SAN FRANCISCO (CN) – A Ninth Circuit judge on Wednesday called his colleagues’ decision to uphold the temporary restraining order on President Donald Trump’s travel ban “wrong,” while simultaneously rebuking the president for his attacks on the judiciary.
Circuit Judge Jay Bybee’s words came in the form of a dissent to a refusal to vacate the original panel’s decision not to block the travel ban as moot, since Trump voluntarily dropped his challenge in favor of revising the ban.
Neither the Trump administration nor Washington state – which filed the lawsuit challenging the travel ban – asked to vacate the panel’s decision. A judge of the court then called for a vote for en banc reconsideration, but didn’t receive a majority of the votes of the 29 active judges.
Accordingly, and citing the precedent of 1994’s U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, the unsigned order said “the ‘extraordinary remedy of vacatur’ is ordinarily unjustified when post-decision mootness is caused by voluntary action of the losing party,” and kept the order halting the travel ban in place.
But in a 25-page dissent, Bybee strongly objected to leaving the order as precedent because he believes the court had no business wading into presidential affairs in the first place.
“Whatever we, as individuals, may feel about the president or the executive order, the president’s decision was well within the powers of the presidency, and the wisdom of the policy choices made by the president is not a matter for our consideration,” Bybee wrote.
Bybee, widely considered one of the more conservative judges at the Ninth Circuit, was appointed by President George W. Bush and was joined in the dissent by four other Ninth Circuit judges — Alex Kozinski, Consuelo Callahan, Sandra Ikuta and Carlos Bea.
The original ruling upholding the restraint of the travel ban is at loggerheads with other cases in both the circuit and the Supreme Court relating to similar subject material that have found courts possess extremely limited review of presidential decisions related to the nexus of immigration and national security, Bybee said in the dissent. He said refusing to vacate the decision preserves it as precedent and will cause legal confusion.
However, Bybee distanced himself from support of the travel ban.
“I have written this dissent to defend an important constitutional principle – that the political branches, informed by foreign affairs and national security considerations, control immigration subject to limited judicial review – and not to defend the administration’s policy,” he wrote.
Specifically, Bybee noted Congress has delegated broad powers to the president to “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.”
Bybee further cited a Supreme Court case, 1952’s Kleindienst v. Mandel, which held that the attorney general had the right to refuse an individual’s entry into the United States. The case was brought by supporters of Belgian journalist and Marxist theoretician Ernest Mandel, who sought to compel Attorney General Richard Kleindienst to issue the divisive figure a temporary nonimmigration visa. Mandel was scheduled to give talks at Columbia, Princeton and Stanford, among other locations, and espousing Marxist principles in the 1950s was – to some segments of the United States government – tantamount to treason.
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