Judicial Arrogance Is An Existential Threat To Our System Of Governance

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"A republic, if you can keep it," Benjamin Franklin famously warned in describing to a group of curious onlookers what form of government the men of the Constitutional Convention had devised. It is difficult, if not impossible, to ponder the possibility that Franklin could have envisioned such a systemic republic-undermining assault from what Alexander Hamilton famously described in The Federalist No. 78 as "the least dangerous" branch.

As I reported on Friday, the U.S. Court of Appeals for the Ninth Circuit last week found — for the very first time in the history of the American republic — an affirmative constitutional "right" for prospective asylees denied their initial "credible fear" threshold inquiry by asylum officers to appeal that denial not just to a Department of Justice immigration judge, but to a formal Article III tribunal.

As the case may be, 8 U.S.C. § 1252(e)(2) limits — and, indeed, all but eradicates — judicial review of habeas corpus claims for those would-be asylees eligible for expedited removal and initially denied their "credible fear" threshold inquiry by asylum officers. But the Ninth Circuit did not care for such legislative niceties, and the three-judge panel of unanimous Bill Clinton nominees decided to erroneously extend the already-erroneous 2008 constitutional travesty of Boumediene v. Bush to apply to border invaders.

The Ninth Circuit's ruling creates a circuit split with the U.S. Court of Appeals for the Third Circuit, which reviewed the same question and concluded that "Congress has unambiguously limited the scope of judicial review" for the class of aliens in question, and that, "considering Congress’ and the Executive’s plenary power over decisions regarding the admission or exclusion of aliens...this limited scope of review is [not] unconstitutional."

Read the rest from Josh Hammer HERE

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