"The key point for everybody to know about the United States Court Appeals for the Ninth Circuit's opinion regarding President Donald Trump's executive order regarding immigration is that the three judges failed to discuss, or even acknowledge the existence of, the primary law that supports the E.O.
Title 8 United States Code, section 1182(f), which was enacted as section 212(f) of the Immigration and Nationality Act, is entitled "Suspension of Entry or Imposition of Restrictions by President" and states (italics added):
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.
On January 27, 2017, President Trump issued Executive Order No. 13769, entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States." The executive order expressly cited 8 USC, sec. 1182(f) and quoted its language three times. Section 3(c) of the executive orders states (emphasis added):
To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA,8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
Section 5(c) of the executive order states (emphasis added):
Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
Section 5(d) of the executive order states (emphasis added):
Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
President Trump further emphasized the importance of 8 USC section 1182(f) by reading it to the Major County Sheriffs' Association and Major Cities Chiefs Association in Washington, D.C. on February 8, 2017. President Trump told the crowd that "a bad high school student" would understand 8 USC section 1182(f).
The Ninth Circuit's opinion was in the case entitled State of Washington; State of Minnesota v. Donald J. Trump, President of the United States, and others, case no. 17-35105, decided February 9, 2017. The three judges who issued the unanimous opinion were William C. Canby, Richard R. Clifton, and Michelle T. Friedland. These judges did not cite to, discuss, or quote from 8 USC, sec. 1182(f). They did not quote from those parts of the executive order that cited or quoted 8 USC, sec. 1182(f). If your knowledge about this case were restricted to what is in the opinion by these judges, you would not know that 8 USC, sec. 1182(f) exists. For these three judges, 8 USC, sec. 1182(f) is the law that never was.
All three of these judges were required to take the oath specified in 28 USC, sec. 453:
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God."
Did judges Canby, Clifton, and Friedland each "faithfully and impartially discharge and perform all the duties incumbent upon" them "as judge under the Constitution and laws of the United States"? Their duty was to interpret and apply the law, specifically, 8 USC, sec. 1182(f). If they believe that the law does not apply here, they had a duty to explain why. If they believe that the law is unconstitutional, they had a duty to explain why. They violated their duty. They violated their oath.
If you had to make a list of things that a judge could do that warrants impeachment, deliberately ignoring an applicable law that contradicts the judge's opinion would be on the list." -- Allan J. Favish
Allan J. Favish is an attorney in Los Angeles. His website is allanfavish.com. James Fernald and Mr. Favish have co-authored a book about what might happen if the government ran Disneyland, entitled Fireworks! If the Government Ran the Fairest Kingdom of Them All (A Very Unauthorized Fantasy).