Posted on 02/09/2017 9:04:08 PM PST by 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...
(Excerpt) Read more at american-rattlesnake.org ...
Agreed.
I also have a question: What on Earth qualifies the Ninth Court to determine “imminent danger”?
Nothing, and that is my point.
While it is fun to point out that both District Judge Robart and the Three Stooges of the Ninth Circuit are dumbasses who haven't kept current (there have been at least three terrorist incidents or arrests involving immigrants from the "Maleficent Seven" that we know of. No doubt the FBI has thwarted more.) But entertainment value aside, both Robart and the Nutsy Nine have made a big deal out of the fact that Trump's argument doesn't cite any people from these countries committing terrorist acts.
They're laughably mistaken, but it is irrelevant and dangerous to the legal question.
The judiciary aren't entitled to proof that a law, EO, or even a policy position taken by the lowest bureaucrat in the bowels of an obscure office building in the hinterlands will actually achieve a stated purpose. To act as if they had such a review over political decisions is fatal to government of, by, and for The People.
President Trump should start relocating refugees to where they 9th circuit court justices live. Let the lawyers tell us why that would be wrong to let the refugees live in the upper crust areas that the Justices live.
Unelected officials have the power to change or authorize to ignore law. The left claims the Trump administration is a fascist dictatorship? Judicial over-reach by the left is the closest step to a fascist oligarchy right in front of our eyes.
ping
Everything you say makes perfect sense and you state the case with admirable clarity but surely what the court decided was not that the EO was wrong or misguided, it merely said that the government had not shown enough reason why the temporary ban on the implementation of the EO imposed by the Washington court should be lifted.
For the government to get a ruling overthrown and not simply wait until the lawfulness of the EO was tested in the lower court it had to prove there is an urgent need to reinstate the ban and that is the nub, they could not do so and the court upheld the temporary stay on implementation.
If you want to get a court to override a stay of execution until such time as the court gets to try a case you need to show there is an emergency.
If one listened to the squawking of the media you would be led to believe that the court had ruled the EO to be unconstitutional, it did no such thing, it simply upheld the suspension of the implementation of the ban imposed by the lower case until the legality or otherwise of the EO could be heard in that court.
I entirely agree that the ruling displayed shocking judicial over-reach but in no way did it somehow declare the EO to be unlawful or illegal, that issue has not yet been heard in a court of law.
That would get the Left’s knickers in a twist, for sure. I like it.
Your second option seems the best to me. A lot of laws have to be re-written such as the anchor baby issue, judicial over reach, etc. We can undo the harm that will unfold in the next 2 years with the right patriots in position. This is a revolution but one made at the ballot box.
The courts have bitch-slapped Trump in his own house. He can write any EO he wants. He can re-word to his hearts content. He is owned...by any court that wanT’s simply make it up as they go.
Reading Dan McLaughlin’s opinion at the link above made me think that it might have been better to break the EO into several individual EO’s. One for the temporary refugee ban. One for the 7 countries. One for Syria. And one for consideration of religious minorities (sections 5b and 5e). Then the court’s broad brush approach would not have been possible.
You are missing the point.
The President is operating on settled law and the Constitution. He doesn't need the permission of ANY court to restrict immigration into this country.
It is the court that is out of line here. They have overstepped their constitutional limit, and don't have any authority to stop the President from doing his legal duty.
You're granting power to the court that they do not have.
They’re all named Alma.
No he's not. The agencies are still filled with Obama hires. They can defy his orders as long as they have a court decision to point to.
And if he tries to fire one? It goes before a judge. The judges are the ones really in control of the federal bureaucracy.
Better would be to write several EOs, one for each class of immigrant being barred. Make them have to present a case for each one.
The apparent fact that the DOJ intentionally hamstrung itself certainly is NOT irrelevant. It is entirely to the point - we are fighting a two-front war against judicial usurpation and internal dereliction of duty within the DOJ.
If the rule of law cannot constrain the leftists, then let the point of the bayonet act against these traitors.
His first executive order on immigration should have been undoing DACA.
Drastically reducing the number of refugees resettled in the United States should have been prioritized separately, IMO.
Not quite. In treating the temporary injunction as a preliminary injunction, and therefore appealable, the Ninth accepted the reasoning of the lower court that an immediate stay of the order was necessary. The Ninth's responsibility in that case was to reassert the necessity of deference to the political branches for political decisions, and to rule that the lower court erred in issuing its injunction.
Robart should have deferred to the political branches on political matters and did not. The Ninth compounded his error by reinforcing his claim that the administration failed to establish the need for the ban. Actually, given the existing case law, that requirement fell on the plaintiff, who established neither that harm to their universities was exigent, nor in fact, that actual harm even existed.
but in no way did it somehow declare the EO to be unlawful or illegal, that issue has not yet been heard in a court of law.
I agree that technically it did not do so ... yet.
But in its decision the Court justifies its failure to issue mandamus on the basis of the likelihood that the plaintiff will prevail. And therein lies the worst reasoning of the decision. If the court really believes that: States cannot argue on behalf of their citizens but can argue on behalf of their institutions as third parties to direct harm, that there are due process protections for non-US Persons, or that there are First Amendment problems with preference to persecuted minorities (who are also not US Persons) then the handwriting is clearly on the wall.
It's clear that Robart's original decision granting the injunction has no actual basis in law.
The circuit court's decision to treat his temporary injunction as a de facto preliminary injunction (which was, we must assume accidentally, correct reasoning) should have led them to issue mandamus to the lower court vacating the injunction on the basis that the plaintiffs had ZERO chance for success going forward. That they did not do so, and indeed argue exactly the opposite against all precedent tells you that they also intend to proceed to strike down the EO against all existing precedent, the clear wording of the statute, the President's powers under Article II, and the rule of law.
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