If the 32 column inches of Cynthia Dill’s Feb. 12 column regarding President Trump’s executive order on immigration were an appellate court opinion, 31.5 inches of it would be dictum (“bull slinging,” in legal parlance) and the remaining half-inch the substance – her single point being that she’d rather have courts deciding national security issues than the president.
Given the nature of American legal education, this is not surprising. Ever since law school dean Christopher Columbus Langdell instituted the Socratic case method of instruction at Harvard in 1870, which was eventually aped by every other American law school, lawyers have learned the law not by studying the Constitution or statutes enacted by legislatures or Congress, but rather by studying appellate court decisions, in which judges determine the law.
One of the few things I remember from my law school days were the first words of our civil procedure professor in our first class, asking “Ms. A” (bad luck to be top of the alphabet): “What was the holding in Pennoyer v. Neff?” And, so it went for three years. Constitutional law wasn’t even a first-year course, and studying basic statutory law was viewed as being unintellectual. Nothing could be more black-and-white clear than the language of Title 8, U.S. Code Section 1182(f), which states: “… the President … may suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate,” language both ignored and uncited by the self-styled “smarter than us” judges of the 9th Circuit.
It’s the legal elite giving the middle finger to the Constitution and its grant of presidential preeminence on national security issues and to Congress and the American people in their disdain for the plain meaning of words.
Middle finger also extended, Cynthia Dill concurs.
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