Althouse: Joe Scarborough is so upset with Stephen Miller that he can't let Mika Brzezinski get a word in edgewise.

February 14, 2017

Joe Scarborough is so upset with Stephen Miller that he can't let Mika Brzezinski get a word in edgewise.

But she does get in a good deal of theatrical mime of the think-I'm-gonna-barf and yikes-I'm-fainting variety.

Joe's main point seems to be what a terrible communicator Stephen Miller is, which I interpret to mean that Stephen Miller really got his job done.

Joe's secondary point is that everybody knows judicial supremacy is written in the nation's founding documents. How about getting a law professor on the show who can calmly talk about the scope of judicial review, including the limits on it? It's ridiculous for Scarborough to just emote for 10 minutes on the subject. There's a difference between judicial independence and judicial supremacy and there are any number of other details that might be enlightening. Instead we get Scarborough arguing basically by showing how upset he is... he and his shushed-up sidekick Mika.

Ironically, he's purporting to loathe the strong, absolute speaking style of Stephen Miller, but he's a more extreme example of the same kind of thing.

71 comments:

PB said...: People lacking the gene for irony.; 2/14/17, 8:39 AM
Jupiter said...: Are they mansplaining again? We'll get a team in there just as soon as we can!; 2/14/17, 8:44 AM
mezzrow said...: Where is Margaret Dumont when you need her?; 2/14/17, 8:44 AM
Brent said...: Everything you said here is correct. Stopped watching years ago because of the stupid and careless over-reacting.

Joe is aware Trump pretty much watches every weekday (Yrump has said it).; 2/14/17, 8:46 AM
Hagar said...: I thought John Marshall just invented judicial review and everybody (except Jefferson and his republicans) agreed that this was a good idea and the Framers should have thought of that?; 2/14/17, 8:56 AM
Amadeus 48 said...: Yrump? I sense a meme coming on. Qbama? Hxllary? Mewt? Narco? Crud? Jez? Bernix? Phocahontas?; 2/14/17, 8:57 AM
Sebastian said...: "It's ridiculous for Scarborough to just emote for 10 minutes on the subject." Save yourself the trouble: just copy and paste, then fill in the blanks. "It's ridiculous for ignorant MSM flunky x to [say, do] y on subject z."

"he's a more extreme example of the same kind of thing." Thanks for noticing, but save yourself time: just copy and paste, then fill in the blanks. "Ignorant anti-con MSM figure x accused GOPer y of doing nefarious doubleplusungood thing z while showing a more extreme example of the same thing."; 2/14/17, 8:59 AM
Bob Ellison said...: What a strange view of history!

This is not small stuff. This Joe guy thinks he's 100% correct. Jefferson invented judicial review, and "judicial supremacy" is a real thing. That's what squishes like this Joe guy think, and are taught in schools today.; 2/14/17, 9:07 AM
zipity said...: In his defense, Joe has the IQ of your average grape...; 2/14/17, 9:08 AM
Jupiter said...: Stephen Miller is clearly a White House Supremacist.; 2/14/17, 9:08 AM
Bill, Republic of Texas said...: Mika is a hooker.; 2/14/17, 9:08 AM
Matt said...: "[Judicial review] was enshrined in Madison's constitution . . ." Stopped listening. Scarborough clearly doesn't know what he is talking about.; 2/14/17, 9:10 AM
Fernandinande said...: France builds wall to keep migrants out:

France puts the Eiffel Tower behind an 8ft-high glass wall to protect the monument from terrorists following attack at the Louvre; 2/14/17, 9:10 AM
Humperdink said...: I saw Scarbro's screed yesterday on Miller. The Morning Rino put a series of clips together on Miller's Sunday appearances. I watched the clips and found nothing with which to disagree. Judicial activism was one of the many planks in Trump's victory.

Miller was an aide to Sessions in his earlier life. All the more reason to say Amen.; 2/14/17, 9:12 AM
Meade said...: "Tags: Joe Scarborough, law, Mika Brzezinski, Steve Miller..."

They get their lovin' on the run
Ooh, ooh, ooh, ooh; 2/14/17, 9:13 AM
Roughcoat said...: Joe has a middling-to-mediocre intellect. Typical of his profession.; 2/14/17, 9:14 AM
Anonymous said...: AA: It's ridiculous for Scarborough to just emote for 10 minutes on the subject.

It's not ridiculous, in the sense that that's he's certainly not getting paid to produce good-quality disinterested debate, but propaganda. Emoting works just fine for that purpose, if you do it right.

It is ridiculous, in that the quality of the propaganda produced is in such decline that even rhhardin's "soap opera women" (of both sexes, the intended audience) are probably starting to notice how shabby it is.; 2/14/17, 9:14 AM
Gusty Winds said...: Scarborough as a 'conservative' probably has to sell a certain portion of his soul to survive on MSNBC. However he does love the sound of his own voice, and leaves wiggle room so he can be on both sides of the argument and and lecture with the direction of the morning's wind.

Last week he was tweeting regarding the 9th Circuit: "My guess is that the [Supreme] Court would not even rule on the merits of the case because they would find the plaintiffs would not have standing."

He then proceeds to go after Stephen Miller for basically saying the same thing regarding judicial supremacy/independence/restraint.; 2/14/17, 9:14 AM
Ann Althouse said...: "I thought John Marshall just invented judicial review and everybody (except Jefferson and his republicans) agreed that this was a good idea and the Framers should have thought of that?"

No. It's in Federalist 78.; 2/14/17, 9:14 AM
Ann Althouse said...: The better question is why didn't Marshall cite Federalist 78.; 2/14/17, 9:15 AM
David said...: They are not on TV news for their deep knowledge or high intellect. But rather quickly they come to believe that they are.; 2/14/17, 9:16 AM
Guildofcannonballs said...: http://www.imdb.com/name/nm1493163/?ref_=ttfc_fc_cl_t22

That guy from "Hail, Caesar" who played Mr. Smitrovich the disdainful Commie photographer and, oh yeah, I guess he is in Girls too, should play Miller in the movie.

Laslo can write it sure sure, I just wanna run the casting (for men) couch (for young women).; 2/14/17, 9:19 AM
Gusty Winds said...: Like Madonna, Scarborough has had to betray his roots to make sure he continues to enjoy the fruits off the elitist tree he now eats. His past supporters from Pensacola, FL when he was in the House overwhelmingly supported Trump...and they did so early on in the campaign.

Joe is a loudmouth in the morning, and a self-proclaimed Manhattan rock star at night playing in his band.

Mika always has that same puzzled look on her face like she can't quite understand what she's hearing. Tucker Carlson uses the same look to a much more comedic effect.

Either way, it's all feigned outrage.; 2/14/17, 9:19 AM
traditionalguy said...: Poor Joe . He feels the audience's desperation. The Dems have nothing left except Judicial Review procedural delay. Their assertion of Due Process rights for immigrants is insane unless the USA has agreed to Rule by United Nations apparatchiks.; 2/14/17, 9:21 AM
Gusty Winds said...: Federalist 78: In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

Seems the last sentence is the most important in Federalist 78, and where our courts and its liberal active members consistently fail.; 2/14/17, 9:27 AM
David said...: "The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

It did not quite work out that way. Courts have moved into these and other areas and the executive and legislature have found it difficult to correct the overreaches. The theoretical power to do so is there, but the actual use of that power is constrained. Why and how it is constrained is a long story.; 2/14/17, 9:27 AM
Titus said...: I don't watch this shit but I did watch Stephen Miller, not on the tele,and thought he was kind of hot. I was curious what he looked like naked.; 2/14/17, 9:31 AM
Qwinn said...: I used to like Joe, but he utterly lost me when he said he could vote for John F'n Kerry. That was many years ago.; 2/14/17, 9:31 AM
robother said...: Mika loves it when Joe feigns outrage. She always yields the balance of her time.; 2/14/17, 9:34 AM
wwww said...: Miller came across as shout-y on the morning shows.

Joe shouldn't have used Andrew Jackson as a good example of a Pres. who had a reputation of respecting the courts. "John Marshall has made his decision; now let him enforce it!"

Getting real tired of all the drama. Would like the NSC to be in good shape. The rest of the world is watching.; 2/14/17, 9:39 AM
Peter Irons said...: Scarborough has never been interesting to me precisely because his analyses are so erratic, random, and personal. He is another example, an extreme example, of the common journalistic error of thinking that because he has a platform that his opinions are therefore self-evidently rational and well-informed.; 2/14/17, 9:43 AM
damikesc said...: I figured Joe knew that judicial review came from Marbury v Madison, not the Constitution itself. I was wrong.

And I assume Marshall didn't cite Federalist 78 because his decision, in his eyes, wasn't based on it. Did he write in the future to say that's where he ruled from?; 2/14/17, 9:46 AM
Nonapod said...: I haven't watched this and I've never watched anything of Joe Scarboroughs. I just get the impression that he's a typical cable news show guy, overbearing and insufferable. Any salient point such people may have is lost in a wash of emotionality and questionable conclusions. But judging from the ratings some of these clowns get, people really love that sort of thing. People reward the Yelly McYells-a-lots of the world. I wish they didn't, but they do.; 2/14/17, 9:49 AM
CWJ said...: Fernandinande said...

"France builds wall to keep migrants out:

France puts the Eiffel Tower behind an 8ft-high glass wall to protect the monument from terrorists following attack at the Louvre"

What if they throw stones?; 2/14/17, 9:51 AM
Chuck said...: I agree with you, Professor; Joe Scarborough was as much of an absolutist propaganizer as was Stephen Miller. A legal scholar (and let's remember that Stephen Miller is a pure political operative with a Poli Sci degree from Duke, and not a lawyer) would have advanced the conversation in a way that Joe Scarborough didn't.

Under any close examination from a legal scholar, I think that Stephen Miller would have been substantially debunked; you didn't say that, Ann. You actually didn't say one way or another. I think that both Miller and Scarborough should be listening to some better legal experts.

But Joe Scarborough is a lawyer! And one who didn't simply get out of law school and walk into a congressional office. Scarborough had a sort of varied, if brief, career in north Florida. I think Joe's been on tv and away from legal study for too long.

This is yet another valuable example of your cruel neutrality, Ann. It just seems to me that neither Stephen Miller nor Joe Scarborough come out of this contretemps looking good.; 2/14/17, 9:51 AM
Chuck said...: Notwithstanding the fact that Stephen Miller is not a lawyer, does anyone else think that he bears an uncanny resemblance -- in appearance and especially in demeanor -- to longtime Trump mentor Roy Cohn?; 2/14/17, 9:54 AM
Jake said...: If Trump upsets Joey, thinking about Jefferson's conduct must make him wet his pants:

"Jefferson's reaction to McCulloch was especially peevish and extreme. He endorsed attacks on the decision published by the radical states' rights partisans Spencer Roane and John Taylor, agreeing that the Supreme Court had no power to review the constitutionality of state laws or to second-guess the decisions of state courts. Later, he seemed to deny entirely the Supreme Court's power to hand down binding interpretations of the Constitution."; 2/14/17, 10:01 AM
Drago said...: "lifelong republican" Chuck: "Notwithstanding the fact that Stephen Miller is not a lawyer, does anyone else think that he bears an uncanny resemblance -- in appearance and especially in demeanor -- to longtime Trump mentor Roy Cohn?"

Do you have any other utterly irrelevant questions you'd like to pose?

Perhaps pertaining to some weird tonal similarities between any random conservative and Olaf the Snowman?

Fashion similarities between any random conservative and Willy Wonka?

"lifelong republican" Chuck - Asking the questions that no one else is asking....because the questions are moronic.; 2/14/17, 10:04 AM
Unknown said...: "...cruel neutrality" ?

Yeah, its called throwing red meat into the hungry crowd. It is, co-incidently, just how the talk-radio jocks and the morning political shows operate.; 2/14/17, 10:05 AM
robother said...: "an uncanny resemblance--in appearance and especially in demeanor"

Lifelong republican, spreading the pixie dust.; 2/14/17, 10:05 AM
mccullough said...: I want Scarborough to sing "Under My Thumb" to Mika.; 2/14/17, 10:08 AM
dreams said...: I think Mika Brzezinski is very feminine and so appealing that I can overlook her liberal views. I like how she reacts when Joe Scarborough gets on her case for something he takes exception to.; 2/14/17, 10:13 AM
traditionalguy said...: Joe and Mika are openly lovers, both of whom left their long time spouses and families to enjoy each other full time. They are not expected to be loyal to a political point of view, if and when another one comes along they will jump it.; 2/14/17, 10:29 AM
virgil xenophon said...: mccullough@ 10:08AM

LOL! :); 2/14/17, 10:33 AM
dreams said...: I liked his performance too, Stephen Miller.; 2/14/17, 10:33 AM
Comanche Voter said...: Keeping progressive or quasi liberal clowns like this all wee wee'd up should be an all day full time job---that is if they had the emotioonal maturity of a four year old child; but since they don't it's easy peasy. You can get 'em all riled up in oh say no more than 10 minutes work a day; leaves the rest of the day free to get things done.; 2/14/17, 10:43 AM
Pianoman said...: Mansplaining: It's Different When The Left Does It Because Shut Up.; 2/14/17, 10:58 AM
Kevin said...: Mika often can't get a word in and sits there silently outraged about the topic under discussion.

OTOH, when she does speak you already know what she's going to say.

Joe tends to play to the level of his guests. His panel this morning was out for blood, then a one-on-one with Tom Cotton brought him back to reality, and then it was back to the panel.

On some Mondays he sheepishly comes back from taking to people outside the DC-NYC-BOS corridor to remind his viewers that the entire world does not, in fact, think Trump should be immediately impeached.

And then he spends the next segment reining in Donny Deutsch...; 2/14/17, 10:58 AM
Curious George said...: Joe's tappin' that.; 2/14/17, 11:09 AM
Gahrie said...: The better question is why didn't Marshall cite Federalist 78.

Probably because Federalist 78 concentrates on judicial review as a constraint on laws passed by Congress, and Marbury V Madison was about over ruling the actions of the Executive branch.; 2/14/17, 11:28 AM
BN said...: If Mika wants to actually have a speaking role on "The Morning Joe," then Mika should change her name to Mikiato.; 2/14/17, 11:43 AM
Hagar said...: and Marshall's decision, or non-decision, stands because it was "accepted by the judges at common law."; 2/14/17, 11:51 AM
BN said...: Scarborough, btw, is just another lifelong Republican who actually does read the articles in Playboy.; 2/14/17, 11:52 AM
Etienne said...: This comment has been removed by the author.; 2/14/17, 11:55 AM
Brando said...: Wait, is Ann concern-trolling Mika Brazonski? Right there in the blog post title?

If you don't like watching rude fatuous people talking over each other you shouldn't be watching cable news.; 2/14/17, 11:56 AM
Brando said...: "Joe's tappin' that."

Sometimes I don't think there's enough cable news fan fiction. Oh, the scripts I could write...; 2/14/17, 11:58 AM
BN said...: Chuck said, "But Joe Scarborough is a lawyer!"

Oh, that explains everything.

Carry on.; 2/14/17, 11:58 AM
JZadok10 said...: More than half a century after Marbury, President Lincoln felt compelled to remind the nation of the danger of judicial supremacy:

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.

"At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."; 2/14/17, 12:00 PM
buwaya said...: No-one is arguing reason or law. This is war, cold so far but war nevertheless, and the only thing that matters on both sides is propaganda.

Things have been sliding into this pit for decades, and now there is no way out.; 2/14/17, 12:06 PM
traditionalguy said...: Yes, Joe is a Southern Trial Lawyer.Of course he ran for The House as all southern lawyers do for the PR effect. But he accidentally won an open seat in the House Of Representatives.

The Panhandle is a South Alabama Agricultural population with half the population to which has been added, since WWII, either active duty military or retired Military and civilian weapons engineers who served at Pensacola NAS and Eglin AFB etc.

After Joe explored DC, which was much busier than the Panhandle of Florida ( that voted 88% for DJT,) he got a gig on Cable TV as a young designated Conservative. But he is a chameleon at best.; 2/14/17, 12:13 PM
virgil xenophon said...: "But he is a chameleon at best."

And on alternate days a weather-vane..; 2/14/17, 12:22 PM
Bay Area Guy said...: It'd be nice if Joe S mentioned the phrases "Separation of Powers" or "Federalism" or, even better, understood their concepts and structure within the US Constitution.

If he spews nonsense like"..everybody knows judicial supremacy is written in the nation's founding documents.." -- then he doesn't quite get the concept.

I am reminded of the quote (probably apocryphal) of the last great Democrat President, Andrew Jackson, about Chief Justice Marshall: "John Marshall has made his decision, now let him enforce it."

The President controls armies and prosecutors. The Supreme Court writes stuff on paper. Let's have some perspective here, Joe S.; 2/14/17, 12:32 PM
hombre said...: I didn't watch all the BS, but Miller seems to be correct about the law on the immigration order. He is not very appealing. I hope we won't be seeing more of him and less of KellyAnne.

Morning Joe thinks judges are supreme? He is immersed in the circle jerk at MSNBC.; 2/14/17, 12:37 PM
hombre said...: Chuck (channeling Shumer): "... I think that Stephen Miller would have been substantially debunked ...."

Justice Jackson wrote in concurrence: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."

The President's immigration order clearly fell into this category and does not affect the rights of American citizens directly. Where did Jackson go wrong? Where did the federal courts get the authority to make foreign policy in this way?

Other than your usual anti-Trump rhetoric how would a "lifelong Republican" go about debunking Miller on his insistence that the courts erred?; 2/14/17, 1:08 PM
The Bear said...: http://conservativefiringline.com/nyt-cbs-incites-violence-trump-official-shows-stephen-millers-head-pike/

Given that both CBS AND the NYT are calling for violence against Trump and his officials - one wonders when the dam is going to break?; 2/14/17, 1:14 PM
Larry J said...: Ann Althouse said...
"I thought John Marshall just invented judicial review and everybody (except Jefferson and his republicans) agreed that this was a good idea and the Framers should have thought of that?"

No. It's in Federalist 78.

Have you read the Anti-Federalist Papers on the topic (#78 & #79)?

From #78: 1st. There is no power above them that can correct their errors or control their decisions. The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits. In this respect it differs from the courts in England, for there the house of lords is the highest court, to whom appeals, in error, are carried from the highest of the courts of law.

2nd. They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment [due] to want of capacity. It is expressly declared by the constitution, “That they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office.” The only clause in the constitution which provides for the removal of the judges from offices, is that which declares, that “the president, vice- president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.

3rd. The power of this court is in many cases superior to that of the legislature. I have showed, in a former paper, that this court will be authorised to decide upon the meaning of the constitution; and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature. For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power. The legislature can only exercise such powers as are given them by the constitution; they cannot assume any of the rights annexed to the judicial; for this plain reason, that the same authority which vested the legislature with their powers, vested the judicial with theirs. Both are derived from the same source; both therefore are equally valid, and the judicial hold their powers independently of the legislature, as the legislature do of the judicial. The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature.
...
When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it.; 2/14/17, 2:10 PM
Hagar said...: Hamilton's is a philosophical discussion; Marshall gave it reality, though in an Obi Wan Kenobe way hat left Jefferson nothing tangible to fight against.; 2/14/17, 2:32 PM
Chuck said...: hombre said...
Chuck (channeling Shumer): "... I think that Stephen Miller would have been substantially debunked ...."

Justice Jackson wrote in concurrence: "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."

The President's immigration order clearly fell into this category and does not affect the rights of American citizens directly. Where did Jackson go wrong? Where did the federal courts get the authority to make foreign policy in this way?

Other than your usual anti-Trump rhetoric how would a "lifelong Republican" go about debunking Miller on his insistence that the courts erred?

That is so easy! A federal court is empowered to hear a claim that a presidential order on immigration amounts to an illegal denial of due process and equal protection rights under the Fifth Amendment.

A federal court should not substitute its judgment on whether a threat is real, or how serious it is, or what a better executive order might look like.

But a federal court is clearly empowered to hear a claim about the procedural details of the EO.

I am not agreeing with the District Court judge's ruling in the Washington/Minnesota case; do you get that? I am not suggesting, at all, that the President doesn't enjoy broad powers in this area. I think that these rotten factual cases created by the Trump administration might actually do some harm to valid Executive Branch powers.

But come on, dude. Are you suggesting that if (and we know this was NOT the case in Trump's EO) a President wanted to ban all Muslims from entering the United States, that he could do that? What if the President wanted to ban all blacks, or all Asians? Could the federal courts even hear a complaint about such an EO?

You were quoting Justice Jackson's dissent in Korematsu; that wasn't an immigration case, per se. Korematsu was a wartime case, and it involved American citizens. I accept the idea that the Jackson dissent was a landmark opinion, for a dissent, but I'm not sure how it fits here.

You seem to think that the whole thing with the recent Washington case was the President dealing with non-citizens. Again, the President's EO's are at their LEAST reviewable when we are talking about foreign non-citizens. That distinction begins to slide legally, when the non-citizens are visa holders (availed of U.S. law, to which due process and equal protection principles attach) and to refugees under treaty law which triggers similar, although probably lesser, Fifth Amendment concerns.

Then there are the state interests as asserted by the plaintiff states.

Again, I am not arguing with you about how the case should have turned out. I am only asserting that non-lawyer Stephen Miller is full of shit when he talks in such broad absolutist terms about what federal courts can even consider.

Stephen Miller ought to go back to the White House, get some better lawyers, and craft a better EO.; 2/14/17, 3:20 PM
hombre said...: Chuck: "That is so easy! A federal court is empowered to hear a claim that a presidential order on immigration amounts to an illegal denial of due process and equal protection rights under the Fifth Amendment." Non-resident aliens have no due process or equal protection rights. I do not believe any treaty relating to refugees, if such exists, overrides the power delegated to the President to control immigration. I believe Miller is correct about this exercise of plenary power and that the courts lack jurisdiction over the ban even if it were based on race or religion absent a statutory limitation.

"You were quoting Justice Jackson's dissent in Korematsu." No, I was quoting his concurrence in Youngstown Sheet & Tube, an opinion widely quoted as persuasive on the issue of presidential power.

I also assume that if a resident alien had been a party to the Washington action, the fatuous "standing" arguments would not have been made.

In short, the assertions I heard him make were more defensible than the actions of the courts on the Washington case. Your positions on Trump and his minions continue to be immoderate. If Trump cannot make headway against the Democrats and the mediaswine, we are toast.

And yes I think the order should be rewritten.; 2/14/17, 4:17 PM
Chuck said...: hombre;

First, please forgive me for assuming without checking (always a bad idea) which Justice Jackson opinion you were quoting. I agree with you about what an important decision Youngstown Sheet & Tube was. We all spend considerable time on that one in law school, and the opinions get jumbled because it was such a hard, fragmented decision. Jackson's concurrence was indeed an important one. Anyway, kudos to you for the citation and for correcting me.

Now on to the area where I understand you, and where you and I have a respectful disagreement. I'm happy to engage on this, because you get it.

I want to emphasize again that I don't doubt the president's broad range of power on immigration. I just want you to understand that if a party can make a claim that U.S. law (in the form of visa applications, visa extensions, grants of visas, grants of refugee status, processing of refugees, etc.) triggers due process and equal protection arguments.

It is one thing, for some guy off the street in Lybia who has never before had anything to do with the United States to say that he wants to come here. Immigration authorities, acting under presidential orders, can say no to the guy. But if the guy is was already granted a visa, or has already been classified as a refugee, or is somehow else being processed as a refugee, he might have a federal court claim IF he can make a claim that equal protection and due process concerns are being violated. I'm not suggesting that everybody gets in. I am saying that in some cases, there may be legitimate federal court claims.

I heard Trey Gowdie (now there's another future Attorney General, I hope) say much the same a few minutes ago on FNC.

Heck, the law generated out of Hamdi v Rumsfeld attaches due process rights to unlawful enemy combatants. "Unlawful enemy combatants" are a group that ought to be given the MAXIMUM leeway for management by a President who is also the Commander in Chief. I'm someone who believes firmly in the legality of operating the detention facility in Guantanamo Bay, and in giving the President and the military free rein in those military prosecutions. But under almost any federal judge's understanding of the law, the mere fact of there being federal court review under principles including Fifth Amendment due process and equal protection concerns is not wrong, and not illegal.

And what Stephen Miller was saying was not that the Washington District Court and the Ninth Circuit got it wrong; he was saying that the courts had no business reviewing the matter. That's just weird, sub-legal trash talk. (Trash talk that Miller seems to do well with, given his rhetorical skill.)

I am going to say again; I am not at all comfortable with what the Washington judge did, or what the Ninth Circuit did. I am not defending them. I am also not siding with the Trump Administration on what I think was a dubious order, after a ridiculous pronouncement within the Trump campaign.

I am just pointing out what routinely does get reviewed in federal court as a matter of settled law.; 2/14/17, 7:23 PM
mtrobertslaw said...: I couldn't get past Joe's beady eyes so I missed his entire soliloquy. I'm guessing he must have said something important, but maybe not.; 2/14/17, 10:33 PM