- - Tuesday, June 13, 2017


Certain black-robed sentinels of the law have taken up the task of defending the nation from its enemies, declared and otherwise. This is a responsibility previously left to the president of the United States. If a wooden gavel is all that stands in the way of evildoers, Americans should be afraid, very afraid.

A three-judge panel of a 9th U.S. Circuit Court of Appeals, based in San Francisco, agreed unanimously Monday that President Trump’s executive order imposing a temporary ban on travelers from six terror-exporting nations is unconstitutional. Trump-averse courts are taking turns knocking down versions of the order.

Rejecting administration arguments, the judges obviously think the president is the chief executive of the land in name only: “We conclude that the president, in issuing the executive order, exceeded the scope of the authority delegated to him by Congress. Immigration, even for the President, is not a one-person show.”

In their three-person show, the judges wrote that the Immigration and Nationality Act law “requires that the President exercise his authority only after meeting the precondition of finding that entry of an alien or class of aliens would be detrimental to the interests of the United States. Here, the President has not done so.”

Visitors from the six subject nations — Iran, Libya, Somalia, Sudan, Syria and Yemen — have been convicted of terrorism-related crimes on only 26 occasions during the past 15 years and none of those killed anyone, the judges observed. By that measurement, however, the 19 airline hijackers who murdered nearly 3,000 Americans in lower Manhattan would not have been judged “detrimental to the interests of the United States” before executing the tragedy of Sept. 11, 2001.

The point of the president’s authority to administer immigration law, as it relates to national security, is to foresee and forestall terrorism before it happens, not after. Even on the left coast the idea of employing body counts to gauge the effectiveness of immigration policy should raise a judicial eyebrow.

But the jurists were not done. They discovered in a Trump tweet of June 5 an added reason to knock down his order. The president wrote, “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”

The court’s decision flies in the face of common sense as well as the Constitution. “The pace of terrorist attacks, certainly in Europe, has been increasing,” says former New York Police Commissioner William Bratton. “That type of attack is quite likely to occur in the United States at some point in time.”

The administration is expected to appeal the decision to the Supreme Court, where a separate case awaits on appeal of a similar ruling against the president’s temporary travel ban by the 4th U.S. Circuit Court of Appeals in Richmond. Ordinary Americans must brace themselves for a final judgment over whether the president is allowed to exercise his constitutional authority over immigration before the next major attack, which everyone — even appeals court judges — know is coming.

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