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Judges Inventing New Reasons to Obstruct Donald Trump’s Popular Immigration Reforms

A federal judge in Hawaii says Muslims in America are unfairly and illegally discriminated against by Donald Trump’s effort to curb the immigration of violent Muslim refugees from war-torn Muslim countries.

Another judge in Wisconsin says a Syrian who recently was given asylum — and who is not even a citizen — has the right to ask a fellow judge for visas to fly his relatives into the United States, regardless of opposition from the U.S. government’s border, police and intelligence, and immigration agencies.

Three California judges and a judge in Washington State say the President’s sole right and solemn duty to guard the borders ends when a state suffers financial harm because its universities can’t import more fee-paying customers from restricted countries.

These left-wing judges are competing with each other to throw invented legalistic roadblocks in front of Trump’s legal and proper defense of the nation’s borders, said Hans Von Spakovsky, a former lawyer at the Department of Justice who is now working for the Heritage Foundation.

“I don’t think the [various judges] have any professional shame about it — in fact, they’re being applauded by newspaper editors for actually ignoring the [Congress’] law and [Supreme Court] rulings based on their own personal policy preferences,” he told Breitbart.

The judges’ grab for power, despite the plain text of the Congress’ law and despite prior Supreme Court decisions, “is destructive of the rule of law, which is the entire basis of our Republic,” he said.

“It is a very bad development that threatens our democracy … [and] it looks like it is going to get worse [because] we’re going to have more and more litigation, and it is very clear that the progressive left wants to use the courts to fight way our democracy works,” he said, adding “I think what they doing is very anti-democratic.”

The only fix, he said, is for Trump to aggressively push the Senate to confirm good judges for the 110 empty judicial seats around the nation.

Trump will be aided in this push because the Senate’s former Majority Leader, Democratic Sen. Harry Reid, changed the Senate rules to lower the 60-vote thresholds to end filibusters of judicial confirmation debates.

“The Trump administration has to remember that Harry Reid ended the [60-vote] filibuster for judges except for the Supreme Court [so] all they need are 51 votes to get any judge confirmed … They were given a gift by Harry Reid and they need to take it,” he said.

Trump must also disregard the Senate’s traditional “blue slip” process, which gives Senators a quiet veto over nominees to judicial seats in their states. Democrats used that process to push President George W. Bush to nominate progressive judges to Democratic-run states during his eight years in the White House. One of Bush’s “blue slip” progressives judges blocked Trump’s Executive Order in Washington State by declaring that universities and companies can ask judges to override Presidents’ curbs on immigration.

Trump and the GOP Senators “have to override that” blue-slip veto, Spakovsky said.

The judge in Washington State, James Robart, declared Feb. 3 that “the [president’s] executive order adversely effects the State’s residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.”

That judge was backed up by three judges in the Ninth Circuit Court of Appeals, who cherry-picked court decisions from domestic cases to declare that the danger of jihadism is less urgent than universities’ foreign revenues:

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 … Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the rights of the [foreign] students, scholars, and faculty affected by the Executive Order.

… the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay [upholding Trump’s policy]

The Wisconsin decision was announced March 10 by Judge William Conley of the U.S. District Court for the Western District of Wisconsin, who went several steps further by saying an individual, who is not even a citizen, has the right to overrule the president if he or she can get a judge to agree. According to the Wisconsin judge’s order:

Plaintiff is a Sunni Muslim who, after being fully vetted by U.S. immigration authorities, was granted asylum status because of the torture and religious persecution he had suffered in Syria. he thereafter filed derivative asylum petitions to reunite with his wife and his only surviving child….. President Trump’s efforts to impose an immigration ban by executive order are threatening to stop Plaintiff’s derivative asylum petitions in their tracks.

From 2o13 to 2015, government data shows that 25,565 foreigners got asylum status — and according to Judge Conley — the right to bring their families into the United States regardless of Congres’ laws and the policy that an elected president promised to implement if he was democratically voted into the White House. 

In Hawaii, Judge Derrick Watson decided that the elected President’s policy of defending Americans from Muslim jihadis who emerged from Muslim culture in Muslim countries might hurt Hawaii’s tourism industry, saying in his order that:

The State points to preliminary data from the Hawaii Tourism Authority, which suggests that during the interval of time that the first Executive Order was in place, the number of visitors to Hawai‘i from the Middle East dropped (data including visitors from Iran, Iraq, Syria and Yemen) … Because there is preliminary evidence that losses of current and future revenue are traceable to the Executive Order, this injury to the State’s proprietary interest also appears sufficient to confer standing.

The judge also opposed the President’s national defense against Islam’s violent doctrines by quoting the Muslim cleric’s testimony about”ethnicity” and children’s worries, saying: 

[“My children] are deeply affected by the knowledge that the United States—their own country—would discriminate against individuals who are of the same ethnicity as them, including members of their own family, and who hold the same religious beliefs. They do not fully understand why this is happening, but they feel hurt, confused, and sad.”

Alongside the judges’ escalating and expanding claims of their judicial power over elected presidents, the written law is entirely clear that the written Constitution and the elected Congress give only the elected president and his Senate-confirmed deputies the legal power to accept or deny entry of alien foreigners into the United States. Here’s the relevant statute, 8 U.S.C. § 1182 (f):

(f) Suspension of Entry or Imposition of Restrictions by President

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.

The Supreme Court has accepted and validated this “plenary power” of the elected president. 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 in Kerry v. Din, saying:

The state action of which Din complains is the denial of [spouse] Berashk’s visa application. Naturally, one would expect him—not Din—to bring this suit. But because Berashk is an unadmitted and nonresident alien, he has no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission … So, Din attempts to bring suit on his 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.

And

Here, a long practice of regulating spousal immigration precludes Din’s claim that the denial of Berashk’s visa application has deprived her of a fundamental liberty interest. Although immigration was effectively unregulated prior to 1875, as soon as Congress began legislating in this area it enacted a complicated web of regulations that erected serious impediments to a person’s ability to bring a spouse into the United States… This Court has consistently recognized that these various distinctions are “policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of the Congress.”

But that case was decided by 5 to 4, with former Justice Antonin Scalia providing the critical fifth vote against the block of four progressives who would have granted foreigners a conditional right to immigrate into the United States, regardless of government or voter preferences. Scalia is dead, and the Senate has yet to vote on his nominated successor, Judge Neil Gorsuch.

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