The Hammer Falls (Trump's Executive Order and Judicial Supremacy)

American Rattlesnake ^ | February 10, 2017 | Gerard Perry

[OddLane]

The temporary restraining order against President Trump’s executive order is still in effect, as you probably know. Josh Blackman has a good analysis of the ruling on his website, which I would recommend reading. There are a number of fascinating and disturbing elements of this decision, including the imposition of a “no evidence” standard upon the Trump administration.

Although some are attempting to put the best face on what is a sweeping, unprecedented ruling, the truth is that we are entering uncharted waters. We have the largest circuit court in the federal system essentially erasing the plenary power doctrine as it relates to immigration maters.

The fact that the administration was intentionally hamstrung in its appeal is irrelevant in the larger context, i.e. we are dealing with a federal judiciary that’s unwilling to recognize Congressional and presidential authority to execute immigration law. What’s more, the reasoning, such as it is, behind this decision is so shoddy that it would be laughable if the consequences weren’t so dire...

[TigerClaws]

Trump can rescind the previous EO.

Then issue a new one that doesn’t include Green Card holders (the sole basis of the 9th Circuit decision).

Then file suit in a Republican-friendly district asking for judicial review of his own order. Forum shop it. Then win in Court.

I actually think Trump is setting up Democrats to replace Ginsberg (who is dying) with another judge from his List of 20.

Now he can say, “Look at these active judges who are thwarting the will of the public who elected me! We need conservative judges.”

Trump may get a total of 5 picks to the SCOTUS if he stays 8 years.

[Windflier]

I'm pretty sure there is nothing preventing Trump from rewording and ammending the executive order into a new draft then sign it as a new one.

No, there isn't, but that would just be a rear guard action at this point.

The President MUST answer this unprecedented usurpation of power by the court, and he's got to do it NOW. He can't do that by simply ignoring rulings, writing new EOs, or waiting out the court.

No, the court just put a cannonball through his water line, and he'd better answer with a full broadside, or the battle will be lost.

The decision by the court has essentially overturned the Constitution, federal statutes, historical precedent, and Supreme Court decisions. It must not stand, and the President is the one who must squash this treason.

[OddLane]

That’s a reasonable enough ruling, as far as it goes, but it would normally not give them standing to challenge other aspects of the executive order in which they have no concrete interest, such as the 120-day suspension of the refugee program (Section 5(a)), the indefinite ban on Syrian refugees (Section 5(c)), or the provisions of the order requiring future consideration of religious-minority status for refugees claiming religious persecution (Sections 5(b) and 5(e)).

Given that the appellate court upheld the injunction against all of those provisions, it had a duty under the Supreme Court’s decision in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), to decide whether each plaintiff has standing to challenge each government action. It did not.

[tumblindice]

Courts don’t provide advisory opinions. It has to a real controversy.
But it’s a good idea. Revise it then have someone file for a TRO in a friendly court. Denied. Then they would file somewhere else.

[GOP Poet]

bookmark

[tumblindice]

No. Just issue a different order and tell the responsible agencies to enforce it or face termination for insubordination.
This ‘last gasp’ obstruction is BS.

[tumblindice]

PS So what are they going to do?
Use their old speed dial # to the Dept. of Justus?
“Send some US marshals to ... “ click.

[upchuck]

Is your copy and paster on the blink?

[OddLane]

Why The 9th Ruled Against Trump

[kelly4c]

Something must be done. This sets a dangerous precedent and it should not stand.

[OddLane]

Thanks!

[ptsal]

Bookmark interesting observation

[11th_VA]

Trump needs to have a 5-4 court (at a minimum) before he moves ahead at this point. I like the idea of resinding the EO and rewriting a new EO with exception to green card holders.

[FredZarguna]

The entire ruling is an embarrassment, and aside from several large issues which have been commented on elsewhere that are extremely troubling indeed, there are two small ones that haven't been noticed, or at least not given much play:

First, the ruling repeatedly cites minority positions, especially those dissents expressly written by Stephen Breyer, as if they were binding caselaw. That is a remarkable appeal to the vanity of the liberals on the higher court, where they surely see this going ("Steve: we're going to pretend that your dissent is as important as the actual law.")

The other is that in order to circumvent a well established Constitutional precedent -- that states have no standing to sue the Federal government on behalf of their citizens -- they have invented a novel circumvention in which the states are given standing by virtue of suing on behalf of state institutions.

Specifically, the Court accepts the notion that WA and MN have standing because of a claim that the inability of academics to travel to various hell-holes such as Yemen damages their prestige. This is breathtaking: not only have the states shown no actual harm -- only an anticipated one -- there is no precedent that I'm aware of that a plaintiff without standing can sue on behalf of someone else who also doesn't have it. (The state institutions don't have it, because their anticipation of harm is not evidence of actual harm.)

We might also ask, since the Court seems impressed by the failure of the Trump administration to show that terrorists have actually come to the US from these countries, why they are not equally impressed by the failure of the plaintiffs to prove that ANY faculty member has ever even travelled to Syria. This is all the more puzzling because the principle of primacy of the political branches in making and applying immigration law actually forces the court to presume WITHOUT evidence that the former is true, while the consideration of the lack of evidence for the latter is a presumptive test for the supposed likelihood that the plaintiff will prevail.

In other words, they have have shifted the burden of proof to the political branches, and made them answerable for political decisions to the courts. That is, in a word: bullshit.

This decision is on a level of Dred-Scott-awful.

[UCANSEE2]

Just issue a different order

Here is what the President should issue:

In order to be completely impartial, we are going to halt immigration temporarily, from ALL COUNTRIES, until we have time to resolve the immigration issues.

[FredZarguna]

Then issue a new one that doesn’t include Green Card holders (the sole basis of the 9th Circuit decision).

I don't disagree that he should issue a new EO, but very sadly (and very dangerously) the "US Persons" issue is NOT the sole basis of their decision. The 9^th also invests in foreign nationals who are not "US Persons" due process protections.

This is why I believe Trump should issue a new EO, and not proceed to SCOTUS at this time. This CANNOT be even allowed to get anywhere close to the possibility that a 4-4 tie makes this abomination into US case law.

[OddLane]

The idea that terrorists haven't immigrated from the 7 designated nations is particularly bizarre, considering the fact that a Somali went on a widely-publicized rampage last year.

One of the main conspirators in the first WTC plot was Iraqi, and Najibullah Zazi is from Afghanistan.

[FredZarguna]

There are a number of errors in the article AT NRO. Most of the more serious ones are errors of omission, so it's not obvious how flagrant they are.

Among some of the topics he discusses mistakenly are that the author decides -- and admits he's decided -- to gloss over the question of how the 9th Circuit believes there can be a due process violation or a First Amendment violation of the rights of those who are not "US Persons."

He also chooses to misrepresent a requirement made by the Ninth that the Trump Administration has an obligation to provide evidence to the Court that there is imminent danger. That is flat out BS. In political matters the Courts are to defer to the political branches, and have no burden of proof that their decision is based on any evidentiary standard that would be approved by a judge. To have such a requirement would mean that every decision made in a political branch is reviewable by the Federal Bench. That is INSANE.

[V K Lee]

If our President Trump can turn that anchor baby lie on its end he is deserving of more credit than any American could give him. The drats have lied about that for over 50 years - and they have been believed. He does what he does for reasons known only to him and close allies. Perhaps there is something to be found in searching this way. Until that lie is wiped away, we have nothing - we’re still screwed.

[FredZarguna]

But see, this is a trap that Robarts set that too many conservatives have fallen into, and the 9th has reaffirmed this as if it's a serious legal argument.

The Court's jurisdiction only extends to matters of law in which it has authority. This isn't controversial. In John Robert's majority opinion on the Individual Mandate in the PPACA, he cited the oft repeated nostrum from Holmes that "Courts should assume that laws are Constitutional."

Now, that is a weird statement to begin with, and one that Holmes used to uphold laws that liberals agreed with while striking down, without any deference, the ones he didn't like.

But the point, correctly phrased, is still valid: In political matters, the courts are to defer to the political branches. That means that the Trump Administration is under NO OBLIGATION WHATSOEVER to prove that his travel ban will accomplish its purpose. The 9th circuit -- and every other Federal Court -- is required to accept that this decision will accomplish its stated goal, even if they don't think so themselves.

Can you even imagine how dangerous it is for the elected branches of government to have to present proof to the judiciary that a law or policy is actually going to achieve its objective? That would place every decision made by someone legitimately representing the People of the United States under the supervision of an unelected lawyer in black robes.