February 6, 2017

Does Trump want to lose the case about the immigration order?

Harvard lawprof Jack Goldsmith speculates that he does (because the other explanation is that his White House Counsel Donald McGahn is "incompetent or ineffectual"):
The Immigration EO has a surprisingly strong basis in law but was issued in haste, without proper interagency coordination, without proper notice, without adequate consideration of its implications, and with a media strategy, if it was that, that suggested that the EO was motivated by discrimination against Muslims....

The clearly foreseeable consequence of the roll-out combined with Trump’s tweets is to weaken the case for the legality of the EO in court. Why might Trump want to do that? Assuming that he is acting with knowledge and purpose... the only reason I can think of is that Trump is setting the scene to blame judges after an attack that has any conceivable connection to immigration.... If Trump assumes that there will be a bad terrorist attack on his watch, blaming judges now will deflect blame and enhance his power more than usual after the next attack....
It's easy for Trump's antagonists to get distracted running with the theory that he's a brutish lout who doesn't know what he is doing. It's important to pursue the alternative interpretation — that Trump does know what he is doing — and that is what Goldsmith is doing.

Goldsmith seems like the Scott Adams of Trump antagonists. This is something we need — analysis that assumes Trump is savvy and brilliant, coming from people who don't like what he is doing.

It makes sense to me to theorize that Trump is hoping to lose in court. It would relieve Trump of the burden of following through on a key campaign promise. He won't have any responsibility for the consequences and failures of a policy he was prevented from carrying out, and he can blithely insist that it would have worked. But the judges stopped him. People will be stirred up and angry at the judges — those terrible activist judges.

OR: Maybe Trump's trick is to get the judges to think he wants to lose so he can win. Devious!!

103 comments:

mockturtle said...

Naaah.

Michael K said...

The Seattle judge didn't even try.

This is all about H1B visas.

The fight will be between Trump and DoJ and the corporations that want indentured servants writing code.

Big Mike said...

Short answer: no.

But it's interesting to see that the issue is a win-win for him.

Murph said...

Hanlon's Razor.

The Drill SGT said...

Occam's 8 ball says:

"Early Administration incompetence in staffing coordination"

not malevolence...

Sebastian said...

"It makes sense to me to theorize that Trump is hoping to lose in court.' For theorizers it makes sense to theorize, but it does't make actual sense. 1. Trump has been pretty insistent on keeping his promises thus far. The EO is a way of keeping one promise. Goldsmith needs to explain why he doesn't want to keep this one but does want to keep most others. 2. Trump wants to make America great again. 2a. For some reason, he doesn't seem to think terrorist attacks are a good way to make American great again. Goldsmith needs to explain why a few more terrorist attacks would be a perfectly fine way to make America great again. 2b. Trump doesn't seem to think so-called judges make America great again. Goldsmith needs to explain how laughable rulings by so-called judges make America great again. 3. Early indications are that Trump has a pretty expansive view of his own authority. 3a. Insofar as he got any legal advice, it would have been that, in light of the Constitution, statutes and precedent, he could obviously do what he did. Goldsmith needs to explain why, in light of the most likely advice he received, doing something obviously allowed under any sensible notion of existing law, he nonetheless wanted to lose. 3b. Regardless of legal advice, Goldsmith needs to explain whether and why Trump anticipated losing in spite of his own view of his own authority. (Now I'll go read Goldsmith :).)

The Cracker Emcee said...

Lefties live purely in the present. Unforseen consequences can be smothered by their comrades in the MSM.

Birkel said...

So the law professor thinks the law is on Trump's side? Surprisingly? But that even that will not be enough to have Trump win in court, under the law?

Anybody see a problem here?

buwaya said...

Another theory is that Trump wants to win with as much noise as he possibly can, on a matter in which he should win as a matter of course.
To get the opposition to commit all they have, and lose anyway, as they will be on poor ground.
They will then appear weaker when he goes to the next stage.

Who knows.

The Drill SGT said...

PS: It looks to me as if Trump has the current law on his side, but I only play a law Prof on Blogs:

8 U.S. Code § 1182 - Inadmissible aliens

(f)Suspension of entry or imposition of restrictions by President

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....


https://www.law.cornell.edu/uscode/text/8/1182

Clayton Hennesey said...

This makes sense if courts are understood to weight rollouts ant Tweets alongside the law in arriving at their final determination.

But the NPR BBC legal guest Rick in a previous thread mentioned as addressing this specifically dismissed these sorts of factors as irrelevant legally, which may be entirely moot given that this thing was ever launched in the first place and is still legally alive at all.

So

- if the legal system is as corrupt as it appears to me, this may be shrewd thinking;

- if not, this may be a great deal too much double plus secret probationary advance 3-D chess being played by those failing to realize that sometimes a Trump is just a Trump.

FullMoon said...
This comment has been removed by the author.
Birkel said...

I maintain Trump is still practicing the PURPLE ELEPHANT theory of communications. Everybody on this blog knows more about this area of the law, and more about the dishonest press and poor legal reasoning of an anonymous Seattle judge, than ever. And we can see that buwaya's contention of a coordinated Leftist system is operative.

We are watching the MSM sausage as it is made. And we are sickened and fortified against the McCains and Grahams who will pursue an attack on Trump from the Chuckist Right.

And all he has to do is force is to watch the process. He does that by demanding we not think of the PURPLE ELEPHANT process.

Achilles said...

Jack Goldsmith is the only lefty that appears to be using his brain. But he holds back of course because if he carried out these lines of thought to their terminal conclusion he would realize he and his lefty friends are pushing for sharia law in the united states and another holocaust globally.

Birkel said...

...force us...

william said...

Either scenario is bad. Why should we want a President that is so incompetant. In both scenarios he's fucked things up royally.

David Begley said...

Goldsmith "issued in haste, without proper interagency coordination, without proper notice, without adequate consideration of its implications, and with a media strategy...."

This is all a matter of taste and opinion. Trump is a business guy and man of action. He does things differently than the Obama and Harvard Law. The Harvard Law way that worked so well in foreign policy the last 8 years.

David Begley said...

Forgot to add. Trump wins this thing on the law. That's my prediction.

rehajm said...

Leftie Lawprof leaving his lane to analyze and speculate on the political moves of the opponent.

yawn.

Quaestor said...

Trump can't loose if the judges honestly read the law.

R.J. Chatt said...

One thing that is interesting to me, are unintended consequences. Or are they? Maybe Trump wants us to become aware of these things. One consequence of this temporary ban is that I am much more aware of is the multitude of people who are coming into the country. Despite the claims of "racism" by the Left, hundreds of thousands of people of all skin colors are coming into the US everyday. Not only that, people believe they have the right to come to the US, that the USA belongs to the world. This must be quite a great and exceptional country after all. It's amazing how grateful people are to be here when suddenly they are denied automatic entry. Trump did that.

robother said...

How is Trump supposed to react when a hand-picked liberal district court judge grants a nation-wide TRO against an Executive Order with no legal or factual analysis of standing, irreparable harm to plaintiffs, or legislative basis or caselaw precedents for holding that the plaintiffs are highly likely to prevail on the merits? The "opinion" on its face is a naked exercise of power.

"So-called judge" is exactly appropriate, and a non-lawyer is calling it as he sees it, in a way that no lawyer would. If Trump and his lawyers are throwing the fight, how explain the win in Massachusetts where the judge examine the legal authorities cited by both sides and came down squarely upholding the EO?

David Begley said...

Steve Bannon's bible and why there was no inter-agency review.

"Let your plans be dark and impenetrable as night, and when you move, fall like a thunderbolt,” Sun Tzu wrote.

Jupiter said...

"Assuming that he is acting with knowledge and purpose... the only reason I can think of is that Trump is setting the scene to blame judges after an attack that has any conceivable connection to immigration....".

Of course, that would only make sense if Trump believed that immigrants were likely to attack Americans. In which case, he would simply be doing his job if he tried to prevent it. Note that the only reason this Harvard Law Prof can imagine for the President acting to keep foreigners from killing Americans is that he hopes and expects to fail, and that will make judges look bad. Apparently Goldsmith doesn't think that so-called judges pulling Constitutional rights out of their assholes makes them look bad. So that's where those penumbra are located!

rehajm said...

Trump derangement syndrome like Bush derangement syndrome:

At 7:04am Bush is a bumbling incompetent.

At 7:10am Bush is a genius master schemer!

Jupiter said...

"The clearly foreseeable consequence of the roll-out combined with Trump’s tweets is to weaken the case for the legality of the EO in court."

Hmmmm. Clearly foreseeable to someone who takes it for granted that the judiciary is utterly corrupt and completely politicized. I guess this guy knows his stuff.

Paul Zrimsek said...

"Let your plans be dark and impenetrable as night, and when you move, fall like a thunderbolt,” Sun Tzu wrote.

Some translations change that advice to "slice like a fucking hammer."

Michael K said...

Trump wins this thing on the law. That's my prediction.

I think that not even the 9th Circuit will let this weak opinion stand.

That's saying a lot about 9th Circuit.

Alex said...

Trump playing 5D chess.

Alex said...

The 9th Jerkit Court of Shlemiels will try to block the Trump agenda.

Terrie said...

Even John Yoo thinks Trump jumped the shark.

http://thehill.com/homenews/318031-torture-memos-author-john-yoo-says-trump-has-gone-too-far

"Yoo said that Trump’s executive order imposing a temporary ban on nationals from seven predominantly Muslim countries entering the United States “falls within the law,” but noted reports that Trump had originally sought a “Muslim ban.” Yoo said such an order would “violate the Constitution’s protection for freedom of religion or its prohibition on the state establishment of religion."

“Had Mr. Trump taken advantage of the resources of the executive branch as a whole, not just a few White House advisers, he would not have rushed out an ill-conceived policy made vulnerable to judicial challenge,” he wrote."

GWash said...

sheer chaos... we still need a translator for this buffoon... this is why if he doesn't retire in 90 days we will be in recession and at war...
Watch your wallets.. they are already undoing any financial protections you have.. it will be open season on all the good bloggers here as the hounds devour you.. donald wants us to live in a world where people will legally be free to cheat you out of your money and you will be free to choose a phony health care plan that will not cover you when you are sick...
are we tired of winning yet?..
you guys are a lot more foolish then i imagined...

rhhardin said...

The take-away isn't anything at all ahout Trump but that the judiciary has been taken over by unAmerican forces.

n.n said...

Or the Washington judge is a whistleblower who will render the penumbra an absurdity of liberal faith, expose the special and peculiar interests of insourcing/outsourcing, the [class] diversity of anti-native factions, the elective regime changes by social justice adventurists, and the collateral damage of forcing the refugee crises.

rhhardin said...

Yoo's wrong. You can too ban Muslims if you want to. Just not Americans.

Gretchen said...

I get the feeling Trump never wants to lose. There is a game plan.

He was right about the latest polls, the internals don't resemble the electorate. Oversample of Dems and Independents, especially independents. From people I've talked to, more squishy Trump voters are liking what he's doing. Middle class Americans are done being the world's doormat, watching their A students get passed over for scholarships by illegals, watching ESL classes eat up school dollars, and being called racists if they try to stick up for the well being of their own children, while working a few jobs and paying lots of taxes and lots for health insurance so people who don't make an effort get freebies. It isn't fair for working class people, they are generous, but feel trapped by leftist oppression.

Achilles said...

william said...
Either scenario is bad. Why should we want a President that is so incompetant. In both scenarios he's fucked things up royally.

Both scenarios are leftist fever dreams.

Reality is most Americans want a country with borders and laws and we want to be US citizens, not citizens of the world.

And no, we do not want more people who believe in sharia law here. Period.

rhhardin said...

Yoo and Epstein are pretty strongly anti-Trump, taking the rule of elites of the right kind as the desired end, rather than Trump's undermining of the authority of the MSM, something which is much more needed at the moment.

Aussie Pundit said...

Ockham's Razor: Trump issued the executive order because he wanted it to be enacted.

That's the simplest explanation. Goldsmith's evidence is entirely that
a) he rushed out the EO without a long consultation process; and
b) he tweeted his support for the EO, which in Goldsmith's view undermined its legality.

I'm not convinced either of these things undermined the EO. A long consultation process, in fact, would probably have doomed it, as it gave Trump's opponents plenty of lead up time to organize against it, and would have given the deep state lots of time to screw with the process.
And Trump tweeting his support for his own EO is understandable, and shouldn't be construed as undermining it.

rhhardin said...

Yoo and Epstein have a podcast out today. Listen with me.
https://ricochet.com/podcast/live-cal-state-san-bernardino/

I expect some Trump bashing, maybe with Epstein going postal, but who knows.

GWash said...

david b. you are another sucker who has bought this act... trump is a cheat, a liar and a fraud... he has ruined everything he has touched.. adulterer, failed businesses, US banks wont loan to him... where are his tax returns? what other US president would dare even think that this country is as bad as Putin..
Everyone here was giving Putin a pass on meddling with our election, now we have a president who doesn't take security briefings, knows very little about laws and how to craft a vaild EO, favors torture, was going to look out for the little guy but instead opens the gates for his financial friends on wall street to pillage and take advantage of the average joe...and on and on... wake up... do some research on this guy... read a biography or check out some back ground on him that was written or paid for by him...

Achilles said...

GWash must be drunk. That was a whole lot of stupid packed into that many words.

Earnest Prole said...

Hmmm . . . machiavellian deviousness on the one hand, incompetence on the other. I think I’ll have to go with Hanlon’s Razor, though no doubt Trump will spin things as Goldsmith describes should he lose the case.

tim maguire said...

Given that it is a 90 day pause, it seems weird to want to lose in court. There's no reason why the immigration reforms have to wait for the courts to hash this out. By the time he wins or loses, it could be moot, rendering this a pointless exercise in provocation.

Henry said...

...the only reason I can think of...

Prof. Goldsmith has a very small imagination.

David Baker said...

I think Sean Spicer's stand-in Melissa McCarthy explained it best; it's circular.

Chuck said...

Or, maybe Trump doesn't care about winning, or losing this court challenge.

Maybe, all that Trump/Bannon/Miller wanted (and maybe just Trump!) was to do something that looked close enough like a fulfillment of the campaign pledge to impose "a complete and total shutdown of Muslims entering the United States..." [until, blah-de-blah-blah, our leaders can figure out what the hell is going on blah-blah-more-blah].

That was a promise that Trump should never have made, and could never have been fulfilled the closest thing that was legally feasible was the recently-enjoined EO. Which, while it might barely make legal muster, is not a ban on all Muslims and in fact the Trump Administration is repeating as many times as they can, as fast and as loud as they can, that it is not a ban on all Muslims. Indeed it isn't. It's just harder to defend now, given all of the idiotic things that Trump has said about Muslims and "illegal immigrants."

This thing was all about signaling to the Trump base. I've seen plenty of dumb comments on this blog, aimed at questioning whether any non-citizens can or should be afforded any Fifth Amendment rights at all. And how federal judges that question or enjoin the Trump EO should be "impeached" or "disbarred." Trump might just know his audience better than I could ever imagine. (Or would care to imagine.)

This all, it seems to me, has strikingly little policy seriousness. Of all of the things that worry me, near the bottom of the list are immigrants from Syria or refugees from Iraq or the very small numbers of Yemeni, Sudanese or Lybian immigrants. That issue didn't bother me a month ago, and it doesn't bother me a bit more now, in the wake of the Trump EO. Why should it?

This order does nothing for me, one way or another. It's a temporary ban. It's a big nothing, 120 days from now. It might be moot in that time! I certainly don't agree with the left wing's accusations of racism and gross presidential overreach. That's bullshit. I'm also suspicious of the Trump administration's motives. But substantively, I just don't care beyond the bit of academic legal curiosity it provides. As with most things in academia, the fight is so bitter, because the stakes are so low.

GWash said...

is trump not how i have described him?... a cheat, a liar and a fraud? does he even know what he is signing at this point? does he have a plan or are we just going to piss off everyone?
is he rolling over for putin?
is he undoing the financial protections that were put in place after the last financial debacle so his 'friends can get loans'..
does anyone really know what he is saying when he speaks? even he on this blog you get 10 different interpretations from 10 different people.. talk about razors and the double whammy backhand reverse psychology voodoo...
you will have your freedom, freedom of choice to be cheated.. have you read your credit card contract.. i dare you to try...

Seeing Red said...

How can something that delays 90 days be a ban?

Drago said...

Poor GWash.

He shows up without even 3/5ths of an argument.

#Sad!

GWash said...

easy red, 90 days becomes 180 days, becomes 360 days etc... it's all bs anyway... most of the known terrorist attacks are coming from countries where trump is invested...

Leora said...

I think he wins either way. If the states have standing to sue about Federal overreach he's got a nifty new tool.

MountainMan said...

Aussie Pundit said: "A long consultation process, in fact, would probably have doomed it, as it gave Trump's opponents plenty of lead up time to organize against it, and would have given the deep state lots of time to screw with the process."

That's dead on, I think. Word would have leaked out, protests would have begun, the bureaucracy would have grabbed hold of it, and it was dead. I have said before, Trump thinks like a CEO, not like a government bureaucrat. Get something out there, push it, see what happens, and then fix it if you need to. Ready, fire, aim. I have lived through situations like this in business many times over the years.

Also, another angle I don't think anyone has considered is how ISIS plays into this. From some research I have done, ISIS has de facto control of much of the refugee camps, which is why Christians are so under-represented in the refugees that have been relocated; only 56 send to the US in 2016 among about 12,000 total, when they represent about 20% of the potential refugee population in southern Syria. If the administration had put a future date on it, like April 1, that gives ISIS time to organize and see how they can react to it. It's like when Obama put a timeline on pulling out of Afghanistan; just tell the enemy when you plan to retreat and they will plan accordingly. Better to make it immediate, adjust to the temporary confusion - which has affected on a very, very small number of the thousands entering the US every day - and move on.

And though I am not a lawyer more research I have done convinces me that the Trump administration is 100% correct on the law. What the Ninth Circus decides is unpredictable. May end up in the Supreme Court.

GWash said...

you guys tickle me... this blog swings from FREEDOM and LAW.. to, well, EOs are an effective governing tool just like a CEO runs a company push it through quick before anyone catches on to what you are doing...in fact, dont even tell anybody what new laws/rules are in effect now... this is more like 1933 than 1789 (the other default date of this blog)

The Cracker Emcee said...

Legalities aside, another Muzzie terror attack is baked in the cake. Even if the Left wins, they lose. Especially if they win. You don't have to be Spock to see how this plays out.

Sammy Finkelman said...

Chuck said... 2/6/17, 7:59 PM

Maybe, all that Trump/Bannon/Miller wanted (and maybe just Trump!) was to do something that looked close enough like a fulfillment of the campaign pledge to impose "a complete and total shutdown of Muslims entering the United States..." [until, blah-de-blah-blah, our leaders can figure out what the hell is going on blah-blah-more-blah].

That was a promise that Trump should never have made,


If Trump thinks so, that could be a reason for him to want to lose, albeit it's a different, more logical reason than the absurd one Jack Goldsmith posited - that he doesn't think he can prevent a tertorist attack, no matter what he does, and would like to blame judges.

But I don't know that it's at all obvious this is wrong on the law, unless Goldsmith thinks not consulting too many will guarantee it's wrong on the law.

This all, it seems to me, has strikingly little policy seriousness. Of all of the things that worry me, near the bottom of the list are immigrants from Syria or refugees from Iraq or the very small numbers of Yemeni, Sudanese or Lybian immigrants.

I think its Putin who;s trying to make people, especially in Europe, all worried about them. And the oones coming in the U.s. are different from tghe ones who camew to Europe. They;'ve basically bene quarantined two years. Of course there's the person wo says ISIS is running the refugee camps. Which might mean it would be agood thing to get people out of there. Which camps? Is it ISIS or just Salafis?

This order does nothing for me, one way or another. It's a temporary ban. It's a big nothing, 120 days from now.

Not true.

The other shoe drops in 30 days and then after another 60 days.

It basically calls on the Secretary of Homeland Security to make up a different, revised, list of countries whose citizens will be banned from entering the United States.

These would be countries which cannot be trusted to tell the United States who among their citizens are terrorists, either because they can't, or don't want to. Either failed states or sponsers of terrorism. They will then have 60 days to set things right.

Then the Secretary of Homeland Security, in conjunction with the Secretary of State, will transmit a final list to the president, who will make the final decision, and President Trump, or the Secretary of Homeland Security, can add other countries to the lost at any time.

The 120 day period applies to the admission of refugees - any refugees, from any country - and Syrian refugees are prohibited indefinetely.




The Godfather said...

What Trump ought to have done by now (and if he hasn't, he'd better get cracking) is send a directive to all the relevant agencies to develop the new protocol for screening immigrants and refugees from countries that present terrorism threats. Have those in place by (say) March 31, and all this business about the 90-day stay becomes moot. Then let somebody sue that it's illegal for the US Government to require that a would-be immigrant or refugee provide satisfactory evidence that he/she has no connection with any terrorist organization, including but not limited to the following: [List those known to be operating in the country of the immigrant or refugee].

Michael K said...

"most of the known terrorist attacks are coming from countries where trump is invested..."

Well, at least you read the NY Times.

Doesn't this stuff ever get old ?

An original thought and a cold drink of water might be fatal.

EDH said...

Jack Goldsmith's been Trumpified:

Last night I tweeted: “Increasingly apparent—from the way Trump rolled out EO to his attack on courts—that he wants EO struck down. Not just incompetence.” Here is what I meant. The clearly foreseeable consequence of the roll-out combined with Trump’s tweets is to weaken the case for the legality of the EO in court.

Everything Goldsmith alludes to is anything but a constitutional requirement of an Executive Order.

The Executive branch often successfully argues—quietly, in briefs and at oral argument, with citations to precedent—for its superior competence to judges in national security, and for the potentially dangerous consequences that might flow from too much judicial review in that context. But when arguments for deference to the President are made via threatening public tweets before an actual attack, they will certainly backfire. The tweets will make it very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with the significant deference to the President’s broad delegated powers from Congress and to the President’s broad discretion in foreign relations. Judges in the short term will be influenced by the reaction to the EO Immigration order, and by doubts about executive process, integrity, truthfulness, and motivation that the manner of its issuance implies. They will also worry a lot about being perceived to cave to executive pressure. The pressure from Trump, and related events, thus make it more likely—much more likely, in my view—that the Ninth Circuit and, if it comes to it, the Supreme Court will invalidate the EO in some fashion.

So, the threshold question I'm asking after reading his piece: What possible motivation would Prof. Goldsmith have for undermining the legitimacy of the 9th Circuit and possibly SCOTUS before they rule?

Amadeus 48 said...

Two likely outcomes:
1. Trump wins in the Supreme Court 8-0; or
2. The Supreme Court tosses this order but affirms Trump's authority to do it over with proper process.

Bob Boyd said...

No. It is the other way around.

The opposition to Trump's EO wants to lose because the other explanation is that their chosen jurist Judge Robards is "incompetent or ineffectual."

"Judge Robart’s brisk ruling contained almost no reasoning."

After all their hyperbolic rhetoric, the opposition must appear to be fighting Trump tooth and nail, but they too have a perfectly reasonable fear of a terrorist attack by a refugee or immigrant from one of these countries and they don't want to be blamed if it happens.

Jupiter said...

Terrie said...
"Even John Yoo thinks Trump jumped the shark.

"Yoo said that Trump’s executive order imposing a temporary ban on nationals from seven predominantly Muslim countries entering the United States “falls within the law,” but noted reports that Trump had originally sought a “Muslim ban.” Yoo said such an order would “violate the Constitution’s protection for freedom of religion or its prohibition on the state establishment of religion."

So John Yoo agrees with Terrie. It's not often that Terrie gets to be wrong in such elevated company. But Yoo's reading of the Constitution is utterly fanciful if he imagines that a ban on the importation of Muslims would violate it. The Constitution prohibits a religious test of office, which is not contemplated, and it bans the Congress from establishment of religion. The latter has been construed to mean that the State may not favor the practice by US citizens of any particular religion. But it is a long stretch from there to the idea that membership in a particular religion confers a right of entry upon a non-citizen.

Achilles said...

It is fun watching leftists argue that everyone in the world has a right to come to this country. No seriously people keep it up. Keep telling us how the US is best served with unlimited lawless immigration and more sharia law. That is a winner for sure.

The fact they are not protesting Canada's immigration policies outs you leftists as completely full of shit. Trump's EO doesn't even go as far as Canada does. You are not good people. You are enemies of freedom just like the believers in Sharia Law you are all trying to import as fast as you can.

Danno said...

Jupiter said..."Apparently Goldsmith doesn't think that so-called judges pulling Constitutional rights out of their assholes makes them look bad. So that's where those penumbra are located!"

I thought that's where emanations came from. Thanks for correcting me,

D. said...

yo progslams: you be silly when The God Emperor bans all visas and tells the 3rd "branch" to shove it and try to "enforce their order". hahaha

Jupiter said...

Bob Boyd said...

"The opposition to Trump's EO wants to lose because the other explanation is that their chosen jurist Judge Robards is "incompetent or ineffectual."

It's "Robart", and he is clearly incompetent. We may expect that he will shortly be rendered ineffectual as well. May his days be few; may another take his office!

Achilles said...

Terrie said...
Even John Yoo thinks Trump jumped the shark.

More proof that the left has no argument and no soul. They are truly blind or truly evil. John Yoo is an Oligarch pet. He is fed and nurtured by the same globalists that want unlimited H1B's and no borders.

Keep pushing this crap. The only people that will still be with you are the wealthy elite and the stupid hippies who poop on cop cars. The union rank and file is switching teams because they realize how bad unlimited immigration is for middle class america. By 2018 the democrats will have 38 senators at this rate. Keep pushing.

D. said...

Our side don't place nice no more. FU WAR

Achilles said...

Amadeus 48 said...
Two likely outcomes:
1. Trump wins in the Supreme Court 8-0; or
2. The Supreme Court tosses this order but affirms Trump's authority to do it over with proper process.


Is that before or after every democrat political appointee in the state department is fired?

Amadeus 48 said...

Every Dem political appointee in the State Department will never be fired.

Derek Kite said...

This is funny. It starts with the assumption that no one could actually want to challenge or change the current immigration consensus. We have to throw a bone to those rubes, then go on as we always have.

Lets lay out some important assumptions. First, Trump has more real world experience with judges than 3/4 of the lawyers in Washington, and he isn't a lawyer. For all the sanctity of the bench this ruling was the result of taking the same case to as many judges as necessary to get the decision they wanted.

Second, he knows that the law is politics painted in nice colors.

Third, he knows that bureaucrats and Judges and any politician will avoid accountability. This throwing down a gauntlet of accountability is mean, unprecedented, nasty, impolite, disrespectful, unconstitutional, illegal, unpresidential, anything you want to call it, except to the people who actually have to live with the consequences.

Fourth. He knows very well that this is an issue that stabs to the heart of the anger and divisions in the country. Democrats, Republicans, the business class, academia, the cultural institutions, media and a good percentage of the electorate oppose his actions. But his electorate and a good number of others support him.

Fifth. The source of opposition is almost solely within the blue states that didn't vote for him.

The only rational thing he could do is surrender and stab his electorate in the back. But. He doesn't owe the Democrats anything, in fact he has an axe to grind, a personal one. He doesn't owe the Republicans anything at all, in fact he trounced, humiliated and danced on the grave of the pro immigrant Republican politicians and consultants. The business class didn't support him hence don't own him. The Media is the official opposition and will get no quarter. The cultural institutions and academia are owed nothing at all.

All he has left is the electorate. Seeing Chuck Schumer cry is something as pleasurable and satisfying as a cold beer on a hot day. Seeing the Left embrace islamism is a confirmation of what alot of people suspected. Hearing the same accusations of racism, islamophobia and all the rest is the Deplorables all over again. Being told to feel something that they don't feel at all by people who hate them is the engine of support and strength for Trump.

So really, what Trump is doing is forcing the issue in a way that it will be decided. Either the US has the authority to govern it's borders or it doesn't. He actually got a gift where a judge thought that spouting the elite consensus was enough. As sloppy as his rollout and presentation, he was met by utter incompetence. This is a ground he is very very familiar with, and probably has prevailed many times.

Behind this commentary is the hope that he backs down or moderates, really really, please.

gadfly said...

Why might Trump want to [weaken the case for the legality of the EO in court]? Assuming that he is acting with knowledge and purpose... the only reason I can think of is that Trump is setting the scene to blame judges after an attack that has any conceivable connection to immigration...

If you take Trump for what he is, an intense narcissist incapable of admitting his knee-jerk actions, derived from yesterday's news, could ever be wrong. He will fight anyone who opposes his words. The big problem to date is that Trump is running the government with dictatorial decrees, not constitutional cooperation as required.

And the big scoop - he is not about to change. Nothing has changed since he introduced himself to New York City during the repair of Central Park's Wollman Ice Rink in 1986. If you read the fairy tale in Tony Schwartz's "The Art of the Deal," the story follows along these lines:

“Once upon a time there was an ice skating rink in Central Park that could no longer make ice. No one could figure out how to fix the skating rink. Years went by and millions of dollars were spent and still no ice. One day a white knight wearing a bright red tie showed up and said: 'Let there be ice!’ Four months later there was ice. When asked by the press why the people had been unable to fix the rink themselves the knight said 'they’re very nice people and I like them very much but they're all idiots!' And everyone lived happily ever after.”

But perhaps his real intentions were elsewhere: "Aficionados recall the mystery news conferences, held for no apparent reason. One involved Mr. Trump talking to hordes of reporters while three men pushed brooms in the background."

Bob Boyd said...

It's "Robart"

Sorry. You're right, it is Judge Rhubarb. That's what I meant.
Thanks.

Peter Irons said...

Goldsmith's theory is simply ridiculous. And I am really surprised you lend it any credence.

StephenFearby said...

In this case "Losing is Winning" is simply Orwellian "Doublethink".

Trump is not a guy who thinks far enough ahead to believe losing could be beneficial for him.

Instead, he tries to avoid losing at all costs. Except that shooting off his mouth without thinking about the consequences has frequently proven to be a losing proposition for him.

So it's not a plausible conspiracy theory. Sometimes a cigar is just a cigar.

Sammy Finkelman said...

This is the text of Executive Order 13769 dated January 27, 2017:

https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states

See section 3.

Sammy Finkelman said...

101.There’s now a relatively long Wikipedia article that gives a history of the lawsuits, wthout much of the legal arguments.

https://en.wikipedia.org/wiki/Legal_challenges_to_Executive_Order_13769

The title of the article, if not the URL, is“Legal challenges to Executive Order 13769″

eric said...

When Trump prevails, we will have our answer.

Terrie said...
This comment has been removed by the author.
Terrie said...

"Keep pushing this crap. The only people that will still be with you are the wealthy elite and the stupid hippies who poop on cop cars. The union rank and file is switching teams because they realize how bad unlimited immigration is for middle class america. By 2018 the democrats will have 38 senators at this rate. Keep pushing."

Someone must think they are the Great Avenger...or something. If EVEN someone like Yoo thinks Trump is wrong, it's pretty pathetic. Trump likes torture, Yoo liked torture, BOTH are Oligarchs, you idiot. That you think Trump is some savior to the working man masses is nuts. Actually you sound like a nut. Your thinking about Trump is very disordered.

Terrie said...

To be more accurate Yoo may be the Oligarch's pet, but that you Achilles, don't see Trump as an Oligargh is incredible. Simply loony. You seriously think this man who has filled his cabinet with Wall Street billionaires and nut cases like Flynn will save your sorry loser ass, is laughable. He doesn't care about your type of American, you dumbass.

One can only hope that people like General Mattis or Nikki Halley and a few others will stop him from doing something to get us all killed. You people are fucking stupid.

PB said...

Interesting perspective, "The Immigration EO has a surprisingly strong basis in law but was issued in haste, without proper interagency coordination, without proper notice, without adequate consideration of its implications, and with a media strategy". Not a sound legal analysis nor a position relevant in any way to a legal position.

narciso said...

Ah goldsmith withdrew his predecessors olc opinions on interrogation leaving all advisor and oprtatives in period legal jeopardy

As pointed out before this modest raise was dictated by the 201t law that Einstein, Durbin and Leah signed

PB said...

Don't just focus on H1-B visas. They are limited each year (90,000 or so). The other interesting visa is the L-1A/B visa that allows foreign companies to bring in existing foreign employees to work in the US. They are unlimited and average about the same number as H1-B visas. That's 180,000 each year.

I know from personal experience that it's not because of skills, but to average down the hourly cost of all employees. 75% percent of the imported people have skills that are best described as average at best and take quite a bit of time to get up to speed. Then there's the language barrier. While they know English, the effectiveness of their use is often substandard. Some are good, often very good, but I'd say only 20%. Most all lack experience in US industries necessary to successful usage of their technical skills.

I also know for a fact, that if a company posts an IT position in the US, there are no shortage of qualified applicants that respond. This should automatically disqualify them from obtaining an H1-B visa for the position. Many IT recruiters I know will confirm this and one of the push-backs they get from hiring companies is always cost.

narciso said...

Ironically, they can't keep up with the flood of initiatives and executive orders, which are quelled sunrise much what he promised in the campaign

David in Cal said...

Hanlon's razor is an aphorism expressed in various ways including "Never attribute to malice that which is adequately explained by stupidity," or "Don't assume bad intentions over neglect and misunderstanding.

Based on Hanlon's razor, I don't think Trump is intentionally trying to lose the case.

Jay Elink said...

David Begley said...
Goldsmith "issued in haste, without proper interagency coordination, without proper notice, without adequate consideration of its implications, and with a media strategy...."

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

WTF? How many legislatures, national on down, do the same thing?

Dave, have you considered what the outcome of the stupid Obamacare rollout has been?

Achilles said...

Terrie said...

Someone must think they are the Great Avenger...or something. If EVEN someone like Yoo thinks Trump is wrong, it's pretty pathetic. Trump likes torture, Yoo liked torture, BOTH are Oligarchs, you idiot. That you think Trump is some savior to the working man masses is nuts. Actually you sound like a nut. Your thinking about Trump is very disordered.

Your critical thinking ability on display. Trump supporters and Yoo supporters are not in the same Venn Diagram. Note that the entire Neo-Con establishment supported Hillary fool.

To be more accurate Yoo may be the Oligarch's pet, but that you Achilles, don't see Trump as an Oligargh is incredible. Simply loony. You seriously think this man who has filled his cabinet with Wall Street billionaires and nut cases like Flynn will save your sorry loser ass, is laughable. He doesn't care about your type of American, you dumbass.

It is clear you haven't thought about this very much. I have heard every argument you just made from a variety of people, most of them smarter than you. Trump might be an Oligarch, but all of the other Oligarchs gave their money to Hillary. The GOPe in general supported Hillary. A political re-alignment happened and you were left behind.

One can only hope that people like General Mattis or Nikki Halley and a few others will stop him from doing something to get us all killed. You people are fucking stupid.

I am going to just chalk your post up to public education not teaching critical thinking anymore. 2 out of 10.

Lewis Wetzel said...

Resistance, Mr. McClure said, begins at home.

“You don’t have a voice with the president if you didn’t vote for him,” he said. “But employees and customers have a voice with the tech companies. Silicon Valley should be demonstrating at the front doors of Google, Facebook and Twitter to make sure they share our values.”

https://www.nytimes.com/2017/02/06/business/trump-travel-ban-apple-google-facebook.html
Mister McClure does not seem to realize that he is an at-will employee. There are thousands -- tens of thousands -- of people worldwide who would be willing and able to his job at a fraction of his salary.
This is quite Orwellian:
"Silicon Valley should be demonstrating at the front doors of Google, Facebook and Twitter to make sure they share our values.”
It seems very odd to threaten people until they "share our values." It is difficult to understand the context. I could see demonstrating in front of a drug company until it, say, refuses to sell a state the drugs it needs to carry out executions, but "share our values"? Are there people who really believe that corporations have values other than making money?

Terrie said...

Achilles,
You tell yourself that Trump supporters and Yoo supporters aren't in the same Venn Diagram, that's because you're delusional. It's obvious your intellect isn't what you assume if to be. You don't see what is right in front of your eyes. Trump is an Oligarch. He surrounds himself with Oligarghs. He bamboolzles dummies like you into thinking he is interested in your well being. The man stiffed his own workers, for pity sake. He is a con man and a fraud. You don't have the emotional maturity and /or intelligence to recognize this.

Yancey Ward said...

I wrote a couple of days ago here that from a purely cynical point of view, Trump benefits more if he loses this case, and his political enemies, by winning, will have the the Sword of Damocles hanging over them going forward- and I write this as someone who doesn't believe the EO serves anything more than a symbolic gesture in the first place.

However, I don't think the administration is trying to lose, and I think they will actually win quite quickly considering just how strong the case for the legality is.

FIDO said...

1) I go with simple: Trump wanted this. Like a LOT of Americans, importing a bunch of people who don't speak the language, don't share the culture or values, and have absolutely nothing, seems pretty much of a no brainer. We did the same after WWII. We left the Europeans to rebuild their nation, not move into a ready made one for them.

* Note: During the Bosnian conflict, Bill Clinton DID let in refugees...and he put them in internment camps (I drove by them on Ft. Dix.) They were in fenced in barracks and weren't allowed in or out. The Left is particularly and pungently hypocritical about this.

2) This is making the Left look like idiots. Most Americans, if given a preference without pressure, don't really want the refugees. Trump LOOKS well within the law. So now the public is skeptical about the Left and the Judiciary who are making ridiculous and unsupported arguments.

I don't know if Trump planned this, but the Ninth is already the Laughingstock of the Judiciary. He probably figured some idiot would rule this way.

3) Even if he can't get the TRO issued, he just REVIVES the orders of Obama who shut down those places for 6 months to immigration and let the Left explain how when the Lightbringer did it, it was good but when Trump does the same thing, it is bad. Good luck with that.

4) Trump will pay zero political price for this. Those who are against him were already against him. Those who are for him and those who are actively against him but secretly for this ban (letting them off the hook for espousing principles that their common sense excoriates them about) will yell and breath a sigh of relief that they don't have to have dead people as a result of their principles.

5) The Right will put up all the news from Europe about the problems the refugees are causing and letting the Left defend bringing these problems HERE.

Good luck with that too.

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Marcus said...

Why should Trump's tweets have any bearing on the legal issues in this matter? Has Ann ever filed a brief comprised only of tweets to support a position?

BDNYC said...

Idiotic. Trump took great care with this order as it represents him making good on an important (and controversial) campaign promise. In response to the outcry against the idea of a "Muslim ban," Trump asked Giuliani and others to craft an order that would be legal. That isn't consistent with someone trying to lose. If he wanted the lose, he would have just gone all the way and banned all Muslims from entering the U.S.

Kevin said...

"It's easy for Trump's antagonists to get distracted running with the theory that he's a brutish lout who doesn't know what he is doing. It's important to pursue the alternative interpretation — that Trump does know what he is doing..."

Whichever gets them to the preferred meme, that's the one they'll use. I look for more flip flopping as his administration goes on.

Roy Lofquist said...

"Blogger Alex said...
Trump playing 5D chess.

2/6/17, 7:33 PM"

Nope. Poker. Much tougher game. If you can't tell who's the fish at the table, it's you. The opposition doesn't even have a clue that the game has changed. Lot's of fish in that pond.

Kevin said...

Case in point, Trump is both a moron who's going to blunder into WWIII, and an evil genius who's rearranging the government to bring about the next Reich.

They will attempt to maintain some sanity by splitting the dufus and genius roles among Trump and Bannon, just as they did with Bush and Rove. Whether they must claim stupidity or genius, they can write the story either way.

Daniel Richwine said...

Trump's background is real estate development. Talk to them, not the professor's, lawyers, or politicians if you want to understand Trump.

I know a few, and they are generally dynamic, ingenious, powerful men. They know if they don't push and push hard nothing will get done. Guided by their overall vision, they adapt to their circumstances and give and take as necessary. They are not afraid to change midstream and end up with something quite different than what they intended. Yes, they remind me alot of Trump.

Rick said...

You're misreading Trump here. In business it's better to move toward your goal quickly and trust your managers will work out the details as you go. Otherwise you'll never even start the process.

So in this case Trump's plan had problems (like including greencard holders) which were immediately identified and corrected. Meanwhile the plan is moving forward. If he had acted as the left claims is appropriate (a) nothing would be implemented yet and (b) half the departments would be analyzing the law to find objections to present either to Trump or leak to the media.

I see this action as quite in keeping with his achievement mindset and not part of some political maneuvering.

Jason said...

Wow. It's absolutely amazing. Under the right circumstances, a President can gain more from an executive order that fails than he can with a hit!

Chuck said...

Your critical thinking ability on display. Trump supporters and Yoo supporters are not in the same Venn Diagram. Note that the entire Neo-Con establishment supported Hillary fool.


Obviously, John Yoo has some (rightful) serious doubts about President Trump:

http://thehill.com/homenews/318031-torture-memos-author-john-yoo-says-trump-has-gone-too-far

Of course on the subject of "torture," John Yoo took the careful, nuanced, researched approach. And has been vindicated.

While Trump, on the same subject, took the reckless, bombastic, dumb approach, and has never been able to advance toward what he wanted. Virtually every member of his cabinet (those who might have anything to do with enhanced interrogation) have rejected the Trump view.

Mom2Es said...

“Had Mr. Trump taken advantage of the resources of the executive branch as a whole, not just a few White House advisers, he would not have rushed out an ill-conceived policy made vulnerable to judicial challenge,”

Question: If you pull up the text of Trump's executive order itself and place it side-by-side with any other president's executive orders that cite the Immigration and Nationality Act, what is remarkable about the wording of Trump's such that it is more vulnerable to judicial challenge?

Second, here's a fun exercise: Go back to what was being written in December 2015 about Trump's call for a "Muslim ban" and all the articles that enumerated why things done by Carter, Obama, et. al. were totally different from what Trump was calling for. Then compare those claims of "this is why it's absolutely not the same thing, you guys!" with the executive order that Trump actually signed. I'll start us off with the list of reasons produced by Snopes: "However, while Carter's action involved a well-defined class of persons (Iranian citizens) being denied entry to the U.S. until a well-defined goal was achieved (the hostages were released), Trump's suggestion was ill-defined in scope and purpose..." Does a pause on allowing entry for people arriving from a defined list of terrorist-inspiring hotbed nations (class of persons) for 90/120 days (defined period of time) while a review of procedures is conducted (defined goal) fit the criteria laid out by Snopes?