Circuit Justice Bybee wrote the dissent, and four other Circuit Justices joined his eloquent on point take down, wherein he exposes the Court's blatant disrespect for both it's own prior precedents and the controlling precedents from the superior US Supreme Court.
The dissent weaves knock out punch after punch, and in conclusion it straight up calls the Court out for placing politics over law and causing chaos upon the Court's past and future decisions.
You must read the entire dissent...slowly, with popcorn and beer. More than once. It will make your head spin with anger and fury, but it will also wake you up into the judicial nightmare implicit in the soft coup d'etat the nation is fighting.
Yet, both the dissent, the panel opinion, the briefs, and oral arguments, of both the State of Washington, and the US Government attorneys representing the President, have overlooked completely the most crucial statutory analysis in this matter. I will address that in a pending unofficial Amicus Brief, written specifically for lay people to understand.
But for now, I must draw your attention to one particular passage from the dissent, where the majority opinion of the US Supreme Court discusses a "Muslim ban", holding that the Executive can discriminate denying First Amendment rights to aliens.
This was an 8-1 decision, authored by Justice Scalia with five others joining the opinion in full, and two more joining in part. And it makes clear the Supreme Court has determined that as long as the President has a facially rational basis for such discrimination, the Judicial Branch may not challenge it or require proof or good faith.
So, when President Trump says that his immigration officials need to develop better means of vetting - for aliens coming from the nations he lists as being dangerous terrorist breeding grounds - the courts must recognize that rational basis and the court has no authority whatsoever to challenge it.
I will be providing legal analysis on all of the pending EO related matters going forward. For now, I leave you with this crucial point from Circuit Justice Bybee's dissent:
'The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat—or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals—and even if it did disclose them a court would be ill equipped to determine their authenticity and
utterly unable to assess their adequacy.'
Id. at 491; see Mezei, 345 U.S. at 210–12; Knauff, 338 U.S. at 543.
The panel faulted the government for not coming forward in support of the Executive Order with evidence—including “classified information.” Washington, 847 F.3d at 1168 & nn.7–8. First, that is precisely what the Court has told us we should not do. Once the facial legitimacy is established, we may not “look behind the exercise of that discretion.” Fiallo, 430 U.S. at 795–96 (quoting Mandel, 408 U.S. at 770). The government may provide more details 'when it sees fit' or if Congress 'requir[es] it to do so,' but we may not require it. Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in the judgment)."
Written and Researched by Bill Ette J.D.
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