What a law firm, a trial judge, and a visa lottery reveal about who runs America
"We live in a judicial tyranny if there's no standing requirements or if there's only a hand-waving to issues of standing such that really anybody would qualify. That's really the core issue here."
That is Andrew Branca, reacting to the Ninth Circuit's order of October 29, 2026. He is blunt, and he is right about the core issue.
Here is what happened. On October 14, a federal judge in San Diego ordered the Secretary of State to announce a worldwide visa lottery by midnight the next day and to open it by midnight on October 18. Three weeks earlier, the government's lawyer had told her the job was a "literal impossibility." She ordered it anyway. She did it at the request of a law firm, Red Eagle Law, L.C. The firm was not a visa applicant. No applicant stood beside it. It said the delay was bad for business.
I am pro-American. I believe in faith and in family, and in the right of the people to be safe in their homes and their property. Those things rest on a constitutional republic, where the people decide through their elected representatives who joins the national household and on what terms. This case is about who decides.
What the firm asked for
Red Eagle sued as the only plaintiff. Its own filing says it "now faces an existential threat." The injury it pleaded was its own revenue. Its owner's declaration says only that "a large percentage of Red Eagle's clients have been Diversity Visa selectees, which in turn provides a significant proportion of Red Eagle's revenue." No numbers.
The firm's own brief also admitted the rule it had to meet. A mandatory injunction "orders a responsible party to act and is particularly disfavored." In the Ninth Circuit the facts and law must "clearly favor" the movant. The firm asked for exactly that kind of order, and it asked for thirty days of registration. No hour. No day. No web address. The complaint contains none of the calendar that followed.
What the judge did
The calendar the judge wrote lasted three hours and thirty-nine minutes. The government moved to amend it that afternoon, and the court granted the motion. The new dates were October 29 to announce, November 1 to open, and December 3 to notify selectees.
Then came the amended order of October 21. It tells the State Department to post its notice at a named web address. It lists what the notice must say. It picks the channels, including the Federal Register. A court enforcing a duty tells an agency to act. This order told an agency how to write and where to post its own public notice. The Supreme Court warned against exactly that in Norton v. Southern Utah Wilderness Alliance: a court limited to a "discrete agency action" ends up "injecting the judge into day-to-day agency management." Here the judge did the injecting, and kept the right to revise.
Her best ground, as reported, was the Department's silence: "The State Department also offered no reason as to why the temporary postponement announced in November 2025 turned into an indefinite suspension extending into the start of fiscal year 2027." That is a fair point against the Executive. But under State Farm, an agency that fails to explain itself is sent back to explain. It is not handed a calendar of midnight deadlines. And it does not answer the first question: whether this plaintiff could ask for any remedy at all.
What the Ninth Circuit said
The panel did not defend the Department. It wrote, "We do not endorse the Department's failure to open the lottery registration period." It stayed the order because the firm was outside the zone of interests Congress protected: "Red Eagle stands as the sole plaintiff in this suit; it did not join to the suit any prospective Diversity Visa applicants, nor has it claimed to presently represent such applicants."
On the plasma companies in an earlier case, the panel said: "The same plainly cannot be said of the Diversity Visa Program, which was enacted to encourage immigration, not generate revenue for law firms."
Judge N. Randy Smith wrote separately on Article III. "One cannot get standing to challenge a government action simply because one believes the government is acting illegally." And: "Those problems are the responsibilities of Congress or the President."
Branca reads the order aloud on his show and draws the lesson in his own words. The panel, he says, is "not with them on the merits, but they're with them on this question of standing." And then: "We have elections for that kind of complaint. It's not supposed to happen in federal court."
He also attacks the judge personally, including where she was born. That is not an argument, and I do not adopt it. His constitutional point stands without it. The record corrects him in two small places. The order did not admit 55,000 people. It required registration and then processing "in accordance with its usual procedures and standards, subject to applicable law." And he misstates a date. His core claim does not depend on either.
The Executive is not excused
I will not defend the State Department. On November 5, 2025, it said it was "implementing certain changes" and would announce the registration date "as soon as practicable." No date came for almost a year. The Constitution tells the President to take care that the laws are faithfully executed. A year of silence about a statute is not an explanation. The same Constitution that stops a judge from legislating stops a department from repealing by inaction.
The security record matters too. After the December 2025 shooting at Brown University, officials identified the suspect as a Portuguese national who entered through the lottery in 2017. The Department then paused issuing diversity visas. But that concerns people already selected. It does not explain why registration never opened, and the November notice came before the shooting. Americans are entitled to be told what their government is doing and why.
The best case for the other side
The other side has a real argument. Diversity visa eligibility ends with the fiscal year, so a delay that runs out the year kills the program. Congressional authority could survive on paper and disappear in practice. And the zone-of-interests test is "not meant to be especially demanding."
None of that reaches the first question, which is who may come to court. Standing is not a favor courts hand out when the cause is good. Selectees exist, and they have sued. In Medani v. Trump, a federal court ordered the Department to resume processing for fiscal year 2026 selectees. After the stay, the firm's own owner told Newsweek he is looking for a visa applicant to serve as plaintiff. That concedes where the claim lives.
Who decides
Congress made the lottery in 1990. It authorizes 55,000 visas a year, about 50,000 of them for the lottery. Critics have attacked it from the start. At a 2005 House hearing, Jan Ting called it "expressly discriminatory on the basis of ethnicity, and implicitly, race," and Rosemary Jenks called it "inescapably and inexcusably a national-origins-based policy." Its author, former Representative Bruce Morrison, answered: "The question ultimately is, has this program worked? And I think within the terms of its creation, the answer is yes."
I call it diversity by country of origin. In shorthand, diversity, equity, and inclusion through immigration. That is my characterization, not a statutory term. The statute uses no test of race, sex, or disadvantage. But it is a government decision to shape the immigrant stream by place of origin, by lottery, without regard to need or merit. Both sides of that debate belong in Congress. If lawmakers want to keep the program, they should say why. If they want to end it, they can.
A border is not a wall against strangers. It is the line that lets a free people decide whom to welcome and on what terms. When a judge hands that decision to a law firm, a family at its kitchen table loses a voice it was promised. When a department sits on a statute without a word, the family loses it again. Both are theft of the same thing.
Hamilton called the judiciary the least dangerous branch because it has neither force nor will, only judgment. A judge who exercises will instead of judgment has become a lawmaker nobody elected and nobody can vote out.
The Ninth Circuit did what the structure demands. Congress writes the law. The Executive carries it out and must explain itself when it does not. The courts hear cases brought by people the law protects, and they give the remedy the law allows. The people watch all three and vote.
A judge is a guardian of the Constitution, not its owner.
The full paper, "The Imperial Judiciary at the Border: Standing, Statutory Usurpation, and the Diversity Visa Litigation," is on ResearchGate and Academia.edu. © 2026 Charles Mason.
