Why Trump’s immigration order is legal and constitutional
The dissenters then proceed to do what the judges who have ruled against the administration have not done: They give a detailed explanation of the constitutional and federal statutory provisions that provide the authority for the president’s actions, as delegated to him by Congress, and the long string of court decisions upholding that authority — and not just U.S. Supreme Court decisions, but also prior decisions in the Ninth Circuit itself that were unashamedly ignored by the three-judge panel.
They point out that “many presidents have invoked the authority of §1182(f) to bar the entry of broad classes of aliens from identified countries,” and they add a long footnote listing all of these executive orders by Ronald Reagan, George H. W. Bush, Bill Clinton, George W. Bush, and Barack Obama. For the full Ninth Circuit to not exercise its discretion to overrule the three-judge panel is “a fundamental error” because the panel “neglected or overlooked critical cases by the Supreme Court and by our court making clear that when we are reviewing decisions about who may be admitted into the United States, we must defer to the judgment of the political branches.” The panel’s faulty legal analysis “conflicts irreconcilably with our prior cases.” The dissenters proceed to list case after case after case that upheld the power of the executive branch to make these types of decisions.
Furthermore, the panel’s decision on the supposed due-process rights of aliens “confounds century-old precedent.” Its “unreasoned assumption that courts should simply plop Establishment Clause cases from the domestic context over to the foreign affairs context ignores the realities of our world.” The dissent sarcastically notes that the panel said that it is an “uncontroversial principle” that we “owe substantial deference to the immigration and national security policy determinations of the political branches.” However, that statement by the panel “was both the beginning and the end of the deference the panel gave the President.”