Corte Appello del 9th Circuit sentenzia costituzionale l’operato di Mr Trump.

Giuseppe Sandro Mela.

2019-04-16.

In America è in corso una guerra civile che si combatte all’ultimo sangue.

Il terreno di scontro è la composizione delle Corti Federali di Appello, i giudici delle quali sono di nomina presidenziale ma devono essere approvate dal senato, con diverse modalità a seconda del grado. Al momento attuale, gran parte di queste Corti è composta da giudici liberal democratici, ed emette sentenze di conseguenza.

Questo potere giudiziario ha la potestà di annullare le decisioni presidenziali, anche se in via transitoria, perché poi la Corte Suprema ristabilisce lo stato di diritto. Ma quanto sia interesse di Mr Trump di prendere il controllo delle Corti Federali è fuori discussione: è semplicemente evidente.

Mr Trump ha avviato un lavoro sottile ma deciso di nomine di giudici, per riequilibrare la situazione. È già riuscito a far nominare Sua Giustizia Gorsuch e Sua Giustizia Kavanaugh nella Corte Suprema, ed ha già ribaltato la composizione della Corte di Appello del 3th Circuit. Il lavoro prosegue operoso anche nei confronti del 9th Circuit, ove i liberal democratici avevano una schiacciante maggioranza.

White House plans to send 50 judicial nominees to new Congress

White House names 3 nominees for 9th Circuit after conservative attacks

«After a day of attacks from commentators on the right, the White House announced Wednesday night that it planned to nominate three judges for the California seats on the 9th US Circuit Court of Appeals.

The left-leaning 9th Circuit has been a frequent target of President Donald Trump, but when the White House last week announced its plans to renominate dozens of judges who had not received a hearing during the last Congress, those who had been previously nominated for the 9th Circuit weren’t on the list.»

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White House nominations to 9th Circuit set off firestorm

«While President Donald Trump has had unprecedented success in reshaping the judiciary by placing two justices on the Supreme Court and a record breaking 29 judges on federal appeals courts, he believes he has been stymied by what he considers the liberal bent of the 9th US Circuit Court of Appeals. It’s a powerful court headquartered in San Francisco that has jurisdiction over nine West Coast states and two territories. ….

….

Now the President is taking the gloves off, hoping to eventually flip that court.»

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In una sintesi supersemplificata, Mr Trump sta sia nominando ai posti vacanti nel 9th Circuit dei giudici repubblicani, sia sta tentando un colpo che, se riuscisse, sarebbe magistrale.

«the White House last week announced its plans to renominate dozens of judges who had not received a hearing during the last Congress»

A soldoni: i giudici nominati dalla pregressa Amministrazione Obama senza audizione in Senato potrebbero essere rimpiazzati.

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I giudici liberal democratici del 9th Circuit stanno sentendo già le mani di Mr Trump attorno alla loro gola.

Se Mr Trump riuscisse nel suo piano, l’intero sistema delle Corti di Appello Federale finirebbe in mano ai repubblicani, che si assicurerebbero il governo per molte decine di anni.

Il coltello alla gola, ed in mano ad uno che lo sa usare, ha determinato un ribaltone insperato ed insperabile nei Giudici del 9th Circuit.

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Il The New York Times ha tenuto questa notizia in evidenza per ventitre minuti, poi la ha rimossa disperdendola nell’ambiente.

«A federal appeals court said Friday that the Trump administration could temporarily continue to force migrants seeking asylum in the United States to wait in Mexico while their cases are decided.»

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«A three-judge panel of the United States Court of Appeals for the Ninth Circuit issued a stay of a lower-court ruling four days earlier that blocked the administration’s protocol. The appeals court will consider next week whether to extend that stay — and allow the Trump administration policy to remain in effect for longer.»

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«The administration in December announced its new policy, called the migration protection protocols, arguing that it would help stop people from using the asylum process to enter the country and remain there illegally. President Trump has long been angered by so-called catch and release policies, under which asylum seekers are temporarily allowed in the United States while they wait for their court hearings»

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«On Monday, Judge Richard Seeborg of the United States District Court for the Northern District of California issued an injunction against Mr. Trump’s new protocols, saying that the president did not have the power to enforce them and that they violated immigration laws»

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«Judge Seeborg said in his ruling that the protocols did not include “sufficient safeguards” to comply with the Department of Homeland Security’s obligation against returning migrants to places where their “life or freedom would be threatened.” …. On Friday, as Judge Seeborg’s injunction was set to go into effect, a three-judge panel for the Ninth Circuit issued the temporary stay»

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«In a tweet late Friday night, President Trump wrote: “Finally, great news at the Border!” He has previously criticized the Ninth Circuit, which is based in San Francisco, saying that the court always ruled against him. While that is not always true, the administration’s track record in the circuit has been poor.»

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«The 9th Circuit Court has been a frequent target for Trump’s criticisms of the judicial system, which has blocked his immigration policies on numerous occasions» [Reuters]

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La maggioranza dei giudici della Corte di Appello del Nono Circuito sono in grande maggioranza liberal democratici. La cosa non sarebbe fastidio a nessuno se codesti giudici non fossero prima liberal democratici e dopo, solo dopo, anche giudici che applicano le leggi in ossequio alla Costituzione.

«At the end of 2016, the court was authorized 29 judgeships, with four of those seats vacant. Of those 25, 18 were appointees of Democratic presidents and seven were appointees of Republicans. Currently, there are six vacancies. Sixteen judges are appointees of Democratic presidents and seven are appointees of Republican presidents.»

Come correttamente fa notare Reuters:

«The 9th Circuit Court has been a frequent target for Trump’s criticisms of the judicial system, which has blocked his immigration policies on numerous occasions»

Quando poi la causa è portata davanti la Suprema Corte, invariabilmente, con deprimente regolarità, l’augusto consesso annulla la sentenza emessa dai giudici del Nono Circuito.

Ma sono passati dei mesi di blocco dell’attività governativa, e tutti i media controllati dai liberal democratici sbandierano quella sentenza come se fosse definitiva.

Se è vero che la politica non dovrebbe interferire con i procedimenti giudiziari, sarebbe altrettanto vero constatare che i poteri giudiziari non dovrebbero interferire con la politica. Nel caso in oggetto, bloccare in tutta la Unione gli atti governativi dell’Amministrazione Trump con argomenti così speciosi da lasciare perplessi anche gli studenti di una scuola di giurisprudenza (sono parole della Suprema Corte).

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Adesso le cose sembrerebbero essere cambiate.

Judge Seeborg aveva emesso una sentenza che pareva un manifesto politico, privo di un ubi consistat giuridico: si era allargato fin troppo. Fino al punto che persino la Corte di Appello Federale del Nono Circuito ha rigettato quella sentenza emessa. E si pensi che il tutto si è consumato in meno di una settimana ….

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The New York Times. 2019-04-13. Rule Keeping Asylum Seekers in Mexico Can Temporarily Proceed, Court Says

Migrants seeking asylum at the United States’ southwestern border have to stay in Mexico while their asylum cases are decided, under a Trump administration policy that was temporarily allowed to remain in effect Friday.

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A federal appeals court said Friday that the Trump administration could temporarily continue to force migrants seeking asylum in the United States to wait in Mexico while their cases are decided.

A three-judge panel of the United States Court of Appeals for the Ninth Circuit issued a stay of a lower-court ruling four days earlier that blocked the administration’s protocol. The appeals court will consider next week whether to extend that stay — and allow the Trump administration policy to remain in effect for longer.

The administration in December announced its new policy, called the migration protection protocols, arguing that it would help stop people from using the asylum process to enter the country and remain there illegally. President Trump has long been angered by so-called catch and release policies, under which asylum seekers are temporarily allowed in the United States while they wait for their court hearings.

On Monday, Judge Richard Seeborg of the United States District Court for the Northern District of California issued an injunction against Mr. Trump’s new protocols, saying that the president did not have the power to enforce them and that they violated immigration laws.

Judge Seeborg said in his ruling that the protocols did not include “sufficient safeguards” to comply with the Department of Homeland Security’s obligation against returning migrants to places where their “life or freedom would be threatened.”

On Friday, as Judge Seeborg’s injunction was set to go into effect, a three-judge panel for the Ninth Circuit issued the temporary stay.

In a tweet late Friday night, President Trump wrote: “Finally, great news at the Border!” He has previously criticized the Ninth Circuit, which is based in San Francisco, saying that the court always ruled against him. While that is not always true, the administration’s track record in the circuit has been poor.

The Justice Department, which appealed Judge Seeborg’s decision, argued that the injunction would “impose immediate, substantial harm on the United States, including by diminishing the executive branch’s ability to work effectively with Mexico to manage the crisis on our shared border.”

The Ninth Circuit will consider next week whether to keep the stay — and Mr. Trump’s protocols — in place during the appeal.

Judy Rabinovitz, the deputy director of the Immigrants’ Rights Project at the American Civil Liberties Union, who argued the case, said she expected that decision to come next week.

“The question will be, can the government continue to implement the policy while it appeals it to the Ninth Circuit,” she said. “Obviously, we don’t think it should be able to.”

She called the policy unlawful and cruel.

“We think it should be stopped,” she said.

Lawyers for the Justice Department did not immediately respond to requests for comment.

The appeals court’s decision comes as the nation’s immigration system may have reached a breaking point as migrants increasingly arrive at the country’s southwestern border with Mexico.

The flow of migrant families has reached record levels, with February totals 560 percent above those for the same period last year. Many are seeking asylum, in which they have the burden to show evidence of past persecution or testimony that establishes the “well-founded” fear that they would face danger if they return home.

The Trump administration’s migration protection protocols were an attempt to deter migrants. Mexico’s government reluctantly agreed to house the migrants in December.

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The New York Times. 2018-12-20. U.S. Will Send Migrants Back to Mexico as They Wait on Asylum Claims

The Trump administration announced a new migration policy Thursday that will require asylum seekers who cross the Mexican border illegally to return to Mexico while their cases are decided.

The United States has been trying for months to get Mexico’s leaders to agree to house those migrants, and on Thursday Mexico’s new government reluctantly agreed.

The American secretary of homeland security, Kirstjen M. Nielsen, said the move would prevent people from using the asylum process as a way of slipping into the United States and remaining in the country illegally.

“Today we are announcing historic measures to bring the illegal immigration crisis under control,” she said. “Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates.”

In a statement, she said, “‘Catch and release’ will be replaced with ‘catch and return.’”

The new policy, announced as the president and Congress were at odds over funding for a border wall, amounts to the boldest effort yet by the Trump administration to discourage people from seeking refuge in the United States. It follows a series of other curbs that had been introduced, including the separation of migrant families, which was later reversed in an executive order after a public outcry.

The migrant issue has put considerable pressure on the United States’ relationship with Mexico as Trump administration restrictions have left thousands of asylum seekers stranded in Mexican border towns, overwhelming local shelters and resources.

The new policy would also alleviate pressure on American border agents, who for months have argued that they are overwhelmed by the record-breaking number of migrant families seeking asylum.

Mexican officials say they were told of the latest American decision on Thursday morning in letters from the Department of Homeland Security and the United States chargé d’affaires in Mexico, John S. Creamer. The letters stated that the returns would begin immediately under a section of the Immigration and Nationality Act.

The Mexican Foreign Ministry has essentially agreed to accept the decision by the United States, and will be forced to house thousands of people from other countries, particularly from Central America, as they await their asylum decisions.

A spokesman for the Foreign Ministry, Roberto Velasco, said the move did not represent an agreement between the two countries, but rather “a unilateral move by the United States that we have to respond to.”

Mr. Velasco said the rules would apply only to new asylum applicants, not to individuals who have already entered the United States with processes underway. The United States did not initially make clear if the policy applied only to new applicants.

The administration’s move is a sharp departure from decades of American asylum practice, according to legal experts and advocates. The United States has long accepted individuals from across the world fleeing harm or persecution in their home countries.

The program is almost certain to be challenged in the United States courts by human rights groups and advocates. Many have already claimed that sending persecuted individuals to Mexico, one of the most violent countries in the world, places them in harm’s way.

“This deal is a stark violation of international law, flies in the face of U.S. laws passed by Congress, and is a callous response to the families and individuals running for their lives,” said Margaret Huang, the executive director of Amnesty International.

While the individuals would be allowed to return to the United States for court hearings, they would remain in Mexico under a humanitarian visa until their process is completed.

Mexico’s decision to accept the asylum seekers is likely to be seen as a capitulation by the new government to President Trump, who proclaimed over Twitter two weeks ago that Mexico would house asylum applicants to the United States on its soil.

The decision to turn Mexico into a waiting room for migrants seeking entry to the United States is likely to stir anger in Mexico.

Mexico has found itself in the center of Mr. Trump’s ire over migration policy, with the American president lambasting the country for not doing enough to inhibit the passage of Central Americans and others through its territory.

But while Mr. Trump has proposed building walls along the border, Mexico’s new president. Andrés Manuel López Obrador, has taken a different approach.

He and his foreign minister announced a new development plan for southern Mexico and Central America that would require some $30 billion in aid to address the root causes of the migration.

This week, the United States applauded the proposal, and promised to work with the Mexicans to realize that plan with more than $5 billion. But that money did not reflect a new commitment of funds — for the most part, the United States government was already spending it in the region.

“This is total capitulation in exchange for the fig leaf of a nonexistent development plan with no financial commitments by the U.S. and no timetable,” said Jorge Castañeda, a former Mexican foreign minister.

Shelters for asylum seekers in Mexico have already been overwhelmed by people who would previously have been quickly processed into the United States, but now have to wait weeks or months to be allowed in under curbs put in place by the Trump administration.

As with many of the administration’s harshest immigration plans that have been introduced with little notice, it was unclear on Thursday how exactly the new policy would be carried out.

A senior Department of Homeland Security official, who spoke on the condition of anonymity, said that the announcement on Thursday came as a surprise to many people in the agency’s leadership, as well as the rank and file who would be charged with carrying it out.