Tuesday, January 7, 2020

Lower courts reign supreme: So much for the ‘travel ban’

Marilyn Nieves/Getty Images
Conservatives continue to entertain false hopes of transforming the judiciary through a “conservative” Supreme Court and through Trump’s appointment of 20 percent of the lower court judges. But the Supreme Court does not rein in lower-court judges, and the Trump administration keeps abiding by district judges’ nationwide injunctions, so the Left continues to gut Trump’s ironclad executive powers, even after he already won at the Supreme Court. The case of the “travel ban” is a perfect example of why Trump should finally delegitimize the entire concept of judicial supremacy rather than trying to beat the Left at its own casino game.
Throughout Trump’s first year in office, we watched one lower court after another create a right to immigrate and demand that the commander in chief surrender his power over sovereignty and national security to the courts. The courts violated 130 years of case law that emphatically concluded courts have no power to grant standing for lawsuits asserting a right to enter the country and that such decisions are exclusively up to the political branches of government. And this administration went along with the charade, even when a Massachusetts judge said its first, stronger, immigration moratorium was totally within the president’s powers
On June 26, 2018, the “debate” over sovereignty should have come to an end when Chief Justice Roberts, writing for the 5-4 majority in Trump v. Hawaii, ruled that the president has categorical and plenary authority under 8 U.S.C. §1182(f) to exclude anyone he wants. However, on that day, I warned that “until we shut down the lower courts’ terrible practice of placing nationwide injunctions on national security policies, a power they manifestly do not have, the Left will continue shopping these cases to the same capricious lower court judges.” I also warned that experience with other issues has shown that as the lower courts continue chipping away at the original SCOTUS ruling, “the Supreme Court will gradually adopt their approach in the ever-evolving, one-directional ratchet of progressive jurisprudence.”
And here we are today. This AP article shows how a number of foreign nationals from countries on the so-called “travel ban” list – Iran, Libya, Somalia, Syria, and Yemen – continue successfully obtaining visas from the administration under the threat of incessant lawsuits. In an interview with a lawyer for the Council on American-Islamic Relations, a group named as an unindicted co-conspirator in a terror finance trial by the Fifth Circuit Court of Appeals, the AP observed, “When people file litigation, it attracts swift notice from the State Department or the Department of Homeland Security.”
Read the rest from Daniel Horowitz HERE.

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