February 10, 2017

"President Trump, after losing in court, says he will see the court. In court."

Says one of the supposedly witty tweeters reacting to Trump's "SEE YOU IN COURT...!" tweet. 

I say "supposedly" because I'm seeing these reactions laid out at The Hill — another one of these MSM reports of what's happening in social media — as if Trump's really getting slammed brilliantly, but I don't think the responses are very good.

Another one is: "oh no, not court —judges." And: "are u.. are u gonna sue the judicial branch."

Maybe I'm too much of a law professor to find that funny. So here's my possibly plodding reaction to the reactions:

1. There is no antecedent for the "you" in "SEE YOU IN COURT." The "you" isn't necessarily the judges, who, of course, are on their home court in court. It could be the opposing party (the state of Washington), or it could be America.

2. If it's America, what he's saying is: If you are looking to me to hear what I think of what's been going on in this lawsuit, I'm not going to say that now. It's going to be in the legal briefs and arguments, presented by lawyers in court. So, come on, everyone, watch the court. That's where you'll be seeing what happens.

3. Trump is actually backing away from attacking the court. He didn't just take a shot like "so-called judge." He indicated that he's going to litigate the case according to the normal process. That's not an effort to bully or intimidate or denigrate the courts.* It shows an intent to submit to the courts and implies confidence in his ability to win on the law. (And he should show that confidence! He's got great arguments on his side. Politicizing the matter makes his case look weak and may needlessly tempt courts to push back.)

4. "See you in court" is an old comic expression. Anti-Trumpers tend to assume Trump is crazed and angry, but much of the time he's being loose and funny. I figured out how to exclude Trump from my Google search of the phrase and I found plenty of evidence for the proposition that "See you in court" is funny. Example:



_____________________

* The phrase "See you in court" does have a bullying connotation, but not when there's an ongoing lawsuit, especially when you are not the instigator of the litigation. The catchphrase exists to be used in a dispute that is not yet the subject of a lawsuit, where you are cutting off negotiations with a threat to file a lawsuit. So the usual context for the expression is missing here.

AND: If the tweeters want to laugh at the idea that Trump is at a disadvantage confronting judges in court, because judges wield the power in court, they need to step back and take a wider view. The President has the power to appoint judges, and his power to appoint judges who are different from the judges who are ruling against him is augmented by the public's perception that the judges are "activists" exceeding their proper power. It's not even obvious that Trump wants to win this particular lawsuit. He may get more power and more of what he wants by losing it. Trump antagonists are often caught laughing idiotically while he's playing a multilevel game and is several moves ahead.

128 comments:

alan markus said...

Another popular one in my day - "So sue me"

daskol said...

If this were a poll, I'd pick "all of the above."

Martha said...

Hillary thinks she won:

Hillary tweeted:


Hillary Clinton‏ @HillaryClinton

3-0
6:17 PM · Feb 9, 2017

Mike said...

If, as Chuck wrote in another thread, Lawrence O'Donnell used the royal "we" when he tweeted that "We won" in court (yesterday) then that is a telling statement. Wonder what "we" will do when the 9th Circuit is overturned, as it is almost every time by the SC. Does that mean "we" are on the wrong side of history again?

Mike said...

That "we" is what they call a Kinsley Gaffe.

Mike Sylwester said...

How long could so-called "Judge" Robart drag out his decision about the basic case?

I suppose that he will try to drag it out for four years, and that's the real reason why he imposed his temporary restraining order.

tcrosse said...

Hillary is quickly turning into Miss Havisham.

Hagar said...

The "opposing party" could also be the the Democratic Party and/or Steve bannon's opposing party - the MSM, both of which were high-fiveing and tweeting "We won!" after the decision.

traditionalguy said...

Bezos ,who runs Amazon and the WaPo attack writers team , is bragging that his Judge rendered Trump a Ceremonial Ony President before Trump could get him for his monopoly practices.

Ann Althouse said...

"I suppose that he will try to drag it out for four years, and that's the real reason why he imposed his temporary restraining order."

There are remedies that can be taken against the judge if that happens (as the 9th Circuit panel discussed).

The next stage is to seek a preliminary injunction, and there's something like a 14-day expiration on the TRO (also discussed by the 9th Circuit).

Ann Althouse said...

"A hearing for a preliminary injunction is already taking shape. Robart has given both sides until Feb. 17 to file their motions, and it’s expected he would schedule a hearing soon after that. His decision in that case likely would result in another round of appeals. After those are completed, then Robart could hold new hearings to decide the case on the merits – the final phase that would determine whether Trump’s executive order is legal. That decision also would face appeals and could end up before the Supreme Court."

FissionChips said...

Perhaps i am too simple but I immediately took this as "see you (all those who want to stop my EOs) in the (Supreme)Court.

Ann Althouse said...

I assume the President's lawyers will go back to Robart, do an excellent job fighting the preliminary injunctions, and if they lose, they'll go back to a 9th Circuit panel, and also seek en banc review in the 9th Circuit, filling the time while Gorsuch gets confirmed, which Gorsuch duly distancing himself from the "disheartening" Trump, and then seek Supreme Court review, where he will win 5-4.

Ann Althouse said...

And he'll get a stay from the Supreme Court pending that 5-4 decision.

Just a prediction!

viator said...

Well, Trump may have never been involved in a lawsuit before? What needs to happen is some lawyers need to be fired and replaced with competent counsel at that level.

Ann Althouse said...

The autocorrect wants me to call Gorsuch "Grouch."

Want to guess how many times Gorsuch will be asked how he'll rule in this case? No point also guessing how many times he will respond by saying he cannot talk about an issue that may come before the Court. It's the same number.

Gusty Winds said...

We have all pretended for a long time that the courts are not political. That is over.

Trump has also exposed the fact that some judges don't even defer to the laws on the books, the Constitution, or the separation of powers.

rhhardin said...

Cavell does an analysis of see you in court COnditions Handsome and Unhandsome.

"I have decided to let the court tell me whether enough is enough: taking the matter to court is an expression of my judgment that it is enough."

In a very nice paragraph on what a moral argument is.

Mike said...

Scott Johnson over at PowerLine blog takes note of footnote 7 that says

The Ninth Circuit emphasizes that its ruling only denies a stay of the pending appeal. It pretends not to have decided the case on the merits and reserves its ruling on the religious discrimination claim after making noises supporting it. Don’t hold your breath on that one.

So should Trump just issue a modified executive order that gets around their objections? The crew at PL think that basing appeals on Robart's order will continue to be a losing proposition.

Sebastian said...

My multilevel interpretation is that Trump is both an ignorant clown and playing a "multilevel game." He may be a clown, but he's my clown, and he's right on the EO. The game is more MMA than chess.

Gusty Winds said...

Last night was amazing. A predictable political decision from the 9th, a 4-4 Supreme Court with the tie breaking vote in the nomination process....

And Assad giving and interview to Yahoo news basically guaranteeing that there are terrorists coming in with refugees just like in Europe.

traditionalguy said...

Court procedural delay is a tool used when the case is a sure loser. DJT called their bluff.

Now he needs to have the Atty General sue Amazon for something and keep
That case going forever and ever.

Gusty Winds said...

Trump should let in ride and show that in action he defers to the Courts and the separation of powers. But he should still publicly tell the truth and identify the decision as political...it is...why claim otherwise.

If anything bad happens in the meantime, it's on the courts who have decided they are now the authority on foreign policy and national security.

Angel-Dyne said...

I say "supposedly" because I'm seeing these reactions laid out at The Hill — another one of these MSM reports of what's happening in social media — as if Trump's really getting slammed brilliantly, but I don't think the responses are very good.
[...]

Maybe I'm too much of a law professor to find that funny. So here's my possibly plodding reaction to the reactions:


Intelligent people do not "win" in repartée with stupid people. Stupid people do not understand the repartée of intelligent people. That's why stupid people always think other stupid people have made killing comebacks, or DESTROYED the arguments of intelligent people they don't like.

Wit does not correlate with stupidity, and the lefty twitterati is overloaded with retards.

damikesc said...

So, The Hill is now on the Twitter snark beat.

Seems kinda sad for a "respectable journalism outlet"

rehajm said...

Why fight it? Issue a new EO that addresses exclsuions for green card holders and the excuse the 9th uses goes away, no?

EDH said...

"See you in court, sonny."

Ann Althouse said...

Actually, what I am seeing now is that the 9th Circuit said that it regarded the matter as having "the qualities of an appealable preliminary injunction" and set up a briefing schedule for that at the appellate court level, and the plaintiff (Washington state) is assuming that "the district court briefing schedule is no longer applicable," and there will not be a preliminary injunction proceeding in district court.

https://www.documentcloud.org/documents/3457993-document-14231375.html

HoodlumDoodlum said...

I'm still not a lawyer, but the standing granted to the States seems fishy to me. Washington says it has standing because some of its residents are harmed by not being able to attend the state's Universities, and by not being able to sell goods to travelers who would otherwise be present in the state? What federal regulation, policy, or action does not have some financial effect of that nature on states? Moreover, what federal action doesn't have an unequal effect of that kind across states? If the President decides to bomb Libya it probably hurts tourism from Libya, and I'll be some states get more tourism from Libya than others. Do those states have standing to sue the President and get a TRO to stop the bombing? It is actually difficult to think of many examples of Presidential exercise of power that wouldn't meet that standard.

I seem to recall back during various suits over Obamacare that getting a court to agree that states had standing to sue was a real problem. Seems like back then the standard was tough for states to meet, even when they were looking at directly paying huge sums of money and their citizens were facing the same.

But, like I said, I'm not a lawyer; I'm sure everything's fine and fair and the same. It's probably just a huge fucking coincidence that the Judicial branch seems to find ways to exercise power in ways that align with the desires of the Left and finds ways to not exercise power when that exercise would align with the desires of the non-Left.

Hagar said...

Trump has spent his adult life in court and using litigation as just another tool.
I have no idea where he is going with this, but I doubt there is anything impulsive about what he is doing.

HoodlumDoodlum said...

I quite like that considering campaign statements is required, now, when evaluating the intent of a rule or law. I remember back when the question was whether a particular provision was a tax or a penalty and lots of people pointed to both the actual fucking language of the law and many statements made by people characterizing the provision in certain ways. Back then none of that mattered, in the end--how the thing was supposed to function if it had been written differently was what determined how it should be interpreted (somehow) and the beliefs and statements of people about that particular point were ignored.

Fun hypothetical: Dem candidates talk about the need to fight gun crime by restricting access to firearms. Some of them even talk about the need to ban guns. When the pass some law they say is just to adjust the rules in the name of safety, shouldn't judges now interpret those laws with the understanding that no matter what the law says the actual intent of the people passing it is to ban guns..that kind of thing? Seems analogous.

Does anyone believe that will actually happen?
If not, what does that say about the Judicial branch and how we should think about the function of judges?

Browndog said...

I wish some would spend a little time discussing the ramifications should this XO be found illegal, and less time dissecting Trump's Tweets.

HoodlumDoodlum said...

rehajm said...Why fight it? Issue a new EO that addresses exclsuions for green card holders and the excuse the 9th uses goes away, no?

What difference would that make? Sure, the policy itself is cleaned up and one objection is addressed, but part of the argument is that the policy itself is an unconstitutional "muslim ban" since that's what Trump said he wanted when campaigning. Changing the green card holder part doesn't change that.

Lem said...

the only comeback (so far tha I know of) that could antagonize Trump is crowd size in the form of polls. And so far a very critical media has failed to do much damage, despite the Exe Order raucous. Mind you Trump is not even trying to sell the order to the American public, other than vague remarks about safety. Anybody else, say Ted Cruz under the same circumstances, would be fearing much poorer in the polls.

FullMoon said...

Trumps all caps tweet seemed lame. Hillary's 3-0 tweet is really stupid. She should have stayed out of it, because Trump will win.

Laslo Spatula said...

If the Constitution were to be attempted to pass as a law nowadays the Judges would find it Unconstitutional.

I am Laslo.

Jupiter said...

"Trump antagonists are often caught laughing idiotically while he's playing a
multilevel game and is several moves ahead."

Don't start with the 7-dimensional chess. That was Obama, the magic Negro. Trump is not stupid, but he isn't particularly cerebral either. He differs from most politicians -- most successful politicians, at least -- in that he is not playing the long game. He started very late, playing very well, at the very highest level. He doesn't owe anyone anything, and he really does not have much to lose.

rhhardin said...

The 9th circuit, doing the work Americans won't do.

Lem said...

by going for this early on Trump is seeking the legitimacy democrats tried to take away with the Russian hackers stole the election for Trump charge, while at the same time knocking down a peg, if not delegitimizing would be future detractors like Shumer and Pocahontas.

The move is making sense... politically.

Angel-Dyne said...

HoodlumDoodlum: Been enjoying your exasperated posts on this subject, on this post and others. Thanks.

~ Gordon Pasha said...

Time to fill every vacancy on all of the Courts of Appeal in the next 30 days. I'd roll out 3-4 judges per week. Dense pack the media. Also every district court vacancy should be filled ASAP.

Lem said...

Trump is confident the courts in the end are not going to interfere with his number one job... defending the country against all enemies. That's what Trump was referring to when he said a high school student? Could figure it out. The exec order is America acting in unsimulated self interest.

BDNYC said...

It tells you something about the current state of the Court, doesn't it, that Althouse assumes the 4 liberals will blindly vote against the administration if the merits reach them. For the life of me I can't figure out a legal basis for the administration to lose.

Left Bank of the Charles said...

If you are ISIS, do you activate your next terrorist cell now, or do you wait?

Roughcoat said...

It's just a figure of speech. No big deal.

traditionalguy said...

News Flash:Another Judge bought by George Soros has Ordered that the Nuclear Football be removed from the possession of the temporary Ceremonial President and placed in an evidence locker to be held until Soros can think of something else to keep the Magnificent Muslim Invasion troops being brought here at our expense.

Unknown said...

1. Trump lost the EO appeal
2. Mexico won't pay for the Wall.
3. Trump affirms "One China" policy before taking call with Xi
4. Kellyanne Conway to be investigated
5. Flynn is being investigated

Yes, Trump will win at Supreme Court because his 3-week track record is winning so much it will make your heads spin.

Chuck said...

So... Althouse calls it "a shot" for Trump to have called the U.S. District Judge "a so-called judge":
"3. Trump is actually backing away from attacking the court. He didn't just take a shot like "so-called judge."
I couldn't agree more. It's "a shot." An attack. A personal attack. A "shot across the bow," which is an allusion to a warning. A warning to stop doing what you are doing, going where you are going. Don't do it. Change course, now, because the next shot will be at your water line.

But before, when trying to defend Trump on that score, Althouse said this about that "so-called judge" language:

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

Fernandinande said...

Gusty Winds said...
Trump has also exposed the fact that some judges don't even defer to the laws on the books, the Constitution, or the separation of powers.


??? I thought that had been pretty obvious at least since FDR extorted judicial cooperation for his illegal stunts.

It's almost like members of the Inner Party can do whatever they want without real consequences.

roesch/voltaire said...

I would rather he tweet he will revise the EO and make it more specific. But that would be changing his course just like he did on One China, oops.

khesanh0802 said...

I am coming think that this legal mess is playing more and more to Trump's advantage. First, he is attempting to do what he promised to do during the campaign. All he is trying to do is get some breathing room to evaluate our immigration policies and vetting. Most ordinary people understand and appreciate that.

Second, while the MSM has been fainting over the EO two of Trump's most controversial - and, perhaps, most important - Cabinet members ( Price and De Vos) have been confirmed with hardly a murmur after the fact. ( I think big credit should go to McConnell for shepherding those through.)

I hate to claim that Trump knew what he was doing, but results matter.

I agree with ReJahm that a new EO that met the court's objections might be easiest. On the other hand, there is a serious question here of executive powers that needs to be settled now better than later.

n.n said...

The judicial system is modeled on our representative democracy. Trump is polling the judges.

Clayton Hennesey said...

How can this be seen as anything other than Trump forcing the drawing of a bright line in the sand between the executive branch and the judicial, and at the SCOTUS level?

Either the Constitution and laws enabling the President exclusively actually do so and mean what they say, or they don't, and Trump wants the answer to that for everyone, the sooner, the better.

Basil said...

So, Professor Emeritus Althouse, tell me if you read the 9th Circuit decision as I do -

A known ISIS member is offered a position as a Professor at the U of Washington. Would the state government of Washington (or any state, really) have standing to sue to overturn a Presidential decision to not issue any visas to ISIS members?

Would the District Court in Washington be able to enjoin the denial of the ISIS member's visa, thereby requiring his admission to the US?

Would said ISIS member be able to assert a claim for damages for religious discrimination?

Thanks!


n.n said...

The obvious motives of progressives and anti-native factions is labor arbitrage, demographic redistricting, market replacement, foreign influence, resource capture, monopoly formation, social justice obfuscation, and abortion compensation.

Dust Bunny Queen said...

Want to guess how many times Gorsuch will be asked how he'll rule in this case?

Hundreds. By people who know that he is not going to answer, cannot answer, should not answer, will not answer. They ask so they can keep the ball rolling on this, in the public's mind's eye. They also ask so they can then trumpit (lol) that he 'refused' to answer the question, knowing full well that he cannot.


No point also guessing how many times he will respond by saying he cannot talk about an issue that may come before the Court. It's the same number

Gorsuch should make a big placard stating his answer and then flash it each time he is asked the same stupid question. Put in small print at the bottom...." and, stop wasting our time!".

khesanh0802 said...

@r/Voltaire Trump never stated a policy that refuted "one China". He said he wasn't sure it was a valid policy and whether it should be continued. Today - whenever - he decided it is the most advantageous policy. I wonder what he got or will get in return for that?

First thing he got China's attention, for sure, and maybe some respect from the Chinese. You can bet they won't make Trump exit through his plane's rear stairs when he visits China.

Jupiter said...

Chuck quoted Althouse...

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

Well, Althouse is mistaken in her analysis, and so are you if you agree with her. The term "so-called judge" indicates that there is a class of beings known as judges, some have attempted to argue that this particular being is a member of that group, and the speaker feels that they are mistaken. Since a judge is merely a person performing a particular function, the clear indication is that, while this person has been called a judge, he is not performing that role.

It is true that the phrase might be intended as an attack on the entire system that claims to employ judges -- "This so-called psychiatrist" might, for example, indicate a disbelief on the part of the speaker that anyone can, in fact, perform the functions psychiatrists are pleased to assign themselves (an entirely justified disbelief). But Trump's "See you in court" clearly indicates that is not his intention. He intends to bring the matter before an actual judge, and he is confident the result will be very different.

HoodlumDoodlum said...

Chuck said...Chuck said...
So... Althouse calls it "a shot" for Trump to have called the U.S. District Judge "a so-called judge":
"3. Trump is actually backing away from attacking the court. He didn't just take a shot like "so-called judge."
I couldn't agree more. It's "a shot." An attack. A personal attack.


Swing and a miss, Chuck my friend. Do you see where you went too far? You want to say that the Professor's statements don't reconcile, but that argument only holds insofar as the Professor's "shot" definitely means "personal attack." That's what you want it to mean--and that's how your next sentences interpret it, but that interpretation is not supported by Prof. Althouse's words nor by reliance on her earlier statement. You're the one saying that the "shot" was in fact a personal attack. The Professor's second quote says only that she agrees that the phrase could be seen as such an attack--the quote then explains why that interpretation is weak at best.

So, in sum, you're trying to make the Professor's current phrasing mean something it doesn't necessarily mean, and then use that (unsupported) interpretation to draw a contrast to her earlier characterization. That goes too far, Chuck: don't do that.

Levi Starks said...

I'm seeing a plus in the whole exercise. In the future when a leftist president is in charge again, (and that time will come) we have now set a president that it's acceptable for any state (Texas?) to go "judge shopping" and hold the the executive branch hostage. See how that works?

HoodlumDoodlum said...

Maybe it's me, but I don't remember this kind of freak out, nor chest-beating, nor immediate score-keeping/scoreboard bragging this early in the Obama Administration. It was, as I recall, a very busy time and there was a large amount of loud talk about the different financial regs and emergency actions taken w/r/t the economy/"economic crisis," but even with that it seems like things weren't at 100 full time after less than a month.

I don't trust my own memory on that, though; I could be wrong.

Hagar said...

All the lawyers - and we, the commenters - have gotten all in a lather about the law, but we should not forget that for Trump, "the law" is only another tool to be used.

I am not entirely sure what this temporary EO was supposed to achieve to start with, so maybe it was just bait with a hook in it? Or chumming the waters?

Chuck said...

khesanh0802 said...
I am coming think that this legal mess is playing more and more to Trump's advantage. First, he is attempting to do what he promised to do during the campaign. All he is trying to do is get some breathing room to evaluate our immigration policies and vetting. Most ordinary people understand and appreciate that.


I think that's right. Trump is attempting to do, what he talked about during the campaign. Much more so, than any actual national security measures. I don't think that there are any grave new threats. I think that Trump's helpers chose the seven mostly-Muslim nations because they have been listed with special status by the Obama Administration and Congress previously. Essentially, IT WAS THE CLOSEST THAT THEY COULD LEGALLY GET, TO THE 'MUSLIM BAN' THAT TRUMP TALKED ABOUT IN HIS CAMPAIGN. "Donald J. Trump is calling for a complete and total shutdown of Muslims entering the United States, until our representatives can figure out what the hell is going on."

Second, while the MSM has been fainting over the EO two of Trump's most controversial - and, perhaps, most important - Cabinet members ( Price and De Vos) have been confirmed with hardly a murmur after the fact. ( I think big credit should go to McConnell for shepherding those through.)

Credit Mitch McConnell, for sure. Although you probably meant Sessions and DeVos; Price's confirmation vote was just this morning. Maybe you did mean Price, I don't know.

I hate to claim that Trump knew what he was doing, but results matter.

So you are suggesting that Trump threw out the EO to coincide with the nomination fights? Hmm. Maybe, but so much of the timing was not up to Trump. His opponents moved for and got the TRO. The scheduling was done by the courts. And as so many have observed (and correctly so in my view), Trump's EO might have fared better in court if they had waited until they had fully staffed the Department of Justice and had confirmed Jeff Sessions as AG, before rolling it out.

I agree with ReJahm that a new EO that met the court's objections might be easiest. On the other hand, there is a serious question here of executive powers that needs to be settled now better than later.

I suffered through some of Sean Hannity last night to watch somebody who I really do like and admire, Jay Sekulow of the Amercian Center for Law and Justice. Sekulow suggested that the best way to move forward would be for Trump to now re-craft a new EO that conformed to the concerns of the Ninth Circuit, and issue that in lieu of the January 27 EO.

But again, it all assumes that the real goal is one of political messaging; just get an EO out. It has very little to do with any specific threat. It's just an idea, something along the lines of the campaign rhetoric, but not really since it will be crafted to conform to the law.


James Zadok said...

It would have been a great moment in presidential history to see Trump walk past a tv camera set up in the Oval Office, carrying a ladder and announcing that he was taking his case to a higher court. It worked well in vaudeville.

Chuck said...

The accusation that the various plaintiffs went "judge shopping" in relation to this issue keeps popping up. Sean Hannity -- a real moron -- keeps yapping about it.

It's a completely false notion.

"Judge shopping" occurs when one plaintiff plays games with venue and jurisdictional rules, to get a case or a claim assigned to or heard by a particular judge.

Plaintiff attorney and former Democratic candidate for governor in Michigan Geoffrey Fieger once filed about a dozen identical complaints in the U.S. District Court for the Eastern District of Michigan, and they were all randomly assigned to the various trial judges in the District. Fieger then immediately dismissed all but one of them. The case that was left open was in front of a judge whom Fieger thought would be favorable to his cause. The Chief Judge of the District was not amused. The case was reassigned and Fieger was sanctioned by the court.

That's judge-shopping. And that is not what has happened in this Trump immigration case. There have been more than 50 cases filed all across the country on this matter. From differing plaintiffs, with differing results. Fans of this blog have noted that a U.S. District Judge in Boston came to a different result from the Washington District Court. Those cases could proceed, and differing results might obtain in different Circuits.

Call this what you want; call it "Lawfare" if you wish.

But it is not "judge shopping." The State of Washington was pretty much compelled to file in a U.S. District Court in that state. (Washington's existing lawsuit was then joined in an amended complaint by Minnesota. If every one of the dozens of plaintiffs across the country in the 50+ pending cases had done that, we might seriously suspect "judge shopping." But that is absolutely not what happened.)

AllenS said...

A better Trump response would have been: "I'm going to make them an offer they can't refuse." Then, he could chop someones horses' head off.

tcrosse said...

It worked well in vaudeville.
The classic follow-up is he walks by with an empty hanger, and announces that he lost his suit. Sloowly I turned....

khesanh0802 said...

@Chuck Thanks for your response, but I did mean Price and DeVos because their confirmations took place in the fog of the 9th Circuit debate. You are correct, though, that I should have included Sessions. Those, to me, are the key appointments for bringing change to some of the rot in DC.

No, I don't think the EO was issued with the nomination process in mind, but the response to it by the crazies gave Trump an opportunity to distract critics from other important things going on. I once, jokingly, told one of my sons that Trump is sometimes like a magician on stage saying "watch this hand" while he does the trick with the other....and people fall for it!

I also do feel that there is a serious question about executive power here that shouldn't be swept under the rug.

roesch/voltaire said...

Yes Trump got China's attention alright but not respect. Here is a quote from one of their papers:In a Monday editorial, the Global Times said of Trump: "He is ignorant as a child in terms of foreign policy," and the editorial ruled out negotiations on the "one China" issue.
"The 'one China' policy cannot be bought and sold, Trump, it seems, only understands business and believes that everything has a price and that if he is strong enough he can buy and sell by force," it said.

Wilhelmina said...

I guess Trump just can't help himself.

"He didn't just take a shot like "so-called judge." He indicated that he's going to litigate the case according to the normal process. That's not an effort to bully or intimidate or denigrate the courts.*"

http://abcnews.go.com/Politics/wireStory/trump-calls-9th-circuit-court-decision-disgraceful-45399552

President Donald Trump is lashing out at the 9th U.S. Circuit Court of Appeals decision against reinstating his refugee and immigration order, calling it "a disgraceful decision."

walter said...

Blogger Laslo Spatula said...If the Constitution were to be attempted to pass as a law nowadays the Judges would find it Unconstitutional.
--
Well..I'm sure some controversial statements/intent led up to that doc.

Freeman Hunt said...

The all caps made his tweet funny.

mikeski said...

I'm seeing a plus in the whole exercise. In the future when a leftist president is in charge again, (and that time will come) we have now set a president that it's acceptable for any state (Texas?) to go "judge shopping" and hold the the executive branch hostage. See how that works?

That presumes a number of judges on the conservative side who believe political ideology trumps the written law, which is pretty much the antithesis of judicial conservatism.

If the liberal executive is doing extralegal things, conservatives don't need this sort of chicanery; the Supremes slapped down Obama 9-0 how many dozens of times? When you've lost RBG...

khesanh0802 said...

@r/Voltaire I am happy you put so much weight on what appears in a Chinese newspaper. The party line is the party line. It is a little like believing the wing nuts in our press that say Trump did not win the election.

Trump never said he would negotiate one-China, he just questioned its validity and he had the Chinese press (government) going bat-shit crazy.

Static Ping said...

Ann: ...then seek Supreme Court review, where he will win 5-4

This is horrifying. There is no legal question whatsoever that the President has the authority for the EO. It should be 8-0 or 9-0. The fact that any judge has opposed this on the legal merits is an embarrassment at best. At worst it is a sign that the Judicial Branch is overtly flaunting the Constitution in an attempt at a legal coup. Judges are supposed to follow where the law takes them, not where they want the law to go. If this is going to be their role, this are officially useless and need to be discarded. And I do appreciate how radical an action it is. It's not what I want. It is desperately not what I want. But if they leave no choice, then that is what will happen. I cannot conserve something so horribly corrupted.

There is certainly an argument that the EO does improperly impact the rights of some individuals. I can see that argument. However, the proper judicial remedy in that situation is to halt the implementation on those particular individuals, not essentially usurp the immigration authority of the entire country. This sort of thing cannot be condemned enough.

Civil wars have been started for less.

Jack Wayne said...

I'm not saying that Trump is a Grand Master Jedi but this will play into his hands. Lefties/Big Government Lovers are never very good at imagining consequences. This argument is about Federalism. The same argument that led to the Civil War. The same argument that was turned into State Rights AKA racism. This last election, according to conventional wisdom, is that the Rural areas turned on the City areas - an election about Federalism. Many of the legal battles during Obama's administration were about Federalism. So, whether Trump wins or loses, the lefties/Big Government Lovers are now firmly on the side of Federalism. EPA wants to regulate every puddle in America? Nope, because Federalism. Want to return abortion to the States? Yep, because Federalism. Want to pass a nation-wide concealed carry law? Yep, because Federalism. You name the issue, Trump merely points to the hypocrisy of the lefties when they say "Wait a minute!" and most Americans will nod and say "They asked for it".

Bruce Hayden said...

@Ann - not quite sure what you meant by the last comment. This is a TRO, which, by its very nature, is Temporary, to give the parties a chance to brief their case for a preliminary injunction (which, if granted, typically last until the decision on the merits). The DoJ attys went in without any facts, which was fatal for their case. Something I learned not to do, the hard way, while in LS (in my case, it was for summary judgment). Don't see how the judge cannot give them a chance to build a decent record. Which with Sessions at the helm, should happen.

khesanh0802 said...

@ Wilhelmina How did Obama characterize the Citizens United decision directly to the Supremes faces? He certainly wasn't any more polite than Trump.

rehajm said...

Theo and Jazzy Jeff going at each other. Heh.

rhhardin said...

A muslim ban is big on the news left and right.

It doesn't matter. Trump wanted to ban muslims not because of their religion but because of, you know, what they believe, namely it's good to kill off the infidels.

Pray on rugs all you want. That's the religious part. We're fine with that.

Bruce Hayden said...

Keep this in mind - the standard for overturning a TRO is quite high. They are (very) temporary orders, and the court system doesn't want every 14 day TRO up on appeal. It totally disrupts the higher courts' schedules. They have to drop everything to decide on something that will expire in two weeks. So, it really takes some sort of abuse of discretion in most cases. Standard is going to get easier and easier, as time goes on, and we get closer to a final decision (which may be months, if not years, in the future).

That said, the states shouldn't have been granted standing here, and the courts shouldn't have looked at campaign rhetoric. Both are slippery slopes - but this is the infamous 9th Circuit, which is why we can probably expect some sort of reorganization there. Not only is the Circuit gigantic geographically, it also covers way too many people, of very diverse demographics. It desperately needs to be split, at least in half, maybe more so.

wwww said...

The all caps made his tweet funny.


yeah this.

james conrad said...

Trump should issue a new similar EO while litigating the one that got a stay, if the courts wanna play politics, let's play! Ball up their entire process with paper after paper after paper. Meanwhile, take the stayed EO to the SC NOW! i would like to know if the 4 liberals will all vote the same political way, it will put a spotlight on them.

HoodlumDoodlum said...

Bruce Hayden said...That said, the states shouldn't have been granted standing here, and the courts shouldn't have looked at campaign rhetoric. Both are slippery slopes

Ok, thank you Bruce: that's my feeling as well but I haven't seen it said much and I don't have any expertise in the subject so I wasn't sure if I was way out of line in holding that opinion. There are at least two of us, so that's a comfort.

Lem said...

Getting turned down early on is setting everyone up for a demoralizing defeat later on a la Patriots/Falcons, Cubs/Indians and Cavs/Warriors.

Lem said...

I love ❤️ it

Achilles said...

First the media obviously took sides. They are diminished permanently.

Now the leftists who pretend to be impartial judges are outing themselves.

Note that not even the leftists who support the decisions are even pretending the decisions are constitutional or anything other than a bald will to power. The left is destroying itself with this naked partisan display on an issue that trump has supermajority support on.

Francisco D said...

I'm not a lawyer, so I don't understand how the Judiciary can impose itself upon the Executive branch when there are no Constitutional rights involved.

Do non-citizen, potential immigrants have constitutional rights?

harryo said...
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jdniner said...

I think the litigants and the judiciary are as foolish as people can get here. If this is the process they want to use to participate in our elected government there will be a strong push back from the winners. The progs have lost any common sense they had. If they want to get in that polarity struggle that has no compromise they will get the Fascism they fear. And they won't be on the good side of it. Part of the negative fallout of having a highly organized society via the internet and socialmedia. It takes more power to get things done.

A judge would be wise to realize it is out of control and that he/she needs to step back and start from the origins.

harryo said...
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wwww said...

Do non-citizen, potential immigrants have constitutional rights?


The initial executive order included legal residents -- permanent and temporary -- who lived in the United States. The recent confusion with arrivals at airports largely derived from this situation.

Imagine leaving your house, wife or pets while you travelled on business or to visit a family member & then being unable to return to your home in the United States. Does that individual have constitutional rights?

The federal government has the power to restrict immigration. The President could scrap the initial order, and write up a new order that explicitly excludes these categories. The administration is discussing whether to write a new executive order.

harryo said...

Francisco D said...Do non-citizen, potential immigrants have constitutional rights?

It's a trick question, as many constitutional rights have been watered down by regulations.

Just try and wear your holstered gun into a university. Even though the constitution gives you the right.

With a billion lawyers, nothing is sacred.

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

The gang of commenters on MSNBC are eager to see Trump fall into the trap set for him by the Resistance Courts. They are talking about nothing but Trump issuing an amended Order and running that by the So Called Judges for approval.

The fight is over submitting to Judicial Review to protect the 14th Amendment Rights of the the Citizens of the world to Due Process of law under the U S Constitution.

Like Marshall in Marbury, they will rule in his favor if he will only submit the U. S. Presidency needs approval of theses evil Judges in dealing with U. S. Foreign Affairs.

See you in a REAL Court some day over the rainbow, says DJT. It will be a cold day in Hell before he goes back before these so called Judges for approval.

Roy Lofquist said...

Donald Trump is a snake, a rattlesnake.

Benjamin Franklin:

"She never begins an attack, nor, when once engaged, ever surrenders: She is therefore an emblem of magnanimity and true courage. As if anxious to prevent all pretensions of quarreling with her, the weapons with which nature has furnished her, she conceals in the roof of her mouth, so that, to those who are unacquainted with her, she appears to be a most defenseless animal; and even when those weapons are shown and extended for her defense, they appear weak and contemptible; but their wounds however small, are decisive and fatal. Conscious of this, she never wounds 'till she has generously given notice, even to her enemy, and cautioned him against the danger of treading on her."

http://www.greatseal.com/symbols/rattlesnake.html

hombre said...

I think Trump is talking to the sneering, jeering, secular progressive, #resistance jihadists. Soon, expect to see them in the streets of LA, DC, Portland, etc., chanting, "Death to America," lauded by the leftmediaswine.

Reconciliation is not possible. These people are dangerous lunatics who would rather be blown up by Islamist bombs than accept the defeat of Hillary the grifter.

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

The War of 1775 was started when local intolerables defied George III after he had revoked the Intolerable Act's taxes, except a silly Tea monopoly, and by the way added that as King he still had the right to levy Taxes without consent on powerless farmers living on his Royal Land called the Colony of Massachusetts. After Eight years fighting the Presbyterian farmers became finally independent.

Let's see where this Presbyterian leads us in another eight years.

HoodlumDoodlum said...

I'm still scratchin' the ol' noggin: how many times did President Obama insist the ACA's individual mandate wasn't a tax--dozens? Did the Supreme Court take any of that into consideration when deciding whether the ACA provision punishing violation of that mandate was a penalty (unconstitutional) or a tax (constitutional)? No: as far as I can tell Chief Justice Roberts' opinion didn't address that at all. (His opinion, of course, actually found that since the terms of the law COULD BE construed as a tax, even though it wasn't written nor "sold" that way, it SHOULD be read as a tax, contrary to the actual language--but that's an outrage for another time.)

So when did this start--taking campaign rhetoric into consideration when evaluating the government/a politician's intent for purposes of determining constitutionality? Did it just coincidentally start the moment Trump was sworn in? Gee, what are the odds!?

Todd said...

wwww said...

The initial executive order included legal residents -- permanent and temporary -- who lived in the United States. The recent confusion with arrivals at airports largely derived from this situation.

Imagine leaving your house, wife or pets while you travelled on business or to visit a family member & then being unable to return to your home in the United States. Does that individual have constitutional rights?

The federal government has the power to restrict immigration. The President could scrap the initial order, and write up a new order that explicitly excludes these categories. The administration is discussing whether to write a new executive order.
2/10/17, 1:01 PM


Except (and I have not seen this anywhere so I could just be pulling it out of my butt) Trump has said that part(?) of his issue with the current situation is no "proper vetting". If that is the case, and he REALLY feels (and many do) that "proper vetting" is not being done and hasn't been for a while now, I could see drawing a line in the sand and saying ALL must go through new and improved vetting as the old rules were a sham. It does no good to "start doing it right" if the bad actors are already in (i.e. Visas and green cards). Stop it all now, vet anyone from those countries trying to get in AND follow up with those already in the country.

Not saying that was his intent as he appears to have just stumbled through this (though it appears the law IS on his side) BUT that could be the "big picture" of which there is some justification.

hombre said...

"And he'll get a stay from the Supreme Court pending that 5-4 decision. Just a prediction!"

Do we really accept that the lefties on the Court are such political whores that they would vote to have judges usurp the foreign policy prerogatives of the executive and Congress?

If so, one can only hope that the Republican pussies in Congress will suck it up long enough to limit the lower courts' jurisdiction. The implications of that, particularly to the SCOTUS caseload, are delicious.

Drago said...

"lifelong republican" and National Security Expert Vichy Chuck: "I don't think that there are any grave new threats. I think that Trump's helpers chose the seven mostly-Muslim nations because they have been listed with special status by the Obama Administration and Congress previously."

LOL

No comment required. Just read it again and let is soak in!

Drago said...

Apparently, discussions regarding failed State actors, their lack of capabilities and or willingness to work with the US is beyond the ken of Michigan based "lifelong republican" lawyers who didn't know that lawfare was practiced by dems against Palin!

Thanks Chuck!

Drago said...

hombre: "Do we really accept that the lefties on the Court are such political whores that they would vote to have judges usurp the foreign policy prerogatives of the executive and Congress?"

Uh, yeah. We do.

Along with their "lifelong republican" allies.

Drago said...

Francisco D: "I'm not a lawyer, so I don't understand how the Judiciary can impose itself upon the Executive branch when there are no Constitutional rights involved"

There is nothing to understand.

They are leftists.

Period.

HoodlumDoodlum said...

Holy hell, has anyone made a "My So Called Judge" joke yet? How did I not get there sooner?!

hombre said...

Didn't Jimmy Carter order all Iranians, including students, in the country legally to report to immigration authorities for vetting or to be deported?

Seems like a reasonable requirement for Trump to adopt, even if it means modifying the original order - without admitting error, of course.

HoodlumDoodlum said...

wwww said...The President could scrap the initial order, and write up a new order that explicitly excludes these categories. The administration is discussing whether to write a new executive order.

You know what, though, if the Court's action is improper--if they shouldn't have intervened at all based on the merits, standing issues, etc--then rewriting the EO now to "solve" that problem is a super-bad idea. We're 20-something days into Trump's presidency. How many of his actions do you think the Dems/Left are going to bring before some Court. My quick guess is: all of 'em. If the Court is acting improperly and you let them get away with it on this one it will not ever, ever stop. Gotta fight.

(That's not to say it was a good EO, or a good idea overall, or implemented well. It is to say that doesn't really matter right now: if Trump's team thinks the EO is valid and the Court shouldn't stop it and/or shouldn't stop it in the way or for the reasons they did, Trump has to fight. No choice.)

Levi Starks said...

I'm interested in the legal,standing of the states in this issue since it's been brought up.
It seems I remember that when Arizona wanted to enforce Federal immigration laws it was slapped down by Obama who said that it was within the rights of the president to decide not to enforce laws on the book.
This seems like a complete role reversal where the states are telling the executive branch that they cannot enforce immigration law.
Am I wrong?

HoodlumDoodlum said...

hombre said...Didn't Jimmy Carter order all Iranians, including students, in the country legally to report to immigration authorities for vetting or to be deported?

I don't think so, but what Carter DID do as part of a sanction against Iran was to stop issuing and renewing/reissuing visas for all Iranian immigrants for a period of time. He did that, explicitly, as part of his foreign policy (and not for national security reasons) and of course the Courts always recognize the Executive's broad power to set national policy, especially w/r/t questions of immigration/foreign visitors...

hombre said...

We are being to hard on Chuck, the "lifelong Republican."

Obviously, in the interest of balance on this blog he has decided to channel his partial namesake, Chuck Shumer.

Good on ya, Chuck LR! Diversity rules, and all that.

hombre said...

@hoodlumdoodlum: You are right. He just revoked the visas with a hardship provision.

Jack Wayne said...

It will be in Trump's best interest to take the case to the SCOTUS. Their ruling will give him a lot of information no matter what they decide.

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

The Left is reliably Pro-Choice, which creates an imperative for selection on issues close to their heart, where cognitive dissonance causes deviation that is less than two degrees from normal.

Hagar said...

@Levi,
I don't think this suit contested that. WA and MN just stated that their states would suffer "irrepairable harm" unless a stay was immediately granted because their state universities would lose out-of-state tuition payments by their foreign students and WA based Expedia would lose the profits from selling travel tickets, etc., etc., and so on.

I think a proper judge would have tossed their claim and threatened them with contempt of court for citing such reasons to base their claim.

Gk1 said...

Levi Starks, that is a great question. I thought the same thing when I remembered how the Arizona immigration flap sprung up. The state wanted to step in and help enforce a law the Federal govt. wasn't interested in enforcing. Now we have the opposite. I would think this can be quickly reversed on existing case law by the supremes?

Hagar said...

And for the Constitutional part of the Circuit Court's reasoning it seems to have something to do with what might have been in the President's heart based on candidate Trump's statements during the campaign, which sounds like ruminating about whether he might intend to commit a "hate crime" sometime in the future, nevermind what the actual EO in front of them contained.

wwww said...

This seems like a complete role reversal where the states are telling the executive branch that they cannot enforce immigration law.
Am I wrong?

The order didn't just apply to newly arriving refugees or, newly arriving people holding visas or applying for visas. These are individuals who have never been legal residents of Washington state.

But...the EO also applied to legal residents of Washington state.

The question gets tougher when the federal government issues an EO that acts upon the residents of a state. The entire case probably would have been avoided if the EO had not included green card and temporary legal residents -- already living in the state -- within the EO.

But the case brought the question of permanent and temporary legal residents not being able to travel outside of the state for 90 days. They are people who have rights as legal residents of the state of Washington, and the AT and solicitor general have an interest in the as residents of WA state. The court will be considering their due process rights.

This whole thing could have easily been avoided by a clear and narrowly drawn EO.

wwww said...

WA based Expedia

Don't believe Expedia was concerned about selling tickets.

WA based Expedia has employees who are permanent and temporary legal residents of WA State. They face a harm if their employees cannot legally travel to do business.

There's a lot of tech in Seattle. They don't want to have to deal with their legal resident employees getting stranded overseas or not able to travel for meetings out of the country. Many have offices based around the world.

Hagar said...

But buddy, according to the Constitution and statute law, the President's judgment on foreign policy and national defense, totally outweighs these firms convenience and financial woes. In fact they would be irrelevant even for a permanent "travel ban," and infinitely so for a temporary pause of 90 days.

HT said...

“but I don't think the responses are very good.”



Of course you didn’t. But in fact, there were some very funny responses.

DT: See you in court!
The court: I’m a court so…

“See you in court,” says a person who just lost in court

“just gonna text I’LL SEE YOU IN COURT to the men who ignore me”

“SEE YOU IN COURT…is really the worst thing to yell after you just lost in court”

“SEE YOU IN COURT WHERE WE ALREADY ARE BUT A DIFFERENT COURT SHUT UP NO YOU’RE STUPID!”

“See you in court”
“Ok cool that’s where we work, so it is very convenient for us”

tcrosse said...

See you in Hell.

Michael K said...

I think a lot of people are missing the next step.

The EO was always temporary. The 9th Circus stopped it.

In 120 days new immigration rules will be published, perhaps with Congress joining with legislation.

The new rules will probably be harsher than if WA and MN had kept their idiot mouths shut.

Lloyd W. Robertson said...

From a piece about Breyer's recent book:Breyers gave a talk at Yale Law last year:
Issues of national security and civil liberties have come before the Supreme Court many times over the centuries, he said, although all too often “in times of war, the laws fall silent.” For example, during World War II, the court backed President Roosevelt’s decision to create detainment camps for Japanese American citizens — even though the justices at the time knew that reports of subversive acts by that group were untrue.
In modern times, the Supreme Court ruled in favor of a detainee at Guantanamo Bay who argued that he was denied due process under U.S. law — a decision that was not received well by many in government and the military. Nevertheless, said Breyer, quoting his former colleague Justice Sandra Day O'Connor: “The Constitution does not write a blank check to presidents in time of war.”
“The justices are there to protect basic human values,” he added.
When questions of national security vs. civil rights arise, it is no longer sufficient for government agents to say the reason they need to do something is “classified,” said Breyer. “You need to know how to find out if something is necessary or if there are other ways to do it.” In that regard, “it is helpful to find out what other nations are doing,” he added.
So it's possible to predict: Breyer will argue that Trump has tried to act on an outdated notion of such matters, at best. Today the Court will legitimately ask what problem Trump was trying to solve, and if there was a better way to solve it.
On the other hand, Trump used Obama's list of 7 "countries of concern" with respect to terrorism. Is it a reasonable or prudential judgment that those countries are more of a concern than Obama thought they were?
Kennedy may actually be a more reliable anti-Trump vote than Breyer. A betting person might say 5-3 vs. Trump. Gorsuch, if confirmed, might still only make it 5-4, so Trump still loses.
http://www.nationalreview.com/article/444670/travel-ban-anthony-kennedy
I agree it might serve Trump's purposes to have this fight, win or lose, and even to lose it.

SukieTawdry said...

Is he playing a multilevel game several moves ahead? I want to believe.

Lewis Wetzel said...

Michael K wrote:
In 120 days new immigration rules will be published, perhaps with Congress joining with legislation.
Possibly. But Trump can't back down from the original EO without ceding that the courts, and not the president, make the decision about which aliens can be excluded on the grounds of national security.
The SC will almost certainly come down on Trump's side.
Thank you, 9th circuit, for being f'ing idiots, and attempting to make the US even less of a republic.