Could the 9th Circuit “Travel Ban Case” Judges Be Removed from the Bench?

“THE VERY DEFINITION OF TYRANNY”

by Montgomery Blair Sibley, ©2017, blogging at Amo Probos

(Feb. 12, 2017) — A  Public Policy Polling survey released Friday showed that  46 percent are for impeaching the 45th president and the same percentage are against the extreme measure.  Of course, Public Policy Polling has been intelligently criticized for itS poor polling practices and extreme liberal bias. I think this is particularly true on a poll asking non-legally-trained individuals about “impeaching” the President.  Clearly, President Trump can only be “impeached” pursuant to the U.S. Constitution Article II, §4 which states: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

Even those most vehemently opposed to President Trump have not claimed that he has committed treason which is defined at 18 U.S. Code §2381 as “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.”  President Trump is not levying “war” against the United States.  Just as clear, no one is alleging that President Trump has accepted “bribes” as President.

Which leaves the question of whether by any stretch of the imagination President Trump has committed any “other high crimes and misdemeanors.”  The phrase “high crimes and misdemeanors” is not defined in the Constitution or in statute. It was, however, used in many of the English impeachments, which were proceedings in which criminal sanctions could be imposed upon conviction. See: Federal Impeachments, 64 U.P.Law Review 651, 676-695 (1916). Thus, under the broadest possible definition of “high crimes and misdemeanors,” President Trump would have to be accused of some sort of criminal infraction.  This, of course, is an accusation that no one is credibly making.

Hence, for the Public Policy Polling to ask “Would you support or oppose impeaching Donald Trump?” is akin to asking: “Do you hit your wife with your right hand or your left?”  It assumes facts that are not present in order to evoke an emotional response to the end of supporting a public narrative for political ends.

Which brings me back to the Ninth Circuit Court of Appeals Judges William Canby, Richard Clifton and Michelle Friedland and the now-pertinent question: “Can these judges be removed from their judicial offices?”  I believe they could – and should – be removed and here is why:

The U.S. Constitution at Article III, §1 states: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour. . .” Thus, if Judges Canby, Clifton and Friedland engaged in the opposite of “good behaviour” – or stated another way for convenience, “misbehavior”– they could be removed from their judicial offices.

“In England, the Crown was obligated (presumably by custom) to lend its sanction to forfeiture [of judicial office] cases when a private citizen complained of misbehavior.” 4 Matthew Bacon, A New Abridgment of the Law, 416 (London, Worrall 3rd Ed. 1768).  English law provided a  proceeding to forfeit the office by a writ of scire facias. An act “contrary to what belongs to his office” resulted in forfeiture of the office appears in the Abridgments of Viner and Bacon and in the Digest of Cromyns, which faithfully reflect these cases. Did Judges Canby, Clifton and Friedland, by entering their Travel Ban Order, act “contrary to what belongs to [their] office”?

I say: Yes. “What belongs to” a judicial office was clearly laid out in in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) where Chief Justice Marshall for the U.S. Supreme Court stated: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.. . .This is of the very essence of judicial duty.”

Here, the statutory provision President Trump cited as the legal basis for his order – 8 U.S. Code §1182 – requires the President to give a reason for suspending visas. Such reasons can include anything from individuals having spreadable diseases to them posing a risk to the American public’s safety.

However, in their Travel Ban Order, Judges Canby, Clifton and Friedland ignored 8 U.S. Code §1182 as apparently inconvenient to their politically-motivated decision. This ignoring of their “judicial duty” to decide on the “operation of each” – here 8 U.S. Code § 1182 and their claimed First and Fifth Amendment concerns – breaches their Marbury duty.

Thus, I argue that Judges Canby, Clifton and Friedland have “misbehaved” and thus are subject to an action to forfeit their judicial offices. Otherwise, judges can usurp power not delegated to them and act like an unelected, super-legislature and decide cases and create law without any reference to conflicting and settled principles of law and statutes.

This is, of course, the very definition of tyranny. But that is just my opinion.

5 Responses to "Could the 9th Circuit “Travel Ban Case” Judges Be Removed from the Bench?"

  1. Joseph J. Herschberger   Thursday, July 20, 2017 at 3:09 PM

    Leftist activist Judges(a majority of them “Obama”appointees) continue the work of ILLEGAL President “Obama”who, not properly vetted, violated the NATURAL BORN CITIZEN REQUIREMENTof the USA CONSTITUTION but got elected DESPITE his FAILURE to QUALIFY.So setting a precedent of violating America’s Constitution, all of this FRAUD President’s appointees CONTINUE the Violating precedent set by “Obama”. Federal Judges have NO authority, whatsoever, in overruling decisions by a USA President on immigration! For these LAWLESS ARROGANT judges to do so numerous times already, thereby ENDANGERING the lives of USA citizens qualifies them for IMMEDIATE impeachment! These Federal Judges went BEYOND the authority that their office holds and in DEFIANCE of the President USURPED the Legitimate AUTHORITY that belongs to the USA President,ALONE! Because this judicial defiance was planned, it COULD be considered TREASON! But because the Republican Majority Congress are a group of collective MORAL COWARDS, these rebellious judges WILL get away with ALL their violations and they KNOW it.

  2. Janie Ripley   Monday, February 13, 2017 at 10:36 AM

    Who can remove these 3 judges. Is it another liberal court, is it the President, or the Supreme Court?

  3. Dave   Monday, February 13, 2017 at 10:11 AM

    A US citizen can’t find a Federal Judge to rule on Obama’s fake Birth Certificate, but when a real President tries to stop foreign invaders these judges use their courts to obstruct him. Judges Canby, Clifton and Friedland display their contempt for all true Americans.

  4. Stephen Hiller   Monday, February 13, 2017 at 7:54 AM

    Long overdue, and maybe some other activist judges would take notice.

  5. Ed Sunderland   Monday, February 13, 2017 at 12:32 AM

    President Trump can stop all immigration for everyone according to the law and maybe he should do that or dissolve the ninth……..

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