Five Judges on the Ninth Circuit Deliver Exemplary Dissent From “Contrived Comedy of Errors” in First Decision on Travel BanEdit

On March 15, five Judges of the Ninth Circuit Court of Appeal delivered what Professor Jonathon Turley termed a “vociferous dissent” which has received, as he noted, “a surprising lack of media attention…”. Upon discovering Prof. Turley’s article, and a couple of others in the same vein, I conducted my own search and while not claiming even the slightest degree of skill in electronic searches, I could find not a single word of this remarkable decision in the New York Times, although, to my surprise, it was reported in both the Washington Post and the Los Angeles Times.

The cited article notes the following salient points about the initial opinion while also noting the unusually direct language used by the dissenting Judges, termed by another commentator as “ruthless”, which gives one at least some hope that common (and legal!) sense may ultimately prevail in what another writer has termed this “contrived comedy of errors”:

“The dissenting judges objected that there is an “obligation to correct” the “manifest” errors of the panel. It called those errors “fundamental” and even questioned the manner in which the panel reached its decision with a telephonic oral argument. The dissent raised many of the problems that various commentators have raised, including myself. The lack of consideration to opposing case law, failure to address the statutory authority given to the President, and the sweeping dismissal of executive authority are obvious flaws. (These problems are also apparent in the ruling in Hawaii, though it was based on establishment rather the due process grounds) The dissenting judges refer to the “clear misstatement of law” in the upholding of the district court. so bad it compelled “vacating” an opinion usually mooted by a dismissed case.”

The Judges also made the point, thought to be long-settled before Judge Robart issued the first ruling in this case, that “so long as there is one facially legitimate and bona fide reason for the President’s actions, our inquiry is at an end.”

Prof. Turley sums up the heart of the reason this opinion offers at least some glimmer of optimism that the Courts will finally get back to basics and follow established legal principles instead of concentrating on what the President said on the campaign trail as opposed to what appears “within the four corners of the document”, the analysis we were taught in Law School and which has been the accepted standard ever since, as follows:

“The opinion has all of the legal analysis that is so conspicuously absent in the panel decision, which dismissed or ignored countervailing case law of the Supreme Court and even the Ninth Circuit. … “

We heard more than most of us ever wanted to hear about “hope and change” for the past 8 years– this opinion is definitely my version of “hope” in the sense that if Justice Gorsuch is on the bench by the time these ill-considered cases reach the High Court, it is almost impossible to imagine that they could possibly stand. That is my fervent hope. Thus, I strongly agree with Professor Yoo’s analysis: “I find it hard to believe that the Supreme Court would allow the judiciary to exercise such intrusive review into the motives of the head of a co-equal branch of government.”


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