paul Clement in there with Gorsuch on the court and he could rescue the whole thing.

    Another thing: This executive order was poorly drafted and poorly implemented. It’s also a waste of time, and it may well permanently undermine the political branches’ sovereign powers. Legal restrictions on MENA migration are a lot more important in the long term. Trump should have just let the visa-holders in, and implemented the ban prospectively (suspending all further issuance of visas) with a reasonable notice period. And then just hang up visa issuance to MENA nations indefinitely (quietly) until congress can (quietly) restrict immigration. Would have accomplished the same thing.


    February 9, 2017 at 11:30 pm

    • Great comment. Thanks. I’m concerned about the Trump team clumsiness you describe. They weren’t ready for prime time. That plus Kellyanne’s blooper about Bowling Green (where she muffed a perfectly rational point) adds up to a Bad Week.

      I hope the watchword is “steady as she goes & move on,” because the enemy senses blood, and wants the wheels to come off now.

      I think maybe people here may be too young to remember what SNL did to Gerald Ford.


      February 10, 2017 at 10:49 am

      • Ford = clumsy?

        Lion of the Blogosphere

        February 10, 2017 at 11:50 am

      • Right. He once made a goof on the golf course. SNL dined out on that for the rest of his term, with Chevy Chase falling down stairs.

        At the time I was still a total Democrat, and I loved SNL but I thought the whole thing was unfair. Later on, I read an article which claimed that this portrayal did genuine damage to his presidency. I had to agree with it. I think it did.

        So don’t be so dismissive of the weekly savaging that Trump will receive at the hands of SNL. Spicer, Bannon, Conway – they will all be savaged.

        The irony is that Ford was a former football player at U Mich and was probably the best athlete ever to be in the White House. But when the MSM wants to destroy you, truth doesn’t matter.


        February 10, 2017 at 5:30 pm

  8. If the Constitution applies to foreigners then does this make all of Obama’s drone strikes and Hillary’s war in Libya un-Constitutional? There was never an official declaration of war against the 7 countries we bombed last year. None of the people we killed were subject to a trial by jury and convicted. Also I’m not a lawyer, but am wondering if a judge could have issued an injunction against drone strikes or the bombing of Libya would that have put said action on hold until it reached the Supreme Court.


    February 9, 2017 at 11:56 pm

  9. Good post. Courts are only slightly less political than the other branches.

    Super-pretentious liberal scholar Erwin Chemerinsky often writes “per curium,” which grates on me because it’s wrong, and the way you spelled it is right. Good going. However, it’s “habeas corpus,” not “habeus.”


    February 10, 2017 at 12:01 am

  10. Trump is so lucky in who his enemies are.

    This will now go on for months. Swathes of the most dangerous populations of the Earth will be admitted against the legitimate policies of the president.

    Several of them will commit violent crimes. Possibly one of them might murder someone of commit some act of terror. Will anyone blame Trump for failing to keep them safe? Not a chance.

    The progs and the Democratic Party and lefty courts will get 100% of the blame. Trump will skyrocket in public esteem.

    And the longer this ban is blocked, the more violent attacks will eventually happen. Again and again Trump draws his enemies into self-destructive idiocy. Amazing.


    February 10, 2017 at 12:57 am

    • What if the president decides all left handed people are a security risk?

      What if the president decides everyone with green eyes is a security threat?

      Perfectly legal, according to the law. We elect a President and his judgement on such matters.

      Green card holders are presumed to be already vetted by the FBI so denying their entrance in bulk does not make much sense to me.

      Green carders got their due process by being put in a room with DHS authorities and allowed to explain their situation. Then when confirmed were allowed entry to the country. The ban worked as intended.

      Andrew E.

      February 10, 2017 at 9:36 am

      • That comment actually belongs upthread.

        Owentt, you’re right. The Dems own terrorism in America for the next four years.

        Andrew E.

        February 10, 2017 at 9:36 am

      • I wasn’t going to go there, but owentt brought it up, so I’ll agree. I’m still not going to divulge what I think a terrorist could do, but I think we’re in a phony war state right now, leading up to a terrorist Pearl Harbor. I won’t say what I think could happen. But if it does, it will change everything. (Yes, I know people said that about 9/11. But things were different then.)


        February 10, 2017 at 10:53 am

      • Gothamette is your concern a major city getting hit with multiple megatons in a suitcase?

        I’m convinced the only way something like that can be orchestrated is through a false flag attack.

        Paul Ryan's Sickly Old Lapdog

        February 10, 2017 at 9:47 pm

  11. I really like it when Lion puts his law learnin’ to work.

    SJ, Esquire (formerly Samson J)

    February 10, 2017 at 7:51 am

  12. Excellent posts, LION!


    February 10, 2017 at 8:10 am

  13. I must admit, I have a hard time seeing how the 5th amendment can apply only to US citizens. Both the 5th and the 14th explicitly say no “person” shall be deprived of liberty without due process. I don’t like it, but I think Washington’s procedural due process argument is a winner.

    Two in the Bush

    February 10, 2017 at 8:33 am

    • The 5th Amendment does apply to persons within our borders who aren’t citizens. It doesn’t apply to people in other countries who aren’t U.S. citizens. Never had. Otherwise, they have a right to a trial in court before Obama sends a smart bomb coming their way.

      Lion of the Blogosphere

      February 10, 2017 at 10:13 am

      • Trump is a lucky bastard. He will see 3 conservative judges in his lifetime appointed to the court (including Gorsuch), mark my words… The court will be 7-2 and we will have a 50 year reign until the cycle maybe turns again.

        Can Trump defund the courts through Congress? Will Sotomayer show up if her lard isn’t being greased?

        This controversy over a small and basic step to border control may seem like a defeat, but things have a way of working themselves out and this may just be the battle we need to fight now to steamroll to victory later. This really helps flush the rats out of hiding. Extermination is the only thing that you do with rats once you find them. Let the people’s fury be brought to a tipping point and then unleash it all on the establishment.

        Those who oppose the ban today, will be begging for it tomorrow. Tomorrow immigration will be shut down altogether.

        Also companies like Amazon and Google were being friendly before. Now we know that they and all the others haven’t changed. Anti trust lawsuits coming soon. Along with wealth redistribution from Amazon shareholders to brick and mortar mom and pop small business incentives.

        I don’t even want to think what’s in store for Google.. (An easy to break up no hard goods producing corporation).

        Paul Ryan's Sickly Old Lapdog

        February 10, 2017 at 10:32 am

      • Bring it on. I’d love to see it.

        Oh by the way, I’ve been meaning to link to this.

        mikeca – note their description of sanctuary cities: “under their sanctuary policy, city resources are not allowed to be used to enforce federal immigration laws.” If the illegal kills your kid, SF is still not supposed to report his immigration status. What about this is so hard to understand? That it’s overly broad and makes no sense? That’s the freaking point.


        February 10, 2017 at 10:58 am

  14. Lion, I’ve enjoyed your excellent legal analysis of this case. If Congress splits up the 9th Circuit, as it should, perhaps we could get you appointed as a justice. You’d be great!

    Black Death

    February 10, 2017 at 10:59 am

    • Not likely that someone who has never worked in law would suddenly get appointed to be an appellate judge.

      Also, the legal analysis is pretty superficial, not like a law review article or even as detailed as the typical Supreme Court decision. (Each Supreme has a staff of Harvard Law Review types working for them.)

      Lion of the Blogosphere

      February 10, 2017 at 11:53 am

  15. Meanwhile, in Canada (Edmonton, Alberta) — a Syrian refugee has been charged with 6(!) counts of sexual assault at a public pool. Naturally, the government-run news media is concerned that it will unfairly paint Syrian refugees in a bad light. They don’t seem all that concerned with the victims themselves.

    The headline reads: “Identifying Syrian in water park sex assaults will ‘stoke fear,’ says refugee worker”


    February 10, 2017 at 11:31 am

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