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

As a result of their Travel Ban Order, Ninth Circuit Court of Appeals Judges William Canby, Richard Clifton and Michelle Friedland now face this 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 un-elected, 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.