I wanted to write something about the 9th Circus decision but after reading the actual 29 page order, there is nothing much to say. Both Powerline and National Review have good roundups of the ruling.
In my opinion, the order reads almost like the court decided on a case that wasn’t even before them. They went way out of their way to establish new standards of standing and veered way off course into claiming a policy making role for the courts. They seemed to have decided whether the policy was a good idea (which they had no charter to do) rather than whether it was properly and lawfully executed (which it was).
The judiciary is constitutionally charged with the maintenance of procedure and process, not policy. In an interview back in 2013, Justice Scalia noted:
“I described myself as that a long time ago. I repudiate that…. [Regarding the punishment of flogging, which is what led me to make that remark years ago,] if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional.”
“I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT CONSTITUTIONAL! Whack! STUPID BUT CONSTITUTIONAL … [Laughs.] And then somebody sent me one.”
Of course, I am disappointed by the actions of the 9th Circuit, even though this is exactly what I expected when I heard the questions they were asking – and it was apparent to me the DOJ did not have the “A Team” on this one. I had better answers at my fingertips than they had…plus apparently the DOJ doesn’t have the Internet or know about Google. The level of preparation (or absence thereof) was stunning, especially when they had to strongly suspect at least two of the judges had already made their decisions. I was surprised it went 3-0 but the supposedly “conservative” judge asked questions almost as irrelevant as the two “liberal” judges.
Adding to my disappointment is the cheering of my libertarian friends who, once again making common cause with leftists, are happy with the POLITICAL outcome of the ruling because…well…because they hate Trump.
I’m no lawyer and have minimal legal training – but this situation seemed so clear cut on the law – I thought Trump was right, even the least academically inclined high school student could understand it.
Argue the policy if you will. Argue it was a ham-fisted roll out. Argue that Trump is a dumbass. All of that is fair game from a political and policy perspective. But as Judge Scalia intimated, a law, rule, regulation or policy may be stupid – but it also may be solidly constitutional at the same time.
Please do not cheer a judiciary when it clearly exceeds its purview to achieve a decision you like. That’s what progressives do.
This 9th Circuit’s ruling wasn’t stupid but constitutional, it was just stupid.