Panorama of San Bernardino

Saturday, February 11, 2017

A just decision in time of crisis-A ban by any other name

Yesterday, the 9th Circuit ruled against the administration's discriminatory Muslim Ban. It was a just decision and a right decision. It was the most American of all decisions.

By ruling that the injunction against the Muslim Ban would stand, the 9th Circuit Court ("9th Circuit") upheld the rule of law. They protected our institutions of government and the checks and balances of power. And while the administration argued (with a straight face that no doubt covered the whirling emotions of the lawyers who must have been struggling with how to defend this inherently flawed Executive Order) that the Executive Order creating the Muslim Ban was not reviewable (thereby deeming themselves by this argument quasi dictators with what they called "unreviewable authority"), the 9th Circuit heartily disagreed. The Court stated, "In short, although courts owe considerable deference to the President's policy determinations with respect to immigration and nation security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."

In fact, the 9th Circuit underlined that this was even the case in times of so called conflict, stating that: "Indeed, federal courts routinely review the constitutionality of-and even invalidate-actions taken by the executive to promote national security, and have done so even in times of conflict." The 9th Circuit is recognizing that in times such as these, where fear is the catalyst (although that fear, I would argue, is a creation of the administration who uses scare tactics and xenophobia so that they can create racist and discriminatory policy), that it is even more crucial for courts to be a check on the balance of executive power.

The 9th Circuit also addressed another important issue. Was there any evidence of discriminatory intent and is it relevant? As a write this, I want to scream yes, but I am trying to remain calm and reasonable here. But, it must be said that the evidence of discriminatory intent is staggering, evidence that us in the general public were bombarded with pre-election and after. And, in my opinion, the Executive Order Muslim Ban is "per se" unconstitutional because it is a "Muslim Ban" and while the administration tried to walk back from their own nomenclature, they are stuck with it.

What I am saying is that a religion based ban by any other name still smells the same and to carry the Shakespearean reference even further, the 9th Circuit is obviously well aware that something is rotten in Washington D.C..

Moreover, how the current administration could argue that their intent was non discriminatory flabbergasted me. It should flabbergast you. It is almost perjurious. And the 9th Circuit emphasized that the Executive's intent was an important piece of evidence stating that, "it is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal protection claims." This means, in laywoman's terms that the evidence from the Executive's own mouth calling this a Muslim Ban and his intent of disfavoring Muslims (as well as his cohort's statements like Rudy Giuliani's words) is relevant and admissible into evidence. It means that what the Executive said, before and after the Executive Order was made, does come in.

Ultimately, we all know in America that just because you say it, that does not make it so. Our President had not learned this truth. And, yesterday, the 9th Circuit just taught the President a very much needed lesson.

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