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On Trial: Five Signs Even The Ninth Circuit Knows Trump Will Win Travel Ban Fight In End


As trained appellate attorneys learn, a court’s opinion often gives away “tells” of the court’s own confidence, or absence thereof, in their opinion. Like a poker player at the table, some tells hide a weak hand. And few judicial “hands” are as weak as the Ninth Circuit’s opinion to let the Washington court’s stay on Trump’s immigration order stand.

Tell #1: When The 9th Circuit Cannot Even Cite The Most Important Law On The Subject 

The Constitution delegated expressly to Congress the right to control immigration. Congress in turn gave broad power over immigration to the President. This statute was the cited basis for Trump’s foreign entry ban on select countries. Guess how many times the 9th Circuit even mentioned this statute? Zero! This shows the 9th Circuit knew they had no answer for the law. Instead, they pretend this key law doesn’t exist. Just reading the law exposes why the 9th Circuit hid it.

“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.”

Tell #2: When The 9th Circuit Keeps Citing LOSING Opinions As Their Evidence

The second cue was the 9th Circuit’s novel and unsupported extension of standing to states on behalf of people who are neither residents nor citizens of those states, or of any state! The corollary unprecedented act was saying due process rights extend to foreigners in foreign lands. Every major case on this issue, cited in detail by the Boston federal judge, says no such rights exists. Access to America has always been a privilege, not a right. Instead, the 9th Circuit relies on the losing opinions from a range of cases, called “dissents” or minority “concurring” opinions which are NOT precedent. The 9th Circuit cites these losing opinions over and over, a strong tell they know they hold a bad, losing hand on the law.

Tell #3: When No One Will Even Sign The 9th Circuit Opinion Under Their Own Name

No judge would sign this 9th Circuit opinion. Per curiam opinions usually show up in non-controversial cases, not a case like this. When nobody wants to be the author of an opinion like this, it’s a tell that nobody wants to be held responsible for “authoring” this opinion. It really is that bad.

Tell #4: When The 9th Circuit Fails To Even Address Most of the Cases Cited By The Leading Recent Opinion on the Topic

A Boston federal judge detailed the 200+ years of precedent supporting Trump’s order. How does the 9th Circuit address these precedents? Ignore almost all of them. In a trial, when you hide from all the other side’s best evidence, it is a sign you know the other side is right.

Tell #5: When A Fellow 9th Circuit Judge Sua Sponte Says The Decision Needs To Be Undone 

En banc review — where all of the judges of a circuit weigh in — is very rare. Even rarer is a judge, sua sponte, on his own, without either side requesting it, demanding such a review. A judge on the 9th Circuit was bothered by the opinion so badly, they demanded the whole en banc panel review. Some judges on the 9th circuit clearly still value being seen as good jurists, not as politicians playing to the peanut gallery.

The 9th Circuit opinion reads like a desperate brief from the losing side of an argument where the writer knows the law is against them. An old trial lawyer’s adage goes, when the facts are on your side, pound the facts; when the law is on your side, pound the law; when neither law nor facts is on your side, pound the table. There was a lot of table pounding by the 9th Circuit, and that may be the biggest tell of all that they know they are wrong on the law, and Trump is right.

Robert Barnes is a California -based trial attorney whose practice focuses on tax defense, civil rights and First Amendment law. You can follow him at @Barnes_Law

This is an opinion piece. The views expressed in this article are those of just the author.

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