While some argue they are getting less activist... they are still the ninth circuit.
http://www.forbes.com/sites/danielf...nth-circuit-immigration-hearing/#8c56c004728a
Trump administration lawyers are likely to cite the Ninth Circuit's own decisions -- including one denying special rights to non-citizens based on alleged religious discrimination -- as they argue to lift a federal judge's temporary restraining order blocking the President's executive order banning most travelers from seven Muslim-majority nations.
The California appeals court has scheduled a telephone hearing for 6 p.m. Eastern today. At it, lawyers representing 17 states and the District of Columbia will try to convince a panel on the Ninth Circuit to leave the TRO in place because lifting it will "resurrect the chaos" caused by the travel ban and harm their universities and medical centers by preventing students and employees from entering the country. They also argue they have an interest in preventing violations of Establishment Clause prohibitions against religious discrimination.
There's a big problem with those arguments that can be summed up with two words: Rational basis. The Ninth Circuit itself ruled in a 2012 decision,
Ruiz-Diaz v. U.S., that courts must "defer to the political branches in the immigration field" and that the proper standard of review for constitutional complaints like the ones the states make is extremely loose. Under rational basis review, virtually any justification suffices, compared with strict scrutiny, where the government must show it can't accomplish its goals in any less onerous way. The appeals court also rejected the due-process claims of the plaintiffs in that case, who said their religious visas were unfairly being singled out for tighter review because of the government's concerns about potential fraud. The court said the plaintiffs had no “legitimate claim of entitlement” to speedier review of their visas.
Adding to the difficulties for the states is
Kerry v. Din, a 2015 Supreme Court decision that reversed the Ninth Circuit on whether a former member of the Taliban was entitled to judicial review of the denial of his visa to join his spouse in the U.S. Din, a U.S. citizen, argued her constitutional rights were violated by the denial of her husband's visa. "There is no such constitutional right," the court concluded, in a 5-4 decision penned by Justice Antonin Scalia.
Most of the government's best arguments are laid out by U.S. District Judge Nathaniel M. Gorton in Massachusetts, who refused to extend a similar injunction by another judge in
a Feb. 3 order. In that ruling, Gorton noted that the Trump administration excluded lawful permanent residents from the executive order on Feb. 1, mooting the claims of the primary plaintiffs in the Massachusetts case. Furthermore, the judge wrote, "here is a distinction ...between the constitutional rights enjoyed by aliens who have entered the United States and those who are outside of it.”
Deciding who gets to enter the country is a “fundamental sovereign attribute” left to the executive and legislative branches, he wrote, one that is “largely immune from judicial control.”
“There is no constitutionally protected interest in either obtaining or continuing to possess a visa,” the judge continued, citing a Supreme Court decision saying aliens outside the U.S. have
no right of judicial review of a visa denial. Even if resident aliens have their visas revoked, the judge wrote, they don't have a due-process argument unless the government also seeks to deport them. Then they have a constitutional right to notice and a hearing where they can present their case.
