Posted on 02/10/2017 7:22:06 AM PST by mandaladon
President Trump got to work early Friday picking apart a federal court’s decision not to reinstate his controversial travel ban, noting that the detailed 29-page order did not include one mention of the statute he claims gives him broad authority on immigration.
“A disgraceful decision!” Trump tweeted, while quoting an analyst who flagged the omission in a Lawfare blog post.
The writer, Brookings fellow and Lawfare editor-in-chief Benjamin Wittes, had noted the order skipped over a key part of the U.S. code on “inadmissible aliens” which Trump had publicly recited two days earlier in defense of his immigration restrictions.
The statute reads in part: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Wittes wrote that this statute speaks to one of two “big questions” on which the case will turn.
He said the statute indeed gives Trump “sweeping power” to restrict entry, writing: “Remarkably, in the entire opinion, the panel did not bother even to cite this statute, which forms the principal statutory basis for the executive order (see Sections 3(c), 5(c), and 5(d) of the order). That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case.”
The Trump administration has pointed to that statute for days in defending the controversial move to suspend refugee admissions as well as travel and immigration from seven mostly Muslim countries.
(Excerpt) Read more at foxnews.com ...
“Use the Dems playbook and go the incremental route. Issue another less sweeping EO.”
Or more sweeping. Include all immigration not already authorized. Then issue revised guidelines for those visas already issued.
Two months is my understanding. From several legal scholars.
“...the best option is SCOTUS after Gorsuch is seated.”
I hope we’re not counting on Gorsuch to do the right thing. Already he’s condemned the President. Already he’s said that the judiciary should be exempt from criticism, believing that they’re an elite class.
Please, Pres. Trump, withdraw this guy’s name for a judgeship.
If this ruling is allowed to stand, the logical and eventual outcome would be that all US foreign policy decisions would have to be “vetted” by the courts. EVERY foreign policy decision could be claimed by states to “harm” them in some way. The President would have to gain prior approval from Judge Robart and Microsoft to make sure that they were OK with it and that they did not believe the order would cause them any “harm”.
Actually, ANY immigration related EO is going to have SOME effect on states. But, so what? Some states may believe the order harms them, but other states may believe the order helps them. The gauge by which foreign policy decisions should be measured is how such decisions affect the entire US and our security, not how such decisions may or may not affect any one state.
Another, and even more terrible result of this court ruling is that the ability of the President to respond to new and or emerging threats to the US would be emasculated, as the court, apparently, has no comprehension of the fact that the President operates on the basis of Top Secret classified information that should not usually even be shared with a district court.
Finally, the court seems to be conferring US Constitutional due process rights on persons in foreign countries who have no connection to the US. Would this not inevitably proscribe any military actions, such as drone strikes or other military actions taken in an attempt to kill terrorists abroad? Would we have to send Judge Robart or the 9th Circuit judges over to Yemen to confirm that each and every person we wanted to kill was OK to kill?
Aside from the fact that they completely ignored the clear relevant law in US Code on Presidential power to deny access to the US, this whole decision is absurd
Trump really is in the drivers seat
He can issue a revised order.
He can and probably is already acting by revising detailed on the ground customs procedures with respect to questioning foreign entrees, background research, and other protocols. In all likelihood much of this can be done with existing law because 0bama was so lax and forced these agencies to stand down. Security and morale with customs and border has likely improved.
The refusal of the rogue judges to follow the US code and constitution put more pressure on McConnell to go nuclear because this puts an important issue in front to the SC right away. A 4-4 decision will not leave the issue in flux.
The Democrats now assume complete responsibility for any future Islamic terror attack. Sure, the fake media will always be there to spin, but their credibility is shot.
It had to be deliberate because otherwise they would have had to declare the actual statute unconstitutional because the wording is very clear. They know that the Congress has plenary power in these matters and with the statute Congress passed that enormous power to the President.
The constant stream of orders struck down makes Trump look bad and creates too many inconsistencies (on again, off again immigration policy).
We need to slap down activist judges. Create a new court to lessen the coverage of the ninth circuit, start filling in all the lower level court positions that are vacant, and start penalizing activist judges.
I am impressed with the quick and sharp cut to the chase by Jay Sekulow:
https://www.youtube.com/watch?v=52LCXhPqOtU
His third point about merging the incomplete EO with the Directive outlining exemptions and reissuing the EO for relitigation is I think brilliant legally, but I have not thought through yet the optics of it.
The 9th zeroed in on the incompleteness of the EO and ignored the Directive even though the Directive was included in the brief.
Both the EO and Directive cover everything. But the 9th ignored the Directive and attacked the EO.
That’s like reviewing a trial of a woman charged with violently wielding a gun while ignoring the fact that she was defending her young children from an attacker.
It’s like handing the IRS two statements of financials, one of income and the other of expenses, and the auditor reviews the income statement and ignores the expense statement. It’s better to have income and expenses on the same page.
So Sekulow brilliantly in my view lays out a simple plan to reissue the EO with the Directive exemptions merged into it and let Washington State refile its lawsuit on the new EO.
Sekulow goes on to say that the 9th may again do their notorious song and dance to support the ‘Ban-the-Ban’ but the new EO will ensure SCOTUS shoots it down without any valid argument to not shoot it down.
The DOJ lawyer who represented the US at the hearing was ill prepared and thus did a lousy job, although the outcome would be the same. Next time, Sessions must scour the DOJ for their best lawyer (although that will be a struggle)
Trump will be able to make several appointments to the rogue 9th circuit. In the past senators from that location would recommend lawyers to the court. Suggest that from now on Sessions should select the best to do the vetting to assure that rogues such as Robart et al. not be appointed.
That approach is B.S. This is not seeking a surveillance warrant.
And the absolute critical point in Trump-watching: He only says on Twitter exactly what he wants the world to hear and no more.
Don’t put your faith in the SC. We have before and been shot down. Gorsuch may just turn out to be another Johnny Roberts. Then what?
Maybe President Trump can resurrect the half breed’s EO banning Iraqis, put his name on it and see what happens.
The media are the ones making a big deal out of the statement, the same media which are defending and cheering on (anti Trump) activist judges, all in the name of the Constitution, a document they've obviously never read.
2. Meantime full court press public and private on McConnell to go nuclear and move Gorsuch to confirmation.
3. If #2 happens as fast as it could with rockets lit under the butts of the do-nothing Republican Senate, then skip #1 and file for mandamus with the Supreme Court.
Yup. Don’t go to the SCOTUS unless you expect a win.
I agree completely. Given the population of the left cost 2 is not enough. Exact boundaries need some thought.
Let Washington state argue that blocking Yemen alone is causing them irreparable harm.
Let Washington state argue that blocking Libya alone is causing them irreparable harm.
Let Washington state argue that blocking Sudan alone is causing them irreparable harm.
And on and on.
-PJ
I think a series of filings to the 9th circuit exposing the craziness of this ruling would be illustrative. For example, request permission of the 9th circuit every time we send someone back. Request permission for military operations. Request permission to deploy resources in a specific port of entry. Etc. Expose the fact that the judiciary is attempting to take over the job of the executive.
Just like the ICE raids that are quietly escalating all over. He’s put the wheels in motion without announcing it
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