Patterico's Pontifications

2/4/2017

The Judge Who Halted Trump’s Immigration Order Has Made Some Wacky Rulings In The Past

Filed under: General — Patterico @ 6:30 pm



Last night I reported that a federal judge in Seattle, James Robart, has issued a sweeping nationwide order temporarily blocking the Trump administration from enforcing key parts of President Trump’s recent executive order on immigration. Today, we are learning more about that judge . . . and some of it is unsettling.

For example, last August, the Seattle Times reported that Judge Robart had favorably cited the “black lives matter” movement in a ruling on a civil dispute:

U.S. District Judge James Robart, pointedly reacting to the Seattle police union’s rejection of a tentative contract, said Monday he would not let the powerful labor group hold the city “hostage” by linking wages to constitutional policing.

“To hide behind a collective- bargaining agreement is not going to work,” Robart said during a dramatic court hearing he opened by laying out a path for police-accountability reform and closed with an emotional declaration that “black lives matter.”

. . . .

Robart ended the hearing with deeply personal remarks, in which he noted a statistic that showed, nationally, 41 percent of the shootings by police were of blacks, when they represented 20 percent of the population.

“Black lives matter,” he said, drawing a startled, audible reaction in a courtroom listening to the words coming from a federal judge sitting on the bench.

Also troubling are Judge Robart’s attempts to dictate the terms of proposed statutes, based in part on the “expertise” of “consultant” Merrick Bobb, a hack who runs around posing as a police expert when he knows next to nothing. From the Seattle Times story:

During Monday’s hearing, [Judge Robart] provided a blueprint for what he would like to see in the legislation, based on various proposals produced by city officials, the Community Police Commission (CPC) and the court-appointed federal monitor, Merrick Bobb.

My eyes are rolling so hard I could probably knock down bowling pins with them.

But wait, there’s more! Judge Robart also denied a request for a man (“John Doe”) expelled from Amherst to depose and obtain records from a “victim” of sexual assault — records that might show that the woman was the aggressor and that Doe was expelled improperly — because it would hurt the “victim’s” feelings. Robby Soave at Reason.com explains the background:

The incident in question took place years ago, during the late night / early morning hours of February 4-5, 2012. Jones was Doe’s girlfriend’s roommate at the time. Jones went to Doe’s dorm room and sexual activity ensued: Jones performed oral sex on Doe.

But Doe was blackout drunk at the time—a detail that Amherst administrators deemed “credible,” on subsequent review. Of course, it’s questionable whether a blackout drunk student can actually provide the level of consent that Amherst’s sexual misconduct policy requires.

Other factors cast doubt on the idea that Jones was the victim and Doe the perpetrator. After leaving Doe’s dorm room, Jones texted another male student and asked him to come to her dorm room for sex. She also texted a residential advisor about her “stupid” decision to engage in sexual activity with her roommate’s boyfriend. In these text messages, Jones admitted that she was “not an innocent bystander.” She also complained about how long it was taking this second male student to do anything sexual with her. She did not file a complaint against Doe until two years later.

Doe was expelled. He then sued Amherst, and subpoenaed Jones for a deposition and for “documents and records of statements she made about the alleged assault.” Judge Robart denied the request because of Jones’s feelings:

An in-person deposition of boundless scope would impose a substantial burden on Ms. Jones. (Subpoena at 1; see also Resp. at 7 (“Until a deposition begins, it is very difficult to know where it will lead and impossible to predict all the topics that may be explored with a witness.”).) The deposition would force Ms. Jones to relive a night in which she asserts Mr. Doe sexually assaulted her. (See, e.g., Clune Decl. ¶ 3, Ex. 4; Resp. at 6-7.) It would also reraise the subsequent investigation, hearing, and period of publicity that Ms. Jones has endured. (Id. ¶ 3, Ex. 5 at 11-12; Am. Compl. ¶¶ 54, 56.) It takes no leap of logic to reason that a live deposition would impose emotional and psychological trauma upon Ms. Jones.

I would imagine that being expelled over a B.S. allegation would also “impose emotional and psychological trauma” on someone. But when you’re a male accused of sexual assault in a college environment, facts often don’t matter. You’re presumed guilty — and even in a civil proceeding which is all about determining whether you actually did what you were accused of, you’re not entitled to key evidence on that question.

According to this judge.

These decisions do not instill confidence in the judgment of this particular jurist.

We’ll see what happens.

[Cross-posted at RedState and The Jury Talks Back.]

53 Responses to “The Judge Who Halted Trump’s Immigration Order Has Made Some Wacky Rulings In The Past”

  1. “These decisions do not instill confidence in the judgment of this particular jurist.”

    Just this jurist? How much more troubling do you find Robart’s Washington v. Trump decision that say . . . Roe v. Wade? Political grandstanding is a longstanding problem that has compromised the judicial branch for the entirety of my adult life. Probably longer. Robart is no outlier. As I mentioned in an earlier comment, not just Trump, but all Republican are aligned against this Army of Sally Yateses who occupy positions in all branches of government.

    Just to give Robarts his due, it is much harder for a federal judge to cover his tracks than members of the legislative branch, where, as Ted Cruz has done yeoman’s work to expose, the political establishments of both parties conspire to give sleaze ball pols political cover. The executive branch’s bureaucracy is the most opaque of all.

    ThOR (c9324e)

  2. I wonder if “The Good Wife’s” Judge Abernathy (played by Denis O’Hare) was based on him.

    http://www.theblaze.com/news/2012/02/20/cbss-the-good-wife-features-judge-praising-occupy-wall-street-i-salute-them/

    Kevin M (25bbee)

  3. How much more troubling do you find Robart’s Washington v. Trump decision that say . . . Roe v. Wade?

    Roe v Wade listed reasons and attempted an argument. Correct me if I’m wrong, but I can’t find any basis for action stated in Washington v Trump. He was completely out of gas after the spurious standing argument.

    Kevin M (25bbee)

  4. The Judge Who Halted Trump’s Immigration Order Has Made Some Wacky Rulings In The Past

    Supposed judge”… believe that was the public description of this jurist by the President of the United States.

    DCSCA (797bc0)

  5. It’s almost like the leftists venue shopped looking for the most sympathetic judge they could find.

    But they’d never do that because it would damage the confidence of our legal system, right?

    Right?

    NJRob (0f0e27)

  6. You’d prefer a charade? Would it have been better if Robart invented a right with which to justify his decision?

    No, this is far more honest.

    ThOR (c9324e)

  7. If jd were here , he’d bring up the Billy Madison clip, he was a partner in a major Seattle lawfirm and his argument would embarrass a one l

    narciso (d1f714)

  8. The damage has already been done, if the flood gates have been opened as reported.

    Colonel Haiku (2601c0)

  9. Take the fellow who attacked the louver yesterday, he was an Egyptian national whose father was a police general, a cleanskin

    narciso (d1f714)

  10. Here’s a sage opinion about Robart’s decision:

    “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

    Do we have any dissenters?

    ThOR (c9324e)

  11. Its rather to the point, one could debate the argument, but Robart doesn’t provide one

    narciso (d1f714)

  12. “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

    Well, he IS a judge, so that part I dispute. And the rest of it is too mild.

    Kevin M (25bbee)

  13. And Patterico,

    Thank you for posting this thread.

    I didn’t realize that the same judge who denied the Amherst student his civic rights was this guy. Proves how far gone he is.

    Thanks again.

    NJRob (0f0e27)

  14. Robart is right up there with Souter and Roberts; lovely go along get along hacks who don’t believe in anything more than their next job. . But for some conservatives losing their minds, Bush Jr. was all set to elevate Harriet Meyers to SCOTUS and only wound up picking Alito under duress. The Bushes talked a good game, but had to be dragged kicking and screaming to do anything conservative. Comprehensive immigration reform, no new taxes, the US military being sued to restore the Emir of Kuwait, the Saudis being allowed to flee after 9/11, Dubai ports, huge deficits, endless pointless stupidly fought wars. You have good reason to doubt Trump’s bonafides, but the Bushes were in ways great and small worse. And because they had good manners, we let them get away with it.

    And they never fought back. If you want to know why DJT appeals to so many of us, that’s a big part of it. He does go too far; the president doesn’t need to respond to every slight. But it’s refreshing as hell to FINALLY have a president who doesn’t take any crap.

    Bugg (08921e)

  15. Bugg–

    This order was so bad that it would have offended Souter. It might even offend Sotomayor.

    Kevin M (25bbee)

  16. Off topic but if you can find it on YouTube catch this evening’s SNL spoof of a Sean Spicer press briefing.

    It’s likely one of the funniest skits they’ve done in years.

    DCSCA (797bc0)

  17. The WEEPING LIBTARD JUDGE had really really really GROOVY BOW TIES.

    GUS (30b6bd)

  18. This is the funniest SNL skit in years- Melissa McCarthy as Sean Spicer doing a WH Press Briefing.

    https://www.youtube.com/watch?v=fdewIJ0C0CQ

    DCSCA (797bc0)

  19. Sad to see a prosecutor forgetting which side is the plaintiff and which side the defense. Some pretty weak sauce legal analysis of the case, I must say.

    Jerryskids (3308c1)

  20. Canby one of the appeals court judges thought the Brady act constitutional

    narciso (d1f714)

  21. Court of Appeals refuses to reinstate Trump’s temp travel ban?

    Colonel Haiku (2601c0)

  22. Not surprising one needs to draw an insight straight like the Romanian judge

    narciso (d1f714)

  23. #14 Bugg, yeah Bush 41 famously mocked “the vision thing.” And his promise for a “kindler, gentler nation” was an inference that maybe Reagan had gone too far.

    Bush 43 did irreparable damage by not fighting back against any of the ridiculous charges made against him during his Presidency.
    The ironic part is that Bush 43 decided to challenge then-Governor Ann Richards in 1994 as payback for her nasty keynote address at the 1988 Democrat Convention where she trashed then-Vice President Bush.

    Cruz Supporter (102c9a)

  24. 9. narciso (d1f714) — 2/4/2017 @ 8:27 pm

    Take the fellow who attacked the louver yesterday, he was an Egyptian national whose father was a police general, a cleanskin

    And he was a resident of the United Arab Emirates.

    At least one person from the Sudan who was stopped from entering the U.S. actually live in Saudi Arabia.

    The Gulf states have many non-citizens there on long term, but revocable, visas. (Kuwait famousely expelled all “Palestinians” in 1991. They had been treated favorably during the Iraqi occupation., and their political leadership had supported Iraq.)

    The New York Times has a front page story today, saying lone wolves aren’t really lone wlves, based on a terror cell created in India (that was caught before they did anything) Not one person sent by ISIS actually went to India. It was all done over the Internet.

    Sammy Finkelman (9974e8)

  25. this judge at 1846 E. Shelby st. Seattle ,wa also engages in third party payoffs with Sterling bank and Nor Wes Construction Inc. land is such an easy way to hide million dollar pay-offs.

    seattle (558ca0)

  26. Robert Barnes at LawNewz argues Seattle Judge is Wrong and Overreached With Nationwide Injunction on Travel Ban based on 9th circuit and SCOTUS precedents.

    crazy (d3b449)

  27. Lets do away with the “Bush Appointed” meme. Here’s how it works, and I know because I was close to people involved in the process in Calif in 2000 after Bush was elected.

    Yes, District Court judges are appointed by the President and confirmed by the Senate.
    Yes, at that time there was a “blue slip” procedure in the Senate where a Presidential appointee to just about any post needed to have “blue slips” from both home state senators sent to the Chairman of the Committee that had jurisdiction over the appointment. Until both blue slips were received, the nomination would not be taken up for vote in the Committee.

    The blue slip process was, in essence, a pocket veto that could be exercised by either home state senator. It was a completely “inside the Senate” process, and the White House had almost no control over it. That custom goes back a long long time, and Senators protected the prerogative of the colleagues to kill a nomination — or at least hold it hostage as a bargaining chip elsewhere — regardless of party.

    With regard to DOJ and the courts, the appointees for District Judges, US Attorney, and US Marshall are all pretty much handed to the in-state Senators to submit, regardless of party. There’s a working understanding with the WH Counsel’s office of the new President that the only names that will be submitted are names that are expected to be plausible and acceptable to the occupants of the White House. So even where the home state Senator is of a different party than the President, they understand that they are not getting to chose among their own loyalists, but they are getting to pick out who among the President’s loyalist is most acceptable to them.

    In California in 2000, you had Feinstein and Boxer as the two Senators. Each set up committees to evaluate and pick candidates for the open district judge slots, US Attorney positions, and US Marshall positions. IIRC, Feinstein took the Eastern District (Sacto), and Central District (LA), while Boxer took the Northern District (SanFran), and the Southern District (San Diego).

    By agreement with the WH, each committee had 6 members — 3 appointed by the Senator, and 3 appointed by the in-state Chair of the Bush Campaign, which was big GOP operative behind the scenes in Los Angeles, Gerald Parsky. The agreement was that any nominee coming out of the Comm need 4 votes out of the six — that made sure that whoever got picked received at least 1 vote from the other side.

    In addition, the process couldn’t produce just one name — the committee had to send 3 names for every spot to the WH, and the WH got to select from among the 3 names.

    In 2000, Washington had as its two Senators Patty Murray and Maria Cantwell. Cantwell was newly elected in 2000. Cantwell was in her second term at the time, and both lived in the greater Seattle area when elected.

    Judge Robart spent his entire legal career in one of the bigger firms headquartered in Seattle, Lane Powell, where he worked for 31 years. While he was most likely a registered Republican, Washington is a state with a long history of having GOP politicians of a much more liberal profile.

    I don’t know the exact nature of how the Washington Dem senators organized their input on the Presidential appointees. But there is no question that Murray, one of the most liberal members of the Senate throughout her terms, held the blue slip authority over any district court nominee.

    So while its true that Robart is a “Bush Appointee”, that doesn’t in any way suggest that he’s a “conservative” jurist, and as this post points out, he’s done a lot in 12 years on the bench to suggest quite the opposite is true.

    shipwreckedcrew (56b591)

  28. The Administration’s Brief in the matter:

    https://assets.documentcloud.org/documents/3452225/The-Department-of-Justice-s-appeal-to-restore.pdf

    This part addresses 1182 vs 1152:

    2. The Order Is a Valid Exercise of the Executive’s Constitutional and Statutory Power

    This express delegation from Congress in 8 U.S.C. § 1182(f), coupled with the President’s own Article II powers over foreign affairs and national security, mean that the President’s “authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015); see also, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that control over immigration is an integral part of Article II authorities “in regard to the conduct of foreign relations [and] the war power”).

    In the immigration context specifically, “[t]he Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial
    control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). “When Congress delegates this plenary power to the Executive, the Executive’s decisions are likewise generally shielded from administrative or judicial review.” Cardenas, 826 F.3d at 1169.

    The Order falls squarely within Congress’ delegation in 8 U.S.C. § 1182(f) of the “power to prevent the entry of any alien or groups of aliens into this country as well as * * * to grant entry to such person or persons with any restriction on their entry as he may deem to be appropriate.” Mow Sun Wong v. Campbell, 626 F.2d 739, 744 n.9 (9th Cir. 1980); accord Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507 (11th Cir. 1992). “Pursuant to, and without exceeding, that grant of discretionary authority, the President * * * suspended entry of aliens from the seven subject countries.” Louhghalam, Order 17.

    As noted above (at p. 4), prior Presidents have repeatedly invoked this authority to suspend entry of certain classes of aliens, including on the basis of nationality. In reviewing an Executive Order directing the interdiction and forcible repatriation of undocumented aliens outside the territorial waters of the United States, the Supreme Court found it “perfectly clear that 8 U.S.C. § 1182(f) * * * grants the President ample power to establish [by Executive Order] a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187 (1993) (emphasis added). And courts have repeatedly affirmed that “[d]istinctions on the basis of nationality may be drawn in the immigration field by the Congress or the Executive.” Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979); see also, e.g., Jean v. Nelson, 727 F.2d 957, 978 n.30 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846 (1985); Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008).

    Washington argued in district court that the President’s authority under § 1182(f) is limited by 8 U.S.C. § 1152(a)(1)(A), which provides, with certain exceptions, that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” But this restriction does not address the President’s authority under § 1182(f) to “suspend the entry” of aliens, which is an entirely different act under the immigration laws. An immigrant visa does not entitle an alien to admission to the United States, and even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010). There is no inconsistency between § 1152(a)(1)(A) and the President’s issuance of the Order under § 1182(f).

    In any event, even if there were thought to be some potential inconsistency between § 1152(a)(1)(A) and § 1182(f) , 8 U.S.C. § 1152(a)(1)(B) makes clear that the statute does not “limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications * * *.” This establishes that the Order is not covered by the restrictions of subsection (A), because the Order directs a review and revision of procedures for processing of visa applications and adopts procedures for a temporary suspension and then resumption of processing of
    certain visa applications following that review. See, e.g., Order §§ 3(a), 5(a).

    Furthermore, while the review is pending, the Secretaries of State and Homeland Security have discretion to grant visas on a case-by-case basis. Id. §§ 3(g), 5(e). Washington’s interpretation of the two provisions, in contrast, would lead to the untenable result that the United States could not suspend entry of nationals of a country with which the United States is at war, which would raise a serious constitutional question about Congress’s ability to restrict the President’s Article II authority to ensure the nation’s security.

    Kevin M (25bbee)

  29. SWC–

    From what I read the blue slip rules change a bit from time to time as committee chairmen change. From 2001-2003 the Dems controlled and it was an absolute veto. From 2003-2007 one negative blue slip didn’t kill a nomination.

    Do you happen to know what Grassley’s policy is?

    Kevin M (25bbee)

  30. George W Bush picked the wrong administration to stop drinking.

    Pinandpuller (f88b8c)

  31. Ambrose Bierce’s Devil’s Dictionary gives a pretty good definition for a judge: “A lawyer who knows a governor.”

    Pinandpuller (f88b8c)

  32. The 9th Cir did not “refuse” to overturn the ruling. It refused, on a Saturday, to stay Robart’s ruling pending the emergency appeal.

    But at the same time it created a very very expedited briefing schedule for the emergency appeal. I think the DOJ papers are due by 3:00 am Monday morning (Midnight in SF), and by 6:00 pm for the States on Monday. Its likely they won’t hold a hearing, because they are simply being asked to review the District Court’s TRO.

    But there are now 2 different written opinions out which come to different conclusions, and while the 9th will only be making a decision on the Washington decision, they will certainly be aware of the Boston decision as well, with its very detailed legal analysis that comes to the opposite conclusion as Robart. And which, in my view, uses the correct standard for “Rational Basis” review of an Equal Protection claim — unlike Judge Robart who screws it up completely, and does so on video so there’s no mistaking it.

    It starts at 39:15 of the video where he launches into the specious line of reasoning being pushed by the opponents that there have been no arrests of anyone from the 7 countries for terrorist activity, and that fact undermines the stated rationale for the EO which is to protect the US from terrorist threats that might involve immigrants from those countries.

    While I think Ms. Bennett, the Civil Division attorney who appeared did ok, she’s clearly not a top level oral advocate in appellate practice. Given that this issue has now evolved nationwide, I expect the next round of arguments in the Circuit Courts of appeal will all come from the Solicitor’s Office. They don’t have a big staff, and focus mainly on Supreme Court cases, but they do watch closely the cases percolating in the Appeals Courts because much of their Supreme Court work comes from issues where there are conflicts in the decisions of the various Appeals Courts. The are skilled oral advocates — much better than Ms. Bennett, who wasn’t bad, she just wasn’t on their level — and will much more effectively present the controlling precedents from various cases that are relevant. And they know all the Supreme Court precedents from immigration law backwards and forwards. If Washington state sticks with the same guy who argued before Robart, he’ll get torched.

    Back to Robart — what he screws up royally is the proposition he advances that under a “Rational Basis” review, its his duty and obligation to look at the rationale for the EO as expressed in its language, which supports the classification which is under Equal Protection scrutiny, and then make a determination about whether there is evidence which supports the rationale. If such evidence is lacking, suggesting the stated rationale is a pretext for a different hidden rationale, then the Plaintiffs’ chances of winning are greatly enhanced, and the stated purposes for the order are suspect and not entitled to deference.

    That’s pretty much how liberal activists jurists view their role in applying the rationale basis test, and its pretty much how they are uniformly reversed for having done so. It almost always flows from the view of district court judges who are the first in line to “halt” what is claimed to be “illegal” government action.

    To be fair to them, as Judge Robart points out, they are confronted with these types of challenges very often. A federal district judge I know, and I worked with a few when they were prosecutors before they were named judges, told me that he spends 90% of his time in the courtroom on criminal cases, and 90% of his time in chambers on civil cases. But the breadth of the subject matter in civil cases that get filed in federal court is simply staggering.

    Listen to what Robart says in the last 5 minutes about all the submissions he claims to have read and considered in the short amount of time prior to the hearing. I’m sure it was quite literally hundreds of pages from the parties and the “amici” that filed briefs, which he authorized. Those briefs I’m sure had dozens if not more than 100 cases cited in them. Typically a District Court judge has 2 law clerks working with him — which means they are recent law school grads. He can’t read every case — or even every brief — so he has the clerks read and brief the cases, and he might even have the clerks read and summarize the various amici briefs filed by interested parties.

    There is simply no way a single human can read and digest all that Robart claims to have read and digested in advance of the hearing, AND at the same time get everything right. And here he made a very common mistake among lower court judges who misread the standard for “rational basis” review.

    The order he produced late on Friday has NO ANALYSIS in it for any of the decisions he announced, other than on the issue of standing, and he references the out-of-circuit opinion in US v. Texas as the basis for finding standing. IMO this in some way “gives away the game” — he’s using the Texas decision — which doesn’t really support Washington’s claim of standing — to tweak the noses of all the supporters of the EO. IMO he’s saying “Hey, the Texas case said Obama couldn’t do this, so what’s sauce for the goose is sauce for the gander.”

    I hope this Order isn’t all he’s going to produce, because this one does little more than repeat his ruling from the bench, and he said he would be putting out a “written decision” for appellate review over the weekend. I presumed that would be a decision that addresses the various equal protection and due process claims raised by Washington in seeking the TRO and Prelim. Inj.

    Back to the raional basis test he screwed up. Here is how the Supreme Court has stated a rational basis review is to be conducted, with some initial context for the power provided to the President by Congress over the area of immigration.

    Shaughnessy v. Mezei

    Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control. The Chinese Exclusion Case, 130 U. S. 581 (1889); Fong Yue Ting v. United States, 149 U. S. 698 (1893); United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537 (1950); Harisiades v. Shaughnessy, 342 U. S. 580 (1952). In the exercise of these powers, Congress expressly authorized the President to impose additional restrictions on aliens entering or leaving the United States during periods of international tension and strife.

    Significantly, the Boston Judge cited a 9th Circuit case on Rational Basis test in the immigration context — which will be controlling on review of the Seattle case, and should have guided Judge Robart — Ruiz-Diaz v. U.S. It involved 5 year religious worker visas (so much for the argument that religion can’t be considered in visa issuance determinations). Holders of those visas wanted to apply to adjust their status to legal permanent residents.

    We apply rational basis rather than heightened scrutiny because we defer to the political branches in the immigration field. See Mathews, 426 U.S. at 81, 96 S.Ct. 1883 (“Since decisions in [immigration] matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary.”); Ram v. I.N.S., 243 F.3d 510, 517 (9th Cir.2001) (“ ‘Line-drawing’ decisions made by Congress or the President in the context of immigration and naturalization must be upheld if they are rationally related to a legitimate government purpose.”).

    The Government has satisfied this standard. It has shown that there have been concerns about fraud in the religious worker visa program, and as a result, the government has encountered difficulties in determining which applicants are bona fide religious workers. See, e.g., U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, Office of Fraud Detection and National Security, Religious Worker Benefit Fraud Assessment Summary (2006); U.S. Government Accountability Office, Immigration Benefits: Additional Controls and a Sanctions Strategy Could Enhance DHS’s Ability to Control Benefit Fraud 4 (2006).

    Note there that the Court found that the government only needed to show “it had concerns about fraud” in the program because of “difficulties in determining which applicants are bona fide religious workers…” It wasn’t required to show through specific anecdotal examples actual cases involving fraud with purportedly religious workers.

    Robart’s statement about “zero arrest” of terrorists from the 7 identified countries shows his reasoning slipped into the latter category, rather than focusing on whether the “concerns” about heightened risk associated with individual from the 7 countries was a legitimate governmental “concern.” If yes, that should have been the end of his analysis, the Plaintiff’s are not likely to succeed on the merits, TRO denied.

    Mathews v. Diaz (Brennan for a unanimous court)

    Since it is obvious that Congress has no constitutional duty to provide all aliens with the welfare benefits provided to citizens, the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing principled reasoning that will at once invalidate that line and yet tolerate a different line separating some aliens from others. In this case, the appellees have challenged two requirements — first, that the alien be admitted as a permanent resident, and, second, that his residence be of a duration of at least five years. But if these requirements were eliminated, surely Congress would at least require that the alien’s entry be lawful; even then, unless mere transients are to be held constitutionally entitled to benefits, some durational requirement would certainly be appropriate. In short, it
    is unquestionably reasonable for Congress to make an alien’s eligibility depend on both the character and the duration of his residence. Since neither requirement is wholly irrational, this case essentially involves nothing more than a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind.

    We may assume that the five-year line drawn by Congress is longer than necessary to protect the fiscal integrity of the program. [Footnote 22] We may also assume that unnecessary hardship is incurred by persons just short of qualifying. But it remains true that some line is essential, that any line must produce some harsh and apparently arbitrary consequences, and, of greatest importance, that those who qualify under the test Congress has chosen may reasonably be presumed to have a greater affinity with the United States than those who do not. In short, citizens and those who are most like citizens qualify. Those who are less like citizens do not.

    The task of classifying persons for medical benefits, like the task of drawing lines for federal tax purposes, inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line; the differences between the eligible and the ineligible are differences in degree, rather than differences in the character of their respective claims. When this kind of policy choice must be made, we are especially reluctant to question the exercise of congressional judgment. [Footnote 23] In this case, since appellees have not identified a principled basis for prescribing a different standard than the one selected by Congress, they have, in effect, merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in the supplementary insurance program on the same conditions as citizens. We decline the invitation.

    Graham v. Richardson, 403 U. S. 365, …. holds that state statutes that deny welfare benefits to resident aliens, or to aliens not meeting a requirement of durational residence within the United States, violate the Equal Protection Clause of the Fourteenth Amendment and encroach upon the exclusive federal power over the entrance and residence of aliens. Of course, the latter ground of decision actually supports our holding today that it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens.

    The language from Mathews about deference to Congressional line-drawing must be considered in the context here of Congress having delegated its authority over immigrant entry to the President.

    Here’s the killshot to Robart though: From Heller v. Doe on rational basis review — sorry for length and numerous citations, but they are important to show how well established in the law this doctrine is, and how far outside the doctrine Robart’s decision is (I’ve bolded the critical language):

    We many times have said, and but weeks ago repeated, that rational basis review in equal protection analysis “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Communication, Inc., 508 U. S. ___, ___ (1993) (slip op., at 5-6). See also, e. g., Dandridge v. Williams, 397 U.S. 471, 486 (1970). Nor does it authorize “the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.” New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam). For these reasons, a classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. See, e. g., Beach Communications, supra, at ___ (slip op., at 7); Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988); Hodel v. Indiana, 452 U.S. 314, 331-332 (1981); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976) (per curiam). Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. See, e. g., Nordlinger v. Hahn, 505 U. S. ___, ___ (1992) (slip op., at 7-8); Dukes, supra, at 303. Further, a legislature that creates these categories need not “actually articulate at any time the purpose or rationale supporting its classification.” Nordlinger, supra, at ___ (slip op., at 13). See also, e. g.,United States R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980); Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528 (1959). Instead, a classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Beach Communications, supra, at ___ (slip op., at 6). See also, e. g., Nordlinger, supra, at ___ (slip op., at 13); Sullivan v. Stroop, 496 U.S. 478, 485 (1990); Fritz, supra, at 174-179; Vance v. Bradley, 440 U.S. 93, 111 (1979); Dandridge v. Williams, supra, at 484-485.

    A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Beach Communications, supra, at ___ (slip op., at 7). See also, e. g., Vance v. Bradley, supra, at 111; Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 812 (1976); Locomotive Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129, 139 (1968). A statute is presumed constitutional, see supra, at 6, and “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it,” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973) (internal quotation marks omitted), whether or not the basis has a foundation in the record. Finally, courts are compelled under rational basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A classification does not fail rational basis review because it ” `is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge v. Williams, supra, at 485, quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911). “The problems of government are practical ones and may justify, if they do not require, rough accommodations–illogical, it may be, and unscientific.” Metropolis Theatre Co. v. Chicago, 228 U.S. 61, 69-70 (1913). See also, e. g., Burlington Northern R. Co. v. Ford, 504 U. S. ___, ___ (1992) (slip op., at 5); Vance v. Bradley, supra, at 108, and n. 26; New Orleans v. Dukes, supra, at 303; Schweiker v. Wilson, 450 U.S. 221, 234 (1981).

    Ok, that’s your Con Law lesson for today.

    Geeze, I ought to do this for a living.

    shipwreckedcrew (56b591)

  33. Narciso

    Hey, what do you make of the IT brothers with Arabic sounding names who look to have been up to no good in Congress behind the scenes?

    There’s at least one story out there, in The Daily Caller.

    Pinandpuller (f88b8c)

  34. SWC

    Is it fair to say that a lot of justices look at their decisions like Amazon reviews?

    “This law did not do what I wanted it to do. One star.”

    Pinandpuller (f88b8c)

  35. SWC- you know more than any of us as to the process, and that’s enlightening. But again comes back to the Bushes thinking we’re still in some happy bipartisan, let’s all get along world rather than blood sport. Because if this judge ruled even once in a way that irritated he legal SJW consensus, they would throw BUSH APPOINTEE in his face like a curse word. The Bush worldview is akin to the Looney Tunes cartoon of the sheepdog and the coyote checking in at 9AM, confronting each other all work day and then checking out at 5PM.43 and 45 didn’t really care about limited government nor conservative jurisprudence past getting elected, they simply thought as the establishment they should of course be in charge.

    Bugg (08921e)

  36. I have a question for you– either Pat or shipwrecked crew. We all have a full understanding that Judge Robard is generally on the same political side as many other Federal judges in Cali and (unfortunately) in other states. But from your professional perspective and considering that his ruling here is apparently considered by most experts to be poorly written and unsupported– and that he’s pretty much already known as a loose cannon crank anyway–is there ever a point where these other left leaning judges have enough pride to say ( even in private) “hey, this guy’s ineptitude and sloppiness reflects on us and is embarrassing us. He is hurting our causes rather than helping”.? Or do they so applaud the subversive nature of his tactics to stall the implementation of the EO that nothing else matters?

    elissa (1cada9)

  37. Federal judges feel like people with a peanut allergy who have the power within thousands of square miles to stop everyone else from eating peanuts.

    Pinandpuller (f88b8c)

  38. Or do they so applaud the subversive nature of his tactics to stall the implementation of the EO that nothing else matters?

    Yes!

    Rev. Hoagie® (785e38)

  39. Why Federal District Judges are different “animals” from other judges.

    1. Lifetime appointment. Same as other federal judges, but their daily working environment makes that feature more salient.

    2. They speak mostly for themselves, and not for their colleagues on the same court. Much more independence in what they do because of the volume of their work, and the fact that in 99.9% of their cases, they are the sole judicial authority on their work.

    3. Appeals Court Judges always sit in panels of 3, and they function in an environment where they know they speak on behalf of the Circuit Court as a whole when they issue a decision. That is why there is a rule that one panel of 3 judges is not allowed to disregard or over-rule the prior decision of another panel of 3 judges. Each decision is issued on behalf of the entire court, not just the 3 judges on the panel. The court would cease to function coherently if any given panel could issue rulings without deference to prior rulings on the same subject, even where the judges on the latter panel disagree. The process they have for working out issues is resort to an “en banc” court, where a much larger group, consisting of usually 9 judges or the entire Circuit depending on its size, sits to determine if an earlier 3 judge panel decision should be revisited or over-ruled.

    4. The Supreme Court hears every case as a 9 justice group (or however many Justices there are), and every decision speaks for the entire court.

    This type of collaborative relationship among judges only operates informally at the District Court level, and if a judge wants to work independent of his colleagues on the same court, in a Lone Ranger style, he’s perfectly able to do that. There’s no mechanism that I’ve aware of, or if one exists I can’t remember an example of it ever being used, for the collective members of a Federal District Court bench to step in and overrule an action of a colleague. And there were plenty of wacky decisions in the Central and Northern Districts of Californian over the last 40 years where I’m sure a great number of colleagues on a particular court wanted to reach out and throttle a decision made by another member of the same court.

    This is how you get these crazy decisions sometimes from District Court judges who are pretty obviously on a crusade to save humanity from the consequences of government action.

    shipwreckedcrew (56b591)

  40. Woe is us. Thanks for the tutorial swc.

    elissa (1cada9)

  41. Elissa at 36:

    I swear i had not read your comment when I posted 39, but I think it directly addresses your question.

    Yes, there are wacky Federal District Judges, and they generally get wackier the longer they are on the bench and the older they get. They simply become over-indulged with the notions that: 1) They are appointed for life and can do what they want, and 2) they lose any concern for the idea that its embarrassing to get reversed by a higher court for screwing up a ruling.

    The second is a huge issue IMO. As a federal district judge moves into his/her 60s and then 70s, its clear that they have no upward mobility. They are simply playing out the string, maybe go senior status (reduced work load, same salary), and simply are no longer concerned about how their work is reviewed by other judges because that review is of no consequence.

    Robart knows that as long as this suit is alive in the federal district court in Seattle, it is assigned to him. The only thing the appellate court will do now is review his TRO. All the work on the merits of the case is in front of him. The 9th will either suspend the EO while the trial work is underway, or it will allow the EO to go into effect. Neither really changes the way he would be expected to handle the trial on the complaint filed by the State.

    He might well reach the view in the months ahead that the EO is valid and legal, and he might order it enforced. Nothing he did on Friday prevents him from eventually coming to that conclusion once a more complete records is established before him.

    What he did on Friday is what a lot of District Court judged do — he simply tried to “freeze the field” but restoring the issue to the point in time just prior to the EO going into effect. In his view, that’s simply preserving the prior status quo until all the questions here can be answered.

    But, what might be playing out in large measure is what was feared — that the brief respite in enforcement is being taken advantage of by some who MIGHT have malice in their future intentions, had not yet attempted to enter the US, but now are going to advance their plans in order to slip in while the opportunity presents itself.

    shipwreckedcrew (56b591)

  42. How the government produced such a great brief in less than 36 hours after the Seattle decision:

    A civil division lawyer (not sure which Section) got sent to Seattle to argue before Robart. The entire time she’s gone, the Appellate Section of Civil Division was already at work on various pieces of the brief in anticipation of an adverse ruling. After the decision on Friday, all they needed to do in the next 24 hours was to begin putting the pieces together, and doing the necessary editing to make it address the Seattle decision.

    The brief itself has 5 names on it as Attorneys who are making an appearance, PLUS Noel Francisco, the Acting Solicitor General.

    And, keep in mind, Sally Yates as Acting AG said the EO could not, and should not, be defended in Court. Stamped herself forever as a political hack not deserving of the job she was given.

    shipwreckedcrew (56b591)

  43. shipwreckedcrew–I admit that having come up through a corporate environment where people (and especially decision makers) who constantly make bad decisions and/or embarrass the enterprise get canned right and left, the entire concept of “lifetime appointment” in government and “tenure” in academia is foreign and something I have a hard time adjusting to.

    elissa (1cada9)

  44. Thanks shipwrecked, much of these presentations even in the journal are long on emotion, weak on facts,

    narciso (d1f714)

  45. I would note that the Gov’t brief explicitly makes as part of its argument the effect of Section 1152(a)(1)(B) on the non-discrimination language of 1152(a)(1)(A), and pointing out that the EO is directed at modifying the processes and procedures for issuance of immigrant visas, imposing the temporary suspension of entries as part of that review process.

    Trust in content provided by SWC. Its worth every cent you pay.

    shipwreckedcrew (56b591)

  46. Robart knows that as long as this suit is alive in the federal district court in Seattle, it is assigned to him. The only thing the appellate court will do now is review his TRO. All the work on the merits of the case is in front of him. The 9th will either suspend the EO while the trial work is underway, or it will allow the EO to go into effect. Neither really changes the way he would be expected to handle the trial on the complaint filed by the State.

    The 9th could accept the administration’s view on standing and order the case dismissed.

    Kevin M (25bbee)

  47. That’s very true Kevin.

    I am dubious about there PP claim, but I think they will survive for now on their “proprietorship” claim.

    shipwreckedcrew (56b591)

  48. Well its the only place that has it pinpuller, meanwhile pelosi asks a question no one should be asking?

    narciso (d1f714)

  49. This is why senate rules need to go. They used the fact that Washington had 2 Dem senators to block anyone acceptable to Bush, so Bush gave them this moron. Senate rules are a disaster and a way to give more power to senators.

    Smarty (0bab40)

  50. How about we make the VP job worth something and give the VP 5 votes in the Senate.

    Kevin M (25bbee)

  51. One of Carson’s aides a awal spoke at a cair conference, sounds like gingruch’s latest thriller, treason

    narciso (d1f714)

  52. @elissa:“lifetime appointment” in government

    If you can fire judges whenever you want, you can control their rulings. Congress can impeach federal judges but it’s rare.

    “tenure” in academia

    When tenure was invented, being an academic was not a “job”. The idea was to free scholars from the necessity of earning a living so they could concentrate full time on their studies. They used to have to collect their lecture fees directly from their students, if they taught, but they didn’t necessarily have to teach (and they don’t necessarily have to now). Research and scholarship are, by most, considered to be worth something, but hard to set a price to and hard for others to evaluate who are not themselves studying the same thing.

    Now that colleges and universities consider themselves to be in the business of vocational training, football, collecting government financial aid and confiscating half of research grants as “overhead” I don’t know if I would make the case for tenure. But it made sense at one time, as most of Chesterton’s fences did.

    Gabriel Hanna (64d4e1)

  53. “But, what might be playing out in large measure is what was feared — that the brief respite in enforcement is being taken advantage of by some who MIGHT have malice in their future intentions, had not yet attempted to enter the US, but now are going to advance their plans in order to slip in while the opportunity presents itself.”

    – shipwreckedcrew

    Of course, there’s no evidence indicating that this will happen. Just fearmongering, which is Trump’s only competency. Which is a low bar, considering how many people in this country are intent on being fearful to begin with.

    Leviticus (efada1)


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