On the Ninth Circuit’s Recent Inadvertent Decision on Immigration

On the Ninth Circuits Recent Inadvertent Decision on Immigration

I am and have been during my entire adult life an advocate for liberal, quasi-open immigration. I believe that despite our many national sins involving other countries, the spirit of Emma Lazarus’ poem inscribed on the Statue of Liberty is what led to our being perceived as that shining city on the hill and the beacon of liberty, and what made us a great power. I have long believed that much illegal immigration is due to ineptitude or bad faith in the manner in which our national immigration and consular services process immigration applications leading to decade long delays but also more recently, that it is due to our destruction of other states or participation in the overthrow of their legitimately elected governments which has led to rivers of refugees, both political and economic. During the past six years, when I have lived in the Republic of Colombia heading a local university’s political science programs, women with whom I have been in relationships have been denied US visas to accompany me on visits to my alma mater, the Citadel, three times, without justification and without recourse. The US has never needed justification for denial of visas, nor explanations, and there are no appeal processes; perhaps until now.

As I read the Ninth Circuit ruling’s generous grant of US Constitutional due process rights to everyone on the planet, logic dictates that should change. I regret the fact that it has no real statutory support or support in relevant legal precedent, but if it reflects a real change, I welcome it. The logistics would be nightmarish for US consulates but justice would be served. I wonder how honestly this new philosophy on procedural due process rights will be applied and how long it will survive.

I also believe it was a hypocritical, political decision, both by the Court and by the state attorneys general involved, all of whom had remained utterly silent on the issue until the advent of President Trump. The executive order involved was in no manner qualitatively different than prior policy under the Obama, Bush and Clinton administrations, although its tenor was certainly more honest, straightforward and unpleasant but reflecting the unpleasant and ugly reality.

Given how that advent has apparently and conveniently woken long dormant consciences on all kinds of themes that were just fine during prior administrations, Mr. Trump’s election may prove the best thing that has happened to the United States in terms of equity and justice in modern history. However, unless the dominant political classes in both major parties are rejected and replaced by decent statesmen, hypocrisy and political opportunism will remain our modern hallmarks.


© Guillermo Calvo Mahé; Manizales, 2017; all rights reserved

1 thought on “On the Ninth Circuit’s Recent Inadvertent Decision on Immigration


    1. It is about Trump’s ongoing feud with the Intelligence Community. The fact is that the vetting process was substantially enhanced by changes to 8 USC Sec. 1187 that were proposed by President Obama in 2015 and adopted by Congress. These changes: (a) charged the Director of National Intelligence with the responsibility of evaluating the relative threats posed by immigration from various nations; (b) charged the Secretary of State with implementing qualifying evidentiary standards on the credentials of individuals applying for entry into the US (i.e., that these credentials must be electronically readable so that they could be compared to various information databases; and (c) charged the Secretary of Homeland Security with determining whether the admission of an individual or individuals from a certain country poses the likelihood of a threat to the security of the US or its citizens. These changes led to the increased vetting of individuals from the seven countries named in Trump’s Executive Order, with the result that there have been no instances of terrorist acts perpetrated by individuals from these nations on US soil since their institution. Can improvements be made? Absolutely, and the statute itself provides for methods of continuous review and improvement, so Trump’s claim that emergency policies and measures are somehow required amount to nothing more than an outright condemnation of the efforts of the thousands of career Intelligence, State Department and Homeland Security personnel who have been doing the job thus far.

    2. It’s about Trump’s ongoing efforts to diminish, discredit, and to distinguish himself from the achievements of the Obama administration (and others). Trump’s Executive Order is unnecessary (and therefore a distinction without a difference) for the reasons stated above, but fits within his narrative of declaring a national crisis where none exists, and then declaring that he alone has the know-how and the ability to resolve it, even in cases where he has no demonstrated knowledge or experience.

    3. It’s about Trump’s ongoing efforts to establish the supremacy of the Executive Branch over the Legislative Branch and the Judiciary. As the 2015 changes to 8 USC Sec. 1187 clearly demonstrate, improvements can and should be made by joint action between the Executive and Legislative Branches, thereby ensuring the protections of due process, the constitutionality of the proposed measures, and the benefits of mutual support. Trump’s deliberate avoidance of congressional participation (even where he enjoys a majority of his own party) and reactions to the judicial review of his actions clearly demonstrate his contempt for the checks and balances afforded by the constitution, and the flurry of other hastily issued Executive Orders from him shows that he intends to establish his supremacy by blitzkrieg.

    4. It’s about Trump’s style and his character. Trump’s modus operandi, as evidenced by the themes of his electoral campaign, is that he continually panders to the paranoid fears of the many, and to the selfish interests of the few. He successfully utilized slogans such as “Islamic terrorism” and “Muslim ban” (among others), and overemphasized “illegal immigration”, in order to generate irrational fears of unreal or insubstantial threats, particularly those that are perceived to emanate from minorities and from overseas. These are deliberately targeted to support his jingoist and partisan religious themes; the fact that minority Christians from the seven affected Muslim countries were specifically excluded from the ban is telling.

    5. It’s about Trump’s persona. Trump exhibits a pathologically egotistical notion that he can never be wrong, even when proven that he is. Thus, any criticism is proclaimed as a “lie” or “fake news”, and any resistance as obfuscation, even when his mistakes, missteps, and misstatements are demonstrable. The mere fact that he made unsubstantiated and irresponsible allegations on this subject during his campaign, and that he pledged to correct this fabricated crisis, now compels him to act, even though his actions may be irrational and inflammatory. Further, Trump even deliberately limited the scope of sanctioned nations in his order to those identified by the Obama administration in 2015, as if doing so would enable him to shift any resulting accountability away from himself.

    6. Simply put, the Executive Order is NOT about the threat of “Islamic terrorism”, Muslims, “illegal immigration”, or making the US a safer place (e.g., as drafted, this order, had it been in place at the time, would not have prevented the Fort Hood massacre or the Boston Marathon bombing) – what it really is all about is Trump.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s