February 7, 2017

A 9th Circuit panel heard argument today on the judges restraining of Trump's immigration order.

I listened to it live. Here's the NYT report on it, by Adam Liptak, who found the argument "lively but technical."
“Are you arguing... that the president’s decision in that regard is unreviewable?” Judge Michelle T. Friedland asked.

The Justice Department lawyer, August E. Flentje, paused. Then he said yes.

Another judge, Judge William C. Canby Jr., asked, “Could the president simply say in the order, ‘We’re not going to let any Muslims in?’”...
Flentje tried to avoid answering that question.
The attorney for Washington State, Noah G. Purcell, fared little better in fending off questions from Judge Richard R. Clifton, who said the states’ evidence of religious discrimination was thin....

Mr. Purcell responded that the purpose of the executive order was religious discrimination. Mr. Trump has said he meant to favor Christian refugees. “The court can look behind the motives,” he said....

Judge Clifton, who was appointed by President George W. Bush, said that only a small fraction of the world’s Muslims were affected by the order, suggesting that he was unconvinced that its effect was religious discrimination.
I don't know how the panel will rule. There are ways that they could narrow the district judge's order and thereby take a moderate path. If not, I suspect the decision will be 2 to 1. 

79 comments:

Mark O said...

It should be sent back for a full record on which to make a decision or dismissed as a matter of law.
Ninth Circuit? Anything goes.

sunsong said...

I don't think they are in a hurry to decide...

MaxedOutMama said...

I listened to it also. My take is that the feds did not succeed, and that the judicial emphasis on the Establishment clause (the weakest aspect) is to evade other highly legally questionable issues which Robart's order raises. The Ninth Circuit frequently makes it up as it goes along.

And if this goes to SC right now, it will be 4-4. Or possibly, with Kennedy, 5-3, but not in the favor of the federal government in any case.

We are at an interesting pass. Google and Microsoft are running the nation. The political backlash from the voters will not be moderate.

rcocean said...

I'm still puzzled as to how the State of Washington has the standing to stop the POTUS from enforcing the USC Code on immigration. Nor do I understand how a district court can have jurisdiction over the whole USA.

But then I know little of the law.

It would seem that all the liberals have to do is shop around and find 1 out of 650 district judges and they can stop every single one of Trump's EO's.

MaxedOutMama said...

Addendum: The Establishment claim is really remarkable, and I don't mean that in a good way.

Sebastian said...

"If not, I suspect the decision will be 2 to 1." Because so-called judges just make up stuff to suit their preferences?

Congress shall make no law regarding an establishment of religion, therefore a president cannot issue an Executive Order temporarily excluding people from seven "courtliness of concern." Because logic.

Sebastian said...

What's to keep Trump from issuing a new EO every day?

madAsHell said...

We live in interesting times.

David Begley said...

DOJ loses. DOJ lawyer was terrible. According to a Bloomberg report, the top two DOJ lawyers had to withdraw because they had just cone from Jones Day and Jones Day filed a brief in the case.

Questions were out of line. On the Muslim ban question I would have pushed back hard, "This isn't a law school hypo. Let's deal with the actual words of the EO."

The possibility of deposing the President as to his intent of the EO was raised. Nutty.

Clifton and Friedman were quite biased.

I see the whole thing as a joke.

David Begley said...

Friedland, not Friedman.

Unknown said...

An interesting take. If the EO is meant to be a Muslim ban it is a woefully inadequate one. Lots and lots of Muslim majority countries that are not on the list.

Hagar said...

The President issues an Executive Order on the basis of national security, and the states of Washington and Minnesota sues in U.S District Court, claiming they have standing because their state universities will lose tuition fees from foreign students, and besides, Expedia will lose ticket sales to tourists?

I do not believe there is any constitutional reason why the President cannot "discriminate" against the adherents of any one religion if he thinks they may constitute a threat to U.S. citizens, and adherents of the Moslem religion do not only call for jihad against us; some from these countries practice it and shoot at us or bomb us.

Is it only the Moslem religion that cannot be discriminated against? What about suttee, or some of the other sects that are out there? Who determines what is a qualified religion that may not be discriminated against on a security concern, and how is that determination made?

These people are nuts. The Congress has a right to debate this and may legislate on granting or withholding funds, etc., but it is not for the courts to meddle in.

Jack Wayne said...

Who here sees the Law as anything more than a game played between Judges and Lawyers? If I saw a lawyer on fire in the middle of Main I wouldn't stop to piss on her. Same for most so-called scientists.

Mattman26 said...

I only listened to the DOJ lawyer's portion; he was not impressive, which is a shame.

Mattman26 said...

Remind me not to catch fire in front of Jack Wayne.

It's not a game; it's a system, an imperfect one to be sure, but about the best anyone's come up with.

Achilles said...

Blogger sunsong said...
"I don't think they are in a hurry to decide..."

Sunsong is 100% correct. The goal is for the large corporations and wealthy donors to get as many cheap indentured servants and slave laborers in as possible to depress wages for US citizens. The democrats are tying themselves in with their donors and they will completely lose the working middle class because of it.

The oligarchs don't like this country or the people in it. The democrats are just in for the donations and the donors for the profits.

Alex said...

Whatever. Eventually this becomes THE issue of the 2018 midterms and the Democrats will pay.

Ann Althouse said...

"Questions were out of line. On the Muslim ban question I would have pushed back hard, "This isn't a law school hypo. Let's deal with the actual words of the EO"

No! Judges properly ask questions like that to test the rule the lawyer is arguing for. Chiding the judge is completely wrong. You can get by saying that's not what happened in this case, but you must deal with the consequences of your argument.

Michael The Magnificent said...

I think I see the hand that Democrats intend on playing, though obstructing anything and everything that Trump tries to do, right or wrong, against the expressed will of the voters, isn't a winning hand in the long run.

Because if the left prevails in blocking Trump from utilizing the same law that both Carter and Obama utilized before him, and precedent is then set, then all future presidents, both Democrat and Republican alike will be unable to utilize this law. And at some point in the future, we will be at war with some country, and then unable to block immigration from that country, all because people cannot accept that they lost an election.

Jack Wayne said...

Mattman26, it's supposed to be a system. FIFY.

Hagar said...

They cannot cite "international law" either. Just about every country in the world has countries whose passport holders get "heightened scrutiny," and often religious differences is the cause.

And even the British Parliament, whose PM, Mrs. May, used such strong language about our president's "travel ban" to great applause, would bridle at the idea that it cannot discriminate if it so wishes.

Should not and cannot are two quite different things, whatever your opinion is in the matter.

Hari said...

If the EO is struck down, I suspect that the next EO will be a ban on all immigration from all countries for 90 days.

I also suspect that H1B visas are about to end.

bgates said...

Are you arguing... that the president’s decision in that regard is unreviewable?

Are not two sparrows sold for a farthing? and one of them shall not fall on the ground without being subject to judicial review.

Japan has, therefore, undertaken a surprise offensive extending throughout the Pacific area. The facts of yesterday and today speak for themselves. The people of the United States have already formed their opinions and well understand the implications to the very life and safety of our Nation.

As Commander in Chief of the Army and Navy I have directed that all measures be taken for our defense, unless one or more of the various federal district courts rule that such measures might have adverse effects on the remainder of the 1941-42 school year.

Luke Lea said...

Given that the President has the statutory authority to make these kinds of national security judgments respecting which non-citizens can come into the United States -- and he does have that authority does he not? -- I don't see how the courts have the authority to second guess or question the wisdom of his judgment, even if religious affiliation by itself were the deciding factor, which it isn't. Is it really more complicated than that? I want to hear Ann's legal opinion and I hope we get it

Hagar said...

Not only statutory, but by the Constitution, Article II.

StephenFearby said...

Excerpts from the WSJ article on the judges:

"...Judge William C. Canby Jr.

The senior-most judge on the panel was appointed to the bench in 1980 by President Jimmy Carter."

"...In a 2-1 ruling in 2012, Judge Canby was one of two appeals judges who halted deportation proceedings for seven immigrants and asked prosecutors to explain whether the immigrants could avoid deportation under new directives from the Obama administration. At the time, some judges and legislators criticized the decision as an overreach of judicial authority.

Judge Canby wrote a unanimous ruling in 2006 that barred the deportation of an Iranian man in the U.S. with connections to an Iranian dissident group that had been designated as a terrorist organization. Immigration officials said the man posed a danger to national security, but Judge Canby wrote that the man was protected from deportation under international human rights law because he is “more likely than not” to be tortured if returned to Iran."

[More likely than not tortured before execution. Masoud Hosseini was a member of Mujahedin-e Khalq (“MEK”).]

http://cdn.ca9.uscourts.gov/datastore/opinions/2006/09/28/0373734.pdf


"...Judge Richard Clifton

The Hawaii-based judge, a George W. Bush appointee, sailed through a unanimous Senate confirmation vote in July 2002 despite being a Republican from a largely Democratic state."

'... In 2013, he disagreed with two colleagues who ruled that an Afghan man married to a U.S. citizen should have been told specifically why he was denied a visa under a terrorism-related provision. Judge Clifton wrote in a dissent that the couple’s desire for more information doesn’t trump “this nation’s desire to keep persons connected with terrorist activities from entering the country.”'

That same year, he joined with two colleagues in a partial dissent to a Ninth Circuit panel’s decision requiring border agents to have “reasonable suspicion” to thoroughly search electronic devices entering the country, saying it would “severely hamstring the government’s ability to protect our borders.”'

"...Judge Michelle Friedland

The newest judge on the panel was nominated by President Barack Obama and confirmed in a 51-40 Senate vote in April 2014."

"...While in private practice in 2009, the American Civil Liberties Union of Southern California honored Judge Friedland for her pro bono work challenging Proposition 8, a statewide ballot initiative that made same-sex marriage illegal."

https://www.wsj.com/articles/three-federal-judges-will-decide-on-donald-trump-travel-ban-1486488393

So, it's probably baked into the cake that there will be a 2-1 decision against the government...at least on most of the points.

I agree that August Flentje (the career DOJ attorney arguing the case) was ineffectual in dealing with the badgering of Canby and Friedman. The latter came across as shrill.

Flentje pleaded to be allow to finish the points he wanted to make in his half-hour of time.

Canby and Friedman's badgering successfully prevented this by running out the clock.



Terrie said...

The oligarchs don't like this country or the people in it."

Trump IS an oligarch. He does not care about the working class. Wake up! He stiffed his own workers. He's filled his cabinet with Wall Street billionaires.

Quayle said...

In so many words, Washington actually argued that because their state university may want to invite Professor what's-his-name from university of Tehran, that interest should prevail over the President's powers and interests regarding national defense and immigration.

The government attorney seemed weak - too weak to draw that point out.

But Washington fell on its face trying to impute administrative animus towards Muslims when the order only covers about 15% of the global Muslim population.

And Washington tried to hide behind lack of time for full preparation, when they were the party that sought the TRO in the first place.

But who knows how the court will rule.

Hagar said...

The question is whether the President has the authority to issue such an order.
For the judges to start arguing about his motivation for it is B.S.

Terrie said...

"The oligarchs don't like this country or the people in it."

The oligarch president Trump equates the USA with Russia who has a killer for a leader and Trump can't say a word against him. America First, huh?

Steve Uhr said...

It is being reported that the DOJ lawyer was arguing in his bathrobe.

Terrie said...

Interesting that they made a point of asking how many acts of terrorism in the US came from the people coming from those countries.

Jay Elink said...
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traditionalguy said...

This is more Soros bought obstruction of Presidential power that Soros unexpectedly lost after paying out hundreds of millions of dollars to keep it in his evil Nazi grasp. The sad part is seeing the level to which Dems have been bought up by that evil man who has always owned Pelosi, Reid and Obama.

The Soros plan seems to be to file a lawsuit by a Soros owned State Attorney General every time that Trump acts against the Globalist's wishes.

The Gorsuch Justice is looking big. The unexpected death of Scalia will not succeed once he gets confirmed. Then the rigged Federal Courts will meet a 5-4 reversal instead of a 4-4 no call leaving the Power of the President in the hands of rigged Federal District Courts.

Jon Ericson said...

Soros organization is adapting, Theresa doesn't sound like a fucking dumb cluck.

Original Mike said...

Blogger Quayle said..."In so many words, Washington actually argued that because their state university may want to invite Professor what's-his-name from university of Tehran, that interest should prevail over the President's powers and interests regarding national defense and immigration."

These are not serious people.

Jon Ericson said...

On the other hand, there's Steve Uhr...

Mark said...

And if this goes to SC right now, it will be 4-4.

It is telling that everyone assumes that the left of the Court will naturally ignore the law and cast a political vote, with most of them hiding behind the others without having to justify their vote because someone else will write the opinion.

bgates said...

Interesting that they made a point of asking how many acts of terrorism in the US came from the people coming from those countries.

How many people would you say ought to be murdered by foreigners before the executive is allowed to attempt to reduce the influx of violent foreigners? My answer to that question is "zero".

David Begley said...

Bgates is right. The EO is prospective. Asking for evidence of terrorists in the past is a legal and historic approach. DOJ lawyer kind of mentioned Somali terrorists but he was ineffective. In MN last year, a large group of Somalis got serious federal prison time for plotting to commit terror attacks.

cyrus83 said...

The left should honestly hope the panel comes back and reverses. It makes no sense to try and set sweeping precedent that may later be regretted when the left is back in power on what is a 90-day action that seems fairly common sense given the political situation in those countries.

It is also a giant potential political time bomb - should it happen that anybody from one of those 7 countries gets in and later causes an attack, Trump is going to mercilessly go after the judges and progressives who refuse to keep the country safe, and he will probably win the public's mind on that one given the utter inability of the left to get their heads out of the sand when it comes to the terrorism issue.

Roy Lofquist said...

Are the Democrats deliberately trying to foment a Constitutional crisis? Do they really want another Andrew Jackson in the White House?

The Dems may have some kind of crazy notion that Jackson is anathema but I'll bet you $20 that you're carrying around a picture of him in your wallet.

Jay Elink said...

Sebastian said...
"If not, I suspect the decision will be 2 to 1." Because so-called judges just make up stuff to suit their preferences?

Congress shall make no law regarding an establishment of religion, therefore a president cannot issue an Executive Order temporarily excluding people from seven "courtliness of concern." Because logic.

*************

is there a /sarc you forgot to tack on?

Are you seriously arguing that an Executive Order pertaining to seven countries which the previous administration had terrorist "concerns" and non-muslim minorities, is a LAW passed by Congress respecting an "establishment of religion"?


I certainly hope not.

What religion is being established here?

What religion is being discriminated against--since 85% of Muslims are not covered by the order?


If you're still trying to argue "religious discrimination", then I ask: we're not in a formal declared state of war with these countries, but suppose a substantial fraction of their citizens are in a undeclared war with us: should our abhorrence of "religious discrimination" and trump our legal power to keep them from entering the country?

So...whaddaya think we oughtta do?

Unknown said...

The part I heard on the news was just painful. The administration guy was not impressive at all. And it sounded like the judge wanted to argue whether the ban were a good idea (a political question) rather than if it were legal (a judicial question). Painful all the way round.

Did the government guy ever bring up the statue that has been posted here dozens of times in the last couple of days?

chickelit said...

David Begley said...In MN last year, a large group of Somalis got serious federal prison time for plotting to commit terror attacks.

That's the first I've heard of that. Why didn't the media, Jake Tapper of CNN in particular, ever mention this?

Chuck said...

I have mentioned this before but today's oral argument for the Ninth Circuit highlighted it again; a big part of what is making it harder to defend this EO in the federal courts, is the series of reckless, stupid, indefensible statements made by Trump in the course of the campaign, starting with his "complete and total shutdown Muslims" pronouncement. He could never get away with such an order; he should have known that, and even now his counsel in the administration could not draft such an order for him and are taking pains to distance the current EO from those statements.

Just more fallout -- on a serious matter -- from Trump's clownish trashtalk.

harryo said...
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harryo said...
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harryo said...
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EDH said...

Terrie said...
Interesting that they made a point of asking how many acts of terrorism in the US came from the people coming from those countries.

DOJ should have pointed out that Obama actually found it necessary to bomb six of the seven countries on the list in 2016.

And to fuck with the 9th Circuit even more, argue that the ban was to screen-out the foreign travelers from those countries who had been terrorized by Obama's bombing, which as we all know "only creates more terrorists."

After all, as Trump said, "there are a lot of killers."

Aussie Pundit said...

DOJ should have pointed out that Obama actually found it necessary to bomb six of the seven countries on the list in 2016.

And to fuck with the 9th Circuit even more, argue that the ban was to screen-out the foreign travelers from those countries who had been terrorized by Obama's bombing, which as we all know "only creates more terrorists."


It would be awesome if the DOJ used these arguments.

Bad Lieutenant said...

Just more fallout -- on a serious matter -- from Trump's clownish trashtalk.

2/8/17, 1:02 AM


Chuck, you know perfectly well that, had candidate Trump spoken with the tongues of angels, they would have put the words in his mouth anyhow.


That's what you people, your side, the left, does. Look at what they are doing to Sessions, whom you claim to like. They had to pull Pow Wow Warren off the floor to shut her up slagging him!

No, mealy-mouthed is not a defense. And it doesn't matter what he said. It's just irrelevant.

Apparently the wretch from DOJ is as poor a lawyer as you.

DavidD said...

Michael The Magnificent said...

"I think I see the hand that Democrats intend on playing, though obstructing anything and everything that Trump tries to do, right or wrong, against the expressed will of the voters, isn't a winning hand in the long run.

Because if the left prevails in blocking Trump from utilizing the same law that both Carter and Obama utilized before him, and precedent is then set, then all future presidents, both Democrat and Republican alike will be unable to utilize this law. And at some point in the future, we will be at war with some country, and then unable to block immigration from that country, all because people cannot accept that they lost an election."

How so? A Democrat president can do whatever he wants.

Brando said...

The slapdash approach Trump used in getting this order out and implemented (in a way that had to be walked back in some areas, where interpretation left confusion for many in the front lines to have to carry it out, and the weak legal arguments for sustaining it--as though they didn't know it would be immediately challenged in court) suggests that this was less an attempt at a serious policy and more an attempt to get credit for trying to do something so that Trump could later say he tried to keep a campaign promise but got stymied by a swampy bureaucracy and craven judges. Also, if we do suffer another terror attack--particularly a big one--he can then say "see, I might have been able to prevent it if only the traitors didn't stop me". A "get out of blame free" card, if you will.

Not a bad move politically--at the very least it pleases his base. But it would be nice to see a thorough review of our overall counterterrorism operations, from tracking suspects both in the country and overseas, and entry checks not just from certain suspect countries but from third countries (i.e., if I were a terrorist, the last thing I'd try to do is fly directly from Syria or Iran to the U.S., but rather get in via France or Greece). Meantime, we get the clown show.

Brando said...

"I have mentioned this before but today's oral argument for the Ninth Circuit highlighted it again; a big part of what is making it harder to defend this EO in the federal courts, is the series of reckless, stupid, indefensible statements made by Trump in the course of the campaign, starting with his "complete and total shutdown Muslims" pronouncement. He could never get away with such an order; he should have known that, and even now his counsel in the administration could not draft such an order for him and are taking pains to distance the current EO from those statements."

But maybe the point never was to actually implement the order as it is. If you think of it as political maneuvering, it makes more sense.

james conrad said...

I say defy the court order and let's have a constitutional crisis. The judicial branch in many ways has become unaccountable in it's rulings, this needs to change. The days of looking at judges as non-political are over, they are and have been involved up to their eyeballs in politics, twisting the law to favor their preferred political outcome.

Bad Lieutenant said...

Respectfully:

This is your anti-Trump prejudice again, Brando. It was not slapdash, although it was crafted in haste. If he had Sessions and all his other people in place it might have gone smoother, but you go to war with the legal army you have.

There are no assaults on its legality because it was very well written. The objections are all in the nature of 'never mind the EO language, law or precedent, what is in President Trump's secret heart, plus he is smelly and Jeff Bezos really insists,' which doesn't seem like law to me but YMMV.

damikesc said...

From what I gather...yes, the President can decide to not allow Muslims to immigrate here. State Dept can always opt to not provide visas and there isn't much that can be done.

a big part of what is making it harder to defend this EO in the federal courts, is the series of reckless, stupid, indefensible statements made by Trump in the course of the campaign, starting with his "complete and total shutdown Muslims" pronouncement.

LEGALLY, his words are irrelevant.

As we saw, guarantees that no taxes were involved with Obamacare didn't matter to the SCOTUS.

Either what is said matters or it does not.

Bad Lieutenant said...

Also, Brando, under your new Smelly Trump Doctrine, perhaps any future president who does not explicitly and in detail renounce Smelly Trump and all his works, will not be able to make executive orders because he will be tarred with Trump's brush. Who knows what's in the next guy's secret heart? Maybe he's just anosmic? Why take a chance?

Put it another way, when Admiral Halsey sad the Japanese language would be spoken only in hell, did that delegitimize FDR's internment of the Nisei?

Bad Lieutenant said...

Excuse me, I should say Chuck's and the rest of the left's Smelly Trump Doctrine, which you are merely accepting, but have not yourself crafted.

Let's try it another way. If Truman or Eisenhower had ever called black people "niggers," would they then have been rendered unable to desegregate the Armed Forces or to send the National Guard to Little Rock? If FDR had ever called Jews "kikes," could he have been forced to accept the refugees from the Saint Louis?

Brando said...

"This is your anti-Trump prejudice again, Brando. It was not slapdash, although it was crafted in haste."

It was also implemented in haste, without any clear direction to those on the ground who had to implement it, in terms of how waivers should be granted, or its application to green card holders. Maybe my anti-Trump bias makes me judge the rollout harsher than you, or your pro-Trump bias sees a policy which if it were implemented by a POTUS you didn't like you may have been more critical.

And he doesn't need Sessions and his people confirmed to have come up with a better rollout plan--hell, during the transition there's no reason he couldn't have consulted with all of those same people to figure out exactly how to roll it out smoothly and clearly. And if he couldn't implement it without those people in place, why not wait a month until they had a chance to do so?

Brando said...

"Put it another way, when Admiral Halsey sad the Japanese language would be spoken only in hell, did that delegitimize FDR's internment of the Nisei?"

First, the internment of Americans simply because of their Japanese descent was not legitimate, though that's another argument I don't want to get off track on. But let's assume for your example that it was legitimate (e.g., if it was used only to intern suspected saboteurs rather than all people of a racial classification).

Why would Halsey's comment de-legitimize FDR's actions? Halsey was an admiral in the battle zone, not an FDR functionary carrying out the internment program. And even if he were carrying it out, it would only matter if we knew FDR was carrying out the program based on Halsey's counsel (rather than Halsey simply doing what he was ordered).

For the Trump comparison, his statements do in fact reflect the intentions behind his policy, unless you think Trump at this point is simply doing what others are recommending and offering no input of his own. Extraneous statements of presidents can reflect intentions behind the policy (just as the drafter's statements in the congressional record can be used to interpret their intentions behind a specific statute).

Kevin said...

"The part I heard on the news was just painful."

By design. The media benefits from fear, ambiguity, and uncertainty. Now you can tune in later to hear their experts try to make sense of the senselessness in their earlier broadcast.

Kevin said...

"The Hawaii-based judge, a George W. Bush appointee, sailed through a unanimous Senate confirmation vote in July 2002 despite being a Republican from a largely Democratic state."

Don't they mean "specifically because it would remove a Republican judge from a Democratic state, while allowing the appointment of another left-leaning judge"?

damikesc said...

It's a bit depressing that a President doing exactly what a duly passed law said he can do is suddenly "violating the law". Nobody can point to exactly what forbids him from doing what he is doing or why non-citizens have any Constitutional protections whatsoever.

It was also implemented in haste, without any clear direction to those on the ground who had to implement it, in terms of how waivers should be granted, or its application to green card holders.

Sounds a lot like the apparently quite Constitutional Obamacare...except with more directly expressed powers given to the President in this regard by prior legislation.

Brando said...

"Sounds a lot like the apparently quite Constitutional Obamacare...except with more directly expressed powers given to the President in this regard by prior legislation."

Yes, not exactly an example of competent governance. But like Trump's EO, it did serve its political purpose.

sparrow said...

As an ordinary citizen with no legal training I find it discouraging how unprincipled the judicary has become. The political theatre and dishonest application of law, plus the manufacturing of new rights and the blatant suppression of real ones makes it hard to respect any judge. There's no good substitute for judges, but under the current system we have imperious tyrants who have legalized the murder of a huge swath of people with impunity. So I can't say I'm surprised that they would look on the clear letter of the law and distort it to their will. Justice is long dead in this country.

Achilles said...

Blogger Terrie said...

"Trump IS an oligarch. He does not care about the working class. Wake up! He stiffed his own workers. He's filled his cabinet with Wall Street billionaires."

Soros will pick up any idiot off the street it seems. This is embarrassingly stupid. If you try for 5 minutes you can figure out how you are wrong here.

Peter said...

"I do not believe there is any constitutional reason ..."

Indeed, it is all too apparent that the President has statutory law, precedent, and the Constitution on his side here. Thus, one must conclude that this is not about the law but only about (as Humpty-Dumpty put it in Alice in Wonderland) "Who is to be master ... that's all."

The constitutional remedy for such over-reach is impeachment, and its use is long overdue.

David Baker said...

When Dorthy realized that she was no longer in "Kansas"...

There's an "Oz" quality to the argument, particularly the naive notion that we're a nation of laws, not men. Because in reality we're a nation overrun by 9th Circuits.

n.n said...

The Left, with varying degrees but general alignment with liberals and progressives, believes people should be judged by the "color of their skin" (e.g. clump of cells), rather than by the "content of their character" (e.g. principles).

rod said...

Did Trump pick the lawyer to argue this case, or did the DOJ (still headed by Obama people) select the lawyer?

I grew up in Wichita with the DOJ lawyer that argued the government's position. He was a lefty as a youth. When he left Kansas, he majored in politics at Princeton. My impression was that he became a more hard-core lefty at that time (although my personal knowledge of him was reduced during that period).

I have no personal knowledge of him after college. However, he was an extremely bright person. If he appeared to argue that case poorly, it may be because he did not really want to win the case. (Imagine Sunsong being the lawyer for Trump's side of the argument.)

Are there any good internet sleuths on the "right" side of the aisle among the Althouse commentators that have some free time? If so, you might get a good scoop by researching the writings of August E. Flentje.

mtrobertslaw said...

J. Friedland has concluded that she and her clerks are far more competent than either the president or the congress to determine whether the class of poorly vetted non-citizens who want to travel from a particular foreign country to enter the United States present a threat to the security of the United States.

David Jay said...

Speaking of Andrew Jackson: How many divisions does the 9th Circuit have?

Brando said...

"Speaking of Andrew Jackson: How many divisions does the 9th Circuit have?"

Wasn't that Stalin re: the Pope? As for the judiciary it has only as much power as the rest of the government decides to give it. Most of our political system is only propped up by norms and tradition. Once those go, it's just might makes right.

BrianE said...

Is this really about the law? Isn't that why the judge didn't say which arguments were the most persuasive in issuing the restraining order? He didn't want to hem in the 9th circuit judges.

Isn't this really just the left taking Trump to the woodshed to give him a lesson on the limits of his power? You know, a little push back.

Aussie Pundit said...

Did Trump pick the lawyer to argue this case, or did the DOJ (still headed by Obama people) select the lawyer?

It crossed my mind that the lawyer arguing the DOJ case didn't believe in the DOJ case.

BrianE said...

This is kind of like jury nullification, only it's judge nullification, where the law is ignored to reach a just decision.

Aussie Pundit said...

Isn't this really just the left taking Trump to the woodshed to give him a lesson on the limits of his power?

Outcomes are on the table; outcomes are what's at stake. The parties are fighting for the outcomes they want, not for 'lessons'.
(the whole notion of 'lessons' in public life is a very Obama concept, by the way - it may fall quickly out of fashion now that he has left office).