In its argument for an appeal, the Justice Department had said the president had an “unreviewable authority” to suspend the entry of any class of foreigners. It said the ruling by [District] Judge Robart was too broad, “untethered” to the claims of the State of Washington, and in conflict with a ruling by another federal district judge, in Boston, who had upheld the order.On Twitter, Trump has been critical of the district judge's decision, but I don't think it's right to compare these criticisms to Trump's attack on the trial judge in the Trump University case. In the Trump University case, Trump said the judge was biased because of his Mexican heritage. In the current case, Trump's attack is not on the judge as a person, but on the decision he made, and the basis of the attack isn't some questionable (or offensive) extraneous material but the actual substance of the opinion. Trump is following the judge's order and using the judicial process to fight it.
The Justice Department argued that the president acted well within his constitutional authority. Blocking the order, it concluded, “immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.”...
The Ninth Circuit court moved quickly to reject the administration’s appeal, a measure of the urgency and intense interest in the case.
Despite Mr. Trump’s vehement criticism of the ruling and the certainty that it would be appealed, the government agencies at the center of the issue, the State Department and the Department of Homeland Security, moved quickly to comply.
There's absolutely nothing wrong with criticizing judicial opinions, and this one lays itself open to criticism:
“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax bases.
Still, Judge Robart’s order left many questions, said Josh Blackman, a professor at South Texas College of Law in Houston.
“Does the executive order violate the equal protection of the laws, amount to an establishment of religion, violate rights of free exercise, or deprive aliens of due process of law?” Professor Blackman asked. “Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper.”
ADDED: The relevant Trump tweets are (in reverse chronological order):
Why aren't the lawyers looking at and using the Federal Court decision in Boston, which is at conflict with ridiculous lift ban decision?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.
Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country. A terrible decision
What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
"The Government of the United States has been emphatically termed a government of laws, and not of men."
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226 comments:
«Oldest ‹Older 201 – 226 of 226Chuck thanks for the link. While I did not read the whole thing, too time consuming, the gist of it is that aliens are covered by the Constitution while they are under the umbrella of the United States; in other words those in the country which includes any leased military facility abroad. Your citation as far as I have read does not refer to aliens outside the jurisdiction of the United States. Somalia and Yemen among the seven countries is not presently occupied or otherwise controlled by the United States.
Genuine, non-snarky, question: how far can the supreme court go in dealing with a renegade (for lack of a better word) low court federal judge? Can the court censure them? In an extreme case, could the supreme court limit what cases that judge hears?
Wait, so this also applies to the ban Obama put on Cuban refugees, right?
The 9th thought that did great damage too, right?
Everyone understands why Obama had the right to ban immigration from a country like Cuba, but Trump can't do the same, right?
We all know the reason.
Cuban refugees vote Republican. Therefore, Democrat Presidents can ban them. This principle cannot be extended in any way, unless Democrats wish it to.
cubanbob said...
Chuck thanks for the link. While I did not read the whole thing, too time consuming, the gist of it is that aliens are covered by the Constitution while they are under the umbrella of the United States; in other words those in the country which includes any leased military facility abroad. Your citation as far as I have read does not refer to aliens outside the jurisdiction of the United States. Somalia and Yemen among the seven countries is not presently occupied or otherwise controlled by the United States.
Well you need to consider that part of the problem with the Trump order is that it was being applied to classes of people who had applied for and/or received refugee status under international treaties to which the U.S. is a signatory, and to persons who were visa applicants or visa recipients under U.S. law. As I mentioned above, courts have indeed given differing treatments to resident aliens, non resident aliens and unauthorized aliens. One of the early (and perhaps continuing) problems for the Trump order is that it seemingly failed to distinguish those differences. Even conservatives who might otherwise be sympathetic to more determined enforcement of immigration laws have noted many of those problems.
Please understand that a complete defense of the Trump order is beyond the scope of what I'm attempting to do here. All of this began with someone's blanket assertion that non-citizens have no constitutional rights, which is flatly incorrect.
Wait, I was reliably told Trump was an orange-colored Hitler.
Judge Robart was attacked, was he? Let me tell you, if President Bad Lieutenant were to attack Judge Robart, Judge Robart would become Judge Crater. Or at the very least would wake up with a horse's head in his bed, or come down to the kitchen one night and find some gentlemen waiting for him with hand tools and a gasoline can, to explain the situation to him.
Now I am not quite at the point of advocating that yet, but I would like to note the difference between word and deed. It's as if we'd forgotten that sticks and stones may break our bones but names will never harm us.
sinz52 said.The Dems aren't doing anything to Trump that the GOP didn't try to do to Obama.
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Of course, the companion to that is Dems loved EOs when they were helpful to Dems.
From the bottom of my "racist shorts, welcome back Gwash.
IIRC, the judicial consensus is that ANYONE in the nation is basically covered by all the other laws. To wit, just because a traffic cop pulls over an illegal alien, he can't illegally search his car (how would the cop know for sure anyway) or beat a confession out of an illegal 'just because he doesn't have real rights'.
It is the same as saying we don't let people kill German tourists because they aren't covered under the murder statutes, being non-citizens. It is common sense and basic human dignity.
THAT BEING SAID, this obviously should NOT be a gracious extension, of citizen STATUS nor should it cover benefits given to CITIZENS. The courts disagree with me on that last, and it sounds like the Ninth Circuit 'trendsetters' also disagree with the citizenship meme as well.
But that doesn't mean most judges agree with them. And certainly not a population.
I think that the courts better tread VERY carefully. So fair, their only real influence is the rather fragile belief that they are, for the most part, scrupulously fair.
If they violate that with a number of decisions that the population disagrees with or vehemently hates, they lose that luster and people will start to disregard those opinions.
As Andrew Jackson once said: "Let John Marshall enforce the law." Trump is for good and ill, in his mold.
If I am a citizen and the nation goes to war, I am obliged to serve if called upon. If a resident alien, I am not, but may choose to serve. However, either way, the U.S. government is free to decide I may be troublemaker and lock me up for the duration.
At any time the U.S. government is entitled to decide it will treat nationals from countries A, B, and C as honored guests, but citizens of countries X, Y, and Z as enemies, and people from other countries somewhere in between as may it fit the current situation.
Lawyer Chuck is correct that ratified treaties become part of the Constitution sort of, but treaties are rescinded all the time - sometimes without notice.
According to the U.S. Constitution, the President is in charge of foreign policy with just a few limitations - quite extra-ordinarily so among democratic nations - and there is very little Chuck and other barracks lawyers can do about it, except squawk.
Byron York: Justice Department demolishes case against Trump order
Again.
CUBA.
Obama banned refugees.
Three freakin weeks ago!
How the hell is Trump's EO ANY different?
How is this not devastating to the leftist position or the stay?
Why is the Right ignoring this incredibke double standard?
Let's take a look at what this means.
Say President Trump gets a memo of 'Operation Thousand Cuts'. The Chinese are emigrating 300,000 'ex' People Republic Army gents to California to do 'something' (Mostly take road trips to Nevada to go gun shopping). And since the Dems LUVS them some immigrants and gives them valid IDs at the drop of a hat, well, let's say that the shopping is easy.
But the CIA tips off Trump. He wants to stop immigration from China.
Now, all it takes is some wacky Liberal Judge to stop such efforts because 'Trump'. His entire argument boils down to 'because Trump'.
I anticipate that IF this gets to the Supreme Court, it not only will have an 8 to 0 vote, but most likely will have some censure for the judge in question...if the Liberal judges are wise. (They are smart. Wisdom is something else)
There was actually a law underpinning the order, the visa waiver revision of 2015, voted by Einstein, Durbin and leahy
That column by Byron York is a typically excellent one.
Reading between the lines, I think there are a couple of takeaways beyond Byron's intended (and well-made) points.
One is that York devotes all of his argument to ordinary non-resident aliens. Not visa holders, and not declared, processed refugees. Both of those classes of people complicate the argument. They may complicate it beyond redemption of the Trump order under Fifth Amendment due process concerns.
The other point is the fragility of the defense team as long as Jeff Sessions is unconfirmed and the DoJ is being run with a skeleton staff of interims. Because Sessions is not yet confirmed and has not yet been sworn into the DoJ, it would have been improper in the extreme if Sessions -- the legal and policy leader of the serious end (as opposed to the Twitter-rant end) of Trump immigration policy -- had been involved at all in the drafting of the EO. So when asked by Dems on the Senate Judiciary Committee, Sessions' (hopefully honest) answer to recent questions about whether Sessions played any role in, or had any communications about, the drafting of the EO was "No."
All of which goes to the timing of the Order. It could probably have been much better prepared, introduced to the rest of the executive branch and defended in court, if they had waited for the Sessions confirmation to be completed.
BillySaturday said...
Trump is implicitly attacking a co-Equal branch of government with his insult of "so called judge". He doesn't honor the independence of the Judiciary.
Last I heard, the Administration is obeying the order and prosecuting proper appeals.
That's known as "honoring the independence of the Judiciary."
If there is a "Thou shalt not criticize a decision of a sitting Judge" rule in your "Honoring the independence of the Judiciary" Book, then I'd like to have a word with you re: What San Fran Nan, et al have been saying about Judge Gorsuch ......
The gorton decision in Boston, was a remarkable piece of writing as opposed to the Robert ruption
Chuck, so called, ignores the legal reasoning from other judges and focuses on the Liberal from Seattle. Unexpectedly!
Yes nominally citing parents patrae, it doesn't mention any of the cases that refer to the point
Science fiction writer Jerry Pournelle opines that the House of Representatives should pass a bill of impeachment in this case; Judges don't control foreign policy.
https://www.jerrypournelle.com/chaosmanor/separation-of-powers-superbowl-li-a-correction-more-on-health-care-the-map-is-not-the-territory/
"i'm amazed at the hoops you trumpists are jumping through, all of a sudden the imperial presidency is not so bad?... what happened to the beloved constitution we all love so dear?"
What happened? We decided that the Constitution is not a suicide pact, and that until we win Civil War 2 we'll just have to put it in a safe place while we kill off people like you who will never abide by it anyway.
"We decided that the Constitution is not a suicide pact, and that until we win Civil War 2 we'll just have to put it in a safe place while we kill off people like you who will never abide by it anyway."
I've always wondered WTF this stupid phrase--"The Constitution is not a suicide pact"--is supposed to mean. That whenever any crisis arises, however slight, we "put it in a safe place," (i.e., we ignore it), the better to defend ourselves against the threat du jour, at which time we take the Constitution out of its "safe place" and start paying lip service to it again?
I'm 223 comments in and nobody even brought up the one justification for "so-called" that isn't a personal attack?
Not saying whether it is a good idea or the chances for success, but based on the overreach in scope of ruling and the utter lack of any sort of legal reasoning to guide anybody going forward as to how to craft policy that would meet muster, perhaps Trump was considering impeachment.
I can hear the gasps all around as I'm writing this. Impeachment has to be off the table because...
The judge didn't do his job to provide a clue as to how the administration can change course and pass muster. He committed his dereliction of duty in such a way that it is guaranteed to waste the whole nation's time in additional futile crafting of orders that merely guess at what is the actual problem.
This is not good behavior.
Isnt Gorsuch stilla judge? Some of the things said abt him by various senators seems pretty bad....
It does not matter what happens to the EO next.
It already did it's job of earmarking HB1's and tech firms for extra scrutiny/taxes/regulations, and as a bonus, highlights the problem of a judiciary trying to play president and vandalising the law[a] in order to do so. As trollage goes, this is probably one of the most effective ways of mooning the maximum of people ever.
Trump and his team have a big appetite for fighting, these are guys who have won big in their life so far(and, in the biggest shark ponds available), and 'fixing' govt. is about the only exciting challenge of decent size left at their skill level.
The punters love the show, think of just how many millions out there are currently hoping to see that tech and law 'parasites'[b] get their comeuppance, Tom and Jerry style.
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[a] Everyone knows the law is corrupt and insane, but no-one likes it to be that way, especially not in that in-your-face style that insults people's IQ and last vestige of honour our culture pretends to have.
[b] I write parasites because this is what many people perceive tech and the law as --- always a problem, never a solution. In essence an enemy no-one feels sorry for, but a mere cartoon figure.
Blogger TM Lutas said..
The judge didn't do his job to provide a clue as to how the administration can change course and pass muster.
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Picture kid with arms crossed : "No"
Why?
"Cuz."
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