The dissenting judges objected that there is an “obligation to correct” the “manifest” errors of the panel. It called those errors “fundamental” and even questioned the manner in which the panel reached its decision with a telephonic oral argument. The dissent raised many of the problems that various commentators have raised, including myself. The lack of consideration to opposing case law, failure to address the statutory authority given to the President, and the sweeping dismissal of executive authority are obvious flaws. (These problems are also apparent in the ruling in Hawaii, though it was based on establishment rather the due process grounds) The dissenting judges refer to the “clear misstatement of law” in the upholding of the district court. so bad it compelled “vacating” an opinion usually mooted by a dismissed case.
The judges said that the panel simply “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972). Indeed, the panel noted that the panel missed entirely the rulings in Kerry v. Din, 135 S. Ct. 2128 (2015) and Fiallo v. Bell, 430 U.S. 787 (1977). In a statement that is particularly probative of the Hawaii ruling, the Supreme Court in Mandel recognized that first amendment rights were implicated by the executive action but found that “when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment 11 interests of those who seek personal communication with the applicant.”
https://jonathanturley.org/2017/03/...ent-rebuking-the-panel-in-immigration-ruling/
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The upshot is that the president's statutory authority supercedes any 1st Amendment considerations---to whatever extent they have any merit. As the dissenters pointed out, previous administrations put temporary stays on Muslim majority countries---but for some reason, no one remembers it lol.
