What a time it is to be alive, people! There is major-league history being made all around as I write these words in here, the kind of history that makes and breaks nations like twigs in a wind storm, and here, I am specifically referring to the twenty-nine (29) page per curium Order of the federal 9th Circuit Court of Appeals in STATE OF WASHINGTON; STATE OF MINNESOTA, Plaintiffs-Appellees, v. DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA, Defendants-Appellants, No. 17-35105, D.C. No. 2:17-cv-00141, Motion for Stay of an Order of the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding Argued and Submitted February 7, 2017, Filed February 9, 2017 Before: William C. Canby, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges, which essentially makes the president of the United States of America look like an ignorant, clueless fool and blithering idiot on the world stage and in the eyes of the whole candid world which, of course, does wonders for our national security in this country, a fact which should have wanna-be terrorists in other countries literally dancing in the street in a frenzy of ecstatic joy.
It also makes his so-called “legal” team look like a pack of rank amateurs who know absolutely nothing whatsoever about this nation, or its laws, or its history, for that matter.
And by labeling the United States of America a “Constitutional Democracy,” the Court makes it incandescently clear that our Republic, which once was, is now no more, having been relegated to the trashcan of history some time in our past, although the Court makes no mention of when that might have been, and how it came to be without an amendment of our United States Constitution, which guarantees us in the country a Republican frame of government, not a democracy.
To understand this case and its implications on our collective future in this country, both those of us who were born here and are citizens, and those who are not citizens of this country, we start at page 2 of the February 9, 2017 Appeals Court Order where we have the basic background of the case as follows:
At issue in this emergency proceeding is Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries.
Two States challenged the Executive Order as unconstitutional and violative of federal law, and a federal district court preliminarily ruled in their favor and temporarily enjoined enforcement of the Executive Order.
At p.3, we are given further background as to the issues at stake in the matter as follows:
On January 27, 2017, the President issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Executive Order”).
Citing the terrorist attacks of September 11, 2001, and stating that “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes” since then, the Executive Order declares that “the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.”
It asserts, “Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States.”
“The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”
The Executive Order makes several changes to the policies and procedures by which non-citizens may enter the United States.
Three are at issue here.
First, section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Second, section 5(a) of the Executive Order suspends for 120 days the United States Refugee Admissions Program.
Upon resumption of the refugee program, section 5(b) of the Executive Order directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality.
Third, section 5(c) of the Executive Order suspends indefinitely the entry of all Syrian refugees.
Those, people, are the purported “national security” issues at stake here.
To understand the competing and opposing “State’s Rights” perspective, we have as follows beginning at p.5, to wit:
Three days later, on January 30, 2017, the State of Washington filed suit in the United States District Court for the Western District of Washington, challenging sections 3(c), 5(a)-(c), and 5(e) of the Executive Order, naming as defendants the President, the Secretary of the Department of Homeland Security, the Secretary of State, and the United States (collectively, “the Government”).
Washington alleged that the Executive Order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities in violation of the First and Fifth Amendments, the INA, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
Washington also alleged that the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a “Muslim ban” as the President had stated during his presidential campaign that he would do.
Washington asked the district court to declare that the challenged sections of the Executive Order are illegal and unconstitutional and to enjoin their enforcement nationwide.
On the same day, Washington filed an emergency motion for a temporary restraining order (TRO) seeking to enjoin the enforcement of sections 3(c), 5(a)-(c), and 5(e) of the Executive Order.
Two days later, Washington’s Complaint was amended to add the State of Minnesota as a plaintiff and to add a claim under the Tenth Amendment.
At p. 6, the Appeals Court informed us as follows with respect to the State’s Rights issues in this matter:
The district court preliminarily concluded that significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an Executive Order that the States were likely to be able to prove was unlawful.
Consider those words well, people: “significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States.”
Focus especially on the phrase, “to the detriment of the States,” which is critical here as it relates to a legal concept known as “standing to sue,” which concept the Appeals Court dealt with at p.7, as follows:
The Government argues that the district court lacked subject matter jurisdiction because the States have no standing to sue.
We conclude that the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings.
Citing Massachusetts v. EPA, 549 U.S. 497, 516 (2007) at 517, which in turns quotes from Baker v. Carr, 369 U.S. 186, 204 (1962), the Appeals Court at p.8 informed us that the “gist of the question of standing” is whether the plaintiff has a sufficiently “personal stake in the outcome of the controversy” to ensure that the parties will be truly adverse and their legal presentations sharpened.
The Court then resolves the “Standing” issue in favor of the States at p.9 as follows:
To establish Article III standing, a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.”
Because standing is “an indispensable part of the plaintiff’s case,” it “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”
At this very preliminary stage of the litigation, the States may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden.
With respect to meeting that burden, the Court provides the following justification for standing to sue Trump and his seemingly incompetent and inept administration being granted to the States beginning at p.9, as follows:
The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law.
Specifically, the States allege that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries.
These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit.
Some have been stranded outside the country, unable to return to the universities at all.
The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.
According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa.
Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States.
The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington.
The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted.
Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals.
Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons.
Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the rights of the students, scholars, and faculty affected by the Executive Order.
At p.11, the Court went further with that explanation of standing for the States as follows:
The students’ educational success is “inextricably bound up” in the universities’ capacity to teach them.
And the universities’ reputations depend on the success of their professors’ research.
Thus, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.
We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order.
The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.
And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement.
As a song from the VEET NAM times once said, “There’s battle lines being drawn, nobody’s right if everybody’s wrong, it’s time we stop, hey, what’s that sound, everybody look what’s going down,” and that is what this essay is all about, people – what exactly are those battle lines?
Jumping ahead to page 20 of the twenty-nine (29) page per curium Order of the federal 9th Circuit Court of Appeals in this matter, we have as follows with respect to what is going down here, this time around:
The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens.
Rather, they “apply to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent,” citing Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
As a loyal American citizen and twice-wounded combat veteran who himself has been denied those supposed “procedural protections” provided by the Fifth Amendment’s Due Process Clause by the federal 2d Circuit Court of Appeals in New York City courtesy of now-U.S. Supreme Court Justice Sonia Sotomayor, who labels herself a Latina, not an American, and accordingly, is wondering just what the hell is really going on here where non-citizens from other countries here unlawfully or illegally have more Constitutional protections and safeguards than do Americans citizens who are born here, I think it behooves us all, regardless of what side of the immigration issue we might be on, to consider the import of those words in connection with the obverse of immigration policy, which is national security.
If, as the Appeals Court has just ruled in this case, the procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens, but instead “apply to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent,” then what does that really say about the ability of the federal government in this country to protect us from external threats emanating from other countries, such as Yemen, where we were just informed in the 7 February 2017 New York Times article “After Flawed Raid, Yemen Forbids U.S. Ground Missions” by David E. Sanger and Eric Schmitt as follows concerning terrorists in Yemen, specifically:
The Pentagon has said that the main objective of the raid was to recover laptop computers, cellphones and other information that could help fill gaps in its understanding of Al Qaeda in the Arabian Peninsula, whose leaders have attempted at least three attacks on the United States.
With that thought before us, in light of the language of the Appeals Court at p.26 of the Order that “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” which truly sounds surreal and bizarre to me, I am going to leave off here, as this essay presents the basic issues of this dispute now facing us as a nation that is seemingly disintegrating before our eyes.
With the courtesy of the Cape Charles Mirror, I will then present further salient points from this lengthy decision in subsequent essays.