South Carolina Republican Rep. Trey Gowdy, a former federal prosecutor, took apart the 9th Circuit Court of Appeals ruling that blocked President Donald Trump’s immigration pause Thursday night.
Gowdy said in a statement that no one should be surprised with the ruling that came from the court and that the 9th Circuit “has a well-earned reputation for being presumptively reversible. Unlike the district court order, there is at least a court opinion which can be evaluated.”
“Of particular interest is the 9th Circuit Court of Appeal’s suggestion that even those unlawfully present in the country have certain due process rights with respect to immigration,” Gowdy continued. “The Court cites Zadvydas v. Davis, 533 U.S. 678, 695 (2001) for the proposition that even aliens who have committed and been convicted of certain crimes while in the U.S. unlawfully may have due process rights with respect to travel to or from the United States. In addition, the Court ventures curiously into its own role in reviewing a President’s national security conclusions.”
Gowdy said in his statement of the 9th Circuit’s opinion reference to the 2001 case that “Legal permanent residents, non-citizens with current valid visas, non-citizens with expired visas (which were once valid), aliens with no legal standing, aliens who have committed a crime but have not yet been deported and aliens who are not even present in the United States but seek to come are just a few of the categories the Supreme Court will need to determine what process is due, if any.”
Zadvydas v. Davis was a Supreme Court case that essentially mandated the release of thousands of criminal aliens into the United States, two months prior the attacks of Sept. 11, 2001. The case centered around the long-term detention of two criminal aliens.
Immigration authorities could not find a country who would accept the aliens in question in the case within the statutory 90-day removal period. In an attempt to continue to detain the aliens after 90 days, the government invoked a statute that allows the attorney general the authority to detain an alien for more than 90 days if the AG found it necessary to do so for public safety circumstances.
The Supreme Court, though, disagreed with the government’s interpretation of the statute and ruled the statute, as used, violated aliens’ constitutional rights to due process.
The Center for Immigration Studies notes on its website that “The Court was well aware that it was stepping on the political branches’ toes and weakening congressional and executive plenary power over immigration. The majority acknowledged the ‘greater immigration-related expertise of the Executive Branch’ and that ‘principles of judicial review in this area recognize primary Executive Branch responsibility.'”
The Supreme Court’s dissenting justices wrote in their opinion that the case was more about “a claimed right of release into this country by an individual who concededly has no legal right to be here” and concluded that there is “no such constitutional right.”
They also wrote the majority “offered no justification why an alien under a valid and final order of removal — which has totally extinguished whatever right to presence in this country he possessed — has any greater due process right to be released into the country than an alien at the border seeking entry.”
Gowdy added to his criticism of the 9th Circuit, saying, “It seems clear to most of us — not on the 9th Circuit Court of Appeals — there is no right to come to this country for non-citizens of the United States. It also seems clear judges are neither in a position, practically or jurisprudentially, to second guess national security determinations made by the Commander in Chief. There is a reason we elect the Commander in Chief and do not elect federal judges.”
Following the 9th Circuit’s decision, President Trump defiantly tweeted:
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017