"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Tuesday, February 14, 2017

The lawless 9th Circuit decision regarding President Trump's executive order and the Constitution that is "switched on and off at will" for personal gains of judges

As promised, I am posting a back-to-back analysis between, apparently,

The very first determination for the court is standing to sue.

Standing - that real actionable rights of plaintiffs have been violated by defendants - is a jurisdictional barrier for the court review.

  • green-card holders (lawful permanent residents);
  • F-1 student visa holders and
  • "lawful non-immigrants" (non-resident visa holders with work permission)
were stopped on arrival into the U.S. before they crossed the U.S. border (cleared through U.S. immigration checkpoint), and are now claiming violation of their due process rights under the 5th Amendment and of their 1st Amendment Establishment Clause rights as allegedly having been discriminated on the basis of religion.

Judge Gorton, relying on the U.S. Supreme Court precedent and precedent from federal appellate circuits, including the 2012 precedent from the 9th Circuit (that the 9th Circuit did not cite in its decision, interestingly), found:

1) that aliens who did not clear through immigration checkpoints in U.S. airports, and who are thus outside of the borders of the U.S., do not have a claim of violation of their due process rights, because they do not have any due process rights - as said the U.S. Supreme Court 16 years ago in Zadvydas v Davis, 533 U.S. 678, 693 (2001).

In fact, while Judge Gorton preferred not to touch the issue of whether the green-card holders could be turned away at the immigration checkpoints without any explanation in the airports

(even though, according to the U.S. Supreme Court decision, they can be) -

by saying that as to LPRs, the court no longer has jurisdiction to decide (the case is "moot") because the White House's clarification indicated that the Executive Order does not apply to LPRs -

the U.S. Supreme Court in its decision in Zadvydas in 2001 indicated that individuals who have entered the U.S. illegally have "some" due process rights before they are deported, while those who did not legally cross into the U.S., do not have any due process rights:

see in the above scan from Zadvydas the string of quotation about aliens beyond the U.S. borders having no constitutional rights, with a citation at the end preceded by a "cf" ("compare" - "cf. Mezei, supra, at 212 ("[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law").

So, the bottom line is, even though judge Gorton did not say that, but that follows from the decision and reasoning of the U.S. Supreme Court in Zadvydas - there is no standing to sue whatsoever in aliens claiming they were stopped before they came into the U.S., whatever their immigrant status is.

That is the law, that law was known before people got their green cards and visas, they got those green cards and left the country at their own risk of not being allowed back in on re-entry, they've got their visas without having any guarantees in the law that they will actually be admitted into the country - so, the lawsuit has "no likelihood of success", that is a very polite way to put it.  In other words, the lawsuit, brought by 14 powerhouse lawyers from 4 different law firms, is frivolous.

In addition, judge Gorton has cited a precedent from the 9th Circuit indicating that even if there is clear discrimination against immigrants who are already inside the country (within its border, past the immigration checkpoints), and thus, according to the same Zadvydas case, must be accorded "some" due process, and even if the discrimination has a religious basis, it is still entitled only to a "rational basis review" (Ruiz-Diaz v United States, 703 F.3d 483, 486-87 (9th Cir., 2012), the lowest and most deferential/forgiving level of review by federal courts.

Here is how the 9th Circuit described in 2012, 5 years ago, legal rights against discrimination of aliens WITHIN the U.S. on religious basis:

Applying the "rational basis review", the 9th Circuit has ruled in 2012 in Ruiz-Diaz that religious workers' constitutional rights were not violated, they were merely inconvenienced, which is not actionable in a lawsuit.

Once again, here is the distinction, according to the U.S. Supreme Court, as to rights of aliens in the U.S.:

1) aliens (foreigners of all immigrant statuses) who are located beyond the U.S. borders, which legally means also that they arrived into a U.S. airport or other official entry point, but did not clear through immigration - DO NOT have ANY due process rights whatsoever, see also United States v. Verdugo-Urquidez, 494 U. S. 259, 269 (1990) (Fifth Amendment's protections do not extend to aliens outside the territorial boundaries) cited in Zavdydas;

2) aliens of all kinds who are WITHIN the U.S. borders (cleared through immigration checkpoint or who came into the U.S. illegally) have SOME constitutional rights, but those rights are subject only to a "rational basis review",  Shaughnessy v United States ex rel. Mezel, 345 U.S. 206, 210 (1953), Mathews v Diaz, 426 U.S. 67, 83 (1976),

Here is how the rational basis review is described by the U.S. Supreme Court precedents (which are supposedly binding upon all courts in the United States, including the 9th Circuit) which applies only to aliens WITHIN the U.S. borders - while aliens in the airports had NO constitutional rights whatsoever.

Judge Gorton in Massachusetts federal court, even though he refused to extend the TRO to the plaintiffs, was actually more lenient than the law allowed him to be - he did review claims of aliens who were not allowed to enter into the U.S. under the "rational basis review" (where any conceivable set of facts, not necessarily the set of facts actually used by the government to justify a regulation, is enough to dismiss such a case), even though the "rational basis review" was allowed only for aliens who were already within the country, past the immigration checkpoints, and while aliens who did not legally enter into the country yet, were not entitled to ANY due process protection, according to the U.S. Supreme Court precedent.

What judge Gorton was supposed to do under the circumstances is - dismiss the lawsuit as meritless and without standing, for lack of jurisdiction.

For the 9th Circuit reviewing President Trump's appeal and application for a stay, it should have been no brainer, because the applicable law was exceedingly clear: according to mandatory U.S. Supreme Court precedent, ALL aliens who did not yet enter the country did not have any constitutional rights.

To hold otherwise, as the U.S. Supreme Court pointed out in  United States v. Verdugo-Urquidez, 494 U. S. 259, 269 (1990), would have jeopardized U.S. national security:

"Not only are history and case law against respondent, but as pointed out in Johnson v. Eisentrager, supra, the result of accepting his claim would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries.

The rule adopted by the Court of Appeals would apply not only to law enforcement operations abroad, but also to other foreign policy operations which might result in "searches or seizures."

The United States frequently employs armed forces outside this country -- over 200 times in our history -- for the protection of American citizens or national security. Congressional Research Service, Instances of Use of United States Armed Forces Abroad, 1798-1983 (E. Collier ed. 1983).

Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest.

Were respondent to prevail, aliens with no attachment to this country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters."

In its holding, the U.S. Supreme Court provided that:

"The Court of Appeals' rule would have significant and deleterious consequences for the United States in conducting activities beyond its borders. The rule would apply not only to law enforcement operations abroad, but also to other foreign operations -- such as armed forces actions -- which might result in "searches and seizures."  Under the rule, aliens with no attachment to this country might bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters, and Members of the Executive and Legislative Branches would be plunged into a sea of uncertainty as to what might be reasonable in the way of searches and seizures conducted abroad. Any restrictions on searches and seizures incident to American action abroad must be imposed by the political branches through diplomatic understanding, treaty, or legislation. Pp. 494 U. S. 273-275.

Applications for TROs sought to apply due process and 4th Amendment to "American action abroad" - by asking the court to rule, contrary to the precedent of the U.S. Supreme Court, that aliens located outside of the U.S. borders do have due process rights for the denial of entry into the U.S., and to rule that their detention outside of the U.S. borders may violate the 4th Amendment.

So, the law was clear:

according to the U.S. Supreme Court precedent,

  • aliens of ALL classes
  • located outside of the borders of the United States
  • had NO due process right to claim when they are denied entry by the U.S. government based on considerations of national security -

and, as I already wrote before, pressuring the President to reveal "evidence" he relied upon in issuing the order, and doing it during Internet-broadcasted oral argument and punishing him when his counsel did not reveal any classified information to the entire wide world - the three judges should be impeached for, basically acting as spies for the hostile intelligence communities for whom they tried to spare the effort of spying - as judges who had no top-level clearance (same as everybody from the entire world listening to the oral argument) were pushing the President to produce that evidence for the entire world to see and hear, while having no jurisdiction to even review the claims - for total lack of standing.

If aliens outside of the U.S. did not have a constitutional right of entry or to claim a constitutional violation when such entry was denied, such a jurisdictional barrier (lack of standing) could not be resurrected by derivative means, by asserting rights of third parties in bringing such aliens into the country, such as:

  • family members;
  • employers;
  • "businesses";
  • "states";
  •  "communities" -
for any other reason whatsoever.

So, the two plaintiffs in the 9th Circuit, the states of Washington and Minnesota, suing on behalf of aliens, and on behalf of all states of the United States, also did not have standing, which should have ended the court's review right there.

Based on the law, there should have been a one-page decision in favor of President Trump - "stay of #JudgeJamesRobart's decision granted, the case is remanded to the U.S. District Court for the District of Washington in order to dismiss the lawsuit as lacking standing".

But no, that was, as we know, not the 9th Circuit's decision.

The 9th Circuit, without disclosing its multiple disqualifying conflicts of interest, decided to indulge the states in their zeal, likely supported by presidential candidates (and their donors) who did not win in the past election, to waste major resources of this country on frivolous litigation.

Instead of cutting right through to the U.S. Supreme Court precedent, granting the stay and dismissing the lawsuit of the states, the 9th Circuit issued a 29-page small-font single spaced decision, where the 9th Circuit cited the U.S. Supreme Court precedent that bars jurisdiction of the 9th Circuit - Zavdydas - not on the issue of the court's  lack of jurisdiction,

but on a diametrically opposite issue, claiming that Zavdydas somehow provides for jurisdiction of the 9th Circuit to review such cases (p. 16 of 29):

That was a clear misrepresentation of that case, on the essential issue of the court's jurisdiction.

When aliens located outside of the U.S. borders themselves had no constitutional rights to claim violation of, and thus had no standing to sue for denial of entry, which meant that the 9th Circuit court had no jurisdiction for review of such a claim, no 3rd parties, including the states, could resurrect this lack of standing and overcome this jurisdictional barrier by regurgitating the failed first-hand claim into second- and third-hand claims of states, "employers" or schools. 

You will search in vain the 9th Circuit decision for application of the "rational basis" standard of review - or of any standard of review at all.

The 9th Circuit forged its own standards of review disregarding all precedents, including their own. 

You will search in vain the 9th Circuit decision also for any mentioning of the Ruiz-Diaz case discussed above where the same 9th Circuit, just 5 years ago, in 2012, has ruled that even aliens located already within the borders of the U.S. can be discriminated ON RELIGIOUS BASIS, and that such discrimination is a mere "inconvenience" allowed under the "rational basis review".

Suddenly, all precedents were rejected, all applicable standards of review were rejected, and what remained were the newly invented by the court standing based on "proprietary interests" of state universities - institutions where judges of the court and the court as an entity had financial interests and ties with at least one of them, the Hawaii State University School of Law, providing for unhindered free travel of 9th Circuit judges to the resort location of Hawaii and beyond.

It is interesting that in 2014, when answering the questionnaire for the confirmation in the Senate, one of the judges on the 9th Circuit panel, Michele Friedland, affirmatively pledged to be "bound" and to follow precedents of the 9th Circuit and of the U.S. Supreme Court, whether she agrees or disagrees with them:

After getting what she wanted, getting to that bench, Judge Friedland, as shown above, disregarded all applicable U.S. Supreme Court precedent and the precedent of the 9th Circuit, and was most disrespectful to the President's attorney in oral arguments broadcasted on the Internet - she literally did not allow him to speak and asked questions as if she was an advocate (as she truly was) of state universities, and not a neutral arbiter of a court proceedings.

As I said above, judges Clifton, Canby and Friedland (knowing that they are disqualified from hearing the case because of the court's and judge Clifton's financial conflicts of interest with the Hawaii State University School of Law, and knowing that they have no jurisdiction to review the case because of the U.S. Supreme Court precedent that did not give aliens located outside of U.S. borders standing to sue for violation of due process), practically assaulted the President of the United States for daring to claim that they lack authority to review the case. 

In respect to what and how the 9th Circuit DID consider:

  • "reviewability" of the case in front of them;
  • and President Trump's supposed arrogance to claim (correctly and in reliance on constitutional precedents) that the case in front of the court is not reviewable - because of lack of standing to begin with -
it is interesting to consider some facts from the biography of the 3rd judge of the 9th Circuit panel reviewing the case - William Canby.

In their 29-page decision, these judges pounded the U.S. government mercilessly for raising the issue that 9th Circuit had no authority to review the case - which was true because of Zavdydas, and because aliens beyond U.S. borders had no constitutional rights, according to the U.S. Supreme Court.

The three judges claimed that the "political branches" of the government (legislative and executive) lack "the power to switch the Constitution on or off at will").

The court also indicated that "within our system, it is the rule of the judiciary to interpret the law, a duty that will sometimes required the "[r]esolution of litigation challenging the constitutional authority of one of the three branches", meaning that the court cannot "switch the Constitution on or off at will" in relation to itself, the 3rd, judicial branch, too.

But, that's not what is actually happening.

For example, Judge William Canby, one of the 3 judges on the panel (who, by the way, himself was a professor of a state university in Arizona and thus his invention of "proprietary standing" for state universities in this case has a personal tinge to it), in the two lawsuits for alleged corruption in deciding court cases, here and here, immediately asked the court, before the discovery started, to "switch the Constitution off at will" and to dismiss the lawsuit "for lack of jurisdiction" (reviewability) - by invoking absolute judicial immunity for malicious and corrupt acts on the bench, which is not part of either the Constitution, or any statute, and which is obviously UNconstitutional, because corruption in deciding court cases is a violation of the U.S. Constitution.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009.

But, as the 9th Circuit just said it, there is no such "law" allowing, much less "requiring" a court where every judge of the court has been sworn to uphold the U.S. Constitution, "to switch the Constitution on or off at will".

Actually, if President Trump dares to sue the 3 judges on the panel for failure to disclose that they are joined at the hip with one of the parties in the class litigation, the Hawaii State University School of Law, and for corruptly deciding a case in favor of an institution that provides employment to its law clerks, wining and dining to its judge Clifton, contracting services to the entire 9th Circuit, and free travel to Hawaii and beyond to the 9th Circuit and for judges of the U.S. Supreme Court (appellate jurisdiction for the 9th Circuit, reviewing the 9th Circuit decisions), for whom the 9th Circuit judges serve as "feeder" judges of law clerks -the very first thing that judges Clifton, Canby and Friedland will say on their own behalf will be that the case is UNREVIEWABLE by the court because of their alleged absolute judicial immunity for malicious and corrupt acts.

Moreover, when #JudgeWilliamCanby, who has always worked for the executive (army, prosecution) or legislative branch of the government, and never as a criminal defense attorney, was reviewing a case against a criminal defense attorney assigned by the court for an indigent criminal defendant - who decided to sue that court-assigned criminal defense attorney who had no choice in the assignment by the government - Judge Canby granted immunity to everybody (including himself) BUT that criminal defense attorney, creating a situation that out of 3 participant attorneys in the court proceedings:

  1. the judge;
  2. the prosecutor; and
  3. the public defender
the judge gave himself and the prosecutor immunity from malicious and corrupt acts, but left just the public defender out without any such immunity, ruling that the public defender does not have as important "public" interest as the judge and the prosecutor to "switch the Constitution off" for his benefit.

So, the prosecutor is entitled to immunity for malicious and corrupt acts during prosecution of a criminal case because a prosecutor, in judge Canby's view, "serves broad societal interests and are subject to conflicting claims.  Immunity is necessary ... to insure that they have maximum ability to deal fearlessly with the public.  In contrast, the public defender is obligated to serve the undivided interest of his client", Glover v Tower, 700 F.2d 556, 559 (9th Cir., 1983).

So, somehow, there are "broad societal interests served" to allow judges to sell court cases for money and for prosecutors to fabricate criminal cases against members of the public.

Yet, there are no "broad societal interests served" to provide the same measure of protection, immunity from suit, to a public defender who is ensuring such obviously unimportant (to Judge Canby) "societal interests" as:  
  • ensuring 1st Amendment access to court, 
  • 6th Amendment right to counsel, and through that right,
  • due process right to impartial judicial review, 
  • right to a fair trial before liberty, property or life is taken away;
  • right against unreasonable searches and seizures, and
  • all other constitutional rights, procedural and substantive, that must be protected in criminal proceedings as a matter of U.S. Constitution and public policy.

By the way, judge Pregerson is the judge who was at the district court level at the time of one of the lawsuits for court corruption against Pregerson AND Canby (who was at that time an appellate judge already).   Had the lawsuit been allowed to go through, discovery to be conducted and evidence to develop, both Canby and Pregerson would have been taken off the bench and would not have been able to produce more "precedents" "switching the Constitution on and off at will".

So, the 9th Circuit judges of the panel could only accept "unreviewability" of the case when they were personally sued for damages - then they immediately claim that the Constitution should be switched off for their sake and absolute judicial immunity for malicious and corrupt acts on the bench, meaning, for violation of their constitutional oath of office, should be applied.

Yet, as to other applicable U.S. Supreme Court precedents providing that certain cases are unreviewable by federal courts - because, as in this case, aliens outside of U.S. borders do not have constitutional rights, and thus do not have standing to sue, and thus the court does not have jurisdiction to review cases brought without standing - these judges, once again, for personal interests of their own and of the court (because otherwise they would have hurt "proprietary interest" of an institution they were using as a source of additional income for themselves and/or their law clerks, and for wining and dining and a free oceanside resort location for themselves and for the Supreme Court reviewing their cases), act in a diametrically opposite way, now finding "reviewability" where there is none.

So, jurisdiction in the #9thCircuit apparently exists or does not exist not because it exists or does not exist as a matter of law, but because judges, for personal financial interests and for financial interests of institutions that provide material benefits to such judges, their superiors and their court personnel, choose to find or not to find such jurisdiction, no matter what the law says.


“This decision from the 9th Circuit is very significant for the employers in the United States and institutions in the United States because it sets out in the decision a number of points regarding the rights about the foreign nationals, U.S. residents, citizens and companies and institutions, employers, really, have in the United States with respect to the ability of their employees to travel in and out of the United States for purposes of research, meetings and other vitally important aspects of science, and business, and commerce in the United States. 
So, this decision has wide-ranging implications for due process rights and the future determination, perhaps, by the U.S. Supreme Court, of the rights of individual states and employers in contrast with the right of the President of the United States to control the inflow of immigrants and others into the United States to protect the country.

So, it’s an important decision, because there are many statements in the written decision which support the notion that employers have the right to have vitally important employees and others who are supporting the work of the institution or the company to come into the country and freely travel back and forth to do this important work and not tie their hands and hinder the important work that the United States needs to carry out.


So, the decision was obviously not only unlawful, not only made with complete disregard of applicable mandatory precedent, not only made without disclosure of multiple disqualifying conflicts of interest of the court and its judges and law clerks, but was also clearly result-oriented, to help, specifically, employers, thwart the power of the President and his top-secret national security considerations in order to provide cheap foreign labor for the country's rich employers, for purposes of employers "proprietary interest" - for purposes of the bottom line.

I wonder how much these judges were paid - in money and/or benefits, tangible or intangible, to them, their families and/or friends, or in promises of future benefits - in order to arrive at this unlawful decision.

After all, they can switch off the Constitution at will for themselves, invoking absolute judicial immunity from malicious and corrupt acts in deciding a case, and they are not reachable by discipline either when acting corrupt in a court case.

Of course, judicial and prosecutorial immunity was given by judges in reliance on a concept that alternative methods of discipline are available - and, since they are not available because the federal statute, Judicial Misconduct and Disability Act, 28 USC 352, does not allow discipline of federal judges for conduct on the bench, judicial immunity must not then apply - but Judge Canby successfully invoked it, at least twice, and got the Constitution that he is sworn to protect switched off for his benefit - so why would these judges care?

They are completely unaccountable to the public for whatever corrupt acts they do.

Try impeaching them.  I mean it.  Try.

Tomorrow, there will be a hearing in the 9th Circuit whether they will or will not hear the same case "en banc" - by the entire court (which in the 9th Circuit means, by 11 out of 29 active judges, which is not the entire court, and not en banc in its legal sense).

I did not see any attempts by the 9th Circuit to finally disclose its conflict of interest in the case and have the decency to recuse from the case.

One thing I know is - the Constitution cannot be upheld by breaking that same Constitution.

The law cannot be upheld by breaking that same law.

And, that is exactly what the 9th Circuit did.  Broke the law.

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