February 6, 2017

"Judge Robart’s brisk ruling contained almost no reasoning. By contrast, Judge Nathaniel M. Gorton, of the Federal District Court in Boston..."

"... issued a 21-page decision on Friday refusing to block the program and discussing the legal arguments in detail. Judge Gorton also sketched out the broader picture. 'The rich immigrant history of the United States has long been a source of strength and pride in this country,' Judge Gorton wrote. 'Conversely, the public interest in safety and security in this ever-more dangerous world is strong as well.' The balance, he wrote, tipped in favor of Mr. Trump."

Writes Adam Liptak in the NYT, creating the impression that Judge Robart's decision simply represents a different tip in the balance between the value of immigration and the value of public safety. You know these judges, they're all about balancing, and a decision could go in either direction, depending on how the weights feel in the hand holding the scales of justice.

But Judge Robart took action and Judge Gorton refrained from taking action. It is Judge Robart who needs to identify a legal basis for interfering with another branch of government. How is it that Gorton gave us a 21-page opinion explaining the doing of nothing and Judge Robart interfered with the actions of the executive branch without putting legal reasons in writing?

I can see from the lawyers' brief — to which Liptak links in his search for a reason — that arguments were based on equal protection, due process, and the Establishment Clause. So which one was the basis for Robart's muscular exercise of judicial power?

For some reason, Liptak chose only to discuss the Establishment Clause. Does he think it's the strongest on the 3 arguments? I don't. Maybe he thinks it's best because it expresses the political debate around what many people are calling the "Muslim ban." Liptak quotes this from the plaintiffs' brief:
"President Trump and his advisers have made clear that the very purpose of this order is to tilt the scales in favor of Christian refugees at the expense of Muslims,” they wrote in their brief to Judge Robart.
And Liptak quotes this response from Trump's lawyers:
“The more searching inquiry envisioned by the states would create substantial separation-of-powers problems, by permitting probing of the president’s subjective motive in issuing the order,” the brief said.
Liptak questions this argument, made in the 9th Circuit by the plaintiffs' lawyer:
“The focus of our claim,” he said, “is on people who have been here and have, overnight, lost the right to travel, lost the right to visit their families, lost the right to go perform research, lost the right to go speak at conferences around the world. And also people who had lived here for a long time and happened to be overseas at the time of this order, which came with no warning whatsoever, and suddenly lost the right to return to the United States.”
That's very well put as a policy argument, and I certainly think the President should be responsive to it. As a legal argument, it expresses ideas that would be best classified as due process. If this is the basis for the judge's decision, however, I would think that the remedy would need to focus on the legal residents who happened to be out of the country — not newcomers.

And that problem of the breadth of the judge's order is a standing problem. Standing doctrine not only requires that the plaintiff have a concrete and particularized injury caused by what the defendant is doing. The plaintiff can only demand a remedy that is designed to relieve that injury — not other injuries that may also exist.

130 comments:

rhhardin said...

All execellent reasons why the 9th circuit will uphold the stay and the SC will split 4-4.

Seeing Red said...

Drudge had an article about Argentina tightening its immigration law and the rest of the Americas aren't too happy.

Dems aren't the only ones who have the right to slo-walk/"ban" people.


Ooohhhhhh can you imagine if The Donald made that link?

Mike Sylwester said...

If Hillary Clinton had won the Presidency, then she would have promoted so-called "judges" like James Robart to higher positions and would have added a lot of new "judges" like him to the federal courts.

HoodlumDoodlum said...

We're about at the point where it's just "blah blah blah, here's a person with the power to do X and they've done X, the rest is just pretty dressing," aren't we?
Why is anyone shocked that Judge Robart didn't bother to make a well-reasoned, thoroughly-explained legal case for his action? The result is what matters, and the result he brought about is what people want/like, so, ah, case closed.

Are we embracing a postmodern, post-reason worldview or not? If we are then we should acknowledge that power is the only important metric (which, of course, is what every Leftist "Studies" professor has been preaching for the last 3-4 decades) and act accordingly.

mockturtle said...

Ann, I wish YOU were on the Ninth Circuit Court.

David Begley said...

Robart's lack of reasoning or rationale for his decision puts the 9th Circuit in a tight spot. And nationwide jurisdiction? The whole thing is just ipse dixit.

HoodlumDoodlum said...

How did Judge Robart's ruling make people feel? I mean, feeeeel? How did Judge Gorton's?

Well Judge Robart's order let families be reunited, let nice people do what they wanted to do, and let anti-Trump people relish a victory over/judicial rebuke against Trump. Sounds like it made the right people happy, yeah? It's more in line with "who we are as Americans" and it's on the "right side of history," isn't it?

It must be the correct decision, then. Legal reasoning or not, if it's what makes us feel good it must be what's correct. What else is there to discuss?

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

The Seattle So Called Judge just put down on paper what Scott Adams calls a spontaneously generated literal hallucination to protect the self image of his master at Google.

The result is that there being 678 Federal District Court Judges to obey, we are in for a long delay before a mere US President can act in response to foreign persons coming across our borders. Assuming a mere 678 Nationwide Orders are CONTROLLING LAW, followed by an Appeal as to each one, that will be about 1000+ years.

Clayton Hennesey said...

I'm curious as to how liable Judge Robart is to impeached if his relatively reasoning-free ruling (see, e.g., Byron Yorkis ultimately smacked down by SCOTUS, given the way his actions intrude so deeply into what appear to be fundamental constitutional executive branch prerogatives.

Imagine, as a parallel thought experiment, if a Judge Robart were to issue a stay against the President nationalizing the National Guard, or deploying a battalion of armed forces overseas.

These seem like awfully big britches for an appointed federal judge in Washington State to be pulling up for himself.

DanTheMan said...

If I understand the reasoning, everything the President does affects people, so therefore every federal judge has the right to suspend any decision the President makes.
Is that about it?

John Borell said...

I'm not a Constitutional Lawyer, just a run of the mill commercial litigator. But I read Judge Robart's opinion as well as the brief filed by the Justice Department in the 9th Circuit. I agree with Byron York's analysis below. The Justice Department really presented great arguments.

Ultimately, the plenary right of the President to make national security issue decisions like a temporary ban simply has to trump (no pun intended) the judiciary here.

http://www.washingtonexaminer.com/justice-department-demolishes-the-case-against-trumps-order/article/2613988

Left Bank of the Charles said...

The Justice Department didn't offer Judge Robart much of a defense for the legality of the ban, so perhaps he doesn't consider that to be in dispute for purposes of the TRO.

Ignorance is Bliss said...

The Senate needs to confirm Gorsuch now. Don't let this get decided in the plaintiff's favor in the ninth circuit, then reach a 8 member Supreme Court which would let it stand in a 4-4 split.

Ann Althouse said...

"All execellent reasons why the 9th circuit will uphold the stay and the SC will split 4-4."

Thus increasing Trump's power... political power.

Ann Althouse said...

"Ann, I wish YOU were on the Ninth Circuit Court."

As I've always said: I lack judicial temperament.

Hagar said...

The notion that religion is out of bounds as a consideration for restricting either visitors or immigrants is B.S.

In this case it is about Islam, and Islam, or rather the observance of it, has many faces, both generally, depending on area or country of origin, or by individuals, but it is a fact that the Koran specifically order Moslems to conquer the world and make people of all other faiths submit to it. That is enough to give one pause and want to know more about how seriously a prospective visitor or immigrant is likely to take these commands. It is a legitimate concern of the U.S. government and its officials.

It may also be that what some individual(s) really is against is the U.S. as a concept and wishes to harm it and only claims to be Moslem to block any inquiry into his actions or motives in coming here. Then what? Is such a claim to be an absolute barrier to checking him out?


John Borell said...

Incidentally, there is much discussion in the amicus briefs why the travel ban is bad policy. That is an interesting political question. Not so much a legal question.

From one of the briefs:

"Immigrants make many of the Nation’s greatest discoveries, and create some of the country’s most innovative and iconic companies. Immigrants are among our leading entrepreneurs, politicians, artists, and philanthropists. The experience and energy of people who come to our country to seek a better life for themselves and their children—to pursue the “American Dream”—are woven throughout the social, political, and economic fabric of the Nation."

Super. Nice framing of this as a policy question Judge Robart is deciding, not a legal question.

Judge Robart should leave policy decisions to the Executive and Legislative branches. But I suppose Judge Robart, instead, would rather pretend he is in a different branch than he is.

Which is what's most frustrating. Judge Robart and the 9th Circuit do not need to make policy decisions, they need to make legal decisions.

Hint for Judge Robart: If your decision is based on whether you think immigration is good or bad, you're not doing your job.

David Begley said...

John Borrell

The biological father of Steve Jobs was from Syria. Presumably legal and at a time when the country was not in a bloody civil war. But iPhone. Ipse dixit.

Fernandinande said...

Ilya Somin (Volokh) says the EO was unconstitutional because
"On its face, the order does not discriminate on the basis of religion."
but in his mind it did discriminate on the basis of religion.

When lawyers who are trying to appear serious write such garbage it's no wonder that judges view themselves as philosopher-kings rather than the lowly civil-servant government lawyers they really are.

Unknown said...

So if this pretty obviously against the constitution ruling from this dude stands, have we just seen the first pretty blatant usurpation of power by the judiciary? I mean this is not even a legal argument being made.

Unknown said...

So this judge thinks we are doing damage to entrepreneurship by vetting the people from these countries. I doubt if freaking seriously. Egypt, Syria. Iraq, Iran? Give me a break.

rcocean said...

The district and appeals courts were created by Congress. They can set the jurisdiction of the district and appeals court at will. Congress never has the guts to to it because most of the Republicans are RINOs and support the liberal reworking of American society.

rcocean said...

Trump needs to pull a Andy Jackson. "Mr. Marshall has made his ruling, now let him enforce it"

Hagar said...

If you give privileges to Islam, you must also extend them to all others who claim to be a "religion" - and it is inherent in this question that you cannot dispute whether this "religion" is a religion or not; that would in itself be discriminatory.

HoodlumDoodlum said...

Separation of powers is a nice, quaint idea that made sense before we elected a madman like Trump. Now that Trump is in office the only thing that matters is stopping him from ruining the country and/or blowing up the world. If some judge somewhere can take action that in effect overturns a Trump policy decision then we shouldn't really care if that action is valid based on our previously-followed understanding of the proper role of the different branches of government.
Everyone understands what "by any means necessary" means, right? Why all the hand wringing, then?

buwaya said...

It is all simply about power. It always was.

Its just been masked in the US and certain other places, because these were conflicts about not much in the greater scheme of things. You could have a legal playpen where your philosophical and procedural games could happen. Or at least everyone was satisfied that going through the motions did not risk anything critical, and that the losers of the game were too weak to kick back effectively.

But with the Fedgov becoming the source or gatekeeper of so much wealth and so many livelihoods, the stakes are too high, and the underlying power struggle more real. Many of the potential losers are extremely powerful and extremely motivated.

Drago said...

Judge Robart's ruling will be overturned because "duh".

But Judge Robart is now a "Hero!" and is likely in line for an "Order of Lenin" AND "Nobel" award.

Mission Accomplished.

buwaya said...

Hoodlum is right, but its more general than that.
Its not Trump as such, but what he threatens.
There are $Trillions at stake.
This all is calculated and logical.

EDH said...

The court of public opinion is important too. And this SNL "Travel Ban" sketch shows where I think Trump's opponents loose most of the country @0:35 seconds, when the affected countries are listed.

Edited text with a voiceover saying, “Not including: Iraq, Iran, Syria, Libya, Somalia, Sudan and Yemen, and maybe Australia, we’ll see,” then appears.

Although you may hear that predictable SNL (canned?) laughter, I'm not sure when most people hear that list of countries they do not say, "well, yeah."

And with good reason.

What all seven countries also have in common is that the United States government has violently intervened in them. The U.S. is currently bombing — or has bombed in the recent past — six of them. The U.S. has not bombed Iran, but has a long history of intervention including a recent cyberattack.

And note this same article's argument in favor of why the US should allow entry from those countries.

It’s like a twisted version of the you-break-it-you-buy-it Pottery Barn rule: If we bomb a country or help destabilize its society, we will then ban its citizens from being able to seek refuge in the United States. Connecticut Democratic Sen. Chris Murphy explained this irony in a tweet Wednesday morning:

"We bomb your country, creating a humanitarian nightmare, then lock you inside. That's a horror movie, not a foreign policy."


You heard it here first from a Democrat: Barack Obama created "a humanitarian nightmare."





Rick said...

On the way in this morning NPR was carrying the BBC feed and covering this topic. The newsreader interviewed a legal scholar who said the ruling is so clearly wrong he even expects the 9th circuit to reverse it. The newsreader tried to persevere with the liberal mantra by asking if he thinks Trump's defying a court order is a material step toward a breakdown in the rule of law.

He pointed out that her own program's lead-in highlighted that people with visas are now entering the country, and since this fact proves Trump is not defying a court order he has no idea what she's talking about. She tripped over herself changing the subject, but nice job by him.

The FakeNews is pretty egregious when BBC news professionals are repeating it expecting it to be supported even by independents.

Ignorance is Bliss said...

EDH quotes Sen. Chris Murphy who said...

"We bomb your country, creating a humanitarian nightmare, then lock you inside."

Which is, of course, a lie. We don't lock them inside. There are 196 countries in the world. We ban them from one. That leaves 194 to which they could go.

Unless, of course, you respect all those other countries' right to exclude them, and believe that the U.S., alone, does not have the right to control who enters our country.

Original Mike said...

"But Judge Robart took action and Judge Gorton refrained from taking action."

Ten judges could refrain yet the one judge who acts controls. Seems like a big problem to me.

buwaya said...

The RINOs, so called, are parts of the system that are tied to the FedGov by chains of gold.
Look, and you will find.
Take McConnell.
He married Elaine Chao, daughter of a tycoon, James Si-Cheng Chao. J.S.Chao owns Foremost, a shipping company, as well as being a NY financial player, and is certainly a billionaire.
He gave $40 million to Harvard Business School.
J.S.Chao moreover and probably more significantly has married his six daughters off to powerful men.
Angela Chao for instance, Elaine's sister, was the wife of the late Bruce Wasserstein, another New York billionaire, in Mergers and Acquisitions, formerly CEO of Lazard (formerly Lazard freres).
And etc.
This is an oligarchy that has enriched itself and maintains itself through connections.

Sebastian said...

"You know these judges, they're all about balancing, and a decision could go in either direction, depending on how the weights feel in the hand holding the scales of justice." Actually, prog so-called judges are all about faking balance as they manufacture the right outcome.

"It is Judge Robart who needs to identify a legal basis for interfering with another branch of government." What do you mean, "needs to"? He just does it, and FU to anyone else.

"How is it that Gorton gave us a 21-page opinion explaining the doing of nothing and Judge Robart interfered with the actions of the executive branch without putting legal reasons in writing?" You seem to think reasons are needed, perhaps even good reasons. In fact, prog judging is just the continuation of politics by other means. Sometimes they stoop to giving "reasons" (SSM follows from the 14th because of "substantive due process," that sort of thing), but they don't if they don't have to.

To reasonable people, your questions are of course well taken. They may even make a difference: immigration law, as written and interpreted by the courts, is pretty well settled, in a way that makes the Robart move utterly absurd. Remains to be seen if we still have a few honest judges left.

Gusty Winds said...

So how long until the liberals in the courts stop drone strikes on terrorists or special ops raids? We're going to need to get search warrants to raid ISIS camps.

If constitutional protections apply to people flying or floating in from Sudan, why don't they apply to enemies on the ground?

No borders is fun.

"No limits! No laws!" - Jim Morrison

Clayton Hennesey said...

Hoodlum is right, but its more general than that.
Its not Trump as such, but what he threatens.
There are $Trillions at stake.
This all is calculated and logical.


I think you've got it exactly right, and with Silicon Valley now filing, in effect, a class action lawsuit against the plenary powers of the President you're seeing the mask come off completely.

This isn't about not discriminating against Muslims, nor is it about poor Mexicans yearning to breathe free, nor is it about little boys drowned on beaches.

This is about a new class of business entirely, the virtually employee-free cyber-trillionaire, making its move within the opportunity presented by an unconventional President Trump to wrest immigration authority completely away from the executive branch and into commercial lawfare court.

Amazon is already debuting minimal human employee stores and the ability to replace fairly paid American labor with cyber-cerebral-serfs from India is simply another means of reducing tech industry overhead as close to zero as humanly possible.

Mark O said...

Excellent.

HoodlumDoodlum said...

EDH quoted: Chris Murphy explained this irony in a tweet Wednesday morning:
"We bomb your country, creating a humanitarian nightmare, then lock you inside. That's a horror movie, not a foreign policy."


Who's this "we," kemosabe? Has the Nobel committee talked about revoking that Peace Prize yet? Weird if they haven't, huh?

Gusty Winds said...

The so-called Judge seems to get his main argument from then banter on twitter. He says, well since there have been no arrests from these 7 countries than there is no reason for the order.

By that logic, why doesn't he go a step further and just strike down the Obama/Homeland Security list generated under the 2015 Terrorist prevention act as unconstitutional?

Sudan should obviously enjoy all protections granted under the United States Constitution.

Static Ping said...

Ann Althouse said...
"Ann, I wish YOU were on the Ninth Circuit Court."

As I've always said: I lack judicial temperament.


I can appreciate that self-assessment. However, there is a phenomenon that persons who are actually good at their jobs tend to be a lot harder on themselves than incompetents. Incompetents tend to think they are doing great given they tend to be incapable of judging their own abilities fairly. Given that Robart is a certifiable loon with dubious legal reasoning skills, you are clearly at least better qualified than him. Then again, I think that half of first year law students are better qualified. It's a very low bar.

MaxedOutMama said...

Nice job, Ann.

A couple of thoughts - first, preferring a persecuted minority from some country is emphatically not establishment. If we granted asylum to Rohingya refugees from Burma, would we be "establishing" Islam? Of course not! What is happening in Burma is obviously what US refugee policy is designed to address, and sadly, the Christians in the areas mentioned are in the same boat (or in the sea, if they try the Mediterranean route and the boat is overcrowded).

Second: the "standing" argument in the Washington case really addresses economics, especially of H1Bs. For liberals to be joyous over this decision appears an ironical support of oligarchy - a few large, wealthy, and locally important companies want this ruling. The people of the US, not so much. This is bringing the DNC email leaks to my mind - the donor class has important interests that are protected and should be protected under US law, but they should not rule the country or overrule the interests of all the other players. This is a reprise of "What's good for Ford is good for the country" - and that statement usually makes Democratic blood boil. What has changed? Is the Democratic coalition now dominated by large companies and extremely wealthy people?

Finally, to base the assessment of an official action not upon the actual action but upon the suspicions of the motivations of the person in authority is in fact a destruction of the "Government of Laws, not Men" principle. If Obama had done this (and he did similar actions, just not on as broad a scale), would that make it legal? Lord knows his administration put these countries on the list.

When I looked at this ruling my heart sank, because it made me think 2018 will be a crash for the Dems, and in truth, I would like a more balanced government. I did vote for Trump, and if we held a new election now I'd do it again, but I want to see the checks and balances of our democracy fully at work during his administration.

mccullough said...

We bomb your countries but want to let you in to the US so that it will be easier for you to retaliate.

Original Mike said...

"The focus of our claim,” he said, “is on people who have been here and have, overnight, lost the right to travel, lost the right to visit their families, lost the right to go perform research, lost the right to go speak at conferences around the world."

Not a whole lotta research in Yemen.

Clayton Hennesey said...

"Amazon, Expedia, and Microsoft “certainly helped the case,” according to Attorney General Bob Ferguson."

http://www.geekwire.com/2017/washington-ag-explains-amazon-expedia-microsoft-influenced-crucial-victory-trump/

This is just 19th Century oligarchy-oligopoly all over again.

MaxedOutMama said...

Note: I expect that the stay will not be removed by a 4-4 SC, and some small portion of my heart is rejoicing that the GOP got hoisted on its own petard on this issue.

Mind you, I think Gorsuch is a much better pick than Garland, so in most respects I am happy with the results of the GOP refusal. But I still think it was a bad precedent and unfortunate.

Gorsuch is the type of judge who would slap Trump down hard when he overreaches, and that is good. Garland is the type of judge who would let a Bill Gates be king.

mccullough said...

Just because a violent ideological belief system claims so roots in religion doesn't entitle adherents of that belief system or others who live in a country where that belief system is widespread to immigrate to or visit the United States. Nazism was a vile ideology. If it had been rooted in a religious belief, that wouldn't make it any less vile or somehow deserving of more protection under US immigration law. The US government would have been well within the constitution to ban all immigrants and visitors from Germany or other countries where Nazism was widespread based on its determination that it poses a threat to US citizens and there is no way the government has the resources or ability to discern who is a believer and who isn't.

Static Ping said...

As to the 9th Circuit, unless they can find a real and actual legal reasoning to sustain the restraining order - something Robart has completely failed to do so far - they are not going to uphold this thing. And if the Supreme Court gets involved, they will not uphold it either. Upholding this order based on nothing other than personal preference is going to cause a major Constitutional crisis with a very hostile President and a non-sympathetic Congress. The Judiciary has only been allowed to get to its current point of power usurpation because of the disinterest of the other branches to push the matter. Trump is not going to tolerate it. They will blink. Unless they want to start the war now, in which case why be coy about it.

That said, it is going to get ugly eventually. The Judiciary will have to be reined in given it has become a politicized and corrupt law making body in violation of its charter. Alas, lots of things are going to get ugly.

DKWalser said...

Like others here, I read the Justice Departments brief asking for a stay of the temporary restraining order issued by Judge Robart. The DOJ brief is powerful. In sum, it cites the statute that give the President the authority to bar aliens or classes of aliens. Congress did not put any limits on the President's discretion. The brief then cites numerous courts, including one called the US Supreme Court, that says that the President's exercise of discretion in this area cannot be reviewed by any court. Game, set, and match.

The brief also deals with the arguments raised by the plaintifs that the statute in question was amended by another statute that prohibits discrimination on the basis of religion when issuing visas. The DOJ cites several court decisions that held a visa does NOT grant a right to enter the country. So, while a visa cannot be withheld on the basis of religion, the President can still bar visa holders from entering the country.

Finally, the brief deals with the issue of standing. The state claimed standing because the ban affected the businesses of its residents and hurt those who wanted to come to Washington and the ban deprived Washington of the benefits from their presence. (I live in Arizona which the 9th Circuit said could not enforce US immigration laws because that is the sole prerogative of the federal government. So, I thought it a bit rich to see Washington claim it had the right to force the federal government to craft immigration policies Washington likes.) The state claimed the right to represent its residents by protecting their rights as parents would protect their children's rights. Unfortunately, the Supreme Court has held that a state cannot assume that position in a dispute with the federal government. The state must be directly injured before it has standing and the kinds of harms claimed by the state are too generalized and hypothetical to give it standing.

james conrad said...

How is it a federal judge can make a ruling in a case but offer no legal reasoning behind the decision? This seems very odd to me.

rhhardin said...

Congress can always pass a law taking away jurisdiction of the courts over immigration matters entirely.

That settles the foreign policy issue.

tcrosse said...

Maybe it's time to bring back FDR's term 'Economic Royalists' to replace 'Coastal Elites', since not all of them are located on the coasts. We could also call them the 'Master Race', but there's already enough argumentum ad Hitlerum in the air.


Jupiter said...

Althouse said ...

"And that problem of the breadth of the judge's order is a standing problem. Standing doctrine not only requires that the plaintiff have a concrete and particularized injury caused by what the defendant is doing. The plaintiff can only demand a remedy that is designed to relieve that injury — not other injuries that may also exist."

You're taking this "legal reasoning" stuff way too seriously. Althouse. This is a "so-called" judge, and they do pretty much as they please. He is the same nut case who ruled that a woman who invented an accusation of sexual assault cannot be required to testify about it because it might traumatize her. His head is so far up his ass he can see daylight.

Michael K said...

"The Judiciary will have to be reined in given it has become a politicized and corrupt law making body in violation of its charter. "


The appointment of four or five conservative justices should help.

Is this the hill the left wants to die on ?

I would think cooler heads would prevail but are there any in the Democrat caucuses ?

Drago said...

DKWalser: "Like others here, I read the Justice Departments brief asking for a stay of the temporary restraining order issued by Judge Robart. The DOJ brief is powerful. In sum, it cites the statute that give the President the authority to bar aliens or classes of aliens. Congress did not put any limits on the President's discretion. The brief then cites numerous courts, including one called the US Supreme Court, that says that the President's exercise of discretion in this area cannot be reviewed by any court. Game, set, and match."

Hardly.

At no point in the DOJ brief is the issue of Leftwing "Feelz" addressed.

mockturtle said...

"Ann, I wish YOU were on the Ninth Circuit Court."

As I've always said: I lack judicial temperament.


IIRC, many said the same about Scalia.

Mark Nielsen said...


Jim Robart is my (sort of) neighbor -- he owns land adjacent to mine in western Washington. He's been in my home a few times, and I consider him to be a friend. While we haven't really discussed politics, he doesn't come across as political. He's quite down to earth and unassuming. It's odd, now that he's famous, to read the assumptions that some make about him and the characterizations that are given to him. He's really none of those things.

Earnest Prole said...

For more than fifty years it's been the dream of left-wing lawyers to extend U.S. Constitutional protections to foreigners, and now Trump may finally have given them a vehicle to do so.

Original Mike said...

Blogger Static Ping said..."As to the 9th Circuit, unless they can find a real and actual legal reasoning to sustain the restraining order - something Robart has completely failed to do so far - they are not going to uphold this thing. And if the Supreme Court gets involved, they will not uphold it either."

I wish I were as confident as you.

Lucien said...

I really hope that at some point Trump has the balls to nominate Alex Kozinski to the Supreme Court. (Given an open seat, that is.)

Fernandinande said...

james conrad said...
How is it a federal judge can make a ruling in a case but offer no legal reasoning behind the decision? This seems very odd to me.


Reasoning? Philosopher-kings don't need no stinkin' reasoning!

Ignorance is Bliss said...

How soon could this reach the Supreme Court? Is there anything, except themselves, that can stop the Republicans in the Senate from getting Gorsuch confirmed and seated before the case gets there?

Jupiter said...

Mark Nielsen said...

"Jim Robart is my (sort of) neighbor -- he owns land adjacent to mine in western Washington. He's been in my home a few times, and I consider him to be a friend. While we haven't really discussed politics, he doesn't come across as political. He's quite down to earth and unassuming. It's odd, now that he's famous, to read the assumptions that some make about him and the characterizations that are given to him. He's really none of those things."

Yes, and neither are you, Mark. You're both great guys, and don't let anyone tell you different.

cubanbob said...

It is not conceivable that the 9th circuit will uphold WA's standing claim. To do so would simply be the unraveling of the Constitution with the country going back to the Articles of Confederation. WA's claim to harm can easily be used by other States with respects to any unfunded federal mandate and can easily be expanded to exclude anyone that state doesn't consider its citizen from that State's education or other benefits programs or any federal interference within the State that effects the State's economy. This nonsense won't survive for many reasons mostly for those listed by others on this and the other threads but the logic of Washington State is breathtaking in its stupidity.

Trump has a vindictive side to him. It is not inconceivable for him and a Republican Congress to extract revenge on Silicon Valley, Hollywood among others. And it would be richly deserved.

~ Gordon Pasha said...


Expect the DEA to enforce the Schedule I status of marijuana in the State of Washington in the near future.

DanTheMan said...

Hey Mark... ask your neighbor who won the Superbowl... we're all waiting to see what he decides.

buwaya said...

"This is about a new class of business entirely, the virtually employee-free cyber-trillionaire"

Not just cyber. This already exists in the form of several classes of financial firms.
Hedge funds, "wealth management" (ex. Tom Steyer), various "consulting" outfits, the variety is considerable.

Besides which similar operations still tied, more or less, to more traditional firms with a "consumer" or Main Street practice, but rapidly drawing them down.

There are a lot of people these days who make a very great deal of money from pure intangibles - money itself, debt, especially complex financial instruments, royalties, copyright.

Trumpit said...

If I were Judge Robart and a little tipsy, I would have said that it is unlikely Trump could find those seven terrorist nations on the map. So, others are pulling the puppet president's strings. So, I would have referred the matter to congress to begin a investigation of who is actually running the executive branch, and then to begin impeachment proceedings.

Where (in writing) is the coherent rationale for Trump's executive orders? They are unlikely to be found because his orders, all or nearly all, are irrational and harmful. That is more ammunition to impeach him and banish him. Hey, banish is a nice play on words with Steve Bannon, who should also be banished from the government for racist behavior toward Muslims and others.

Michael K said...

Trump has a vindictive side to him. It is not inconceivable for him and a Republican Congress to extract revenge on Silicon Valley, Hollywood among others. And it would be richly deserved.

I think the Senate Democrats would be wise to consider this before they filibuster Goresuch.

I could see the Reid option and four or five conservative justices in the next 8 years,.

Larry J said...

Roughly 84% of the world's Muslims live outside of those 7 countries, so it's hardly a blanket "Muslim ban." It isn't even a permanent ban on immigration from those 7 countries, just a pause until measures can be put in place to verify the immigrants/refugees are who they say they are. Vetting those people isn't exactly an easy thing. Consider the ones coming from Libya where Hillary helped take down the government. What databases are our law enforcement and immigration personnel supposed to access to vet immigrants from Libya? How about Syria where the US has been working against the existing government in an attempt to remove Assad? Or Iran?

Static Ping said...

Mark Nielsen, Robart may be perfectly fine when not on the bench. I have no idea. What I can see is what he does on the bench and it is clearly political. The actions speak for themselves.

Michael K said...

"Where (in writing) is the coherent rationale for Trump's executive orders?"

Steve, this is a troll.

Take note of the absence of any logic or information.

To cover up the embarrassing weakness of Judge Robart’s temporary restraining order, reporters at the Washington Post and elsewhere have trumpeted the fact that Robart was nominally appointed by President George W. Bush. They have done this to suggest that his ruling must have merit, because otherwise he would not have ruled against a President of the same party as the man who appointed him.

That's what real lawyers write.

Kevin said...

"We bomb your country, creating a humanitarian nightmare, then lock you inside. That's a horror movie, not a foreign policy."

I think he meant: We bomb your country, creating a humanitarian nightmare, then use that as justification for a broad-based "immigration rights" campaign.

MaxedOutMama said...

Cubanbob - it's conceivable in the same way that this order was conceivable. But I agree - the implications are --- massive.

buwaya said...

"Where (in writing) is the coherent rationale for Trump's executive orders? "

Does he need one?
That has never hindered anyone before.
And is rarely managed by regulatory agencies - they put in intentions, but almost never how the thing is supposed to work to achieve the stated purpose. Begging the question and circular reasoning are standard.

For instance Clinton's last minute Arsenic regulation.

Roy Lofquist said...

I welcome and relish the back and forth here at Chez Althouse. This is one of the very few places on the web where I look forward to reading the comments almost as much as I enjoy the posts.

Alas, like every good party you get the inevitable poopers. In this particular case I am referring to the hysterics who scream that everything Trump does is another step towards dictatorship, including having a private dinner with his family where he can use the wrong fork without proper scrutiny.

As a counterpoint I think the thoughts of Alan Dershowitz, no Trumpster he, might be of interest.

"President Donald Trump avoided a constitutional crisis by appealing, rather than defying, an overbroad injunction against his visa executive order issued by a federal judge in Washington State."

"In light of these conflicting rulings, the President could have said that he was going to follow the one he and his lawyers believed was correct. Had he done so, the judge in Washington might well have held the President in contempt of court, thus creating a constitutional crisis between co-equal branches of our government."

http://www.breitbart.com/big-government/2017/02/05/judiciary-dershowitz-trump-showed-due-deference/

Gk1 said...

I think it's as simple as Judge Robart's was pulling his ruling out of his ass and Judge Gorton was using the rule of law and precedent to uphold the EO. Am I missing something? Lets see if the "9th Circus" is willing to make a ruling based on settled case law deferring foreign policy to a duly elected president.

Breezy said...

All of this hand-wringing about immigration is so great for our country because Diversity! and "my grandparents were immigrants so immigration is good" is an apples and oranges argument against the temporary travel ban from seven countries today that are not able to confirm people are who they say they are.

james conrad said...

Byron York has an article up that destroys Judge Robart nationwide TRO issued by this judge, this judge needs to be disbarred.

"Now the government has answered Robart, and unlike the judge, Justice Department lawyers have produced a point-by-point demolition of Washington State’s claims. Indeed, for all except the most partisan, it is likely impossible to read the Washington State lawsuit, plus Robart’s brief comments and writing on the matter, plus the Justice Department’s response, and not come away with the conclusion that the Trump order is on sound legal and constitutional ground.

Beginning with the big picture, the Justice Department argued that Robart’s restraining order violates the separation of powers, encroaches on the president’s constitutional and legal authority in the areas of foreign affairs, national security, and immigration, and “second-guesses the president’s national security judgment” about risks faced by the United States. …

In fact, while Judge Robart decreed that the interests of Washington State would be harmed by the Trump order, the government argued that the interests of the presidency, and of the Constitution, would be harmed by Judge Robart’s decision. “Judicial intrusion on the political branches’ exclusive authority over the admission of aliens, by violating the separation of powers, in itself constitutes irreparable injury,” the Department argued.

By the end of the Justice Department’s 24-page brief, Judge Robart’s, and the state of Washington’s, argument lay in tatters."

Michael K said...

The 9th circuit might even reverse as the ruling is so bad and lacks all rationale.

And that's saying something about the 9th.

james conrad said...

Basically what we have here is some fruitcake in Washington state masquerading as a judge. The judicial branch needs to be careful here if York's article is correct, if this nutcase (robart) claims the law is whatever he says it is, we actually have no law at all.

Matthew Sablan said...

"So, others are pulling the puppet president's strings."

-- This constant conspiracy theorizing by the left whenever a Republican in power is so... trite at this point.

buwaya said...

Power play indeed.
Its much bigger than some travel ban from some Muslim countries.
Some people want to threaten the admin about immigration controls in general.
To head off - well, what? H1b is one of those no doubt. Some powerful people don't want the status quo even scratched.

http://www.zerohedge.com/news/2017-02-06/97-tech-companies-including-twitter-netflix-file-legal-brief-condemning-trumps-immig

"The onslaught targeting President Trump's immigration executive order continued overnight, when virtually all US tech corporations, from Apple to Zynga, including Twitter, Netflix, Google, and Microsoft, banded together late on Sunday to file an "impassioned" brief condemning Trump's temporary immigration ban, arguing that it "inflicts significant harm on American business."

https://www.bloomberg.com/news/articles/2017-02-06/twitter-netflix-to-file-brief-opposing-trump-immigration-order

etc. etc.

buwaya said...

"Basically what we have here is some fruitcake in Washington state masquerading as a judge."

This is not a fruitcake. He's just a useful tool. The judge is irrelevant. If not this one, some other would have been found to do the same thing.
This is organized.

Achilles said...

It won't be long now. Trying to erase our borders and citizenship is the mountain the oligarchs will die on. They will drag the idiot leftists down with them.

tcrosse said...

Cue the pretty women in head scarves holding small children. Oh, the humanity !

Kevin said...

"Basically what we have here is some fruitcake in Washington state masquerading as a judge."

That was probably Trump's original Tweet. His staff revised it back to "so-called judge".

Richard Dolan said...

"The balance, he wrote, tipped in favor of Mr. Trump."

Not quite. Judge Gorton concluded that the balance of hardships tipped in favor of the plaintiffs, not the government. He declined to continue any injunctive relief because he concluded that plaintiffs had not shown a likelihood of success on the merits (indeed, his opinion essentially concludes that plaintiffs' legal claims have no merit).

n.n said...

Trump's judgment is based on the MLK insight of "content of their character", where principled alignment requires greater scrutiny to discern character. It is a rejection of the establishment doctrine that "judges by the color of their skin" (e.g. [class] diversity).

That said, the best outcome would be to end immigration reform, including the refugee crises, and stand with the people placed in harm's way by social justice adventurism that was a first-order cause of catastrophic anthropogenic climate change which has progressed to become a global humanitarian disaster.

Michael K said...

I agree that the H1B visas are what this is all about.

Always follow the Benjamins.

When they say it's not about the money, it's about the money.

n.n said...

Some powerful people don't want the status quo even scratched.

Demographic redistricting and labor arbitrage. Immigration "reform" also serves as a cover-up of collateral damage from catastrophic anthropogenic climate change that began with a vacuum in Iraq and progressed to social justice adventures from Tripoli to Damascus to Kiev and beyond.

Bad Lieutenant said...

Trumpit said...
If I were Judge Robart and a little tipsy


Neither is impossible it seems. Nice mobying, Trumpie!

buwaya said...

"I agree that the H1B visas are what this is all about."

The problem with political law is that the real issue is almost never actually about whats written on the paper.

Mick said...

Due Process and Equal Protection are not causes of action available to the States, or even by the states on behalf of its citizens, as the "parent" (much less aliens). Those cause of action are applied AGAINST the States, as the 14th Amendment language suggests. SEE SC v. Katenbach, 383 US 301 @ 323, 324 (1966).
Equal protection does not apply--- no religion is mentioned in the EO.
8 US Code 1182(f) applies, POTUS can exclude a group when the executive finds a group "detrimental to the interests of the US."
8 US Code 1152 (a)(1)(A), the later statute cannot implicitly repeal 1182, and 1182 refers to a category, not described by 1152 ("detrimental to US interests").

james conrad said...

Agreed, the silicon business community will fight to preserve H1B visa's so that they can continue to exploit the 3rd world for puter geeks hired at less than half what they pay americans.

Comanche Voter said...

The Judge exercised his power because he felt like it. And in the liberal world, all you need to do is feel--reason, logic, intellectual honesty? What's that?

As for why the Microsofts and Googles of this world--near and dear to the hearts of the Seattle and Silicon Valley crowds like a "felt" decision by Judge Robard--Michael K has it right. It's all about potential threats to H1B visas. If you can know the original executive order out--and get some public support, you can take Trump on when he comes for the H1B visas. OTOH The Donald doesn't like to lose, so he may smarten up in round two of the immigration battle.

DanTheMan said...

Remember when the left went crazy when Obama enacted the Hispanic Ban against Cuba?

Me neither.

Gusty Winds said...

james conrad said...

How is it a federal judge can make a ruling in a case but offer no legal reasoning behind the decision?

There is not legal reason. This so-called judge knows in better than anyone. Thus the absence of of a reason. He's a pawn.

Joe Scarborough can pretend he's not.

n.n said...

Robart will find a [legal] reason in the precedent of... the twilight zone.

Alex said...

There is no due process right to an American immigration visa.

Alex said...

Honestly I wish Trump would simply stomp all over the judicial branch here. It's time for the unitary executive.

james conrad said...

NEWS FLASH: Jeff Sessions offers a rebuttal to the declaration by Judge Robart that no refugees from the 7 nations have been convicted of terror since 9/11.
There have been at least 580 convictions on terror related offences since 9/11, 380 of which were refugees.
http://www.sessions.senate.gov/public/index.cfm/2016/6/at-least-580-individuals-convicted-in-terror-cases-since-9-11-at-least-380-are-foreign-born

Oopsy daisy, it seems Judge Robart needs to brush up on his foreign policy statements if he wants to make judicial rulings on it!

cubanbob said...

As soon as this fracas is over Trump should suspend H1B visas for several years. Teach the bastards a lesson.

GRW3 said...

So, based on your notes, "So-Called-Judge" is correct. He didn't even go to the effort of finding auras and penumbras. It was just what he thought. Here was an example of what Gorsuch called a bad judge - he ruled in a manner to make himself feel good, not in accordance with the law.

David Baker said...

The government Trump inherited is intent on jacking us around till the cows come home.

James Kahn said...

"It's all about potential threats to H1B visas"

That may be, but the issues logically separate. So why don't these companies say, "We're on board with the President that safeguarding our country is essential. We favor appropriate vetting of all immigrants, and are willing to subject any of hour H1B visa candidates to such vetting." Instead they just take the SJW open borders stance, which weakens their case.

Michael K said...

Now, just to add a little international flavor to the stew, the Speaker of Parliament has said Trump won't be allowed to address the Commons.

It's about the "migrant ban" and Labour is enthusiastic.

Londonstan has not yet commented.

buwaya said...

"That may be, but the issues logically separate. "

They may be logically separate on one, technical level, but not on the political level.
If Trump gets to succeed in imposing an immigration policy of any sort, the more likely he is to succeed in getting any other immigration policy.

If he fails on this very limited matter any challenge to H1b is precluded.

buwaya said...

"The Judge exercised his power because he felt like it."

Not at all. These things aren't mere whim.
He was directed to do it.

tcrosse said...

There are thousands of refugees in France that the UK will not accept. The French finally closed down the huge camp in Calais and moved the refugees elsewhere, further from the Channel. Labour is in as fine shape as the Democrats are in the USA.

Jim at said...

" he doesn't come across as political."

So, his lecturing from the bench about Black Lives Matter was just for kicks and grins?

Gk1 said...

Imagine the judicial push back Trump will be getting as the wall down south construction gets underway? Hopefully by then Sessions will be dug in as AG and we are rolling up the opposition to a Gorsuch confirmation vote. This is all the Trump people can expect for any initiative they take.

Bruce Hayden said...

I have a lot of problems here, but one of the big ones is that, while the big companies are opposing this because of their H1B visas, the judge didn't bother to restrict his stay to them. And H1Bs aren't the real problem when it comes to security - they usually have at least some paper trail if the tech companies are willing to pay big bucks for the visas, and even more to pay them.

Most here probably remember my H1B rants about the tech companies financially driving the "comprehensive immigration reform" debate. This is evidence that this is a big thing for them. Really big, with Google, all by itself, spending tens of millions of dollars lobbying for provisions that would make it close to impossible for H1B visa holders to switch jobs (and increase their pay) once here in the country. I have worked with a bunch of H1B visa holders, many with PhDs, and the absurdity is that the "comprehensive" plan would have made it harder for these highly educated brainiacs to get citizenship, while providing a path for illegal immigrant peasants without even a middle school education. It was to harness this high tech money that kept H1B visas chained to giving illegals citizenship by the Dems, most notably Dingy Harry Reid.

I was also bothered when the judge gave the balance of the equities to the state of WA (and even giving them standing without a single actual concrete example of hurt), and found them likely to win on the merits. Status quo ante is some terrorists from these countries not being in this country. And without articulating reasons he thinks they will prevail, it just looks like results oriented judicial activision. Thank goodness for Trump's sake that he only used a preexisiting list of failed or terrorist countries, which don't include over 80% of the Muslims in the world, so calling it a Muslim ban is plain silly. Which, of course kills the 1st Amdt claim.

Hagar said...

I am puzzled about the British government's reaction. I just watched the Feb. 1 Questions for the Prime Minister show and Theresa may's firm statements that her government would never ever pursue any such horrendous policies as President Trump's recent "ban." Yet I believe Britain actually have far more restrictive policies in place, and isn't the "free immigration" issue in the EU a particular reason for the "Brexit" vote?
Perhaps there is something about the difference in the languages and they hear something we don't?

Bruce Hayden said...

From the letter from Sessions (and Cruz) last June:

Using this list, the Subcommittee conducted open-source research and determined that at least 380 of the 580 were foreign-born (71 were confirmed natural-born, and the remaining 129 are not known). Of the 380 foreign-born, at least 24 were initially admitted to the United States as refugees, and at least 33 had overstayed their visas. Additionally, of those born abroad, at least 62 were from Pakistan, 28 were from Lebanon, 22 were Palestinian, 21 were from Somalia, 20 were from Yemen, 19 were from Iraq, 16 were from Jordan, 17 were from Egypt, and 10 were from Afghanistan.

Birkel said...

This is about a stay of a TRO. Why do you lot think the full Supreme Court is going to get involved? HINT: They're not!!

Each Circuit has a Justice who reviews such things and can suspend the order. The Supreme Court will get involved on the merits in a a few months, if ever.

Hagar said...

Another thing about these H1B visas for "highly educated" foreigners from Bangladesh and Pakistan. Given the state of the economies of these nations and what they are able to spend on public schooling, how did they get so "highly educated" that they are way superior to our homegrown students on whom we have spent tens and hundreds times more?
And still they tell us that lack of money is the problem with our schools?

buwaya said...

"and isn't the "free immigration" issue in the EU a particular reason for the "Brexit" vote?"

Yes it was.

buwaya said...

"how did they get so "highly educated" that they are way superior to our homegrown students on whom we have spent tens and hundreds times more?"

A. Teachers there are cheap.
B. These people are selected through brutal filtering exams. They are the best of the best.
C. If you want to identify and educate an elite, that is very cheap. Teaching the left end of the bell curve to an intellectual standard is many orders of magnitude more expensive, if achievable at all.

"And still they tell us that lack of money is the problem with our schools?"

It isn't and never was, really.

Beach Brutus said...

More NYT spin: A favorable but vapid opinion bereft of legal reasoning = "a brisk ruling"

Hagar said...

I just feel there is something wrong about this H1B and similar programs.
It is of course nice to get all these very intelligent and highly motivated people coming into our country, but by a dodge to get around our regular immigration policies to benefit the dot.com moguls and their lobbyists?
It also seems wrong to help deprive their homelands of their talents that are so badly needed where they are.
And it may not be in our foreign policy interest either. In Iran, f. ex., caught between the ayatollahs and the army, it is understandable that these people want to get out, but they are also our only hope for a peaceful Iran without staging a mlitary intervention.

Gretchen said...

The left don't need no stinking reasoning.

tcrosse said...

Hungary, BTW, has built a fence to keep the stream of Middle Eastern refugees out. The experience of being ruled by the Turks for 150 years has made the Magyars less sentimental about Muslims.

Pettifogger said...

Regarding establishment of religion, would FDR have created an establishment-clause problem by preferentially admitting the Jews aboard the St. Louis? I find consigning those people to German death camps to have been loathsome. Are those claiming a problem now cool with what FDR did?

mockturtle said...

Good point, Pettifogger.

mockturtle said...

Buwaya observes: C. If you want to identify and educate an elite, that is very cheap. Teaching the left end of the bell curve to an intellectual standard is many orders of magnitude more expensive, if achievable at all.

"And still they tell us that lack of money is the problem with our schools?"

It isn't and never was, really.


No, it never has been. The idea that 'no child' is to be 'left behind' was the final nail in the educational coffin in public education. But lack of discipline and technological distractions have also been factors.

Michael K said...

There are thousands of refugees in France that the UK will not accept. The French finally closed down the huge camp in Calais and moved the refugees elsewhere,

I drove by those camps in 2015.

We were originally going to take the Eurostar train to Brussels but the "migrants" were blocking them and some trains were held up for seven hours in the Chunnel with no A/C. We went to Brussels by surface ferry to avoid the "migrants" in a friends van. When we went over, we went through Dunkirk but returned via Calais.

The point of the trip was that 2015 was the 200th anniversary of the Battle Of Waterloo.

One of our friends had a great great uncle who was an officer in Wellington's army at the battle. He wrote a long letter to a friend describing the battle and she has that letter.

We spent a day at the battlefield.

tim maguire said...

But Judge Robart took action and Judge Gorton refrained from taking action. It is Judge Robart who needs to identify a legal basis for interfering with another branch of government.

Judge Gorton explained his decision because when he got home that night, he had to be able to explain to his wife why all their social engagements suddenly cancelled. Judge Robart did not explain his decision because all his friends wanted that result and didn't give a crap how he got there.

Earnest Prole said...

The President’s authority to take this action is fully supported by the 1952 statute and the the fact that the Constitution places the responsibility to defend the United States fully with the Executive and not with other branches of government. Unless the Supreme Court envisions that judges will now spend their days reviewing intelligence reports and ruling on individual immigration cases, it would do well to dump the case as quickly as possible. Standing — more precisely, the lack of it — provides the mechanism.

PianoLessons said...

Ann - Judicial temperament be damned - you really REALLY should get yourself into a judge position (higher the better) because....you are that good at law. Simple as that.