February 8, 2017

"Do the courts, or the American people, have any recourse when the President lies?"

Asks Amy Davidson (at The New Yorker), attempting to analyze yesterday's oral argument in Trump's immigration case.

My instinctive reactions were, in order: 1. Courts don't seek recourse (they look to the law to resolve disputes that are filed by parties who are seeking recourse), 2. The people always have political recourse — criticizing the President, voting against him in the next election, and pressuring our representatives in Congress to use their political powers (including impeachment) — so it's always wrong to give the impression that there must be recourse in courts or there is no recourse, and 3. All Presidents lie, the political culture is awash in lies, it always was and it always will be, so the notion that something must be done!!! because a President is lying is — to my ear — more lying.

But let's keep reading:
August Flentje, a special counsel to the Assistant Attorney General, who was arguing the case for the Trump Administration, said, in effect, that the emergency was that the restraining order got in the way of the President’s power to say that there was an emergency—to announce that the country was in danger....

When he was asked if the government had pointed to any evidence connecting [the countries identified in the executive order] to terrorism, he rejected the idea that it had to.... “We’re not acknowledging any review on the facts of the case,” Flentje said.

Immigration law does give latitude to the President when the country is in danger. But what happens when you have a President who the courts, and any objective person, know tells lies?...
Davidson is losing me. I think all Presidents lie. Whatever concern you have for the dangers of deceitful claims of emergency, you've got to have neutral principles of law and not special law for the President you think everyone must know is a liar.
As it happens, this question has come up before in our jurisprudence, because Donald Trump is not the first politician to lie. 
Okay. I needed that.
Our courts have dealt with the prospect of dissembling and misstated motives, particularly in the area of racial discrimination.... Judges seem to believe that Presidents will lie about many things, but that they might have some shame when it comes to the nation’s safety, particularly as they have access to classified information that the public does not....
Shame? Why would a President be less likely to lie about national security? That's the place where I most expect to hear lies.
“Could the President simply say in the order, we’re not going to let any Muslims in?” Judge Canby asked, at that point.
If the answer to that question is no, then maybe courts need to be able to dig past the veneer. Flentje didn't seem to have thought through the value and the downside of saying yes, so he floundered and more or less said no.

Really, Flentje's argument was awful. The President needed a lawyer who would have calmly, boldly, and authoritatively laid down the strong argument for presidential power. Flentje was the one who needed to convince the judges to act, to issue a stay. So really, they don't have to get embroiled in that question I put in the post title. They only need to do nothing.

175 comments:

Chuck said...

Professor I posed Judge Canby's question to your commenters in an earlier thread today, and the resulting comments were hysterical.

So how would you answer the question?

“Could the President simply say in the order, we’re not going to let any Muslims in?” Judge Canby asked, at that point.

William Chadwick said...

But keep this in mind, kids: what "liberals" (and by that I mean of course "tax-happy, coercion-addicted, power-tripping State fellators") call "lies" is "that which opposes the Hive."*

Because there is no truth but statist truth.

*Google "Sobran Hive"

Mike Sylwester said...

For a while, all the journalists wrote that Trump's statements were "dark".

Now they all are writing that they are "lies"?

It will be interesting to see what all of them write next.

rehajm said...

It's a tax until the President says it's a fee.

Quayle said...

Even a bad high school student could have made a better showing on behalf of the President.

Especially since he would have been talking to other bad high school students.


In fact, even we might get a better society if our government were fully staffed by bad high school students.

Nonapod said...

Immigration law does give latitude to the President when the country is in danger.

"Danger" is misleading.

From the INA:
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

To be found to be "detrimental" is not the same thing as being a "danger".

tcrosse said...

In fact, even we might get a better society if our government were fully staffed by bad high school students.
Archie, Jughead, Betty, and Veronica. I love it.


jimbino said...

What are we to do when Trump burns down our Reichstag and blames it on Elisabeth Warren's cabal?

Mike Sylwester said...

Judges seem to believe that Presidents will lie about many things, but that they might have some shame when it comes to the nation’s safety, particularly as they have access to classified information that the public does not

When I first read this passage, I thought that the antecedent of they was Judges, but now I think the antecedent is supposed to be Presidents.

I think that so-called "Judge" Robart does not have any professional shame, even when it comes to the nation's safety.

damikesc said...

Did Amy ask that question during the Burwell case? Because the President quite adamantly lied there.

Don't mind asking questions, but would like them to be asked equally.

Rocketeer said...

What are we to do when Trump burns down our Reichstag and blames it on Elisabeth Warren's cabal?

Honestly, this makes no sense. Why would Trump burn down anything when in fact, Elizabeth Warren's cabal (if that's what we're calling the left today) actually is burning things down?

Unknown said...

how is the journalists all write the same narrative each time.

what is going on the media

Owen said...

Flentje was terrible. Uh uh uh uh. No confidence, no fluency, no command of facts or even the INA which gives the President the power to exclude whichever aliens he or she pleases, based on some (undefined) process of arriving at a belief that they would be detrimental to the national interest. He should have said that. He failed, and so abjectly that I have to think he was taking a dive. If so, he broke his oath and should be disbarred for deliberately failing to represent his client's interests with zeal and diligence.

Of course this can't be proven but it does leave the impression that after 8 years of Holder and Lynch the DOJ has been reduced to a troupe of partisan hacks.

Sessions should bring a steam hose.

Ann Althouse said...

"So how would you answer the question?"

If I were the President's lawyer, I would have been ultra-prepared for that question and had an elegant way to express a legal concept that would boil down to: yes.

Or do you mean how would I answer it just as myself, in my spare time? That's too dependent on my personal feelings about what I think the answer should be.

There are a lot of terribly wrong things that the President has the power to do, but the question of the scope of that power can find its way into courts. I don't rely on the courts to save us, but they play a role, sometimes a good one.

Ignorance is Bliss said...

I've read repeatedly that the DOJ lawyer did a bad job. So is he a bad lawyer, or does he disagree with President Trump's EO, and, rather than say so and be fired, he decided to do a bad job arguing for it, hoping to lose?

SandiC said...

"What are we to do when Trump burns down our Reichstag and blames it on Elisabeth Warren's cabal?"

Do the opposite that the Germans did.

Scott said...

If you like your illegal aliens, you can keep them.

SandiC said...

"There are a lot of terribly wrong things that the President has the power to do, but the question of the scope of that power can find its way into courts. I don't rely on the courts to save us, but they play a role, sometimes a good one."

Yes. The Republican House sued Obama for overreach of his authority, no?

Ann Althouse said...

"'Immigration law does give latitude to the President when the country is in danger.'... To be found to be "detrimental" is not the same thing as being a "danger"."

Remember, the 9th Circuit panel is only asked to issue a stay. The case on the merits is in the district court. For the panel to issue the stay, it needs to find the there's irreparable injury in waiting for the district court to complete its work (and the district court imposed a TRO on the theory that the EO caused irreparable injury).

So the question is what is the irreparable injury in leaving the TRO in place, which is just leaving things as they were before the EO was signed. What was so terrible about the way we had things before the EO? Why can't we put up with a few more weeks of that? The question of the President's power thus becomes: Can President order supersede the judicial role of determining that there is irreparable injury and require the Court to act without independently looking at that question?

tola'at sfarim said...

The original lawyers recused themselves due to their old firm-jones day- filing on behalf of the states/refugees

Unknown said...

I think that Chuck's claim that the rest of the world has a US Constitutional Right to come to the US was the most striking thing about the last thread. That in particular Muslims born in Syria have US Constitutional Rights, like the 5th Amendment.

If that's the case, then Russia blatantly violated the rights of Paulus's Sixth Army at Stalingrad, didn't they.

--Vance

Bad Lieutenant said...

Ignorance is Bliss said...
I've read repeatedly that the DOJ lawyer did a bad job. So is he a bad lawyer, or does he disagree with President Trump's EO, and, rather than say so and be fired, he decided to do a bad job arguing for it, hoping to lose?

2/8/17, 1:35 PM

+1

Does anybody know anything about this guy?

Does his shanking the case sink it for good, or can some other non-sucky lawyer come in and fix it?

Peter said...

The question is, if someone is to have recourse after determining that the president is lying then who gets to determine whether the president is lying and, how do we know that that someone (presumably a judge) is not lying about the president's lying?

In short, this turns into an infinite regression along the lines of "who shall guard the guards themselves" and, if that's the alternative, where's the ultimate authority on who is or is not lying?

Then again, if the law gives the president the authority to act if some condition exists and if that law does not delegate the authority to determine if that condition exists to someone else then it would appear that it's solely up to the president to determine whether or not that condition exists, wouldn't it?

SandiC said...

Exactly right Althouse. What was the emergency that caused Trump to write and sign such an ill thought out travel ban in such a hurry? Is there some secret knowledge of an impending attack to be perpetrated by the people traveling from the listed countries? What was the big urgent threat?

Bad Lieutenant said...

tola'at sfarim said...
The original lawyers recused themselves due to their old firm-jones day- filing on behalf of the states/refugees

2/8/17, 1:40 PM

Didn't this Flentje debrief them?

I hope this Sessions is goooood. That needs to get done soon and then, yes, steam hose.

Todd said...

"Do the courts, or the American people, have any recourse when the President lies?"

I have been asking that question for the last 8 years. Where were you?

james conrad said...

PowerLine has a post up about this very question, it seems circumstances prevented the A team of lawyers from arguing the stay
http://www.powerlineblog.com/archives/2017/02/why-didnt-the-a-team-defend-trumps-immigration-order.php

David Begley said...

The President lies. And, of course, racial discrimination. This is the sophisticated New Yorker? Please. Muslim is not a race.

Luke Lea said...
This comment has been removed by the author.
SandiC said...

As far as standing is concerned: the panel of judges yesterday discussed cases in which the relative who was a legal resident or a citizen of this country were harmed by such a ban, in which their rights were violated by denying their relative entry into the US, thus giving them standing. I don't recall the name of the cases they brought up.

StephenFearby said...

Looking ahead, the Senate is scheduled to vote at 7:PM on Session's confirmation to be the next Attorney General.

I would figure he's already decided who he wants to be Solicitor General, etc. New blood political appointments. Maybe even competent or very competent.

Which means several steps up from the likes of August Flentje...who had his moment in the sun but floundered.



tcrosse said...

Not to get all tu quoque, but Hillary Clinton was not known to be totally truthful, either.

David Begley said...

Ann Althouse wrote, "Remember, the 9th Circuit panel is only asked to issue a stay. The case on the merits is in the district court. For the panel to issue the stay, it needs to find the there's irreparable injury in waiting for the district court to complete its work ...."

And that issue wasn't even addressed.

GWash said...

to me, another important question is the 'reason' behind the lie... if all presidents lie, there could be multiple reasons they lie and not all of them nefarious... for instance, if a reporter got lucky with a question, a president might lie not to divulge some state secret... or on a more personal issue because he cannot fulfill a campaign promise so he/she might lie to save face... or in the case of the current occupant of the wh, he might not know the difference between truth and the other... so, if i feel confident in the president then the fact that be may lie could be ok or maybe understandable from a politicians political stance... but if we have a 'el presidente' who believes that whatever he says cannot be a lie then we (or me) are in trouble... i know most of the bloggers here are willing to forgive and forget what the king says as a matter of expediency...

Mattman26 said...

I completely agree that Flentje's performance was awful. How he could have been unprepared for these most basic questions is mystifying (even with the appeal moving on a very fast track). (Although I don't think he was sinking the case intentionally. Never ascribe to malevolence that which can be easily ascribed to simple incompetence, or whatever the saying is.)

Someone needed to politely but very firmly tell the court that not everything is in the judiciary's purview, that certain matters must be left to the political branches, and that judges do not sit in supervision of the President.

If Congress gives the President carte blanche to make certain determinations (and it seems that it has), and unless you can point to some Constitutional protection that applies to the people and policies in question (and I'm thinking that you cannot), then this isn't in your job description, guys.

And on the question of whether the President could ban all Muslims? The answer is that if he did, it would be for Congress (or the American people in the next presidential election), and not the judiciary, to make necessary changes. That's your recourse.

Gusty Winds said...

Trump is smart enough not to separate the attacks in Europe from what could happen in the United States. The 'ban' is because he can, and it sends a clear message that the Trump administration, backed by his supporters, are not going to make the same mistake the Europeans did.

And we quit pretending Germany and Europe took in refugees for humanitarian reasons? They wanted cheap labor and it didn't work out like they thought it would.

Silicone Valley and the tech industry want imported cheap labor. Universities want imported students who pay higher tuition.

Starbucks want a supply of minimum wage baristas. All this false virtue is just sickening.

Luke Lea said...
This comment has been removed by the author.
Mattman26 said...

I should have said that "judges do not sit in supervision of the President" unless they are applying a federal statute or the U.S. Constitution.

David Begley said...

Gusty Winds is spot on. Tech companies falling all over themselves here. Puke.

Mike Sylwester said...

When Barack Obama and Joe Biden campaigned in 2008, they declared publicly and repeatedly that marriage should be between only one man an one woman.

That was a lie. Most people recognized that it was a lie, even though all the journalists did not bark on command that it was a lie (as they are doing now).

When all the various judges considered the single-sex marriage case, did any of them demand that the lawyers explain Obama's and Biden's motivations for their campaign lies in relation to the case?

Hagar said...

But Fletje is not this president's lawyer.
It is still Eric Holder's Justice Dept., and their hearts are not in it for President Trump.

As in the quoted passage about what do you do when you just know the president is lying?
It is a matter of faith, not law.

n.n said...

Ironically, it is the Left who rejects character (e.g. principles) judgments and embraces "skin color" as a defining quality. Paradoxically, they are judgmental to a fault when it serves their special and peculiar causes.

SandiC said...

Didn't Trump recently say that any polls or negative comments directed toward him were automatically to be considered "fake news"? So the president can then lie with impunity.

David Begley said...

But here's the thing Luke Lea. How often do we really know when a terrorist attack going to happen? Not that often. Moreover the children of some of the people who got in since the TRO was issued might attack in 20 years. There is an extremely violent strain of Islam that is not going away in our lifetimes. That's why the President can ban Muslims.

Achilles said...

It also needs to be pointed out that several courts ruled in favor of the POTUS because they actually read the law, and one Judge in Seattle decided to completely ignore the law. And somehow that one judge is right and he allows a bunch of people to come here in violation of the law. This case is 100% about the left trying to force the united states to let anyone in the world come here whenever they want.

Right now they want to force us to take in sharia law.

Scott said...

I thought that if the government wanted to make a really strong argument for this, find an Al-Qaeda/ISIS member from one of those countries at Gitmo or jail. Then fly them to this courtroom, walk them in, read Koran 8:12* about decapitating infidels, drop a machete at their feet, then ask for their handcuff keys.

If the judge objects, ask them why they are discriminating against a legitimate expression of their Islamic faith as perceived by them.

*The notorious "When your Lord revealed to the angels: I am with you, therefore make firm those who believe. I will cast terror into the hearts of those who disbelieve. Therefore strike off their heads and strike off every fingertip of them." verse.

Darrell said...

The countries selected for the moratorium were taken from Obama's list. How dare you question the Lightworker?

SandiC said...

"Right now they want to force us to take in sharia law."

This guy is clearly obsessed by the spector of Sharia Law.

Chuck said...

Althouse:

Attorney for the U.S. August Flentje's answer to the question from Judge Canby went like this:

He first -- rightly and without hesitation -- protested that the order in this case does not do that. The judges persisted, and then related the question to the "standing" issue. And so he cited the Mandel and the Dinh cases for the proposition that could, in select cases that may not be applicable to this case, have a route to a Constitutional challenge. That was a fair and an intellectually honest answer by Mr. Flentje.

Hearing, at 23:45.

Flentje's time was running out at that point. And an answer to that question was hardly essential to his case. He wanted to turn back to a better attack on the states' standing, and I think the standing issue is indeed a good one, to challenge the case on behalf of Washington and Minnesota.

I don't think that the president does have the power to issue an immigration order under Sec. 212 of the Immigration act, wherein all persons of one religion may be excluded. And the reason is that I think that such an order would inevitably impact some persons to whom Fifth Amendment due process and equal protection rights would attach (even if such rights don't attach to all or even most non-resident aliens). And under strict scrutiny, a purely religious test couldn't be sustained.

I really do think that presidential orders on immigration matters are presumptively valid, and that Trump can issue additional orders and perhaps even this order will stand.

But Althouse, what I did in that other thread was to invite your commenters to comment on whether a "Muslim ban" would be legal, and the answer(s) I got was mostly that hell yeah a Muslim ban would be legal because Sec. 212 reads that way with no qualifiers listed in that portion of the Act, and because we really should limit Muslims coming into the United States because they have caused a lot of sharia mischief elsewhere around the world. Laughably stupid stuff.

GWash said...

David Begley, your argument is a non starter... and unconstitutional to boot... plus the majority of terrorist attacks in this country are from white, christian men... so unless you do the double speak reverse psychology wamma jamma 'the muslims made me do it' defense you have to take their guns away or put them in camps since we can't deport THEM. the country is never 100% safe... name the last terrorist that was able to unleash an attack from these 7 countries... this is nothing more than a play to his base... see how save i, king don I has made you... at the expense of all of these 'dirt people'..

Luke Lea said...

At first I thought Ann had finally given her opinion: of course the President has the authority to issue the order he did. But then I read this:

"So the question is what is the irreparable injury in leaving the TRO in place, which is just leaving things as they were before the EO was signed?"
c
A preventable terrorist attack springcs to mind.

So case closed?

But of course no matter how it turns out this is only a minor skirmish in a much larger war over the scale and scope of immigration into this country that we can expect to play out over the next several years. To the extent this "disgraceful" kerfuffle garners headlines it only serves to put the larger issue of immigration front and center in the public's imagination -- and thus plays into Trump's hands unless I am mistaken.

Achilles said...

Ann Althouse said...

So the question is what is the irreparable injury in leaving the TRO in place, which is just leaving things as they were before the EO was signed. What was so terrible about the way we had things before the EO? Why can't we put up with a few more weeks of that? The question of the President's power thus becomes: Can President order supersede the judicial role of determining that there is irreparable injury and require the Court to act without independently looking at that question?

1200 sexual assaults in one night. All victims have a right to be believe no?

Germany has a rape epidemic.

This is ongoing.

The "game" is called taharrush.

This is what democrats want to happen here.

Note that the wealthy elites do't expect to be the victims. They keep pushing these refugees to places where teh proles live.

n.n said...

Actually, the Pro-Choice quasi-religion, selective, opportunistic, and unprincipled, is the clear and present threat, but its counterpart in Islam and other faiths coupled with left-wing ideology does enjoy superior democratic leverage.

GWash said...

i think we can all agree that the prez has great latitude with immigration, but there are limits and when he (or whoever - since he evidently has no idea what he is signing and cares less to find out except for the title which has to be a headline grabber) issues an EO is needs to be checked with the people that need to enforce it and it needs to be tightly written or we will be in this endless chaotic loop of 'interpreting' with lines like 'well he really meant'... and of court cases and rewrites... worst start of a administration ever unless you are judging by the standards of reality tv and viewers..

Chuck said...

Unknown said...
I think that Chuck's claim that the rest of the world has a US Constitutional Right to come to the US was the most striking thing about the last thread. That in particular Muslims born in Syria have US Constitutional Rights, like the 5th Amendment.
If that's the case, then Russia blatantly violated the rights of Paulus's Sixth Army at Stalingrad, didn't they.
--Vance


That is not what I claimed. You persistently stupid shit head. Now go back to that thread and re-read what I wrote. I am not going to waste any more of my time, repeatedly correcting you on your rotten mischaracterizations of things that I wrote clearly enough the first time.

And Vance, I am talking about actual federal case law that is relevant to this case. And not any of your dorm-room historical examples of Mormon persecution, or Stalingrad, or whatever form of tv history you are involved in.

I am really tired, of the declining quality of debate in the Althouse comments.

Ann, your comments pages are turning into "InfoWars." That ought to be of some concern to you.

Achilles said...

SandiC said...

This guy is clearly obsessed by the spector of Sharia Law.

SandiC think there is nothing to fear. Rotherdam never happened.

Why was Rotherdam covered up? Because people like SandiC covered it up.

David Begley said...

GWash

Please tell me how foreigners without a green card and non-citizens to boot have any right to admission to this country? And did you forget about 9-11-01 already? The attackers were all Muslims. Not Christian white men.

Achilles said...

I am going to point out that in Afghanistan child rape is institutionalized. Local Imams keep "pocket boys." They are young boys who hold the turned out pockets of their rapists.

n.n said...

The anti-native factions, those engaged in waging social justice globally including elective regime changes, [class] diversitists hoping to secure control through demographic redistricting, the multi-trillion dollar welfare industry, and the abortion industry all demonstrate clear conflicts of interest with immigration reform including insourcing/outsourcing (e.g. labor arbitrage), environmental arbitrage (e.g. the artificial green blight, the prophecy of Catastrophic Anthropogenic Global Warming), and refugee crises forced through opportunity or proxy.

Chuck said...

Achilles said...
...
SandiC think there is nothing to fear. Rotherdam never happened.


It's "Rotherham," you moronic asshole.

Hagar said...

So the question is what is the irreparable injury in leaving the TRO in place, which is just leaving things as they were before the EO was signed.

But before that, what was the irreparable injury in leaving the EO in place for 90 days?
90 days seems to be rather small potatoes for things a U.S. president might take it into his head to do.

Chuck said...

Achilles said...
I am going to point out that in Afghanistan child rape is institutionalized. Local Imams keep "pocket boys." They are young boys who hold the turned out pockets of their rapists.

Between you and Mick, there's no other Althouse commenter who is as obsessed with child sex abuse cases. Including "Rotherdam." What's that all about?

Drago said...

"lifelong republican" Chuck: "It's "Rotherham," you moronic asshole."

Here we see Vichy Chuck using stronger language condemning a misspelled word in a post than he ever would in discussing the events out of Rotherham.

Unexpectedly!

Sebastian said...

"So the question is what is the irreparable injury in leaving the TRO in place, which is just leaving things as they were before the EO was signed." The irreparable injury is in giving credence to judicial bullshit, undermining the rule of law by ignoring statutes and precedents that Robart ignored, and dangerously elevating judges to ultimate decision-makers in matters of national security.

Of course the President can, and should be able to, exclude all Muslims, just as immigration law tried to exclude all Communists. Not saying Trump should do it, of course. But extreme caution, for security and for cultural reasons, is in order.

GWash said...

DB.. were the 9/11 terrorists from any of these 7 countries that trump wants to keep us safe from? an honest person would admit that not all terrorists these days are muslims.. and there is no absolute way to keep us 100% safe.. the folks from these countries are well vetted already...if you want to make it harder for them to gain entry do it the right way not on a Friday afternoon with secret orders...
hats off to the men and women who are guarding us every day and keeping us safe..
and a tip of the hat to anyone who works to keep this country fair and just...

SandiC said...

Achilles must've forgotten we are not Afghanistan. Achilles seems to think we aren't aware of these things and he seems to think that if Muslims are allowed into this country such practices would become institutionalized here too. Why does he not give the US more credit? Does he seriously think that we would completely lose our American identity? Does he truly believe this?

R.J. Chatt said...

Importing hundreds of thousands of people who believe that people who are not Muslim are "non-believers" and that American laws should be replaced with Islamic law, might be a detriment to the country while not posing an immediate danger. Limiting the conversation to terrorism ignores the bigger question, and that is a topic which no politicians really want to discuss.

I know having discussions about Islam with liberals gets them absolutely hysterical; because they have never looked at the Qur'an they are adamant that Islam is just like every other religion. Do we want to import people who believe in honor killing, that women are chattel, that Jews and Christians have corrupted the word of God and will burn in hell fire for eternity, etc.? Do we allow freedom of worship if that includes teaching that non-Muslims should be subjugated or converted? How do we guarantee equal rights for women and gays if a religion teaches otherwise and that religion is followed stringently? Do we change our laws to permit polygamy, wife beating? So far we are not allowed to discuss this.

Achilles said...

Chuck said...

I am really tired, of the declining quality of debate in the Althouse comments.

Ann, your comments pages are turning into "InfoWars." That ought to be of some concern to you.


Are we supposed to feel bad for you? What is your point Chuck? Should she ban us?

"Declining quality of debate" = leftists being hoisted by their own petards.

Virgil Hilts said...

There are what 2,758 district court judges in this country (presumably a few past their prime and maybe even deranged); should we really have a system where each and every one of them has the right to unilaterally enjoin the executive branch on a nationwide basis from engaging in a short term immigration practice which that judge (who is not privy to the daily intelligence briefings and risk assessments) finds potentially offensive? I'm amazed at the number of people who think the answer should be yes. And remember, the executive can win the same case in front of 100 judges in 100 consecutive cases, and the 101th judge can decide by his or herself to issue a nationwide injunction to stop the executive from doing what the other 100 district court judges says it has the right to do.

Johnny Sokko said...

Q: ""Do the courts, or the American people, have any recourse when the President lies?""

A: As Althouse pointed out - Yes, it's called an election.


Good lord, these people are idiots.

Chuck said...

I should add, that August Flentje returned to the question that I posed to Professor Althouse (the question originally posed by Jude Canby), and he repeated the facts that the order in question was not a "Muslim ban"; and that in the District Court, Judge Robart said that he was not going to consider any "campaign statements." I don't think his answer was so lacking.

Hearing at 1:02:00.

Further comment, Professor Althouse?

Drago said...

"lifelong republican" Chuck: "I am really tired, of the declining quality of debate in the Althouse comments.

Ann, your comments pages are turning into "InfoWars." That ought to be of some concern to you."

Here we see Vichy Chuck lamenting the failure of his effort to turn Althouseblog into the DailyKos.

Sorry Chuck.

Better luck next time.

You know what would make you feel better? A great link to a funny Rachel Maddow piece taking down Trump! That will raise your spirits laddie! Stiff upper lip now.

Achilles said...

SandiC said...
Achilles must've forgotten we are not Afghanistan. Achilles seems to think we aren't aware of these things and he seems to think that if Muslims are allowed into this country such practices would become institutionalized here too. Why does he not give the US more credit? Does he seriously think that we would completely lose our American identity? Does he truly believe this?

I don't think we will lose our identity. That is why we elected Trump. That is why democrats are going to lose badly in 2018. That is why that idiot judge in Seattle who disagreed with all of the other judges who sided with the administration will be overruled whether the 9th circuit actually reads the law or not.

We are going to continue to be the best country in the world despite leftists like you and we are going to take back the freedom and security we lost during the Obama years.

We are going to speak the truth, and the truth is all cultures and religions are not equal and they are not all good.

David Begley said...

Virgil

And the nationwide aspect of the TRO wasn't even addressed yesterday!

GWash said...

RJ being an alarmist and warning us that shiria law is in our immediate or even distant future is crazy... i'm more fearful that the patriots are going to win another super bowl next year than that... are muslims 1% of the population yet? i doubt that they are going to change this country in any significant way.. women were considered chattel in this 'christian' country at one point also... it is christian fundamentalists that are against equal rights for women and gays in this country.. spousal abuse is rampant here... so, to me these people you fear are more like us than they are different... when the irish came over people here thought it was the end of civilization.. we need to be circumspect but welcoming.. it's a balance...

GWash said...

achilles so you admit to being a bigot and racist...

Achilles said...

Virgil Hilts said...
There are what 2,758 district court judges in this country (presumably a few past their prime and maybe even deranged); should we really have a system where each and every one of them has the right to unilaterally enjoin the executive branch on a nationwide basis from engaging in a short term immigration practice which that judge (who is not privy to the daily intelligence briefings and risk assessments) finds potentially offensive?

If that one judge makes it possible for large corporations to import a bunch of cheap labor that faces deportation if their sponsor employer feels like it yes.

I'm amazed at the number of people who think the answer should be yes. And remember, the executive can win the same case in front of 100 judges in 100 consecutive cases, and the 101th judge can decide by his or herself to issue a nationwide injunction to stop the executive from doing what the other 100 district court judges says it has the right to do.

The only thing that sustains the left is the will to power. Look at SandiC and the rest of them blithely ignoring the rape epidemic in Europe. They have no soul.

+1 on that post btw.

Mattman26 said...

Chuck, as Ann pointed out somewhere yesterday, hypothetical questions from judges to lawyers are fully legitimate, and can serve a valuable purpose.

One sure way to alienate a judge is to say that his hypothetical isn't this case. You can maybe try it once, but if you keep pushing you're going to increase your chances of losing the case.

"If you're telling me the president can do A and we can't review it, would that also be true if the president did B?" If not, on what are we basing that distinction? And if so, is that really something we're prepared to permit?

You need to come prepared to play that game. If you can't, you haven't thought through your position well enough to deserve to win.

Achilles said...

GWash said...
achilles so you admit to being a bigot and racist...

Islam is a religion, not a race. So no.

But with that post you admit to being an idiot.

Chuck said...

Mattman26:

Did you listen to the entire argument?

Roy Lofquist said...

This (the EO and the judge) is clearly an instance where the Executive is obligated to defend its prerogatives. The President is granted plenary power over these matters both by The Constitution and by statute (Black Letter Law). It is especially egregious because it is an encroachment on the powers of both the Executive and the Legislature. A mere reversal by a higher court that does not result in sanctions and/or admonishment of the judge is insufficient. If any of 2,758 Federal District Judges can trigger a Constitutional confrontation by whim without consequences then it's Katie Bar the Door. President Trump MUST crush this miscreant lest chaos and dark night engulf us.

See Federalist Papers 10, 48, 51 and 58.

Brando said...

"Here we see Vichy Chuck lamenting the failure of his effort to turn Althouseblog into the DailyKos."

So that's our choice now? We're either InfoWars or DailyKos? That's a shame because for a while at least this was one of the few blogs where sane people could have good faith discussions. If it's going to devolve into nationalists vs. socialists, screw that.

GWash said...

achilles said;We are going to speak the truth, and the truth is all cultures and religions are not equal and they are not all good.

In achilles lexicon are cultures race based?

Achilles said...

GWash said...
achilles said;We are going to speak the truth, and the truth is all cultures and religions are not equal and they are not all good.

In achilles lexicon are cultures race based?

I don't think Gwash knows that there are more SE Asian muslims than arab muslims. I don't think he knows how they are different. I don't think he realizes that arab muslims have been killing african muslims as well as african christians in large numbers. He assumes muslims are all the same everywhere.

We knew he was ignorant and stupid before this though.

Unknown said...

Chuck gets upset that I demonstrate the logical conclusion to his views. He clearly hates being called out on his nonsense.

The reason why Rotherham is so important is because it demonstrates exactly what happens when you get a large group of Muslims in a city run by leftists: endless rape of young girls and any objection to it called bigotry.

Chuck and every other leftist on here claim that we should let in unlimited numbers of Muslims and that, magically, nothing like Rotherham or Sweden will happen here.

But why wouldn't it? They already call everyone who doesn't want a bunch of raping Muslim men here "bigoted" and "racist." See GWash, who just did that exact thing. Keeping my wife and daughters safe from Muslims is bigoted and racist, according to GWash. I guess it's just our duty to let Muslims rape and murder, according to the left. They explicitly say that is true in Germany, Sweden, and France, don't you?

It's racist to report a rape when a Muslim refugee does the raping. Isn't it, GWash? You just said that.

Every single leftist and Chuck (but I repeat myself) in this thread is horrified at the idea that Islamic people should not be welcome here. I don't want Nazis, I don't want Commies, and I don't want ISIS members. Which of those positions makes me racist? I don't want Sharia Law.

Leftists mock and point, saying "how absurd to think that Muslim law would be applied in the US!" The very same leftists in Rotherham who applied Muslim law to avoid being called bigoted.

Chuck, I'll flat out ask you directly: Why do you want Muslims to come to the US? What benefit does allowing them to come in do?

And isn't your "Refugees have Constitutional rights" stand mean that anything like a "We'll take 50,000" muslims a year is illegal--after all, why should Refugee number 50,001 be kept out?

No, your position is effectively: Let unlimited Muslims in, as long as they call themselves Refugees, and the US is powerless to stop it. Or please explain how your concept of Constitutional Rights for Refugees is consistent with the US having the ability to control it's borders.

--Vance

By the way, for someone who clearly views themselves as better than us common plebes, you sure are emotionally violent towards people who call you out as what you are: a leftist who supports Muslims over Christians. Name calling and personal attacks just reveal you as what everyone already knows you are.

David53 said...

Can't the President rescind his original order and replace it with a similar one that's better crafted? Those who were inconvenienced and out of the country at the time of the original order are probably back now. If he rescinds his current order wouldn't that stop the judicial review?

Freder Frederson said...

To say that the court can never review the decision of a president is ridiculous. The president's actions have to have a rational basis, which is a very low bar. But in the case of this EO, one could argue rather convincingly that there is not a rational basis for the order. Citizens of the seven countries listed have not had any terrorist attacks in the U.S. associated with them. Except for possibly the wife of the San Bernadino attacker, attacks have come from fairly long term residents of the U.S., who were radicalized while they were here (Mateen, Farook, and Hassan were all natural born U.S. citizens).

David Begley said...

I would respect liberals if they made better arguments and stopped the name calling.

GWash said...

unknown words fail me... ok... lets try this approach... suppose we vet any male who claims to be a muslim and find out if he is a rapist? if he is, he doesn't get to come here... and then we go through the catholic church ministers and find all the child molesters... would that put us on the same page?
if i might answer for chuck your question about why would muslims want to come here... probably the same reasons your relative washed up here... persecution?.. opportunity?... escape from totalitarian governments?... i'm sure you are well armed and your family is in little danger... but if something happens call 911 and take the safety off... just make sure where you are pointing the gun...

Freder Frederson said...

President Trump MUST crush this miscreant lest chaos and dark night engulf us.

So you believe in constitutional order yet you think the President "MUST crush this miscreant." Read the constitution lately. The President can not legally do anything to this judge. If you want to remove him from office he has to be impeached by the Congress.

It is ridiculous that your remedy for what you feel is a gross violation of the Constitution is for the President to act unconstitutionally.

Freder Frederson said...

Can't the President rescind his original order and replace it with a similar one that's better crafted?

Well, yes he could. But as far as he is concerned it is perfectly crafted (it isn't) and doesn't need to be fixed (it does).

Rabel said...

"What was so terrible about the way we had things before the EO?"

Regarding that portion of the EO which suspended Syrian refugee resettlement indefinitely, this is what Obama's national security team was saying in 2015.

Considering that ISIS is active in 6 of the 7 named countries for which immigration was temporarily suspended I would say that the terrible thing about the way we had things before is that it would be entirely rational to believe that ISIS would also take advantage of immigration from those 6 countries to infiltrate future mass murderers into the US and is currently and actively pursuing such attempts and that the way we had things before was not effectively defending the US against these efforts. Which would be terrible.

Freder Frederson said...

Importing hundreds of thousands of people who believe that people who are not Muslim are "non-believers" and that American laws should be replaced with Islamic law, might be a detriment to the country while not posing an immediate danger.

This is ridiculous hyperbole. First of all, the vast number of Muslims entering do not believe that non-Muslims are "non-believers" and American laws should be replaced with Islamic law. Many Christians believe the only path to heaven is through Jesus Christ, doesn't that make all others "non-believers". Secondly, even if your completely unsupported allegation were true, we don't allow hundreds of thousands of Muslims into the country. There is only one country in the top 10 source of immigrants that is even a majority Muslim country (Iraq) and only two with a significant Muslim minority (the Philippines and India).

And don't give me this "look what is happening in Europe crap". Europe has been inundated by a wave of refugees that have not been vetted at all. Also, because of its history of brutal colonialism, Europe has a legacy Muslim population that it has mistreated even before they got Europe.

Virgil Hilts said...

Freder, citizens of the 7 haven't had "terrorist attacks in the U.S. associated with them." I think that's correct (at least in last 15 or so years), but there are at least a few immigrants from some of the 7 (think Somalia) now serving long prison sentences at my expense because they tried to join ISIS. Yes, we tracked & arrested them before they were able to open fire at places like Mall in America, but why is it "irrational" to consider the not insignificant number of Somali immigrants (or, admittedly more often, members of Somali immigrant communities) in the U.S. who have failed to assimilate, who have become radicalized, who have tried to join ISIS and/or receive terrorist training. These guys have been pretty stupid, easy to track and arrest before they actually massacre, but that doesn't mean that they are harmless or that are Somalia refugee program is something other than a disaster.

StephenFearby said...

Bob Ferguson is the Attorney General of Washington State.

"...Bob became a national master (US Chess ratings) and was also rated as a master by FIDE. IM John Donaldson emailed, “Bob won the Washington State Championship (an annual eight player master round robin) in 1984 and 1987. Here is a pretty win [with a queen sacrifice]:”

Former chess champion checkmates Donald Trump

by Alexey Root (ne Alexey Rudolph)

http://en.chessbase.com/post/the-former-chess-champ-who-tackled-the-president

Of course, whether the State of Washington prevails is still up in the air. So there's no checkmate yet.

But I can give an expert opinion (since I'm still a rated USCF expert) about the way Ferguson would logically approach a bad or lost chess position. It's called a swindle.

"In chess, a swindle is a ruse by which a player in a losing position tricks his opponent, and thereby achieves a win or draw instead of the expected loss.[1][2][3][4][5] It may also refer more generally to obtaining a win or draw from a clearly losing position."

https://en.wikipedia.org/wiki/Swindle_(chess)

Basically, it involves complicating the position in such a way that the opposing player loses their way.

In this case, it can also apply to muddying the waters for judges who may want to lose their way.

Mattman26 said...

Chuck, I heard all of Flentje's initial argument.

damikesc said...

Between you and Mick, there's no other Althouse commenter who is as obsessed with child sex abuse cases. Including "Rotherdam." What's that all about?

Not to speak for others, but it did involve thousands of kids over years being raped while the officials and government did nothing out of a fear of appearing "racist" against Muslims.

At a certain point, I see no benefit in importing people who loathe Western Civ. If they loathe our society, then they are free to remain home. I would suggest homosexuals be concerned because those "poor refugees" will out-number homosexuals and the Democrats are nothing if not responsive to their larger voting blocs.

Richard said...

Hey Chuck, whewww! You got pissed today, huh? I've wended thru 71 responses to answer Judge(?) Canby's question: Can My Donald forbid Muslim entry? Yes, yes, a thousand times yes! And we Americans would be much better off for it. Perhaps not you Americans, but definitely we Americans.

Rusty said...

"Chuck said...

I am really tired, of the declining quality of debate in the Althouse comments.

Ann, your comments pages are turning into "InfoWars." That ought to be of some concern to you."

Is anybody forcing you to be here?

To go on. Part of being a "terrorist" is the unpredictability of their behavior. I understand those seven countries. They are actively or were in the not too distant past engaged in terrorism. However what is being ignored is that by just placing those counties on the list it gives notice to other Islamic fundamentalist countries that we are serious about our own safety, It is the presidents one of the presidents constitutionally mandated job to keep us safe.

n.n said...
This comment has been removed by the author.
hombre said...

This thread reminds me of Scott Adams' post displaying a video of Ben Affleck descending into cognitive dissonance when Sam Harris confronted him with information about Islam. Affleck became angry and abusive. Adams pointed out that the nonsense Affleck spewed wasn't lies. He was hallucinating verbally because he had no real information with which to contradict Harris.

Harris was offering information gathered from Pew Research. Here are few of his points. Worldwide, a significant majority of Muslims believe: that Sharia should be the law of all lands, that adultery should be punished by stoning, that apostasy from Islam should be punished by death. Affleck, predictably, went ballistic, implied that Harris (and Maher) were racist, bigoted and ignorant of Islam (he evidently didnt read Harris' bio before the show).

The majorities referenced by Pew are overwhelming in the Middle East, the area mainly covered by the EO. Additionally, acts of murder, rape, mayhem and religious persecution are legion and often condoned by government in the seven places included by DHS as referenced by Trump. Finally, "refugees" in Europe from middle eastern countries included in Trump's EO are committing crimes and acts of terrorism particularly in Sweden, Germany and France.

People who claim admission of these folks is not sufficiently potentially "detrimental" to justify that portion of Trump's order are, like Affleck, hallucinating as a result of cognitive dissonance. That includes judges.

n.n said...

So, there is in fact no Muslim ban. The EO does not take the Progressive [class] diversity policy to its logical conclusion. It's only a recognition of nations destabilized by social justice adventures and elective regime change that have resulted in export of terrorism globally. This is presumably why refugees from Obama's war in Ukraine have not been recognized and there is instead an effort to paint the refugees and their ally as the cause of the violent Western-backed coup and its aftermath, the same effort by governments and NGOs in Syria.

In America, it's simple, the established religion is Pro-Choice, which judges people by the "color of their skin" (i.e. [class] diversity), rejects individual dignity (e.g. inherited guilt), and debases human life for profit and political progress (e.g. selective-child, presumed guilty for purposes of elective abortion).

Roy Lofquist said...

Freder Frederson said...

So you believe in constitutional order yet you think the President "MUST crush this miscreant."

James Madison The Federalist Papers Federalist No. 10
November 23, 1787
[T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others.

James Madison The Federalist Papers Federalist No. 51
February 6, 1788
To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.

It is NOT unconstitutional for the President to besmirch a political enemy, particularly when an official acting under the color of authority attacks a core Presidential power. This is, in fact, the least intrusive remedy available.

As we are well aware, impeachment is off the table given the composition of the Senate. There is, however, another option:

"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." ~~ Article III, Section 3.

Since this is also an encroachment on the Legislature the current Congress may well be amenable to invoking Section 3. This is a radical move but may be necessary given the current unprecedented obstruction that threatens to cripple the functioning of the government.

Freder Frederson said...

Hey n.n., do me a favor. Just once, post something that doesn't tie into abortion somehow.

The Vault Dweller said...

Is the DOJ seeking a stay on the district court's TRO? or are they seeking to vacate the TRO in an interlocutory appeal?

So are they seeking their own TRO restraining the original TRO? or that the original TRO was issued in error?

Owen said...

Imagine a case where the President issued an EO banning entry of one named person, an alien with a rap sheet who swore jihad against the Great Satan. Imagine that guy had a wife here, a US citizen, who went to Judge Robart and asked for a TRO. Because irreparable injury, she was terminally ill and he was coming for the last good-bye. Judge agrees. President argues INA 212(f) and secret specifics known to him that the dude will go on jihad here despite promises to behave. Judge says I don't believe you, I am issuing the TRO.

Next week same pattern with new players attacking another such EO in front of another judge.

Absurd facts but maybe they suggest the gumming-up of a core executive function that would arise from letting these courts issue equitable relief in such a casual fashion.

hombre said...

Rusty said: "However what is being ignored is that by just placing those counties on the list it gives notice to other Islamic fundamentalist countries that we are serious about our own safety,...."

What has become apparent is that Democrats and the mediaswine are not serious about our safety. It will be reassuring if some federal judges are. Im not confident.

Freder Frederson said...

Imagine a case where the President issued an EO banning entry of one named person, an alien with a rap sheet who swore jihad against the Great Satan.

It is very hard to imagine as the person would not be granted a visa in the first place. Remember, we blocked Yusuf Islam (aka Cat Stevens) from entering the country, even though he had no rap sheet and had not expressed hostility to the west.

Freder Frederson said...

What has become apparent is that Democrats and the mediaswine are not serious about our safety.

Or maybe we believe that these kinds of blanket bans are ineffective (because they are both under and over inclusive) and may actually be harmful as it will be more difficult to get allies in the region to cooperate with us and sends a message that we are indeed at war with Islam, thus playing into ISIS' hands. Or that it is supremely unfair that we would prevent Iraqis whose lives are in danger because they worked with us during the war from entering the country (and that in the future it is going to find willing translators in those countries).

Jamie said...

This morning on NPR, they were interviewing a Berkeley prof who does not believe that Trump was acting outside executive powers in issuing the EO, but who does believe that there's a strong legal case to be made under the Establishment Clause that the EO is unconstitutional because Trump's apparent intent (based on the Giuliani conversation, apparently) was ultimately to ban all Muslims, even though he didn't even try to do it with this EO.

I am not a lawyer, by a long shot. Is this any sort of valid legal reasoning? If I am the President (let's say) and I proclaim emancipation of all enslaved people within my country's borders, does it matter whether in my secret heart of hearts, or in my closed-door strategy meetings with my generals, my motive was to burden my military enemies, rather than a deep conviction that slavery is an affront to the human spirit and must be driven from the earth?

I will say this: this election keeps bearing fruit for me in helping me clarify why I'm on the Right. If every law or EO or presidential proclamation must be judged by the intent - the ultimate intent - of the person who put it forward rather than on its stated basis and action (and eventually its real effects), how are we supposed to have any laws at all? Does the Left really have so much faith that its politicians are saying what they truly believe? Hmm. I suppose maybe they might, but that belief requires a lot of mental gymnastics.

Gahrie said...

If I am the President (let's say) and I proclaim emancipation of all enslaved people within my country's borders, does it matter whether in my secret heart of hearts, or in my closed-door strategy meetings with my generals, my motive was to burden my military enemies, rather than a deep conviction that slavery is an affront to the human spirit and must be driven from the earth?

Just for the record, this example is actually worse than stated because the Emancipation Proclamation specifically exempted territory under Union control. It only freed the slaves in Confederate territory.

Gahrie said...

sends a message that we are indeed at war with Islam,

They know we're at war with Islam....they started it 1,400 years ago and have never given up.

Look up the Islamic term for lands not controlled by Islam, or better yet lands once conquered by Islam and since freed.

Freder Frederson said...

Look up the Islamic term for lands not controlled by Islam

Last I checked there is no Islamic language, anymore than there is a Christian language.

Fabi said...

Sacrebleu -- we've disappointed Chuck! Where's my cilice?

David said...

"Whatever concern you have for the dangers of deceitful claims of emergency, you've got to have neutral principles of law and not special law for the President you think everyone must know is a liar."

The neutral principles are preferable but unfortunately not always embraced. So far not in this case and not in public discourse.

Even though Trump is making too many unforced errors, with each passing day I am more convinced that it was good for the country that he be reelected. It's helpful to expose the arrogant and dishonest attacks on him and the willingness of powerful institutions and individuals to abet the attempts to destroy him. These attacks indeed may be successful. If so they will only breed a broader and more successful revolt against the smug elites. Revolutions do not always succeed at once or move in only one direction. And if the Smug triumph, we shall have gotten what we deserve, and all will pay in the long run.

Gahrie said...

@SandiC

Achilles must've forgotten we are not Afghanistan. Achilles seems to think we aren't aware of these things and he seems to think that if Muslims are allowed into this country such practices would become institutionalized here too.

So how did Sharia become institutionalized in Afghanistan?

David said...

"Could the President simply say in the order, we’re not going to let any Muslims in?”

Here's the answer. "That of course is not what he did, your honor. The borders are open to tens of millions of Muslims from all over the world. It's not the situation before this court, and there is no need to speculate what kind of dangers could lead a president to do this." In other words do not answer the question, because it's a trap based on a false premise. If this pisses off the judge, so be it.

Seeing Red said...

I did not have sex with that woman.

Roughcoat said...

Now they're concerned about a president lying. Signs and wonders upon pharaoh.

Gahrie said...

Last I checked there is no Islamic language, anymore than there is a Christian language.

1) I said Islamic term, not language. Islam has its own lexicon as do all religions. Referring to part of this Islamic lexicon as an Islamic term is perfectly acceptable in every setting that I am aware of.

2) In actually there is an Islamic language de facto if not de jure. Every Muslim is supposed to read the Koran in Arabic. Translations of the Koran are considered to be the work of man, and thus not equal to the Koran in Arabic. So Arabic is in reality the language of Islam.

Jamie said...

Heh, Gahrie, you and I had the same high school government teacher! I miss Mr. Grover...

Comanche Voter said...

FDR is a hero to the left (and to a good part of the center as well) He did some bad things, and some good things.

But when we move to the subject of "lying" consider this. Right up until Pearl Harbor--December 7, 1941, FDR's public posture was that the USA would stay out of WW II. With Pearl Harbor that changed.

New fast battleships and Essex class carriers started appearing in the Pacific in late 192 and early 1943. Those vessels were needed to win the war---but they also took several years to design and build. And all of that work was done during FDR's second term and the start of his third term--1936-41. FDR's public posture (and that of a good bit of official Washington) was that we would not be in the war--but meantime they were appropriating funds, designing and building ships and aircraft and in general preparing for war. Was FDR lying? You bet your sweep bippy he was. Fact is one might say "FDR lied and hundreds of thousands died".

Angel-Dyne said...

Freder: And don't give me this "look what is happening in Europe crap". Europe has been inundated by a wave of refugees that have not been vetted at all.

Europe's problems with its Muslim minorities began long before the current refugee crisis.

Also, because of its history of brutal colonialism, Europe has a legacy Muslim population that it has mistreated even before they got Europe.

That's an impressively stupid sentence, on so many levels, even by your superlative standards of stupidity, Freder. (I mean, aside from flatly contradicting your first assertion.)

But do tell us about Sweden's, Norway's, Finlands's (hmmm, let's see, Austria's?) history of brutal colonialism, and its effect on their "legacy" Muslim populations. Then you can explain your fascinating view that nobody should be concerned when the grandchildren of "legacy" Muslims (whom you apparently believe were forced to migrate to Europe), living on the largesse of ex-colonial European states, rape, rob, assault, and otherwise prey on the natives in numbers well out of proportion to their numbers, because, hey, those teen-age rape (and worse) victims had it coming because...colonialism. And the Crusades, I guess.

Chuck said...

David said...
"Could the President simply say in the order, we’re not going to let any Muslims in?”
Here's the answer. "That of course is not what he did, your honor. The borders are open to tens of millions of Muslims from all over the world. It's not the situation before this court, and there is no need to speculate what kind of dangers could lead a president to do this." In other words do not answer the question, because it's a trap based on a false premise. If this pisses off the judge, so be it.

You must not realize, that Mr. Flentje's answer to the question started out that way. I have pointed that fact out in comments above. Some other Althouse commenters suggest that wasn't good enough; that a more clever response to the hypothetical was required. And so I pointed out that in his extended rebuttal time, Mr. Flentje did supply even more of an answer.

I guess people are determined to say what they want to say in these comments, no matter what the facts are.

Gahrie said...

This guy is clearly obsessed by the spector of Sharia Law.

You should be too.

Gahrie said...

Heh, Gahrie, you and I had the same high school government teacher! I miss Mr. Grover...

84?

The Cracker Emcee said...

The great thing is that there's a public conversation about actually not letting any Muslims into the US. I don't think we'll ever get to that point, but the conversation itself would never have happened prior to 1/20/17. Don't be too surprised if most folks are cool with it.

Gahrie said...

I see it is you.....I wondered when you popped up here....I miss you...you were one of the few people at WHS I thought were smarter than me.

Gahrie said...

By the way, i am a government and history teacher now, and I often think back to my days in Mr. Grover's class.....

tcrosse said...

The question may better be stated as "Do the courts, or the American people, have any recourse if the President is not the woman we all thought was entitled to be ? "

SandiC said...

Gorsuch better watch what he says, Trump might rescind the offer.

http://thehill.com/blogs/blog-briefing-room/news/318573-trump-scotus-pick-called-the-presidents-attack-on-judiciary

"Neil Gorsuch, President Trump's Supreme Court nominee, on Wednesday called the president's tweets attacking federal judges "disheartening" and "demoralizing."

A spokesman for Gorsuch confirmed to CNN that he expressed concern about Trump's remarks during a meeting with Sen. Richard Blumenthal (D-Conn.), after Blumenthal first told reporters about the nominee's reaction."

Seeing Red said...

..."Take, for example, the 1786 meeting in London of Thomas Jefferson, John Adams, and Sidi Haji Abdul Rahman Adja, the Tripolitan ambassador to Britain. As American ambassadors to France and Britain respectively, Jefferson and Adams met with Ambassador Adja to negotiate a peace treaty and protect the United States from the threat of Barbary piracy.

These future United States presidents questioned the ambassador as to why his government was so hostile to the new American republic even though America had done nothing to provoke any such animosity. Ambassador Adja answered them, as they reported to the Continental Congress, “that it was founded on the Laws of their Prophet, that it was written in their Koran, that all nations who should not have acknowledged their authority were sinners, that it was their right and duty to make war upon them wherever they could be found, and to make slaves of all they could take as Prisoners, and that every Musselman who should be slain in Battle was sure to go to Paradise...."

Read more at: http://www.nationalreview.com/article/216283/americas-earliest-terrorists-joshua-e-london

Mark said...

When he was asked if the government had pointed to any evidence connecting [the countries identified in the executive order] to terrorism

Instead of taking a dive, Flentje should have told the court to go ask President Obama and the Congress that passed the statute determining that those nations presented a risk of terrorism.

Seeing Red said...

I posted that to point out someone just may have been lying at some point.

Owen said...

Freder: thanks for totally missing the point of my hypothetical. Which is trying to get at the proper role of the courts in reviewing the facially-correct exercise by the executive branch of its authority under INA 212(f) to determine the best way to protect the national interest by excluding certain aliens. If the courts can second-guess that exercise, what is left for the executive? As a friend used to say, "[the court] has taken the bat out of his hands," leaving him responsible for protecting our interests but powerless to do so.

I suppose you'd be agreeable to bringing a judge along on every SEAL raid, as well.

Mark said...

“Could the President simply say in the order, we’re not going to let any Muslims in?”

If he did, your honor, it would be, like this case, a non-justiciable case that the judiciary has no business questioning.

Jamie said...

Gahrie - Yup. I was in your brother's class. Surely you remember.

(Sorry, everybody.) I don't want to pile on, Freder, but you say: "Or maybe we believe that these kinds of blanket bans... [send] a message that we are indeed at war with Islam, thus playing into ISIS' hands."

A big part of my point is that the main reason that message is being sent is because the media insistently and consistently covers the EO as a "Muslim ban," including explicitly questioning interview subjects about the Establishment Clause - that's anchoring, both for the subjects and for the audience. They get 45 seconds into the story, sometimes more, and finally, footnote-style, even sometimes dropping their voices when on the radio, say that "many" Muslims are not banned from entry by this EO (they don't say "the great majority"), and occasionally add that it's short-term. So... they bury the lede. Is this lying? Functionally, I'd say yes, although I'm sure they call it "telling the story" or some such thing. They are surely attempting to shape the narrative to fit how heinous they believe the EO and Trump to be, and then blame the president for having "sent a message that we're at war with Islam."

Matthew Graf said...

"If he did, your honor, it would be, like this case, a non-justiciable case that the judiciary has no business questioning."

We have discriminated based on Religion with regard to immigration before. The judge made a political decision as we have seen so many times in Wisconsin.

Mark said...

Gorsuch better watch what he says, Trump might rescind the offer.

Democrats better stop running to the cameras to publicly disclose confidential statements made in a private meeting with them. Gorsuch might refuse to meet with them altogether if Democrats are going to so grossly violate all concept of confidentiality for crass political purposes by publicly disclosing his private comments made in a private conversation.

I know if I was Gorsuch I would say that this is the end of any private meetings -- which are only a courtesy in any case -- with Democrats.

Known Unknown said...

"had not expressed hostility to the west."

Hmmm. Peace Train? No?

Gahrie said...

Gahrie - Yup. I was in your brother's class. Surely you remember.

The beauty and voice of an angel, a brilliant mind, and yet willing to tolerate me as a lab partner...how could I ever forget?

Francisco D said...

Vance,

There are several leftists on this site worth engaging. Chuck is not one of them. He is a moby, a liar and OCD about his hatred of Trump.

Trump really surprised me. I was not a supporter because I figured him as a big government type. His cabinet nominations have reassured me that I voted (reluctantly) well.

Achilles said...

SandiC said...

A spokesman for Gorsuch confirmed to CNN that he expressed concern about Trump's remarks during a meeting with Sen. Richard Blumenthal (D-Conn.), after Blumenthal first told reporters about the nominee's reaction."

So more proof that democrats and leftists in general are untrustworthy betrayers.

Known Unknown said...

I figured him as a big government type

I think he lacks principles and could be a big government type when the need arises (to him.)

His choice of Sessions is problematic because of his reluctance with civil asset forfeiture reform and sentencing laws. i would have preferred someone else for AG.




Michael K said...

"The original lawyers recused themselves due to their old firm-jones day- filing on behalf of the states/refugees"

This was a strategic strike by the Democrats and their lawyer allies.

I didn't read all the comments as I was out shopping for tile all day.

It will be interesting i there is a terrorist attack before election day 2018. Battle lines are drawn.

Stephen said...

All presidents lie, you say. But I find it hard to believe that you genuinely see NO meaningful difference in the frequency or severity of President Trump's documented falsehoods from previous administrations. If that's your judgment, though, then you are applying a standard I haven't seen you use before. I've been reading you for years and I'm pretty confident that if President Obama had engaged in a remotely similar pattern of falsehoods you would have been much harder on him.

I know you are naturally contrarian, particularly in response to reflexive leftism. As I read you, though, the instinct to be contrarian is leading you into the defense of conduct that as a self proclaimed moderate you should condemn. I suspect that your contrarian defense of President Trump is also skewed by your desire not to alienate your largely conservative commentators--who view your reflexive criticism of lefties as your stock in trade. In any event, viewing your work over time, what you are writing these days does not qualify as "neutral" by your own former standards.

Mark said...

“Could the President simply say in the order, we’re not going to let any Muslims in?” Judge Canby asked, at that point.

Could Washington State claim standing to challenge a president's order to detain Khalid Sheik Mohammad at Gitmo and keep him out of the country if its public universities wanted to enroll him or if the Democrat Party of Washington wanted to employ him?

Larry J said...

I'll take Questions Not Asked During the Clinton and Obama Administrations for $1000, Alex.

Original Mike said...

"Do the courts, or the American people, have any recourse when the President lies?"

"If you like your doctor, you can keep your doctor."

You can vote him or his successor out. That may or may not be sufficient.

Mark said...

Could a court enjoin a president's order to the military forces to repel a foreign army that wanted to invade?

Michael K said...

"I'm pretty confident that if President Obama had engaged in a remotely similar pattern of falsehoods you would have been much harder on him. "

If you like your doctor you can keep him. If you like your insurance you can keep it.

Benghazi was cause by an internet video.

I did not hear whatr Rev Wright was saying all those years.

Bill Ayres was just a guy in the neighborhood.

Typical white woman.

Stupid Cambridge police.

If I had a son...

Yes, I can certainly see your point.

Joe said...

Let's go convoluted politics route: Trump had this done on purpose. He a) fulfilled a campaign promise and b) can avoid some blame if there is an attack. Or it's just legal incompetence.

Drago said...

Mark: "Could a court enjoin a president's order to the military forces to repel a foreign army that wanted to invade?"

According to the leftists, the answer is unequivocally yes.

And you'd better not criticize the lefty judiciary if they do it! Because that would be wrong and everyone "knows" that the constitution was always intended to be a suicide pact.

Drago said...

SandiC: "Gorsuch better watch what he says, Trump might rescind the offer."

Nonsense.

Trump is no "indian giver".

Gee, I hope my last comment isn't taken as an insult by our pasty white high cheekbone senator from Massachusetts.

HoodlumDoodlum said...

Listen, it's simple. Presidents' power is rightly restrained by the Judicial branch now. By now, of course, I mean starting exactly the moment got elected. The moment he's gone and a Democrat is in office again the President's power will once again blossom.

Why are we wasting time on this? Sure past Presidents had immense latitude to act unilaterally on a whole host of issues...but those were Dem. Presidents. That whole "pen and phone" thing ended exactly the moment the pen & phone stopped being under a Democrat's power.

HoodlumDoodlum said...

Jamie said...I will say this: this election keeps bearing fruit for me in helping me clarify why I'm on the Right. If every law or EO or presidential proclamation must be judged by the intent - the ultimate intent - of the person who put it forward rather than on its stated basis and action (and eventually its real effects), how are we supposed to have any laws at all

There go you, Jamie, you're almost there. Laws and actions that the Left doesn't like aren't valid. The systems and rules of government (and the law itself) must prevent invalid actions--and actions preferred by non-Leftists are all invalid.
So. It's a question of power, and the Left, naturally, doesn't recognize any power or authority that might compete with theirs. The President isn't a Leftist, so his power and authority must be invalid: it's merely a question of how that fact is to be demonstrated/put into action. The fact, of the proper exercise of power (by the Left for the Left's ends) is all that's important. The rest is window dressing.

It's fun to think that a better argument by the lawyer representing the Trump admin. would have made some difference. Fun, but silly.

jdniner said...

however much they want to think they are pure and chaste, the judiciary is on trial here not Trump.

Robert Cook said...

"Trump really surprised me. I was not a supporter because I figured him as a big government type. His cabinet nominations have reassured me that I voted (reluctantly) well."

????!!!!!

That's like saying the House Mother of the local sorority did a good job hiring Ted Bundy to act as security.

Jon Ericson said...

Stephen the שמענדריק.

Jon Ericson said...

Trump is no "indian giver".

What is their potential to help in the struggles to forward the revolution comrade?

Peter Irons said...

You misunderstand her argument, Ann. What she means is, "If I and my friends don't like the president, the courts should rule everything he does illegal." Is that hard to understand from what she wrote?

wildswan said...

Probably Gorsuch did not say what CNN said Richard Blumenthal said Gorsuch said about what CNN said Richard Blumenthal said Gorsuch said Trump said. The media has TDS.

It's for sure that the media constantly repeating the words "Muslim ban" has damaged national security. But, of course, due to TDS, the media does not care.

Those who believe in honor killing and those who believe in discriminating against gays were banned. And why not? That isn't necessarily Muslims. Is it? The media has TDS and can't think this out.

And those from countries supporting terrorism or from failed states - those unwilling or unable to assess backgrounds and supply background checks for their citizens - why should we not pause and find a way to check on those people. That is the issue. ISIS is breaking up - why should we not expect some of them to try to escape to Europe or America in order to continue terrorism here? But, having TDS, the media can't think about the security threats to Americans.

I am a little snowflake
Short and stout;
And when I think of Donald Trump,
I pout and pout and pout.

As one of us has memorably said.

wildswan said...

In short, the American President is not lying but the media is. What is our recourse? A judge? An injunction? A slippery slope, my friends.

Drago said...

OpenID jdniner: "however much they want to think they are pure and chaste, the judiciary is on trial here not Trump."

There are now faces and names attached to these rulings.

If something were to happen based on the delay of the implementation of this EO, people are going to know precisely who did that.

Precisely.

It won't be a Kate Steinle scenario where it's simply the entire San Francisco governing body which diffuses responsibility.

It's going to be several, specific, judges.

The basis for this EO is so well established that it will be considered inexcusable once this gets cleaned up finally.

If the Judiciary wants to get involved in legislative and executive policy disputes that are statutorily and constitutionally legal, then they have only themselves to blame.

Otherwise, rule correctly on this EO, dump the robes and get into the voter selected policy making business.

Drago said...

Cookie: "That's like saying the House Mother of the local sorority did a good job hiring Ted Bundy to act as security."

Hey conspiracy guy, you gotta keep up with the latest lefty narratives!

Ted Bundy is nothing to what your lefty pals are comparing Trump and his admin to!

Try to keep up. (quick helpful note: you will not be able to keep up if you keep your nose buried in Gary Sick whack job writings)

Bruce Hayden said...

The answer to Ann's original question about Presidents lying is that the solution is political - impeachment or non-reelection. Clinton lied, was impeached, but not convicted for nakedly partisan reasons. That is the check and balance here. If the President's party, in the majority, gives him a pass on lying, there is a decent chance that they will soon be turned out of office themselves. Unfortunately, for the Dems right now, impeachment is not an option, having given up on the center of the country electorally, making the House effectively out of their reach any time in the near future unless Trump and the Republicans screw up royally (which would include here, NOT implementing the ban).

What is not part of our checks and balances is an unelected federal judge to take it upon himself to determine whether the President is lying when engaging in his core authority and with his plenary power, as here. This is not the same as saying that they cannot review the statements and actions of the President's minions, while running the day to day operation of the govt. sure, the ATF lied about Fast and Furious, the IRS about targeting of conservative groups, etc, but they were minions in the day to day operation of the govt, not where he is operating at the height of his power and responsibility (remember - the President is the one with the primary Constitutional duty to protect the Constitution and the US - not Congress, not the Judiciary, and not the legion of minions)

Bruce Hayden said...

Presidents are expected to lie. Sometimes they do it for base reasons, as Clinton did about sex with that woman. And sometimes for good reasons. If the country's return strike capabilities were compromised, no one would expect the President to tell the truth and admit our weaknesses, while the military worked around the clock to fix it. Rather, we would expect him to bluff it out. Which is another way of saying "lying". Where do you draw the line? I would contend this is precisely why the answer is political, and not legal. We hired one man to make those decisions. Over, in this case, a woman probably more prone to lying, and with demonstrably worse judgment. That is the structure of our Constitutional republic. We could have split that power, maybe set up rule by some committee, or some such. Or, make our leader removable with a no confidence vote. We didn't, but, rather, trusted the person sworn into the Presidency for the next 4 years and granted him the discretion to protect us and run the govt, using his discretion.

Bruce Hayden said...

What gets interesting here is the question of what happens if Trump loses in court, as I think there is a distinct chance he will do, and then ignores the stay? This is the question of how many divisions does the judge have to implement his decision. Any federal employees ignoring the EO would, of course, be disobeying his orders. Now, if the order were legally and Constitutionally wrong, and federal employees violated the order, they would likely be just fine, with their insubordination being justified by the illegal order. But what happens if and when the judge is struck down by a higher court? Normally, you might be able to argue good faith on the part of the insubordinates, given the source of the ruling. But if, as here, the order is booth legal under federal statutes, and Constitutional as part of his plenary power, authority, and responsibilities, then would the insubordination be legally justified? I wouldn't want to be the one telling the federal employee to be openly insubordinate in an area where the President's power, authority, and discretion are at their greatest, in defending our borders from foreign invasion. That would imply second guessing the President in an area where he is pretty well guaranteed to have far superior knowledge of threats to this country than the insubordinate has.

Paul Ciotti said...

As Winston Churchill once said, "In wartime, truth is so precious that she should always be attended by a bodyguard of lies."

james conrad said...

All of this kinda misses the point to me, a non lawyer. The statute is clear as day, ditto the recent precedent that the president clearly has the power to issue that EO. The Robart stay ruling is wayyyyyyyyyyyyyyyyyyyyyyyy over the line of his authority as a district judge in issuing a national stay on Trump EO. Ditto the 9th in arguing over process (lifting the stay), this is not a close call, the court clearly has overstepped it's authority here in my view.

Todd said...

Freder Frederson said...

...sends a message that we are indeed at war with Islam, thus playing into ISIS' hands.

2/8/17, 4:50 PM


Why should we NOT be at war with Islam? It sure as hell is at war with us.

Part of what makes all of this so funny to me is, let us just assume for one moment that all of the things that are done these days in the name of Islam, around the world, if these things were being done by Christians instead.

Does anyone doubt for even one second that liberals, Democrats, the media would all be calling for sanctions against Christian countries, limitations on visas, etc., etc., etc. BUT because it is Islam, it isn't. It is just a few "bad actors" that don't REALLY understand their own religion.

Look at all of the media frenzy made whenever a Christian snake charmer makes the news but an absolute media blackout when Muslims practicing their religion strap bombs to kids and send them into crowds.

Jamie said...

NPR strikes again this morning: the guy who filed on behalf of Hawaii doubled down on yesterday's Berkeley prof's statement about the primacy of intent over effect in determining whether a law or EO is constitutional. He says (I'm sure that this is in fact true) that the Supreme Court has long made consideration of intent central to questions of religious discrimination. Honestly I can see how difficult it would be to determine whether discrimination is in fact happening without considering intent. BUT...

1. The analogy this guy made to illustrate the purported discrimination of the EO against Muslims was lame. He said, "If I'm an employer with 5 Muslim employees and I fire one because of his faith, I'm still engaging in religious discrimination." I don't get it... If his sole reason for firing this employee was his Muslim faith, why didn't he fire all of them, then? How is his firing one Muslim while retaining four Muslims discriminatory?

and 2. This line of argument is how we got into the mess we're in. Everything I do is subject to analysis of my unspoken (and nowadays, even unconscious, but somehow discerned by potentially offended parties) "intent." It's insufficient for me to behave appropriately at all times and toward all people; instead, I must root out all Bad Thoughts. When unspoken AND un-evidenced intent becomes the standard, there is NO WAY OUT. My actions are no longer the window into my moral rectitude; instead, my innermost thoughts are to be judged by the people most likely to be offended by them no matter whether I keep those thoughts assiduously tamped down, and in this Orwellian world, the more appropriately I behave, the more likely it is that I am guilty of thoughtcrime.

Jamie said...

P.S. Are 1984 references the new Godwin's Law? If so, I denounce myself!

Mike said...

First of all, the vast number of Muslims entering do not believe that non-Muslims are "non-believers" and American laws should be replaced with Islamic law.

According to PEw research, a solid majority of Muslims around the world DO believe Sharia should supplant any other laws.


Many Christians believe the only path to heaven is through Jesus Christ, doesn't that make all others "non-believers".

Yes, because belief in Jesus Christ as savior is the very definition of Christian belief.


Secondly, even if your completely unsupported allegation were true, we don't allow hundreds of thousands of Muslims into the country.

Yes. We do.

Mike said...


According to the study, [Muslim immigration to USA is] up over 25 percent from 2013 to 2014 and averaging over 135,000 per year under Obama.