“The court did not dispute that the president acted at the height of his powers in instituting” the executive order’s “temporary pause on entry by nationals from certain countries that sponsor or shelter terrorism,” the brief said. The brief also said the order’s “text and operation are religion-neutral.”...Quotes from Donald Trump's petition to the Supreme Court for a writ of certiorari, in the NYT article "Trump Administration Asks Supreme Court to Revive Travel Ban."
“This order has been the subject of passionate political debate,” the brief said. “But whatever one’s views, the precedent set by this case for the judiciary’s proper role in reviewing the president’s national security and immigration authority will transcend this debate, this order, and this constitutional moment. Precisely in cases that spark such intense feelings, it is all the more critical to adhere to foundational legal rules,” the brief said.....
June 2, 2017
"The stakes are indisputably high: The court of appeals concluded that the president acted in bad faith with religious animus..."
".... when, after consulting with three members of his cabinet, he placed a brief pause on entry from six countries that present heightened risks of terrorism... "
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92 comments:
Once again, the law is an ass. People will not put up with it for long.
The law is fine; it's the judges that are the problem
The Federal District Judge in Honolulu should just enjoin Trump for appealing because of "religious animus" .
The only World Relgion allowed is Climate Goddess worship, and Trump better not blaspheme Pele.
Could be another one of those hard fought leftie victories that will ultimately bite them in the ass.
the precedent set by this case for the judiciary’s proper role in reviewing the president’s national security and immigration authority will transcend this debate, this order, and this constitutional moment
I feel like we've moved beyond precedent mattering, or at least it only matters until a judge decides it doesn't. It seems we've entered an era of absolute judicial supremacy.
What if Kennedy retires? Left will go nuts (again) with Trump's next appointment. Armageddon.
So if congressional Dems and Obama publicly criticized Christianity, can Catholic charities or Sisters of the Poor block Obamacare due to religious animus?
President Fen would find out where these judges live, buy up ALL adjacent proprty, declare them section 8 reserved for the most violent refugees.
Macron lectured Americans for refusing to be screwed for a Glcbal Vision of climate control by a Global Government..
He let the cat out of the bag. Fuhrer Merkle will not be pleased.
Trump wins either way. Judges and the law will get people killed, or the temporary ban gets enforced.
David,
ARMAGEDDON XXVI. This time it's for real!
coming soon to a theatre near you
So, are the non-existent "rights" of non-citizens (many of whom have expressly stated that they mean us harm according to the lights of their political system religion) superior to the established/written protections of American citizens?
Is the US Constitution really a suicide pact?
Stay tuned.
In the meantime, consider the following,
https://en.wikipedia.org/wiki/The_Constitution_is_not_a_suicide_pact
I think the real reasoning is as follows:
Trump is "NOT MY PRESIDENT", so he lacks the authority for this order.
What difference, at this point, does it make?
This time Tony may get out of bed on the right side and stop the insanity for the moment, but we already know that a number of prog judges will do anything to pursue their political agenda. If they can do it in an area where the Constitution, federal law, and precedent are completely clear, they can do it anywhere.
The topic of immigration aside, SCOTUS needs to to review the case to rule on whether so-called judges have the chizzputz to derail a sitting President's constitutional authority.
A legal prohibition would have to be more plant-like.
Trump's rejection of the Paris Accord is the equivalent of God upending the idol Dagon when the Ark of the Covenant was placed next to it. He has attacked the global religion's chief god and it has fallen down, broken.
Trump is the only true leader on the world stage. I'm impressed.
Bad facts make bad law.
In a perfect world the supreme Court will split 5/4 against Trump and then Trump will tell them to pound sand.
Sadly, if he loses, I don't think he would do this.
So, I hope he wins.
Reject the appeal!!1 it is a true violation of the Constitution.
vicki from Pasadena
I remember when we were a nation of laws. Good times!
Where did the recent England bomber visit? Was it Syria?
@rhhardin: The brevity of animus is whit.
Blogger Earnest Prole said...
Bad facts make bad law.
Facts, good or bad, shouldn't make law.
Facts are slippery things.
Does the sun rise in the east?
No, the earth spins, west to east.
Does the earth go around the sun?
Is the sky blue?
Not when it's overcast.
Reason should make law, not facts. Good reasoning is easier to determine than good facts.
Why do you think it's unconstitutional, Vicki?
"What if Kennedy retires?"
The left will never let him. Until Trump leaves office there is only karoshi.
"Trump is the only true leader on the world stage"
I gotta admit, I was resigned to "buffoonery but better than Hillary". But he's been impressive. Yesterday's weasel statements by European leaders really brought it into focus - they looked small and petty in comparison.
"Yesterday's weasel statements by European leaders really brought it into focus - they looked small and petty in comparison."
When you sound like John Kerry, stop talking.
Like welfare brats, demanding a free ride and then throwing a snit because you didn't fall for their sad sob story.
When will the Supremes take this case?
Special session instead of them going on summer vacay?
Or is this just no big deal?
I imagine there is less practical pressure on the judiciary to act here, than might first appear, because absent a new ruling Trump can just tell State to tell the relevant consular officers and immigration officials to take....as much time...reviewing visa applications and entrants...as they need or want...to ensure adequate safety etc.
Blogger Fen said...
Why do you think it's unconstitutional, Vicki?
An answer is forthcoming. Hold your breath.
This is going to be interesting, all right.
I do think there's a heck of a constitutional issue here. Can it be that the president loses the powers delegated to him under the Constitution by means of the Congress if the courts decide that the president is an SOB? Because that's what multiple districts have decided. They didn't put it in those words, but that's what they decided. Presumably they would not choose to overrule Congress if Congress passed a bill to do the same as the Executive Order - but who knows now? Because WTF, if the courts have the right to decide that the president's an SOB, don't they have the right to decide that Congress is a conglomeration of deplorables?
The obvious problem with that is that it shifts all political combat to the court system, which is the least responsive to the people (by design) of the three branches of government. But that is where it ends up, and if these decisions stand, the people are going to want judges with five or ten-year terms instead of life terms.
These stupid, stupid judges should all sit down and read the Old Testament, with special reference to "Judges". Thousands of years ago, rule by judges was attempted, and it was a bitter failure. In the modern era, we have tried to create a dual power regime, with judges being the breaks on misuse of executive powers. But this all breaks down if judges assume the power to effectively nullify elections. Which is all that they have done here. ALL.
This is such an easy case. "Animus" is total legal and factual bullshit. Can you imagine if CJ Roberts cited Obama's false insistence that the Affordable Health Care Act did not contain any taxes to strike it down?
Where in the Constitution, or in the history of Anglo-Saxon jurisprudence - or anyone else's for that matter - does it say that the Judiciary gets to psychoanalyse the Executive and rule on whether the Executive's actions are legal or not depending on the judges' opinions as to what his motives might have been?
We're still using the Boy Wonder holdover as acting Solicitor General to argue this, aren't we?
The same one that got slapped around by two Appeals Courts on this very issue?
Somebody needs to step up their game and quit pussy footing around already.
I actually grew angry after I read the terms of Pars and then reviewed the snotty remarks by the Europeans. America is pretty much paying for the party, and the euros act like we owe it to them.
Fuck Europe. Islam can have it. Tired of their shit.
Do I understand this correctly?:
In terms of legal text the executive order is neutral. But some things that the President said in the past have been construed (for partisan political reasons) as being anti-Muslim, so the order is actually anti-Muslim and violates the law? Never mind the fact that most global terrorism is rooted in some degree in the Muslim faith? Never mind the fact that the order simply seeks additional time to properly vet certain immigrants and refugees for the purpose of protecting American citizens? So the order says something other than what the words by themselves imply?
Where did the recent England bomber visit? Was it Syria?
Libya.
She came, she saw, she killed him (Qa'Daffi)...making it possible.
Trump needs to hurry up with his de-Obamafication of the executive if he's to have any time left to clean up the judiciary.
My only problem with Trump on this issue is that the pause is a compliment to the rethinking of strategy, it is not integral to it. If he only needed 90 days of pause, well, 90 days has passed. Why does he still need the pause?
I've lost a lot of respect for federal judges (especially the CC judges) over last few months. This isn't a close/hard case based on the statutory law and prior SC precedent. Their attempt to create a new scheme whereby any one of the 2700+ federal judges can overrule the executive on matter of immigration/foreign policy is beyond bizarre/beyond unworkable. If this is not an 8-1 decision by the Supreme Court (Sotomayor is completely politicized and outcome driven), then a lot of us have underestimated how politicized even our highest court has become.
As many have opined on this issue, the judges concede that the order is perfectly Constitutional. If Obama had done this, there would have been no objection. The entire reason the order is being blocked is because Trump made some comments on the campaign trail that the judges interpret as animus and therefore judges have decided that Trump specifically cannot issue such an order. This is despite the fact that technically the "victims" of the order are not citizens and therefore have very limited Constitutional rights which do not include being able to visit the United States.
Trump or any President could have issued this executive order for any reason and it would be Constitutional. Some hypothetical President could have gone on live television and screaming "I F****** HATE FOREIGNERS!!!" and it would be Constitutional. There is no excuses for these judges. They are making Trump look good in comparison.
PS: And then the stupid, arrogant idiots compound the damage by trying to claim that it's anathema for anyone to criticize their decision in the political arena. WHAT THE HELL do they think they are doing?
We're facing two structural problems here. One is the slow encroachment of the judicial branch upon the powers of the other two branches of government; the second, woefully occurring at the same time, is that it appears the Democratic party is either trying to commit suicide or its leadership is too inbred to understand that it is committing suicide. This leaves the country without a way to evolve a healthy response to the judicial problems.
Tommy Duncan: "...understand this correctly?" That's how I read it also. Facially proper executive orders can be overturned if the judges decide they need to look at motive, and guess what, here comes a plaintiff alleging bad motive. Because not a one of us has ever said something that can be misconstrued, or openly referenced, to demolish our later words and works. That outrageous joke I told in the bar 20 years ago? Clear proof of bad intent.
Never mind the impossible scope this gives to plaintiffs and courts. Consider (as Niemeyer J. did in his dissent in the instant case) the effect on First Amendment for everyone.
It is a total intellectual collapse. And yet it is being posed as a real issue that could go either way.
Pass that Armageddon Special Blend popcorn, please.
In a perfect world the supreme Court will split 5/4 against Trump and then Trump will tell them to pound sand.
I love how pure and childlike these kinds of fantasies are, like an American President is some kind of medieval king or mafia godfather.
It's no longer a ban. Now it's a pause.
This reminds me of the narrative shift from catastrophic anthropogenic global cooling to catastrophic anthropogenic global warming to catastrophic anthropogenic climate change to finally just climate change.
They're still off. It's a delay correlated with the competence of foreign governments.
Also, the issue is whether principled alignment will be realized in character. Unfortunately, the NYT is stuck on [class] diversity including racism or judging people by the "color of their skin". Meanwhile, instructions received from the twilight fringe has informed liberal judges that the baby is not a baby but a colorful clump of cells.
tim maguire said...
Why does he still need the pause?
6/2/17, 10:51 AM
I don't think it is about the pause anymore cause as you say, that time has passed. The root issue has changed though. It is NOW about how any Fed judge feels they can overrule the law, the Constitution, and the President because of FEELZ. This can NOT stand and must go to SCOTUS to get a well deserved and earned smack down. Otherwise precedent has been set by screwy tier 3 judges.
"These stupid, stupid judges should all sit down and read the Old Testament, with special reference to "Judges". Thousands of years ago, rule by judges was attempted, and it was a bitter failure."
Actually, the rule of Shoftim (Judges) came to end when the Israelites demanded a king so they could be like the other nations. The prophet Samuel warned them against this choice, and history bore him out. The problem was that the Law was replaced by Feelings and Emotion. The first king, Saul, lost his authority when he let his feelings of compassion overrule his duty to the law.
We are in a similar situation now. The rule of Law has been supplanted by the force of emotions with appointed judges claiming a prophetic voice to explain the internal psychological (and hidden) voices of those they do not personally like "trumping" their duty to the law.
I have been deluded, apparently, that the concept of argumentum ad hominem was outre in the realm of the law. But, this no longer holds sway. Arguments no longer are evaluated on their merit; but, by the person who makes them. This is a volatile situation that has gripped the nation and bodes not well at all.
I grew up around the corner from the Supreme Court and always thought the physical structure of the building represented the fundamental, inalienable rights under the law, which was just and blind to personal attributes such as the color of ones skin or the color of ones hair. In the Old Country, my family were bomb throwing anarchists, commies, and gangsters; arriving on these shores, they foreswore their earlier sentiments to live in a land of law and opportunity.
One way or another, the Court's decision will side with either the Law or with Passion and phony prophetic voice. I pray for the Court to make the Right Choice.
Simple solution - Trump goes in for a medical procedure, Pence steps in as interim President, signs exact copy of previous executive order.
Ok not really, but you have to expect SCOTUS to ask about a similar scenario, just to show how dumb the ruling is.
Trump's own big mouth is what killed his Travel Ban. The courts so far have based their decisions on his intent, which he made perfectly clear for months and months on end during his campaign. Then he asks Guiliani how he can make a "Muslim Ban" look like a mere Travel Ban. The courts were not fooled.
"Trump’s order “speaks with vague words of national security, but in context drips with religious intolerance, animus and discrimination,” Chief Judge Roger L. Gregory wrote. He said the order conflicts with the 1st Amendment’s ban on “laws respecting an establishment of religion.”
“Congress granted the President broad power to deny entry to aliens, but that power is not absolute,” he wrote. “It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”
Much of Gregory’s opinion recited statements from candidate Trump, including his call for a “total and complete shutdown of Muslims entering the United States” as well as comments since his election that blamed Muslims for the threat of terrorism.
Those “statements, taken together, provide direct, specific evidence of what motivated” the travel order, Gregory wrote: “President Trump’s desire to exclude Muslims from the United States.”"
http://www.latimes.com/politics/la-na-pol-court-travel-ban-20170525-story.html
Seeing Red - the Manchester Bomber had been to Libya recently. He passed through Turkey and Germany recently. Both the US and French governments have said he was in Syria at some time in the last few years. But he never needed to be in Syria to be in contact/trained by ISIS. There's a big ISIS contingent in Libya already.
Also it turns out that the claims that the mosque reported him are false. There's a LOT of lying. Looks like a family thing, really. Sister said motive was revenge for bombings in Syria (blamed Trump), and is quoted to have said that whether he achieved his objective or not was between her brother and God. The younger brother knew. The father is believed to be a jihadist.
Libya may at this point have a larger active ISIS component than Iraq. Bombing attacks both before and after Trump's term have been aimed at breaking up the larger camps, but can't do anything about the dispersed units. Tunisia is building a giant wall at the Libyan/Tunisian border. Chad recently closed its border with Libya. Both are defensive moves against Islamic militants.
We are all waiting for the Ninth District Court to issue a ruling that Chad and Tunisia must remove their obstacles to Libyan refugees - there could be no other motive than animus against Islam for the action.
Here's some background on Libya from the NYT from March:
https://www.nytimes.com/2017/03/21/world/africa/libya-isis.html?_r=0
It's very much understated. Libya is a failed state.
The question RE the Manchester Bomber is who helped him build the bomb and who mixed the explosive? My guess is that it was at least partly the work of the mother, who is an engineer. It was a pretty darned good bomb.
Earnest: "like a President is some medieval king"
I know, kinda like when Obama stopped enforcing immigration law. Or made treaties in Paris without consent.
Good. Goose. Gander.
I think the Supreme Court should search the penumbra of the Constitution and declare President Trump unconstitutional and mandate a new election. The impeachment process is too 18th century and unworkable. The underlying intent of our Constitution is to get rid of Trump.
I imagine the reasoning behind the travel ban being struck out will be overturned because the judges are on record as saying someone else doing it may have been legal.
That's a terrible precedent.
Leftists hate the US Constitution, but think it applies to non-US citizens.
Got it.
President Obama obviously had animus toward our current immigration laws. His executive orders removing enforcement from "dreamers" and so forth had the intention of allowing them to stay forever and become citizens in spite of current law. Furthermore, Obama's intention was based on his expectation that the "dreamers" in the future will vote overwhelmingly for Democratic politicians.
Because of Obama's animus toward our current immigration laws, our so-call "judges" should have imposed restraining orders on all his executive orders that supposedly "prioritized" enforcement of such laws.
Would someone please remind these judges that lady Justice wears a blindfold?
The "logic" behind these decisions ignores one of the very foundations of western jurisprudence.
because the judges are on record as saying someone else doing it may have been legal
In keeping with the activist trend I can certainly imagine the Supremes granting the courts discretion to garner intent from speech, body language, side eye, anything it wants.
Inga: "The courts so far have based their decisions on his intent,.."
Lol
The politicized lower courts explicitly ignored actual existing supreme Court decisions which blow your intent argument out of the water.
But in a fun vein, you can forget any fake "common sense gun laws" because we all know your real intent is the unconstitutional destruction of the 2nd amendment.
Ah, but which judges are willing to face the wrath of their friends and family, by upholding the Constitution and law?
There was a time when such a question would have been absurd, but no longer. The legal "profession" has largely accepted that the Constitution and laws are to be continuously reinterpreted based on the judge's perception of evolving social and political norms. The text and history are only there as constraints to be rationalized around.
Everybody know this, including friends and families of the judges, who will view "the law requires it" as just lame.
btb, I put "profession" in sneer quotes because if there is no accepted, governing body of knowledge and rules, there is not a profession. Having its own jargon is not enough, every job has that. Having done away with the rules and history, people in the law business have no right to claim they are a profession, or even a trade. No more than public relations flacks, for example.
I know, kinda like when Obama stopped enforcing immigration law. Or made treaties in Paris without consent. Good. Goose. Gander.
We're in violent agreement.
Most Americans, left and right, grossly overestimate the power of an American President to act unilaterally. Barack Obama learned this the hard way when his immigration executive order was stayed by a judge and his climate-agreement non-treaty was unceremoniously dumped by his successor.
"Blogger chickelit said...
The topic of immigration aside, SCOTUS needs to to review the case to rule on whether so-called judges have the chizzputz to derail a sitting President's constitutional authority."
This is why I think that the Supreme Court will hear one of these cases, and will very likely reverse. These cases effectively detether judicial interpretation from precedent, and turn the judiciary from courts of law into the law of men. The reason that I expect that at least some of the progressives on the High Court will sign on with the conservatives is that this is almost an existential challenge to the independence of the judiciary (and the power and status of the Judiciary are jeleously protected by the Supreme Court). A bunch of progressive judges appointed by Dem Presidents have, essentially, said that they don't like Trump's policies, and so will use their judicial power to block those policies, regardless of their underlying legality and Constitutionality. Their version of Resistance.
Hagar said...
Where in the Constitution, or in the history of Anglo-Saxon jurisprudence - or anyone else's for that matter - does it say that the Judiciary gets to psychoanalyse the Executive and rule on whether the Executive's actions are legal or not depending on the judges' opinions as to what his motives might have been?
Apparently the philosopher-kings were already convinced of their psychic abilities:
II. Why Trump’s Statements are Legitimate Evidence of Discriminatory Motive.
The article is invalid, though, because it's written by Ilya Somin, whose own previous statements are legitimate evidence of discriminatory motive favoring everyone else in the world over US citizens.
"In crafting a three-part standard for evaluating whether or not Trump’s campaign-trail statements are appropriate to incorporate into the court’s analysis of the intent behind the travel ban, the majority writes:
"But we decline to impose a bright-line rule against considering campaign statements, because as with any evidence, we must make an individualized determination as to a statement’s relevancy and probative value in light of all the circumstances. The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action.
…
Just as the reasonable observer’s “world is not made brand new every morning,” McCreary, 545 U.S. at 866, nor are we able to awake without the vivid memory of these statements. We cannot shut our eyes to such evidence when it stares us in the face, for “there’s none so blind as they that won’t see.” Jonathan Swift, Polite Conversation 174 (Chiswick Press ed., 1892) [emphasis added].
The majority goes on, “The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers [emphasis added]. We decline to do so…”
Likewise, Judge James Wynn writes in his concurrence that, “[E]ven when the President invokes national security as a justification for a policy that encroaches on fundamental rights, our courts must not turn a blind eye to statements by the President and his advisors bearing on the policy’s purpose and constitutionality.”
And Judge Stephanie Thacker’s concurrence states, “Our constitutional system creates a strong presumption of legitimacy for presidential action; however, this deference does not require us to cover our eyes and ears and stand mute simply because a president incants the words ‘national security.’”"
Lawfare
... That's some stupid writing in the majority. If they believe that, then must we believe that the ACA was intended to do all the bad things Obama and Gruber admitted it was meant to do? Do we hold ALL politicians to this level of secret double thinking?
The stakes are not that high as the temporary 120 day period is already past. I predict the Supreme Court doesn't take the case.
I still don't understand how would-be immigrants from other countries get to decide our cultural and ethnic makeup for us. I like our current makeup just fine. Don't we have the right to main our current proportions just as they are? I am not aware of any crying need to address a shortage of any other religion or race.
Paul Ciotti said...
I still don't understand...
6/2/17, 12:58 PM
Well Paul, it is really rather simple. You are just not #WOKE enough and will need to go back for additional reeducation. Don't bother packing a bag, you will be supplied with everything you might need.
If executive branch is convinced that an action of a federal court was not taken in consideration of the law but in fact driven by the individual judge's animus towards the commander in chief, as shown by the judge's campaign contributions and consistent record of liberal and progressive activism over say a 35 year period, should the executive branch be free to simply ignore the decision of such judge as invalid and prejudiced? If not, why not?
If we are going to look beyond the office to the man or woman behind it in determining whether to give deference to the actions of the office, then let's make it apply across all three branches.
“In a perfect world the supreme Court will split 5/4 against Trump and then Trump will tell them to pound sand.”
I love how pure and childlike these kinds of fantasies are, like an American President is some kind of medieval king or mafia godfather.
How utterly fantastic it is to imagine that an American President might do like (not “some kind of medieval king or mafia godfather”) but a previous U.S. President — the founder of the Democratic Party, in fact — and at a time when the presidency was far less powerful — and reply to an adverse Supreme Court verdict with these words attributed to him: “John Marshall [Chief Justice of the Supreme Court] has made his decision, now let him enforce it.” (Whether or not President Andrew Jackson actually said those words, which is in doubt, he did what their sentiment suggests.)
"Trump's own big mouth is what killed his Travel Ban. The courts so far have based their decisions on his intent, which he made perfectly clear for months and months on end during his campaign."
So Roberts should have struck down the ACA because it was clear that, contrary to Obama's rhetoric and intention, it was not the case that if you liked your doctor you could keep your doctor?
“John Marshall [Chief Justice of the Supreme Court] has made his decision, now let him enforce it.”
Presidents may say anything they damn well please. Getting a federal agency to explicitly defy a ruling of the Supreme Court is another matter. Perhaps I've missed an example you could cite. Or perhaps you're imaging the President can call in air strikes.
So, since the great majority of Muslims are unaffected, and a minority are not exclusively affected, and there is no actual "ban-ban", the judges ruling does not expose Trump, but rather the judges' Pro-Choice religious/moral/legal philosophy and perhaps a sincerely held bigotry (i.e. sanctimonious hypocrisy).
We could have avoided this altogether if Obama had foregone indulgence in elective wars from Africa to the Middle East to Eastern Europe, and the subsequent forcing of catastrophic anthropogenic immigration reform (i.e. denial of emigration reform).
President Andrew Jackson did far more than just “talk.” He refused to accept the Supreme Court's (Worcester v. Georgia) decision — which validated an earlier Federal treaty that some 40,000 sq. km of land (twice the size of the modern state of Israel) belonged to the Cherokee nation and could not be infringed on by Georgia; Jackson contrariwise arranged a new treaty between the state of Georgia and the Indians which required the latter's removal elsewhere, after which federal troops were deployed to enforce the Cherokees' (and other Indians') transfer. Some 45,000 Indians were forcibly transported along the “Trail of Tears,” in the course of which some 4,000 died along the way.
@ Inga above, quoting approvingly:
And Judge Stephanie Thacker’s concurrence states, “Our constitutional system creates a strong presumption of legitimacy for presidential action; however, this deference does not require us to cover our eyes and ears and stand mute simply because a president incants the words ‘national security.’”"
Lady Justice could not be reached for comment.
Inga openly advocating for the overthrow of the US Government by making judges the President.
Nice.
--Vance
"Benjamin Wittes and I have written extensively on the surprising lack of deference shown by the courts to the revised travel ban—a document that at first seemed designed to clear the hurdles faced by the first executive order, which was both more bombastic and less carefully-lawyered. At the time, we argued that judiciary’s unusual willingness to push back against the executive branch at the confluence of two areas in which the President is usually granted great deference—immigration and national security—flowed from a lack of trust in Donald Trump’s fidelity to his oath of office. At the time, we speculated:
Perhaps … there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply…. In this scenario, there are really two presidencies for purposes of judicial review: One is the presidency when judges believe the president’s oath—that is, a presidency in which all sorts of norms of deference apply—and the other is a presidency in which judges don’t believe the oath. What we may be watching here is the development of a new body of law for this second type of presidency."
Lawfare
Some 45,000 Indians were forcibly transported along the “Trail of Tears,” in the course of which some 4,000 died along the way.
Fair enough: 180 years ago an American President behaved like a medieval king, and for all I know a godfather as well.
Question: If Donald Trump's "clearly expressed animus" to Muslims makes it such that he can't issue the executive order, does Justice Bader-Ginsberg's "clearly expressed animus" to Donald Trump make it so she can't hear a case that is "vs Donald Trump"? If this were a criminal case and the judge made comments about the defendant similar to the comments Bader-Ginsberg has made about Trump, won't he have to excuse himself?
"Perhaps … there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply…. In this scenario, there are really two presidencies for purposes of judicial review: One is the presidency when judges believe the president’s oath—that is, a presidency in which all sorts of norms of deference apply—and the other is a presidency in which judges don’t believe the oath. What we may be watching here is the development of a new body of law for this second type of presidency."
There is already a remedy for that, which was deliberately placed in the Legislative Branch. Justice is blind for a reason.
@ Earnest Prole
It's a shame you don't know history. Might be helpful when you discuss the law. And politics. And especially history.
@ Inga
What Lawfare is suggesting and you are approving cannot be described as a legal principle. It is at best a hyper-partisan tactic: BAMN. It is that sort of behavior that has people on the other political team (not me in this case) thinking your side would prefer a coup. Your betters should know how dangerous that situation is but they are blinded by their own list for power and inability to appreciate dynamic systems.I
You cannot see how quickly this can tumble out of control. I will put this on your level: you are in a late stage Jenga game.
That last paragraph in the Gov't's cert petition (quoted in the blogpost) was quite odd. Can't think of another brief in which the Solicitor General adverted to the politically contentious extra-legal context swirling around the legal issues. Not even Bush v. Gore. In light of past comments by Ginsburg dissing Trump, and the likelihood that sotomayor and kagan shares those views, I suppose it makes sense.
The Fourth Circuit's exercise in striking down an executive order based on its view's about the subjective intent that motivated it invites a 'et tu quoque' response, but is unlikely to get it. The SCOTUS could say, for example, that the Fourth Circuit's decision might have been valid if issued by a more politically balanced court, but the partisan divide here bolstered by whatever sharply political comments the individual judges made in their earlier careers (if you look, you will find some), requires that it be reversed as politically rather than judicially motivated. Funny how we can all play that game, and absolutely every public official can get tripped up by it. Here's another: Since a majority of the justices are practicing Catholics, any rulings they make about abortion should be deemed non-precedential by latter courts, given the obvious inability to consider the arguments fairly.
I wonder whether the last substantive paragraph in the Gov't petition was intended to get the justices to see that problem in a very personal way. In all events, it's very hard to see how the lower courts can be affirmed. The trick will be in fashioning an opinion reversing them that is narrow enough to avoid a 5-4 partisan split, which I suspect all of the justices will want to do.
Blogger Birkel said..."You cannot see how quickly this can tumble out of control." Very true! Especially from someone like "Inga" who cannot see that there are so many similar events occurring today which truly push our society, culture and law to the edge. In fact, "Inga" probably loved the students reactions to when a leftist professor, Bret Weinstein, of Evergreen State University, Olympia, WA., objected to an event in which all white people were told to leave campus, he was viciously threatened with physical violence, and was advised to leave campus because his safety could not be protected. The irony of this is lost on someone like "Inga". Leftist Professors past teachings coming back to haunt him. Shades of Maoist thought-reform in China under the Red Guards!
Oops, ".....The Supreme Court took the rare step on Friday of expediting consideration of a major case, rapidly accelerating the schedule for reviewing the Fourth Circuit’s blocking of President Donald Trump’s travel ban executive order..." So much for thinking that this is not important to the Judiciary's reputation. If the courts do not give careful non-political thought on this then they could lose not only their standing but their trust. Remember, only SCOTUS is an approved court. The lower federal courts are not in the U.S. Constitution and can be abolished by Congress. In fact, Congress did that in 1913 to the Commerce Court.
http://www.breitbart.com/big-government/2017/06/03/supreme-court-expedites-trumps-petition-on-executive-order-case/
If you give judges the power to usurp the legal and constitutionally recognized powers of the President based soley on their "interpretation" of his motives, you have effectively killed our Republic... Judges can opine whether or not this or that law is constitutional, but to say that a specific power is OK when exercised by President X but not President Y, is to fundamentally transform our system of governance into a judicial tyranny...
Or perhaps you're imaging the President can call in air strikes.
6/2/17, 2:51 PM
That would seem a little over-the-top, Chuck. Nobody dropped a JDAM on Seth Rich.
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