Trump and the Ninth Circuit - Both Partially Right; Both Partially Wrong

On Jan. 27, President Trump issued an order “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The federal district court enjoined enforcement of portions of that executive order. The Ninth Circuit Court of Appeals refused to keep the district court's ruling.

Who's right? As to resident aliens, the Ninth Circuit is right; the president is wrong. As to non-resident aliens seeking admission, the Ninth Circuit is wrong; the president is right.

The order cites the 9/11 terrorist attacks, and that “numerous foreign-born individuals have subsequently been convicted or implicated in terrorism-related crimes.” It declares that “the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” It also finds “deteriorating conditions in certain countries due to war .. .and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. It finds the U.S. must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”



Congress has specifically granted to the president powers relative to inadmissible aliens: "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."

Trump's order was promulgated pursuant to Congress' unambiguous grant of authority and he acted with all the president's Article II powers together with Congress' Article I immigration powers.

The limits of presidential power were best enunciated in Youngstown Sheet & Tube Co. v. Sawyer. There, President Truman, without Congressional authorization, seized the steel mills to prevent strikes from impeding the government's efforts to prosecute the Korean War.

President Trump here, on the other hand, had full Congressional authorization. In his concurrence with that 1952 opinion, Justice Robert H. Jackson wrote, "When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.

"In these circumstances, and in these only, may he be said ... to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."


So on what basis did the Ninth Circuit enjoin enforcement of Trump's order? The Due Process clause of the 5th Amendment, which prohibits government from depriving individuals of their “life, liberty, or property, without due process of law.

In the words of the Ninth Circuit: "The Executive Order makes several changes to the policies ... by which non-citizens may enter the United States. ... First, section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. … Second, section 5(a) of the Executive Order suspends for 120 days the United States Refugee Admissions Program. .... Upon resumption of the refugee program, section 5(b) of the Executive Order directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality. ... Third, section 5(c) of the Executive Order suspends indefinitely the entry of all Syrian refugees."

The district court, the Ninth Circuit said, had "enjoined and restrained the nationwide enforcement of sections 3(c) and 5(a)-(c)in their entirety." He also "enjoined section 5(e) to the extent that section “purports to prioritize refugee claims of certain religious minorities."

The Ninth Circuit referenced the U.S. Supreme Court holding in Zadvydas v. Davis (2001) while ignoring this following of that holding:

"The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law. ... It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. ... (Fifth Amendment's protections do not extend to aliens outside the territorial boundaries)."


Posted: QCOline.com February 19, 2017
Copyright 2017, John Donald O'Shea

Rioting Is Not Protected by First Amendment

On Feb. 3, a conservative speaker was slated to speak at the University of California at Berkeley. That's when "Black Bloc" intervened.

According to CNN (cnn.com/2017/02/01/us/milo-yiannopoulos-berkeley/), "150 masked agitators caused more than $100,000 worth of damage at UC Berkeley ... when demonstrators gathered to protest Milo Yiannopoulos, who was scheduled to give a speech at the school.

"Black-clad protesters, wearing masks, threw commercial-grade fireworks and rocks at police. Some even hurled Molotov cocktails that ignited fires. They also smashed windows of the student union center on the Berkeley campus.


"At least six people were injured. Some were attacked by the agitators -- who are a part of an anarchist group known as the "Black Bloc" that has been causing problems in Oakland for years ..."

If you haven't hear of Black Bloc, watch the video at usatoday.com/story/news/nation-now/2017/02/02/what-black-bloc/97393870/.

We are told by some that Black Bloc is not an organization; rather, it is a "spontaneous coming together of individuals" to act as a "protective shield" for "progressive protesters" against "police brutality." If you buy that, I've got a nice bridge to sell you!

As I watch the USA Today video, I can only come to one opinion: Black Bloc is a criminal conspiracy which engages in overt acts of violence intended to deprive other Americans -- with whom they disagree -- of their Constitutional rights of free speech, peaceable assembly and private property.

So what justifies rioting, the fires, the destruction of property? The left-wing anarchists disagreed with the political opinions of a man scheduled to give a speech.

So how long will the new administration put up with left-wing anarchists clad in black hoods and black masks? Are criminal thugs who run around and do violence in black hoods and black masks any better than the Klu Klux Klan? Are stormtroopers in black masks and robes any more noble than Klansmen in white robes and masks?

In 1870, The Congress, at the behest of President Grant, passed "An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other Purposes."


The act was a response to terror, force and brutality used by the Klan (KKK) to prevent newly freed blacks from voting and exercising their newly granted Constitutional Rights. Section 6 criminalized "conspiring" or "going in disguise" to "intimidate" or to "hinder the free exercise" of any right granted by the Constitution. Conviction carried up to 10 years imprisonment.

Criminals, anarchists and rioters in hoods and masks -- whether those hoods and masks be white or black -- who riot in the streets to prevent anyone from exercising his First Amendment right to speak freely or assemble peacefully, or the right of any other citizen to own private property, are therefore playing a dangerous game.

The U.S. government virtually wiped out the first wave of the KKK using the Enforcement Acts. If the government decides enough is enough, 150 guys in black hoods and masks, as well as their financiers, may find themselves spending the next 10 years in federal prison.

Any thinking American should be revolted by Black Bloc's wanton destruction of property and attacks on police and bystanders. This rioting is exactly what the Nazi Brown Shirts, aka Stormtroopers, did in Germany in the 1930s.

The riots in Berkeley have the stench of Kristallnacht about them. Kristallnacht occurred Nov. 9-10, 1938. It was the night when Nazi Stormtroopers, wearing civilian clothes, to create the illusion of a "spontaneous demonstration," destroyed 267 synagogues and innumerable Jewish businesses throughout Hitler's Reich. Mobs of SA men roamed the streets, attacking Jews in their houses and forcing Jews they encountered to perform acts of public humiliation.

Our Constitution guarantees free speech. But free speech does not include incitement to riot, or the act of rioting. Attacking police and burning down buildings has never been constitutionally protected.


Posted: QCOline.com February 12, 2017
Copyright 2017, John Donald O'Shea

Were '90s Democrats Racists? Xenophobes?

I recently had a conversation with a brilliant man -- a liberal friend -- I've known for almost 50 years. He opposes President Trump's "extreme vetting" immigration policy.

"Christian charity requires us to admit the poor -- the oppressed - of any nation who would seek refuge here." Then, with a twinkle in his eye, he added "And if the additional 50,000 refuges that we situate in Michigan vote Democrat in the 2020 election, and turn the state 'blue' again, so much the better."

I wasn't sure, if his afterthought was serious or putting the needle in; whether his motivation was to be Christ-like, or to win the next election, or both. Perhaps because I saw a glaring contradiction between his deep concern for all who would immigrate here, and his utter lack of concern for the child in the womb, I wasn't sure whether winning the next election was his genuine concern.



I also couldn't help but compare his remarks on immigration with those made by another very prominent Democrat 22 years ago.

"All Americans -- not only in the States most heavily affected, but in every place in this country -- are rightly disturbed by the large numbers of illegal aliens entering our country.

"The jobs they hold might otherwise be held by citizens or legal immigrants.

"The public service they use impose burdens on our taxpayers.

"That's why our administration has moved aggressively to secure our borders more by hiring a record number of new border guards, by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens.

" ... we will try to do more to speed the deportation of illegal aliens who are arrested for crimes, to better identify illegal aliens in the workplace as recommended by the commission headed by former Congresswoman Barbara Jordan.

"We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it."


This was six years before America became conscious of the real possibility of terror in the homeland -- six years before radical Islamic terrorists flew passenger liners into the Twin Towers, the Pentagon, and a field in Pennsylvania, murdering some 3,000 Americans; before Fort Hood, the Boston Marathon massacre, the attack on the Marine Recruiting Office in Chattanooga, and the San Bernardino Christmas party massacre. And before the Mexican Drug cartels really got going. Today those cartels ship cannabis, cocaine and heron across our open border. Chicago and other American cities have become killing fields as gangs kill over who controls territory. Drug-cartel related violence in the streets caused the Chicago Crime Commission to label Joaquin Guzman Loera, head of Sinaloa Drug Cartel, as Chicago's Public Enemy No. 1.

There are obvious reasons American parents for generations have taught their children to never talk to strangers. If a stranger came to your door, and asked if he could move into your home, would you let him? Would you be comfortable you could do so safely without "vetting" him? Would you let him sleep in a room next to your small children unless you were satisfied as to their safety?

The bottom line is this: Regardless of whether my friend's position on vetting is based on Christian charity or crass political considerations, it ignores the fact that ISIS and drug cartels are at war with us, even if we don't think we are at war with them.

Prudence is a Christian virtue.

By the way, my prominent Democrat was President Bill Clinton. The citation is from his Jan. 24, 1995 State of the Union speech.

Posted: QCOline.com February 5, 2017
Copyright 2017, John Donald O'Shea