28 Mar 2017

The federal appeals court in Richmond has asked Justice Department lawyers and pro-refugee plaintiffs whether the full panel of 15 active judges should accelerate the review of a leading lawsuit against President Donald Trump’s popular Executive Order beginning immigration and refugee reform.

If agreed, the en banc hearing would skip the first stage of the normal process where a case is heard by a panel of three judges prior to any later appeals to the full en banc panel of judges in the appeals court. The judges want an answer to their question by Thursday from both sides.

The request came Monday in a brief announcement, saying: “The parties are directed to file responses to this order, not to exceed five pages, stating their position on the appropriateness of initial en banc review in this case. The responses shall be filed no later than March 30, 2017.”

The United States Court of Appeals for the Fourth Circuit includes five judges nominated by GOP presidents and nine judges nominated by Democratic presidents, including six nominated by former President Barack Obama. One additional judge was nominated by both President George H. W. Bush and Bill Clinton. Not all the judges nominated by GOP presidents are conservative.

However, that leftward tilt in the Fourth Circuit is better for Trump than the California-based Court of Appeals for the Ninth Circuit, which is expected to approve another block imposed by a progressive judge in Hawaii.

The Fourth Circuit case emerged from a ruling in Maryland, where a former Democratic official-turned-judge, blocked Trump’s March 6 E.O. 13780, titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”

On March 15, the federal U.S. District Judge for the District of Maryland, Theodore Chuang, issued his ruling in the case, titled, “International Refugee Assistance Project (IRAP) v. Trump.” The ruling tried to prevent Trump’s popular decision to bar the arrival of travelers from six terrorism-afflicted countries for 90 days, and also to bar the inflow of refugees for 120 days. Multiple polls show Trump’s immigration reforms are popular.

The Maryland judge also agreed to consider the plaintiffs’ request for an order requiring the President to double the annual inflow of immigrants from 50,000 to 100,000. The request for 100,000 refugees each year was made by lawyers for the International Refugee Assistance Protect, and HIAS Inc., a so-called “VOLAG” which is paid by federal agencies to import refugees, and by members of the Middle East Studies Association.

According to a March 21 report in Breitbart:

“Judge Chuang’s ruling on Trump’s executive order should be viewed as a continuation of his service to the Democratic party, including his role in stonewalling Congress’ investigation of the Benghazi attacks, and to the cause of ‘social justice.’ With judges as unprincipled as Chuang, his Hawaii counterpart, and the leftists who dominate the Ninth Circuit, one wonders whether the rule of law has a future in America,” respected attorney Paul Mirengoff wrote at Powerline Blog:

“Chuang came here to work in the Civil Rights Division of the Justice Department — ground zero for left-wing activism in government.

Before that, he clerked for a judge on the Ninth Circuit Court of Appeals — ground zero for left-wing judicial activism. It is the Ninth Circuit, of course, that ruled against Trump’s original immigration/travel order, and that planted the seed for the absurd argument that the order somehow violates the Establishment Clause of the U.S. Constitution.

You have to hand it to the leftists. They know how to shop for judges.”

Trump’s decision to reduce the annual inflow of refugees was promised and debated during the 2016 campaign. Based on his promise to the voters, Trump won, much to the distress of progressives.

The law cited by Trump when he announced his Executive Order is Section 212(f) of the Immigration and Naturalization Act. The text gives the President near-complete power over who gets into the United States, according to a January 2017 report by Congress’ Congressional Research Service. The critical language declares, at 8 U.S.C. § 1182 (f) that:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate

Section 214(a)(1) of the same law says that the “admission of any alien to the United States as a nonimmigrant shall be for such time and under such conditions as [the Executive] may by regulations prescribe.”

The President’s authority over immigration is bolstered by Supreme Court decisions. For example, the court declared in its 1950 judgment lawsuit, titled Knauff v. Shaughnessy, that “It is not within the province of any court, unless expressly authorized by [congressional] law, to review the determination of the political branch of Government to exclude a given alien.”

In 2015, the Court reasserted that judgment, saying in Kerry v. Din, that:

Din attempts to bring suit on [her Afghan husband’s] behalf, alleging that the Government’s denial of her husband’s visa application violated her constitutional rights… In particular, she claims that the Government denied her due process of law when, without adequate explanation of the reason for the visa denial, it deprived her of her constitutional right to live in the United States with her spouse. There is no such constitutional right.

The law and the Supreme Court’s rulings prompted a judge in Boston, Mass., to reject another lawsuit the Massachusetts’ government against Trump’s E.O. “Therefore, in light of the ‘“plenary congressional power to make policies and rules for exclusion of aliens,’ … which pursuant to8 U.S.C. § 1182(f), has been delegated to the President, the Court concludes that the [federal] government’s reasons, as provided in the EO, are facially legitimate and bona fide,” the judge declared February 3.

On March 24, a judge in Alexandria, Va., rejected a similar lawsuit by Islamic groups. “The core substantive issue of law, as to which Plaintiffs must establish a clear likelihood of success, is whether [Trump’s Executive order] falls within the bounds of the President’s statutory authority or whether the President has exercised that authority in violation of constitutional restraints,” said the judge, Anthony Trenga.

“[T]he substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose,” said Trenga, who sits on the U.S. District Court for the Eastern District of Virginia.