February 5, 2017

"A federal appeals court early Sunday rejected a request by the Justice Department to immediately restore President Trump’s targeted travel ban..."

"... deepening a legal showdown over his authority to tighten the nation’s borders in the name of protecting Americans from terrorism," the NYT reports.
In its argument for an appeal, the Justice Department had said the president had an “unreviewable authority” to suspend the entry of any class of foreigners. It said the ruling by [District] Judge Robart was too broad, “untethered” to the claims of the State of Washington, and in conflict with a ruling by another federal district judge, in Boston, who had upheld the order.

The Justice Department argued that the president acted well within his constitutional authority. Blocking the order, it concluded, “immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.”...

The Ninth Circuit court moved quickly to reject the administration’s appeal, a measure of the urgency and intense interest in the case.

Despite Mr. Trump’s vehement criticism of the ruling and the certainty that it would be appealed, the government agencies at the center of the issue, the State Department and the Department of Homeland Security, moved quickly to comply.
On Twitter, Trump has been critical of the district judge's decision, but I don't think it's right to compare these criticisms to Trump's attack on the trial judge in the Trump University case. In the Trump University case, Trump said the judge was biased because of his Mexican heritage. In the current case, Trump's attack is not on the judge as a person, but on the decision he made, and the basis of the attack isn't some questionable (or offensive) extraneous material but the actual substance of the opinion. Trump is following the judge's order and using the judicial process to fight it.

There's absolutely nothing wrong with criticizing judicial opinions, and this one lays itself open to criticism:
“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax bases.

Still, Judge Robart’s order left many questions, said Josh Blackman, a professor at South Texas College of Law in Houston.

“Does the executive order violate the equal protection of the laws, amount to an establishment of religion, violate rights of free exercise, or deprive aliens of due process of law?” Professor Blackman asked. “Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper.”


ADDED: The relevant Trump tweets are (in reverse chronological order):
Why aren't the lawyers looking at and using the Federal Court decision in Boston, which is at conflict with ridiculous lift ban decision?

Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision

What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
As some commenters are pointing out, the phrase "so-called judge" could be called an attack on the man. But the only basis for saying "so-called judge" is what the man in the robe is doing in this particular case. There's nothing against him as an individual. It's very close to saying, in a substantive legal way, that this is a man who is acting beyond his proper judicial power. This parallels what the judge is saying: Trump is doing things under the appearance of being President, but what he is doing is beyond the powers of the President. This is just a man, not someone who can wield governmental power. That's not a personal attack. That's the rule of law.

"The Government of the United States has been emphatically termed a government of laws, and not of men."

227 comments:

1 – 200 of 227   Newer›   Newest»
Michael K said...

The judge is a nut with a history of erratic behavior such as shouting "Black Lives Matter"in his courtroom and accusing police of systemic racism.

However, the Ninth Circuit is as nutty.

The media are saying Bush appointed him as a sort of defense of his behavior but he was appointed as part of a "blue slip" deal with Patty Murray who is a nutty Washington Senator.

roesch/voltaire said...

Trump's use of "so called" makes it personal and not just against the decision. Let us hope this leads to a better crafted EO on immigration when all is said and done.

Bad Lieutenant said...

The EO is fine. Me, I hope the wall gets 10 feet higher.

Freder Frederson said...

So calling a Federal judge "a so called judge" is criticizing the decision, not the person. I doubt I would get far on this blog calling Trump "a so called president". Hey, I'm criticizing his decisions, not him personally.

Tank said...

Reading the Judge's decision and rationale, he is a so-called Judge. He has a history as an activist.

Darrell said...

Clean the Leftist scum out of the judiciary. Trump's authority is clear. And the SCOTUS already heard the case in 1950.

David Begley said...

I've read the trial court decision; such as it is. It is seven pages long. It is ipse dixit.

The Ninth Circuit is the most reversed circuit in America. SCOTUS should do so again.,

Mick said...

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction". Art. 3 S. 2 US Const.

EASY PEASY OVERTURNED:

1) "Some of these contentions may be dismissed at the outset. The word "person" in the context of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation, be expanded to encompass the States of the Union, and, to our knowledge, this has never been done by any court. See International Shoe Co. v. Cocreham, 246 La. 244, 266, 164 So.2d 314, 322, n. 5; cf. United States v. City of Jackson, 318 F.2d 1, 8 (C.A. 5th Cir.). S. Carolina v. Katzenbach 383 US 301, @ 323, 324 (1966)

"Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parens patriae of every American citizen. Massachusetts v. Mellon, 262 U. S. 447, 262 U. S. 485-486; Florida v. Mellon, 273 U. S. 12, 273 U. S. 18". Id. @324

So "Due Process" and "Equal Protection" do not apply to the States, only against the States. The PLAINTIFF is the state of Washington, not any individual. The STATES have no standing to use "due process" as a cause of action.

2) 8 US Code 1182 (a)(4)(A):

(a)Classes of aliens ineligible for visas or admissionExcept as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(4)Public charge

(A)In general

Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

So yes, the POTUS can exclude individuals from certain countries from obtaining a Visa if they are likely to be on the public dole.

(C)Foreign policy

(i)In general

An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.

Self explanatory.

3) Establishment Clause--- Non starter. No religion is mentioned.

So where is the "lawprof" Althouse' brilliant analysis? This ruling is so bereft of law that it is embarrassing--- The "supposed judge" is purely a paid stooge of Bezos (WAPO and Amazon).

Freder Frederson said...

Clean the Leftist scum out of the judiciary. Trump's authority is clear.

So now you so called real Americans are calling for a political purge of the judiciary.

I bet you can't wait for the fire in Congress so that you can get that emergency decree passed suspending all civil rights except the second amendment.

Sebastian said...

“Does the executive order violate the equal protection of the laws, amount to an establishment of religion, violate rights of free exercise, or deprive aliens of due process of law? Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper.” In other words, so-called judge is right. The left fights anywhere, anytime, and will fabricate any weapons they need, as in this "opinion." Get Gorsuch on SCOTUS pronto.

Wilbur said...

I'm a less-than-daily reader of Josh Blackman's blog. It's well-done.



Humperdink said...

Issue another EO. Change the words and music a bit and re-issue. And re-issue. And re-issue.

rhhardin said...

The decision is so bad that he can only be called a so-called judge.

It's still a criticism of the decision.

"Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper."

If the court can't figure it out, replace the court.

Humperdink said...

I am ready for a good old-fashioned constitutional crisis.

rhhardin said...

Next they'll be finding gay marriage is a right.

sinz52 said...

The Trump supporters here have clearly forgotten how many court challenges the GOP issued to many of Obama's executive orders.

29 January 2014: A dozen House Republicans on Tuesday pressed their leadership to move ahead with a federal lawsuit challenging President Obama's use of executive power.

Rep. Tom Rice (R-S.C.), who first introduced the Stop This Overreaching Presidency (STOP) Resolution last month, said a formal legal challenge is needed to counter Obama's aggressive use of administrative authority.

http://thehill.com/regulation/legislation/196842-house-gopers-push-for-lawsuit-against-obama-actions

The Dems aren't doing anything to Trump that the GOP didn't try to do to Obama.

FIDO said...

We have had enormous amounts of precedent, where the Executive has not accepted aliens for any number of reasons.

I think that an executive order which can be overridden by a partisan judge is no order at all and this is rather more dangerous than the existence of Trump.

In some ways, this is heartening. IF the Left succeeds at weakening the Executive, that is good since it has grown too large. If the Left fails and Trump starts putting centrist policies in place, that is also good.

In any case, their victory is Pyrrhic. Say they overturn the ban. Trump sends an order to the State Department: Stop all visas to these seven nations. They MUST obey. There is not pettifoggery they can engage in. They do it or they are fired. There is no 'legal dodge' they can engage in. And Trump, with his dander up, will probably extend the ban until further notice.

So the Left is cutting off their nose to spite their face. I am kind of digging "The Firer" as the guy now in charge of the Bureaucracy. The damage done to their presumption of immunity will be entertaining, if not salubrious.

BillySaturday said...

How can one simply ignore the insult of "so called judge"? He wasn't attacking the judge, only his decision? Seriously?

David said...

It will be interesting to see if the 9th Circuit does along with this. I know they are supposed to be liberal and all that, but this is not necessarily a decision that a liberal should love. Except for loving the result in this particular case.

Will this case really be decided by the politics of the judges all the way up through the Supreme Court? We shall see.

rhhardin said...

What's the name of the method...

Gramscian. I keep thinking it starts with a C.

You take over the culture to gain power.

The vast majority discovers they're suddenly in the wrong and nobody agrees with them.

rhhardin said...

It's attacking the judge for his decision, not because he's a known asshole.

Ann Althouse said...

My answer to the "so-called judge" issue is in an update to the post.

rhhardin said...

Gramscian is reverse Pauline Kael.

GWash said...

i'm amazed at the hoops you trumpists are jumping through, all of a sudden the imperial presidency is not so bad?... what happened to the beloved constitution we all love so dear?... not so important when you have to govern is it...
watch you wallets their fingers are already plucking the feathers off you back...
you are easy targets !
Go Falcons!

sunsong said...

Trump is NOT a king! Expect more of this!

rhhardin said...

The reason immigration was not fixed, in fact made horrendously worse, was Obama running immigration. Now Trump runs is, except for an army of lefty moonbat judges.

You can't have a rule of law unless the judges follow the law.

Michael K said...

" I doubt I would get far on this blog calling Trump "a so called president". Hey, I'm criticizing his decisions, not him personally."

Hey we tolerate all sorts of idiots here, Field Marshal.

The judge is a nut.

Tommy Duncan said...

This event is an example of liberals performing "punishment by process" against their enemies.

FIDO said...

The problem with the GOP challenging the Obama administration is that this was a settled law and Obama found the actual English and limitations OF the law to be...inconvenient. So he ordered his people to ignore the actual writing of the law.

The argument then, correct or incorrect, was should the administration be bound by the ACTUAL TEXT of the law Obama signed, or should he be allowed to EO his way for the text to mean anything he said it means.

An interesting legal point.

In this case, there is no precedent of a Judge pretending to set policy. Because blocking this order is, ipso facto, like it or not, the Judge setting policy.

Because if that is the game the Left wants to play, well, okay. We can now, suddenly add 10 Conservative 35 year old Justices to the Ninth Circuit court. We have the votes. We can put as many into place as we want. They are overworked. Let them get a few days off.

Or the Left can back the hell off. Your choice. You are not the majority any more. You don't own ANY branch of government. Your antics are not entertaining.

If you want to force a constitutional crisis, we'll be your huckleberry.

AprilApple said...

Leftwing judges are not KING!

rhhardin said...

Pick the word that most applies for the WA court

budge
fudge
judge
nudge

Bob Ellison said...

There really ought to be an online, constantly running poll of law professors. Questions like "Is Trump's immigration EO constitutional?" and "Does a child born on American soil of Mexican parents have a right to keep his parents on American soil?"

It'd be like the climate thing. We could constantly chant "89% of lawprofs agree that this-and-so is legal!"

Then we wouldn't have to think for ourselves.

Humperdink said...

Am I the one that noticed there are not any violent protests in front of the judge's place of residence?

Bob Ellison said...

I think I'll start it, and call it LawProfPoll.org. The biggest hurdle will be forcing lawprofs to take part. I'll have to get the ABA involved and make it compulsory. Probably gonna need some statutory help, as well. (That will be one of the questions: "Does the government have the power to jail you just because you have a J.D. and refuse to answer this question?" Very meta.)

BillySaturday said...

The update doesn't change the fact that Trump attacked the Judge personally. In the case of the Judge that he denigrated because he was of Mexican descent, he did it in fear that he would be biased toward him because he,Trump, "wants to build a wall". So, if some entity, world leader, Congress, private citizens, etc.does or says something Trump doesn't like he is right to go on Twitter and attack them personally? It's the Presidency, not the comments section of the Althouse blog. Trump is supposed to be a President, not Drago of the Althouse blog.

Tommy Duncan said...

If I were Trump I'd be making arrangements to deliver the next one million refugees to Seattle. Then I'd corner the burka and pressure cooker markets in Washington State.

BillySaturday said...

Trump: "Angela Merkel, that so called leader of Germany let in all those refugees."

Im sure that would go over well and improve relations with Germany.

Michael K said...

"In the case of the Judge that he denigrated because he was of Mexican descent, he did it in fear that he would be biased toward him because he,Trump, "wants to build a wall".

The judge in the earlier case is a member of a radical "La Raza" lawyer group. Try to keep up.

GWash said...

april/rh your comments doubly apply to King Don ... he is the president and is sworn to UPHOLD the constitution... worst start to a presidency in my life time... emails - how quaint that all sounds now...
Watch your wallets, they are undoing all of your protections so they can separate more of your savings from you...
i think a law professor poll would be beneficial, after all if 98% of scientists polled can agree with the reality of climate change, maybe most we can get somewhat the same certainty about legal issues too!
mick, jagger called he wants his image back...

dbp said...

This rejection by the circuit court puts Trump into a sticky situation in terms of timing.

Most of the EO provisions are only for three months, but he dare not fast track the thing to the Supreme court since a 4-4 tie would uphold the 9th's decision.

It will take around 3 months to get Gorsuch on the court.

BillySaturday said...

Trump stated several times that he didn't think the Judge could be fair because of his Mexican heritage and that he, Trump, wanted to build a wall. You can try to embellish what Trump said, it's on record.

steve uhr said...

Seems to me that "so called judge" is in the same ballpark as "not my president"

Mark said...

“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax bases.

And, even if one were to accept this specious assertion of standing, how are the constitutional rights of these parties violated, which of their constitutional rights even affected? Not the constitutional claims of foreign nationals -- which do not and have never existed since the Constitution does not apply to them -- but these parties?

You folks objecting to the order should realize that the issue regards the power -- not of Trump -- but of the office of the president, whoever that might be.

Big Mike said...

Trump will get his way. He always does.

BillySaturday said...

Trump is implicitly attacking a co-Equal branch of government with his insult of "so called judge". He doesn't honor the independence of the Judiciary.

damikesc said...

Couldn't Trump decide to use prosecutorial powers to decide to not punish people ignoring the judge?

damikesc said...

And I love these progs attacking Trump after Obama, repeatedly, ignored a judges order to stop DACA.

Birkel said...

Is the judge not so called?
By what do litigants refer to the man, if not judge.
Should Trump have said "so called your honor"?

Freder Frederson is so called.
He is likely not named Freder Frederson on any legal documents but he is so called in Althouse comments.

steve uhr said...

Ann sounds more like a paid pundit every day. If I called you a so-called blogger is that not personal?

Ann Althouse said...

"Seems to me that "so called judge" is in the same ballpark as "not my president""

Under my explanation in the addendum to the post, the idea is that whenever Trump acts beyond his power, I do not recognize his action as the action of the President, but simply of the private citizen Trump, who has no authority to act as if he were the President.

Ann Althouse said...

It's kind of like the theory in Ex Parte Young, which allows you to sue a state official when he is acting beyond the authority of law, despite the state's defense of sovereign immunity. He's not the state with respect to these actions, because the authority is not there, even though he is a state official purporting to act in his authority and is in fact only capable of violating the Constitution because his action is state action.

"The attempt of a State officer to enforce an unconstitutional statute is a proceeding without authority of, and does not affect, the State in its sovereign or governmental capacity, and is an illegal act, and the officer is stripped of his official character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to its officer immunity from responsibility to the supreme authority of the United States."

https://supreme.justia.com/cases/federal/us/209/123/case.html

viator said...

"On Friday, a Boston federal judge issued a 21 page decision debunking the arguments against Trump’s Executive Order suspending migration from certain countries pending further review. Later that same day, a Seattle federal judge who has been making the news lately (and not usually for the most flattering of reasons), declared his oral intention to sign an order limiting some aspects of the executive order. In the courtroom, whose position is likely to ultimately win?

Just a quick review of the two written orders can tell you which one is likely to win. The Boston judge cited a wide range of precedents for his decision in his detailed written order. The Seattle judge issued a short order devoid of almost any reference to any precedent, which is the “evidence” for lawyers on the law. Add in comments made by the Seattle judge verbally, and if any aspect of that is correct, the Seattle judge’s opinion will lose, and Trump’s position will win."


http://lawnewz.com/high-profile/on-trial-why-trumps-immigration-ban-will-win-over-seattle-judges-nationwide-stay/

Kate said...

As someone who's lived under the jurisdiction of the Ninth Circuit for a lot of my life, I'm pretty tired of a few people reversing laws for which my states voted. There's talk of dividing the territory into another court. The Ninth covers too much of the West. President Trump, make it so.

rhhardin said...

They should have shopped a black or woman judge, so Trump couldn't attack back.

rhhardin said...

The Trump position won't win with the SC split 4-4. They don't do constitution anymore.

BillySaturday said...

Trump wrote an illegal EO. Presidents who do so are not acting within their role of President. They are abusing their Executive powers. The Judge who represents the Judiciary, a co-equal branch, checked the President on his illegal EO, based on its unconstitutionality. Checks and balances, that's how our government is supposed to work, isn't it? Wouldn't a "so called" law professor see it this way?

Mac McConnell said...

A. Obama disparaged SCOTUS to their faces on national TV at a state of the union.

B. Before we all go "constitutional crisis", Obama had the worse record in the courts of any modern president, not to mention more 9 to 0 decisions against him.

C. His EO is lawful.

Birkel said...

Assuming the conclusion makes argumentation easy.

Birkel said...

BillySaturday:

Discuss the Massachusetts judge's decision, please.

Bob Ellison said...

Consider this from an organizational perspective: should some bloke in a black robe in Seattle have the power to override a Presidential executive order?

It's debatable. The bloke seems a little big for his britches, though.

steve uhr said...

Isn't the relevant question what was in Trimp's head when he said it, not whether a smart erstwhile law professor can spin it to look innocuous? Obama wasn't legitimate because he was born in Africa. This judge isn't legitimate because he made a bad ruling (which I think he did). Looks like a pattern. Trump almost always goes personal. Sort of like most of the commentators here.

BillySaturday said...

Althouse,
I didn't see your 8:53 comment. Yes, that's exactly what I was getting at in my 9:02 comment. I'm not an attorney or a constitutional scholar, but this is how I understand it from basic knowledge of the powers of the three branches of government.

viator said...

To cover up the embarrassing weakness of Judge Robart’s temporary restraining order, reporters at the Washington Post and elsewhere have trumpeted the fact that Robart was nominally appointed by President George W. Bush. The media ignores the fact that Robart’s appointment as a federal judge was championed by liberal Senators like Patty Murray (D-Wash.), who used Senatorial custom allowing senators to veto Presidential appointments of trial judges to obtain the appointment of liberal trial judges like Robart in Washington State. An April 13, 2005 press release by Murray touts Robart’s appointment as the “bipartisan” result of using a state commission to select federal trial judges in Washington, whose appointment Bush then rubberstamped. This Senatorial veto power, known as the “blue slip,” is an old tradition, dating back to at least 1917, that lets senators have a say on which trial judges are appointed to courts in their home state.

Judge Robart, the oddball judge who issued that TRO against the executive order, is the same guy who issued the bizarre college sexual assault ruling that Robbie Soave wrote about earlier at Reason Magazine.

He ruled a falsely-accused male student could not depose or obtain relevant documents from the female student who got him expelled because that would traumatize her (never mind that it was SHE who performed a sex act on him when he was blacked out, meaning that if anyone was guilty of sexual assault it was HER). Reason’s article about it can be found here.

Bob Ellison said...

Again, from an organizational perspective, because this is the way it would go down in a real organization, like a family or a company: how's about the big-balls judge saying hey, waitaminute, maybe I'd better send this upstairs before I go trumping the executive branch all on my own?

Quayle said...

"He doesn't honor the independence of the Judiciary."

So independence means never having another independent branch criticize you?

That not independence, that's co-dependency.

Mick said...

Unbelievably I find NO RELEVANT legal analysis of this "ruling" anywhere on this thread in this so-called "lawprof" blog, even by the "lawprof" herself, except for my comment at 7:45 AM, which succinctly trashes the idiot ruling by this complete fraud of a judge. What is wrong with you people? I guess you can't teach pigs to sing.

Livermoron said...

Oh good, now we have ol' 3/5ths himself lecturing us on the CONUS.
You should be embarrassed to show up here.

And is it true that Once Written has been banned or left? Didn't want to have to pay off all those bets?

Class acts.

Birkel said...

Mick:
Asked and answered on previous threads.
We're not here to entertain you.
Sod off.

Sebastian said...

@BE: "how's about the big-balls judge saying hey, waitaminute, maybe I'd better send this upstairs before I go trumping the executive branch all on my own?" Yeah, but what fun is that? You're a prog judge in the People's Republic of Seattle, you get baited by prog DAs into taking a juicy case and a chance to stick it to the man, you can be a prog hero by making up any old shit -- and you mean, he has to "send this upstairs"? Sure he'll send it upstairs, with his compliments and a big FU to Trump. Because.

Michael K said...

"Trump wrote an illegal EO. Presidents who do so are not acting within their role of President."

I guess we have another lefty Field Marshal now.

Jesus ! Can't you people make an argument that is not an oddball assertion without facts to back it up ?

David Begley said...

It should be noted that this matter is not fully briefed. Final briefs due on Monday at 3:30.

BillySaturday said...

If Judge Robart's TRO was so faulty, why did the 9th Circuit uphold it? Now we'll hear more insults directed toward the 9th Circuit, no doubt.

madAsHell said...

Patty Murray took a campaign donation, and Robart found a seat on the federal bench.

Gee.....didn't Blagovich (sp?) go to jail for doing the same thing?

David Begley said...

Correction. 3:00 pm on Monday.

Below is from Scott Johnson at Power Line.

"The Ninth Circuit ordered the completion of briefing by 3:00 p.m. Monday. The Ninth Circuit obviously contemplates addressing the issues raised by the motion for a stay after the completion of briefing on Monday."

Amadeus 48 said...

That so-called Bush appointed this so-called judge is exactly why Trump won the so-called GOP so-called nomination and was so-called elected so-called president of the so-called United States of so-called America.

Earth to judge: some analysis would be in order. It is not persuasive or authoritative to say "Because Constitution!" Lacks depth of understanding.

steve uhr said...

BE and Sebastian - doesn't work that way. First, the case was assigned to the judge, not picked by the judge. Second, the court must issue a ruling. That is his job. Can't take a pass, unless he has a basis to recuse himself. Then it gets assigned to another district court (trial) judge.

Michael K said...

Do you know how many times the ninth circuit has been reversed the last 20 years ?

Of course not.

David Begley said...

BillySunday

9th Circuit has not finally decided the case. More to come.

TwilightofLiberty.com said...

Its wrong to tweet mean things about judges. He should do the honorable thing and invite this judge to the State of the Union address and insult him in person.

Bob Ellison said...

BillySaturday, please keep posting. Your insights are golden.

Birkel said...

BillySaturday:

You don't understand what the Ninth Circuit has done so far. David Begley is offering help to you. Take it.

Life is hard. It's harder when you're a poorly informed loud mouth.

Amadeus 48 said...

Billy Saturday--The Ninth Circuit has been a joke for years. Often overturned by the Supremes.

Sebastian said...

Yeah, yeah, Steve. I know. But there were many other ways this so-called judge could have handled it. This was the worst.

dbp said...

Mick said:

"Unbelievably I find NO RELEVANT legal analysis of this "ruling"..."

That is because the TRO doesn't contain any analysis*. The judge states that the plaintiffs have a good chance of prevailing, but gives no rationale for this claim.

*There are sections on jurisdiction and on the claims of irreparable harm which could arguably be called "analysis", but nothing on why the EO is unconstitutional or otherwise illegal by statutory law.

viator said...

The Law, 8 U.S. Code § 1182 - Inadmissible aliens says this about Presidents powers,

Inadmissable Aliens


(f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, 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.

BillySaturday said...

Birkel, there is no louder mouth in these comments sections than yours. A suggestion, do like Bannon says and just "shut up" for a while and "listen". David Begley is as partisan as you are. I'm sure we'll get to see how the Supremes rule on this so called Executive Order, illegally banning people of a certain religion.

Birkel said...

BillySaturday:

Why would the Supreme Court be involved at this juncture? You honestly don't have any clue. You are ignorant.

Birkel said...

Old #55.

Tim said...

BillySaturday must be a new hire from Soros, Inc.

Birkel said...

No, Tim. That is just a changed name by Old #55.

Livermoron said...

Yes, BillySaturday has the same uncanny grasp of intricate legal arguments that garage mahal had. He couples that with a wit as sparkling as Inga/Unknown/whatever's (Btw, has she been banned now too?); an understanding of history and civics on par with GWash (commonly known as "ol' 3/5ths" here); and the clear visions of the future that can only be described as [I]Oncewrittenian[/I].

tcrosse said...

banning people of a certain religion
Banning people from certain countries, to be precise. Much as Obama has banned people from Cuba in one last hissy fit.

mockturtle said...

The Ninth Circuit Court has been an obstacle to reason ever since I can remember.

BillySaturday said...

Birkel, I didn't say WHEN the Supremes would be involved, now did I? You just jabber on Birkel and pretend you are intelligent and informed, but the content of the majority of your comments belies that. You are simply an attention whore on these threads.

Birkel said...

mockturule:

There has been no decision by the 9th Circuit. You will not find anybody more critical of that circuit than I am but I will wait for a decision before I criticize them.

Birkel said...

BillySaturday:

Explain why the Supreme Court will be involved, period. If you wish to assume a win at the Ninth Circuit, that is a fine counterfactual.

You don't know the things you need to know to have an opinion. At this point all you have is Teh Feelz.

mockturtle said...

Go Falcons!

GWash, I do agree with you on that.

BillySaturday said...
This comment has been removed by the author.
Michael K said...

The new trolls are no improvement.

Even Ritmo makes more sense. And that is saying something.

BillySaturday said...

If you weren't so ignorant Birkel, you'd be aware of the fact that when there have been conflicting rulings it has gone to the Supreme Court in the past.

Josephbleau said...

Ann, your theory of 8:53 am seems very problematic, what person could afford to be a public officer if by acting and later being adjudicated as exceeding authority is personally liable for damages. Who could serve, being exposed to punishment by a ruling that he exceeded authority? This would be the end of government.

n.n said...

The concern about the first judge was an observation of foreign bias perhaps rising to prejudice in his professional works that created a conflict of interest affecting his ability to rule objectively.

Bad Lieutenant said...

BillySaturday said...
The update doesn't change the fact that Trump attacked the Judge personally.



So what? Asking for a friend.

I mean, if JFK had had the stones to say "hey, Bull Connor, you fuck, stop beating up on the blacks in Birmingham!" Which he didn't, but if he did, you would have objected?

BillySaturday said...

Sorry Althouse, I know that you've had a fluff up with this guy in the past, but he is a constitutional scholar and his opinions do carry weight.

"If the Ninth Circuit declines to review or stay the lower court order, the Administration could appeal to the Supreme Court. This is the worst procedural foundation for an appeal but, given the national security claims, it is not beyond the realm of possibility for the Administration to secure review."

https://jonathanturley.org/2017/02/05/ninth-circuit-rejects-motion-for-immediate-reinstatement-of-executive-order-but-schedules-expedited-argument-for-monday/#more-108593

Real American said...

A real judge would not have issued such a terrible ruling. There you go.

n.n said...

A policy that affects multiple classes based on geographical alignment, only a small minority of any one class, and only increases scrutiny of principled alignment, cannot be considered to discriminate based on fake [class] diversity (i.e. "color of their skin") or real [class] diversity (i.e. "content of their character"). The refugee crises (a.k.a. immigration reform) are a cover-up of elective regime changes, social justice adventures run amuck, as well as a fulfillment of special and peculiar interests (e.g. demographic redistricting, labor arbitrage, welfare industry, Planned replacement). Progressive, Liberals, and Libertarians need to deny the anti-nativist factions within.

Birkel said...

BillySaturday:
You still don't realize that no ruling has been issued.

Teh Feelz are strong in #55 IngaUnknown.

Kirby Olson said...

In our country, our judges were meant to recall Plato's philosopher-king. I was told this by Gordon Wood in a seminar at Brown University. Wood is an eminent American historian - the top historian of the American founding. Wood said it with a lot of equanimity, as if it was a great thing! He said that judges were meant to "elevate the level of decision-making," and that Madison had put them in to fight against the "rabble with mud on their boots from Alabama." I couldn't believe how easily he spoke against democracy! I have a poem about his viewpoint in my book Christmas at Rockefeller Center. I don't think anyone understood what the poem was about. I sent it to Wood, and I got the feeling he didn't like it, and he wrote back that I had taken his viewpoint too literally, but he used Brown vs. Board of Education as a model for this. He said that if left to the local school board, we would still have segregated education. Instead, we've had sixty years of bussing, which seems like it just punished everyone and solved nothing.

The National Trust at Montpelier

“If men were angels, no government would be necessary.” The Federalist Papers, No. 51

The tractors’ wheels like Roosevelt dimes
roll over the rills before the Blue Ridge Mountains.
The costs have increased since Jefferson’s nickel.
Where slaves ministered to James Madison’s fields,
the National Trust is tilling the race course.

Federalists wanted the magistrate to review laws:
legislation that streamlined the administration
and “elevated the level of decision-making”*
to that of a golden quill behind armored fenestration
so we could have Brown vs. Board of Education.

Birkel said...

Kirby Olson:
Alabama was founded in 1819 according to the interwebs. Why were the Founding Fathers concerned about a state to be established 30 years after ratification of the Constitution?

Gordon Wood sounds like an ahistorical, prejudiced scholar in your story.

viator said...

Laura Ingraham

FACT: 9th Cir is the most reversed fed appellate court in America

hombre said...

Democrats have lost nearly everything but their toady judges and the mediaswine (and Chuck). This has not truly been a nation of laws since Griswold's emanating penumbras. Even the pretext disappeared among Democrats with Obama and Holder.

Trump and his spokespersons must lay bare the political hacks on the bench despite the howling. Respect for the courts is a bullshit concept forwarded by a few idealists and the leftists who revel in the dismantling of the Constitution by their pet judges. Activist jurists long ago abandoned respect for the offices they hold and the rule of law. It's time for the rest of us to stop pretending otherwise.

As for the Ninth Circuit, our appeals deputy once said, "Arguing as a prosecutor at the Ninth Circuit - even when you win - is like inviting someone to spit in your face." Take heed, President Trump. You are outside the template. Your face is not immune.

BillySaturday said...

Birkel, you dumbass, go argue with Jonathan Turley, I'm sure he'll be impressed with your vast legal knowledge. Now I'm certain you are just an attention whore.

"If the Ninth Circuit declines to review or stay the lower court order, the Administration could appeal to the Supreme Court. This is the worst procedural foundation for an appeal but, given the national security claims, it is not beyond the realm of possibility for the Administration to secure review."

steve uhr said...

I also hope the Falcons win. Both Brady and Bilichick are proven cheaters. They are also Trump supporters. Hummm.

Comanche Voter said...

Taking off my retired lawyer hat (and it's been a long time since law school) I have to wonder whether one Federal District Court Judge in Seattle has the authority to bind the entire Federal government across the United States. What person or group of persons came before him to complain that they lost a Federal right?

This particular executive order has been attacked in a number of courts around the country.
Who made one Federal trial judge in Seattle "king" for a day? Assuming his order gets appealed to the 9th Circuit, and is upheld, will it or should it have any validity outside of the 9th Circuit?

rhhardin said...

I think the deep state realizes that unwritten rules are necessary for the system to function, and they prefer that the system break down entirely than that it drain the swamp.

Put the elite back in charge, is the plan. Screw the system.

Sydney said...

I guess we are about to find out if we are truly a nation of laws or a nation of politicians. I am betting it will be the latter as it has been that way for at least eight years now.

Birkel said...

BillySaturday:
You cannot see why what you are quoting is unhelpful to your point.

Please, UnknownInga #55, try to understand why you know so little.

hombre said...

sinz wrote: "The Trump supporters here have clearly forgotten how many court challenges the GOP issued to many of Obama's executive orders."

It's not about the challenge, it's about the decision.

BTW: Many of are not "Trump supporters." We do support his right as President to have his cabinet and to fulfill his promises, just as we did at the beginning with Obama.

steve uhr said...

Suppose both the Boston decision and the Washington decision are sustained on appeal, SCOTUS grants cert and splits 4-4 on both. What happens then?

Birkel said...

Teh Feelz get the way of logic and rational thought.

Birkel said...

Good question with no clear answer, steve uhr.

Birkel said...

My retort to Jonathan Turley:

If flying monkeys attack Puff the Magic Dragon on his way out of Sherwood Forest, Godzilla will be in the worst possible position when the Supreme Court of Australia reviews President Trump's conversation with Angela Merkel, spoken in Austrian as directed by former President Obama while visiting his 57th state.

Kirby Olson said...

Birkel, I think Wood said Alabama. It's been a long time. Wood was fascinated by country yokels and was trying to find out at the time about a farmer in Pennsylvania. He thought it was interesting that smaller people could still have a say, but he also thought that smaller people had smaller minds, potentially. He used Brown vs. Board of Education quite a bit to demonstrate this point. The liberal elite believes that they are all philosopher kings and we are the rabble with mud on our boots.

Wood is worth reading, and in depth. However, he is also part of a fabulous liberal elite. He teaches at Brown, and came from Massachusetts. His viewpoint is very liberal elite. Everyone has their prejudices, and historians also have them.

BillySaturday said...

Attention whoring gets in the way of commenting knowledgeably for Birkel. In every thread we see Birkel from the crack of dawn to late night. Birkel, don't you have a life outside this blog's comments sections?

Birkel said...

BillySaturday:
Please tell me why what I wrote is less useful than what Jonathan Turley wrote. Can you spot it?

BillySaturday said...

Attention everyone! Birkel is more informed on legal matters and the Constitution than Jonathan Turley. Turley was lead council when the Republican House sued Obama.

William said...

I don't know that much about the Falun Gong group in Japan. It is my understanding that they were the devotees of some kind of charismatic yoga instructor who claimed divine status. Apparently this yoga instructor was able to attract some extremely bright and wealthy people. They let loose a gas attack on the Tokyo subway and, at one time, they were negotiating to acquire a nuclear weapon.......Here's my question: Does the United States have the right to ban Falun Gong members on religious grounds? Why are some religions cults and others manifestations of religious faith?..........Apropos of nothing, I'd like take this this opportunity to observe that the Rev Jim Jones was a supporter of liberal causes, and that he could count on the 9th District to support the exercise of his religious rights.

Birkel said...

Can you spot it?

BillySaturday said...

The Republican House should've just hired Birkel to represent them, what were they thinking, what a bunch of dummies.

Renee said...

"“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax bases."

My daughter goes to a private high school with full paying international students, about 20 or so. Every holiday break one or two gets stuck in their country due to paper work and gets back to school a week or so later.

The rich international students have more rights than the right to protect or borders?

I don't want to defend Trump, but where are the judges priorities?

Birkel said...

Come on, UnknownInga #55. You can spot the issue, can't you?

khesanh0802 said...

When all is said and done I think Trump will come out the legal winner on this. I am not a lawyer, but the most thoughtful analysis I have seen says that Trump was well within law and precedent to issue the order he did. That it was poorly vetted and poorly implemented is absolutely certain. The groundswell of protest and mixed legal opinions, I believe, is going to allow for the release of some pressure on Trump's inadequate preparation - a distraction if you will. Ultimately a travel ban of some sort is going to go into effect because Trump has the right to impose one if properly structure. The net result will be that Trump has a little egg on his face, the Ninth Circuit once again will be shown to be frivolous and everyone who is paying attention will have a much better understanding of the immigration situation and the President's powers in relation to it. To me that is generally beneficial from a "rule of law" stand point.

Michael K said...

Blogger steve uhr said...
Suppose both the Boston decision and the Washington decision are sustained on appeal, SCOTUS grants cert and splits 4-4 on both. What happens then?


All the refugees go to Washington.

We may be getting a hint about who could have compromised the Yemen mission where the SEAL was killed.

And guess what ? All worked for Democrats and all are....

Abid Awan, Imran Awan and Jamal Awan, are three brothers who worked within the IT department for members of the House Permanent Intelligence Committee.

Matt said...

Claiming he is a so called judge is a personal attack. There is no reason for that. The man IS a judge. Would you accept it if someone said Althouse is a so called professor? A so called blogger? Spliting hairs with Trump's tantrums is giving Trump far more credit than he is giving the judge. He is such a whiner... Not a so called whiner.

william said...

It's good to know that Pence acknowledges that Judge Robart has the authority to halt the so called President's travel ban.

http://thehill.com/homenews/administration/317958-pence-judge-certainly-has-right-to-halt-ban

"Vice President Mike Pence said a federal judge in Seattle “certainly” has the authority to halt President Donald Trump’s travel ban, but insisted the administration would seek a stay of the order.

“He certainly does, and that's why the administration is complying with that order as we speak,” Pence told ABC’s “This Week” in a pre-taped interview that aired Sunday."

Birkel said...

Matt, are you so called or not? I believe you are called so. Is that untrue, Matt?

Birkel said...

William:
Did you expect this administration to ignore federal judges like the Obama Administration did?

Commander Crankshaft said...

As some commenters are pointing out, the phrase "so-called judge" could be called an attack on the man.

What do you mean "could be?" It fucking is. WTH is wrong? It's delusional to deny. This man's clinical narcissism is rubbing off on you. You aren't even doing a good job of playing the role of his lawyer, which is all you seem to do these days. Nevermind, most of his lawyers I'm sure lose on these personal appeal cases of his. He just keeps them around to satisfy his ego into thinking that he's got an army of competent people looking out for his fragile and worthless sense of self.

This blog is becoming downright clinical.

Joe said...

Even is someone disagrees with the "7 country" EO, do they understand the implications of overturning federal law concerning immigration? I think some do and that is their intent, but I think most people aren't clear at how destructive unbridled immigration would be.

Birkel said...

Commander Crankshaft:
I am hoping you get help for your problem.

You are Commander Crankshaft and I have called you so. You are so called.

Commander Crankshaft said...

Claiming he is a so called judge is a personal attack.

It's classic Trump. Ben Carson was "an okay doctor," in his book. Youngest head of pediatric neurosurgery at Hopkins in his 30s. Pioneered procedures never before done. "Okay." Trump is a looney who will say anything.

BTW, it's pretty sad that Carson could do such a great job in such a limited field of expertise and be such a cuckoo in another. But don't tell the ideologues here, that. It's all about the movement. All truth must be filtered through it - much like how Trump must filter all truth through the lens of his own, massive, fragile, sprawling, splintered ego.

Birkel said...

Is Trump classic? He has been so called by Commander Crankshaft.

Commander Crankshaft said...

Are you done fellating Trump and declaring him perfect, Birkel?

The longer you do that, the longer you'll be of use to him and his delusions.

Hagar said...

If a judge wishes to stay an Executive Order, he needs to do a little better then "I do not like this Order."

eric said...

Something I haven't heard discussed.

Can President Trump just issue a new executive order? Would that in some way mean he is conceding the argument if he did?

Are there other avenues he could take? For example, shut down the border completely? Tell CBP to close up shop and take a few weeks off? If no one is there to admit anyone, how does anyone legally enter the country?

Could he do the same with the state department? Order all of them to take a few weeks off until this is resolved and stop issuing visas all together? Or can a judge force an agency to go back to work?

Serious questions.

Can't Trump just ramp this up a notch?

Original Mike said...

"You are Commander Crankshaft and I have called you so. You are so called."

He has called himself many names.

Birkel said...

Do I commit fellatio on the president, like Monica Lewinsky? I have been called so. I am so called.

william said...

"Are there other avenues he could take? For example, shut down the border completely? Tell CBP to close up shop and take a few weeks off? If no one is there to admit anyone, how does anyone legally enter the country?"Can't Trump just ramp this up a notch?"

Can Trump be held in contempt of court?

David Baker said...

I was hoping Judge Robart would only be president for a day.

But I forgot about our living, breathing constitution.

Kirby Olson said...

Gordon Wood was trying to be impartial, and to talk about how checks and balances were first conceived. Madison wanted to give the final check to the upper crust, and thought the judges would be that.

They can override democracy.

Birkel said...

william:
You mean like former Attorney General Eric Holder? Of course.

Meanwhile, we are past discussions of law. All that remains is Teh Feelz.

rcocean said...

According to an analyst at NPR the judges ruling will stand. The left-wing 9th circuit will probably uphold it. Then, the Liberals on the SCOTUS (kagan, breyer, Ginsburg, and the wise latina) will support it. 4-4 and the ruling stands. Although it will probably be 5-3 since Drama Queen Kennedy will want the NYT to like him.

Birkel said...

Kirby Olson:
Gordon Wood was arguing for the ratchet that turns in one direction. Simple. Direct. Explains all available evidence.

Occam's Razor.

Michael K said...

"Can't Trump just ramp this up a notch?"

I wouldn't be surprised if this was under consideration. They will probably wait until the full ninth circuit decides.

Congress might start thinking about how overworked the ninth circuit is and create another appeals court. Then the ninth could confine itself to California which seems appropriate.

rcocean said...

The power elite have always used the courts to get their way, in defiance of the legislatures and President.

You'd think people would catch on, but they love "muh constitution".

rcocean said...

"Congress might start thinking about how overworked the ninth circuit is and create another appeals court. Then the ninth could confine itself to California which seems appropriate."

So how would that help? The liberals would just go judge shopping in California.

viator said...

As to the President’s authority under 8 U.S.C. s 1182(f), that statute specifically grants the President, where it is in the national interest to do so, the extreme power to prevent the entry of any alien or groups of aliens into this country as well as the lesser power to grant entry to such person or persons with any restriction on their entry as he may deem to be appropriate.

Mow Sun Wong v. Campbell, 626 F.2d 739, 744 (9th Cir. 1980)
Yes, that 9th Circuit

David Begley said...

My sense is that given the procedural posture of this case (TRO/injunction) if the 9th Circuit doesn't reverse the trial court on Monday or Tuesday, then only Justice Kennedy will rule on it. Very unlikely that full SCOTUS would consider this. But I could be wrong. This is very rare and I'm not going to plow through the rules.

Jay Elink said...

GWash said....... after all if 98% of scientists polled can agree with the reality of climate change...

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

My, you ARE a veritable encyclopedia of debunked misinformation, aren't you....

http://climatechangedispatch.com/97-articles-refuting-the-97-consensus/

Hagar said...

Why does the MSM immediately go to noting which administration appointed which judges?

A government of laws and not of men, indeed.

Birkel said...

viator:
That case seems not to be applicable in the present instance.

Birkel said...

Hagar:
Almost. The MSM plays name that party in cases where the appointing President plays against the narrative.

Ann Althouse said...

"Ann, your theory of 8:53 am seems very problematic, what person could afford to be a public officer if by acting and later being adjudicated as exceeding authority is personally liable for damages. Who could serve, being exposed to punishment by a ruling that he exceeded authority? This would be the end of government."

You threw that one right into the strike zone.

The legal doctrine I referred to applies only to prospective relief like orders telling the official he must begin to follow the law. That's all that's at stake in Trump's current case.

There is other law regarding liability for damages, tied in most cases to the clarity of the law that was violated. As for the President, he has absolute immunity for damages done in his role as President, even when the violate clear law.

Michael K said...

"So how would that help? The liberals would just go judge shopping in California."

Good point.

cubanbob said...

“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax bases."

This level of judicial idiocy cannot possibly stand. It doesn't take a stretch of the imagination to see how disastrous the reasoning of this decision can lead to.

Chuck said...

As some commenters are pointing out, the phrase "so-called judge" could be called an attack on the man. But the only basis for saying "so-called judge" is what the man in the robe is doing in this particular case. There's nothing against him as an individual.

Good lord, that may be the most disingenuous thing I've ever seen in writing from you, Professor Althouse.

Of course it is a personal insult. It is a personal insult, based on an official-capacity decision. So maybe you're getting that part right. But without the decision, Trump would never have even known who this U.S. District Judge was. And because it was a public matter, Trump did what he so often does, and he went straight for the personal insult.

I so rarely disagree with you on legal matters, Professor. This one strikes me as astonishing.

He's the "so-called president" from now on, as far as I am concerned.

I must add; I am mostly an agnostic, on the technicalities of the EO. It might survive judicial scrutiny on the merits; it might not. I am not certain, if the basic outline of the order is good or bad policy. It could have real substantive merit. And I had real dislike of much of the Obama executive action on immigration starting early in 2016, and I was happy that the U.S. District Judge in the Southern District of Texas (Judge Andrew Hanen) ruled to enjoin it in large part.

Birkel said...

Michael K:
Trump can add 12-15 circuit court judges and rebalance the Ninth Circuit. That is what Obama aimed to do in the D.C. Circuit.

Fabi said...

It looks like the voted-out-of-power-party has its game plan -- find a so-called judge in the right circuit to interfere, take it for rubber-stamping to the 9th, then have it upheld by a split SCOTUS. Rinse, lather, repeat. I'm sure the American voters won't notice.

Birkel said...

Chuck:
I call you Chuck. You are called so. You are so called, Chuck.

BillySaturday said...

30 comments by Birkel so far. Almost 18% of all comments on this thread.

Chuck said...

Birkel said...
Michael K:
Trump can add 12-15 circuit court judges and rebalance the Ninth Circuit. That is what Obama aimed to do in the D.C. Circuit.


Actually, Obama mostly did it, in the D.C. Circuit. See, e.g., Reid, Harry; "The Nuclear Option" 2013.

Oh; and there are currently only 4 vacancies in the Ninth Circuit, all presently occupied by Judges on senior status, so not a lot of urgency.

viator said...

“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,”

Substitute the words law, regulation, statue, rule, ordnance, act, bill, court ruling, legislation, for "executive order" as needed.

D. said...

"30 comments by Birkel so far. Almost 18% of all comments on this thread"

between you and it, the scroll wheel gets alot of use

Birkel said...

Chuck:
Congress can add judges as it prefers. There is no set number. Your comment was worthless and I invite you to try again.

You are Chuck. I have called you Chuck. You are so called.

Yancey Ward said...

Trump clearly has the power to issue the EO in this case- this isn't even a close call, and I think eventually the TRO it will get lifted by Anthony Kennedy himself.

However, Trump's opponents are again making a strategic blunder in fighting to win this battle, and that will become clearer as time goes by. Events are very, very, very unlikely to proceed in a fashion in which the overturning of this EO accrues benefits to Trump's opponents. From a purely cynical point of view, this is a battle Trump is better of losing.

Chuck said...

Birkel said...
Chuck:
Congress can add judges as it prefers.

Congress can. Not the so-called president. Congress can add a whole circuit. As with each succession from the original three circuits, to eleven, and the D.C. Circuit, and the Federal Circuit.

Congress; not the so-called president.

viator said...

"there are currently only 4 vacancies in the Ninth Circuit, all presently occupied by Judges on senior status."

So Harry Pregerson appointed in 1970 by Jimmy Carter, Barry G. Silverman nominated by William J. Clinton on November 8, 1997, Diarmuid Fionntain O'Scannlain nominated August 11, 1986, by President Ronald Reagan, and Richard Randall Clifton nominated by George W. Bush on September 4, 2001 all get replaced by a Trump nominee?

I see there a number of other really old judges, some born in the 30s and 40s, on the ninth.

Theranter said...

Cuban Bob "This level of judicial idiocy cannot possibly stand. It doesn't take a stretch of the imagination to see how disastrous the reasoning of this decision can lead to."

Good times last night delving in to the declarations from public Uni presidents, and the Amicus filings that gave ammo to the "judge's" decision (ACLU, SEIU, some Labor Council, Americans United for the Separation of Church & State, & a group of law profs) but this statement below by the SEIU just floored me. These union puppets just soak this propaganda up. From http://www.seiu.org/2017/02/seius-saenz-justice-prevails-for-our-muslim-brothers-and-sisters

“I’m so proud that just this week, the SEIU filed an amicus curiae brief in this case supporting the State of Washington’s Motion for a Temporary Restraining Order against President Trump’s Executive Action that targets Muslims.

“The brief describes the profound adverse and discriminatory effects of the Executive Order that is wreaking havoc on the State of Washington and its residents—including SEIU members. Members like homecare worker, Halima, who is originally from Somalia and now a naturalized U.S. citizen. Halima describes how her friend's husband, a green card holder, was turned around at the airport and deported back to Somalia before she had a chance to even see him. Halima says, “If they can treat people with green cards and visas the way they treated these people, who knows if they will come after naturalized citizens next? No one is safe.”"

You can see more propaganda sent to their 72,000 followers at https://twitter.com/seiu?lang=en

Hagar said...

"Specifically, for purposes of the entry of this TRO, the court finds that the States
have met their burden of demonstrating that they face immediate and irreparable injury as
a result of the signing and implementation of the Executive Order. The Executive Order
adversely affects the States? residents in areas of employment, education, business,
family relations, and freedom to travel. These harms extend to the States by virtue of
their roles as parens patriae of the residents living within their borders. In addition, the
States themselves are harmed by virtue of the damage that implementation of the
Executive Order has inflicted upon the operations and missions of their public
universities and other institutions of higher learning, as well as injury to the States'
operations, tax bases, and public funds. These harms are significant and ongoing.
Accordingly, the court concludes that a TRO against Federal Defendants is necessary
until such time as the court can hear and decide the States' request for a preliminary
injunction."


And that's it?

If this reasoning is to stand, it will prevent any administration from ever doing anything at all that may displease some Federal judge somewhere in the country for some reason he does not feel obliged to explain.

Birkel said...

Chuck, who has been called, has struck upon a point. So called Chuck informs all of us that Republicans in Congress can add seats on the circuits.

And those judges would be nominated by Trump and confirmed with 51 votes in the Senate.

Chuck, so called, thinks his point is a good one. So called Chuck is wrong.

Chuck said...

viator:

"~ During his first term, President Obama nominated 42 persons to U.S. circuit
court judgeships. Of the 42, 30 (71.4%) were confirmed, 5 (11.9%) had their
nominations either withdrawn by the President or returned to the President and
not resubmitted to the Senate, and 7 (16.7%) had their nominations returned to
the President at the end of the 112th Congress and subsequently were renominated
during the 113th Congress.
~ During the first terms of the five most recent Presidents (Reagan to Obama), the 30 confirmed Obama circuit court nominees were tied with 30 Clinton nominees
as the fewest number of circuit nominees confirmed. The percentage of circuit
nominees confirmed during President Obama’s first term, 71.4%, was the
second-lowest, while the percentage confirmed during G.W. Bush’s first term,
67.3%, was the lowest."


https://fas.org/sgp/crs/misc/R43058.pdf

The Obama first term was in the filibuster days for Circuit judges. Obama's second term saw a lot more confirmations.

I think that you should count on these sorts of numbers for Trump-judge confirmations. In some cases, Republican-sympathizing judges will resign in favor of finally allowing a Republican (so-called Republican) president to nominate a successor, instead of Obama.

There will be plenty of Trump judicial nominations.

Hagar said...

If an Executive Order is issued, it is in order to have some effect on national policy, and in most cases there will be winners and losers.
If the losers can go to court and get a stay order just on that basis, it will be impossible to enforce any Executive Order.
The complainants - and the judge - should be obliged to set forh just exactly what provisions of the Constitution as Amended or Federal laws the Executive Order in question violates and how, etc.

Alex said...

Every Trump executive order will be overturned by a rogue 'judge' in the next 4 years. It's up to the GOP to demonize these Communist 'judges' and get them impeached and replaced.

Chuck said...

Hagar said...
If an Executive Order is issued, it is in order to have some effect on national policy, and in most cases there will be winners and losers.
If the losers can go to court and get a stay order just on that basis, it will be impossible to enforce any Executive Order.
The complainants - and the judge - should be obliged to set forh just exactly what provisions of the Constitution as Amended or Federal laws the Executive Order in question violates and how, etc.


But that is EXACTLY what happened just last year, in the United States District Court for the Southern District of Texas, Judge Andrew Hanen presiding, in the case of Texas v. United States. Instead of a Trump EO, it was an Obama EO.

In the Texas case, I personally think that Judge Hanen did a better and more complete job of developing a record prior to ruling. And in the Texas case, the Obama Justice Department made some alarmingly false representations about what ICE was doing. So I am not comparing the cases on the merits. But I am comparing the broad procedural outline, which is what your post characterized so badly.


Tyrone Slothrop said...

@BillySaturday, et al.

The president has explicit statutory authority to restrict immigration as he sees fit.

U.S. Code § 1182(f)

"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, 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."

I'm not an attorney, but this seems crystal-clear to me. What am I missing?

Chuck said...

Tyrone Slothrop said...
...

I'm not an attorney, but this seems crystal-clear to me. What am I missing?


The due process clause of the Fifth Amendment, I think. If I understand Judge Robart's ruling. And I refuse to make much pretense about understanding the various orders. (The Darweesh case in New York's U.S. District Court was and Equal Protection and Due Process claim; and on that note, recall that while the Washington case is getting all the attention, there are about a dozen similar cases all across the country.)

There is not a lot of briefing and opinion writing in these cases, because none of them are being decided on the merits. They are all TRO's. Short-term injunctive relief, to prevent irreparable harm, while the merits of the case(s) are prepared for trial or other hearing.

Tyrone Slothrop said...

@Chuck

Are non-resident non-citizens living in foreign nations able to avail themselves of the provisions of the US Constitution? Really?

Jay Elink said...

sinz52 said...


http://thehill.com/regulation/legislation/196842-house-gopers-push-for-lawsuit-against-obama-actions

The Dems aren't doing anything to Trump that the GOP didn't try to do to Obama.

***********

For reasons amply set forth in this thread, Trump's EO in entirely legal, constitutional and w/i his authority.

In the case you cite, Obama unilaterally carved out exceptions to the ObamaCare law, specifically extending the time for certain "cadillac" plans to lapse. (unions had many suh plans). IOW he simply changed the law "with the stroke of a pen." He lacks the power to do that ---and in the end the GOP lacked the political will to challenge him.

So you're comparing apples with kumquats.

Chuck said...

Tyrone Slothrop said...
@Chuck

Are non-resident non-citizens living in foreign nations able to avail themselves of the provisions of the US Constitution? Really?

In the New York case (Darweesh), the focus was initially on particular classes; people for whom refugee status had already been processed; people who had approved immigrant and non-immigrant visas (including so-called "green card" holders"; and finally what I suppose is a broader category of "individuals" from the seven named countries who "are legally authorized to enter the United States."

https://www.nytimes.com/interactive/2017/01/28/us/politics/trump-darweesh-decision-stay-refugee-ban.html

To some extent, those are all people who have already been availed of legal interests in the United States. And while they may be non-citizens or even non-resident aliens, they may have justiciable interests in U.S. courts.

There is a vast array of several lines of cases in various contexts affirming that many Constitutional rights can be asserted by non-citizens. That's too big a topic to be covered here. And yes there are limitations in the immigration context. There is considerable executive branch power. It is not a simple answer is my best response to you.

Hagar said...

I do not think he U.S. Constitution applies to foreigners, and certainly not to illegal aliens.
However, it does apply to U.S citizens, and that goes for obligations to follow U.S. laws as well as to their privileges under the Constitution.
That is, foreigners can apply to the courts to make us live up to our own books of rules.

Birkel said...

Either the Congress or the President has the power to set the rules for immigration. If, as here, Congress has ceded authority to the President there is very little - and probably no - authority vested in the Judicial Branch.

Between the doctrines of Standing, Justiciability, and Political Questions there is little room for judges to operate. That is what defines judicial restraint, in fact.

So called Chuck cannot understand the concept.

cubanbob said...

Chuck what specific constitutional rights do non-resident aliens have that are justiciable interests with respects to being allowed into the country?


"“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax bases."

As I mentioned before THIS particular line of judicial reasoning is beyond the limits of natural stupidity.

Chuck said...

Hagar said...
I do not think he U.S. Constitution applies to foreigners, and certainly not to illegal aliens.


You can think that, and you can think that the Constitution shouldn't apply to non-citizens "and certainly not illegal aliens." But you'd be wrong, with a broad and blanket assertion like that.

Here's a link to a very large document prepared under the uaspices of the Ninth Circuit (which has become a central player now in the litigation of the Trump order):

http://cdn.ca9.uscourts.gov/datastore/uploads/immigration/immig_west/E.pdf

You should spend a little time with that document.

Chuck said...

cubanbob said...
Chuck what specific constitutional rights do non-resident aliens have that are justiciable interests with respects to being allowed into the country?


I could be wrong, but the last that I heard, there was actually a split in the circuits as to whether non-resident aliens' due process claims would be viewed under "strict scrutiny."

I practice in the Sixth Circuit, and one of our judges, Karen Nelson Moore, did this address which touched upon the taxonomies of "resident alien" "non resident alien" and "unauthorized alien." Start your reading on page 810:

http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-88-3-Moore.pdf


Hagar said...

Read it yourself. All I see is references to U.S. laws, our rule books, i.e, there has to be laws we have enacted that the aliens can refer too.

Jersey Fled said...

This is rich.

The same people who called Trump a racist, homophobe, sexist and Hitler are all lathered up because he called someone a "so called" judge.

Achilles said...

Chuck said...

You can think that, and you can think that the Constitution shouldn't apply to non-citizens "and certainly not illegal aliens." But you'd be wrong, with a broad and blanket assertion like that.

And you wonder why the courts, judges, and lawyers in general are viewed as a bunch of slippery slimy jerkwads who can make any argument "correct."

You people are desperate to make us all citizens of the world. It is high time many in this country get to leave this country and truly become citizens of the world.

Seeing Red said...

Quelle suprise, it's the most-reversed circuit, I think, during Obama's reign.

On to the Supremes!

Seeing Red said...

Then there's Argentina....

Birkel said...

No, Seeing Red. The Supreme Court is not next.

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