Well, I don’t know if ‘miscarriage’ is the proper metaphor for this subject, but a lot of people use it when they are miffed at a judicial outcome, so I’ll let it ride. It is about the decision just issued by the 4th Circuit Court of Appeals in re President Trump’s infamous ‘travel ban’issued shortly after he took office, which barred entry, temporarily, to the US from certain foreign origins.
The original order was enjoined by a lower court judge and an appeals panel, then revised and reissued, stopped again by another judge and re-appealed to this 4th Circuit.
The text of the decision is obtained from CNN and it runs to 205 pages. For our purposes here, only the first dozen are used, because the arguments and decisions and summaries are lengthy and wordy and, if you have been paying attention to this topic all winter and spring, pretty much superfluous to the rhetoric already out there.
The first thing that grabbed my attention in this court decree was the list of appellants and the list of appellees. I thought it passing strange that an entire staff, entire departments and their named heads, were being sued, apparently in an attempt to get them to refuse to carry out an executive order of the President. So I guess besides Trump, the losers in this case are John Kelly, Rex Tillerson and Dan Coats, all prohibited by virtue of being sued pertaining to their “official capacities” as appointed officials from carrying out the President’s order. And that leads me to remark that should the next terrorist attack in the US occur by the hand of an entrant or entrants from one of the named countries, not only Trump, but all three of the other gentlemen and all of their staffs and the entire named departments and agencies are thus absolved of dereliction of duty or violation of oath of office or any other blame for the consequences of such an attack. Is this what lawyers mean when they talk about “precedent”? Heh. Oh, I guess they have to make sure they cover all their bases to insure the free flow of Muslims and stuff, but the Director of National Intelligence? What’s he got to do with it? He doesn’t enforce immigration orders. Oh, well. *(see below)
Then I looked at the list of appellees, or plaintiffs, which contained a lot of people named Mohammed and Achmed, but also very interestingly includes “John Does #1 and 3” and “Jane Doe#2”. Seriously? Litigants are allowed to anonymously appeal to the 4th Circuit and we can’t know who they are? Why are they allowed to maintain their anonymity? For reasons of …..national security? Heh. When we get to the point where John and Jane Doe have standing in federal court to sue for the denial of protective measures designed to keep Americans safe in their own country, we’re on the verge of something and it’s not equal protection under the law.
Next came the listing of those who had filed amicus briefs in support of the appellants and the appellees. The listing for the appellees went on and on and on and would have populated a small city. You have to laugh at some of the organizations,like the North Carolina Coalition Against Domestic Violence and the National Center for Lesbian Rights – what??? But besides the named groups, there is the generic “Civil Rights Organizations” and “Members of Congress” and “Former DHS Officials”- no need to name them; the point, apparently, is any and all are welcome, we’re having this social justice party over here and if you breathe and have a pet cause, we want to hear from you.
And THEN, we got to a listing of something entitled “On Brief”and it was even longer. Now this baffles me, a non- lawyer, non-legal scholar. Surely all several hundred of these weren’t considered by each individual justice who voted on this case, which would have been necessary one would think if it were a “fair” hearing? This list included the “Association of Museum Directors”, so yes, it was pretty eclectic. Good grief. Anyway, so much for serious review and sober consideration of an important legal matter. This thing was a circus.
And so to the ringmaster. He is a gentleman named Gregory and he was identified as the Chief Judge and this is what he wrote on Page 12, which is where I stopped reading because it was so bizarre it shook my faith in our federal judicial system to the core, (Oh, yes it had been shaken before, I had read John Roberts’ infamous “it’s not a mandate, it’s a tax” and Anthony Kennedy’s “our quivering, loving, bleeding hearts instinctively know that the definition of marriage must now be expanded to include the wedded bliss of same-sex partners.” But this was beyond even those abominations.) Judge Gregory wrote this:
GREGORY, Chief Judge 1:
The question for this Court, distilled to its essential form, is whether the
Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2,
120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if
so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance,animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm insubstantial part the district court’s issuance of a nationwide preliminary injunction as toSection 2(c) of the challenged Executive Order.
????? Do I have to say this? Do I have to say “NO, Judge, that is NOT the question before your court, distilled or undistilled. The question I have for you and your court is why you deign to tell the people of the United States of America that that is the question before your court? You are too cute by about 1/64 if you think you can foist that on us. Anybody in his right mind knows that the question before your court is whether the President of the United States has the Constitutional and legal authority to issue the order that he did. It has absolutely NOTHING to do with laws being passed, enforced or even adjudicated equally in war or in peace. That is a stupid, insane, non-germane, non-applicable posit of the issue before your court, and renders you derelict and a candidate for impeachment for stating a false premise. Further, the case has nothing whatsoever to do with a plaintiff’s right to challenge anything. You gave John and Jane Doe standing in your court to join in this lawsuit for crap’s sake! What are you even talking about?”
The second thing I wish somebody with more influence, access and capability in this process would point out is that, in addition to the juvenile, Constitutionally-illiterate raving and frothing about the First Amendment and “religious orthodoxy”, which also has no bearing whatsoever on this case, is that the judge made the case for the appellants (Trump) when he himself said that the text of the order talked about national security. He of course failed to mention the fact that the President can, by law (the statute has been cited numerous times on the cable networks, I’m not bothering to look it up) assert national security however “vaguely” he wants to. He cited national security and that is no different than a Mayor in a city troubled by riots issuing a curfew order. He cites public safety and that’s the way it is.
Which brings us to the piece de resistance, the predicate for this miserable excuse for an appellate court judge’s decision to deny the government’s appeal. He said the “text” of the executive order referred to national security. And then this miserable excuse for a jurist got on his sneering, snide and inappropriate misuse of his seat on the bench to lecture that the “context” of Trump’s order “drips with religious intolerance, animosity and discrimination.” That was not his place. The plaintiffs, and the lefties in Congress, and the leftwing media made that argument and it refers to Trump’s campaign speeches. A Federal judge, and especially an appellate court judge, cannot render a subjective judgment of an elected official’s motives in the performance of his duties based on rhetoric, whether mischaracterized or accurate, engaged in outside the venue and the timeframe of that official’s office. The motives were stated in the directive. And speaking of motive, what was the motivation for the other named officials in the case to recommend to the President that he issue the order? (Okay, I peeked at the ensuing pages, and yes, they did. Unanimously.) Was the “context” of these highly respected officials recommendations “dripping with religious intolerance, animosity and discrimination”? That isn’t even alleged. It only further affirms that the executive order was prima facie meritorious.
It was Judge Gregory’s “opinion” that was “dripping with discrimination, intolerance and animosity”, not to mention insipid , sophomoric social justice warriorism.
And the people of the United States are the ones who stand to be harmed by this judge’s contempt for the President, and the incompetence and complicity of his bretheren on the 4th Circuit. They are the ones who will pay the price when an alien enters the US on a mission to terrorize it’s citizens.This judge could not possibly have the capability of ascertaining whether the plaintiffs in this case were “harmed”, even if that was a valid proffer before the court. because as we stated earlier, he doesn’t even understand what the question is, whether the President’s actions were legal and Constitutional. He pretends it’s about the Bill of Rights. He is an idiot. And he has orchestrated a miscarriage of justice.
I have stated on other pages many times that the bloated, arrogant, presumptuous federal judiciary in this country is every bit as big a problem as our bloated, arrogant, presumptuous federal bureaucracy. There are 864 un-elected federal judges riding herd over we the people, and they have lifelong tenure.
They possess the power, not constitutionally but by virtue of their assuming unto themselves authority not granted by charter or statute, to negate entirely the offices of the other two branches of government, and thus, in effect, to relegate the social, economic and national security interests of the people of the United States to objects of their fancy.
And just to be clear, what Judge Gregory wrote was the majority opinion. He’s not a “lone wolf”. We just used him as a whipping boy today. There are packs of these wolves scattered all over the country, in the Ninth Circuit, the Seventh Circuit, in many and sundry federal districts, even in “red” states. You know that; everybody knows that. But nobody wants to do anything about it. They are nothing more than self-righteous ‘social justice warriors’ in robes.
The Congress of the United States brought these cretins into this world and they can take them out.
It is time.
*As I mentioned earlier, I did glance through the document to get a flavor for it, and one of the particulars stated that part of the Executive Order was for the named officials to conduct threat assessments and make determinations if individuals seeking entry to the US from certain countries posed a danger to national security. So I can only assume that allowing this suit to go forward and putting these officials on notice means that this judicial review of gathering intelligence on foreign nationals and singling them out for threat assessments is meant to make the whole entry permit process moot in the future. There will be no threat assessments because, the same as barring people from coming into this country, profiling them is a violation of the Establishment Clause and the Constitution’s Bill of Rights in general guaranteeing foreign nationals the same privileges as US citizens….. because, like, Universal This and Universal That.