Patterico's Pontifications

2/5/2017

Update on the Appeal of the Seattle Judge’s Order Halting Enforcement of Trump’s Immigration Order

Filed under: General — Patterico @ 2:57 pm

The Ninth Circuit has declined to immediately vacate the order from the Seattle judge halting enforcement of most parts of President Trump’s executive order on immigration. The order is here. They have set an expedited briefing schedule for the hearing on the government’s emergency motion, with the final papers due at 3 p.m. tomorrow, and a ruling to follow at any time after that.

The District Judge provided almost no legal justification for his order (which is not entirely uncommon in a TRO situation, although he might have given us a hint, given the level of importance of the issues). There is, however, video of the hearing, which you can see here. I’ve not watched the video in its entirety, but my commenter DRJ has, and she provides this summary of the states’ arguments, which she authorized me to reproduce in a post. Because of the lack of legal authority in the judge’s order, understanding the states’ arguments provides a window into the basis for that order. Here is DRJ’s analysis, with very light editing:

I watched the video of the hearing. In order to get relief via Temporary Restraining Order (TRO), the States must show irreparable injury, a likelihood of success on the merits, and a balancing of equities.

The States argue that the Order violates Due Process and, to a lesser degree, Equal Protection because it discriminates based on religion. The States concede that aliens and refugees who have never been in the U.S. have no Equal Protection rights, but their sponsors and families in the U.S. do. The focus of the States’ case is legal residents and US sponsors and families affected by the Order.

The States apparently did not assert discrimination based on national origin for the purpose of the TRO (although they might for the purpose of the case in chief). Instead, the States argue that some, not all, provisions of the Order violate the Establishment Clause by discriminating against one religion.

The States contend that even though the Order does not purport to ban Muslims on its face, the fact that it applies to predominantly Muslim nations, coupled with Trump’s rhetoric (which is apparently detailed in the pleadings or briefs, and covers the campaign until the present) about wanting a Muslim ban, means it is appropriate to look behind the words of the Order in deciding whether there is a rational basis for the Order. The Judge asked about the difference between what Trump said during the campaign “based on what he said in New Hampshire in June” and a Presidential Executive Order with commentary explaining it. The reply was that it might go to weight, but the Order was so early in Trump’s term — a mere week — that his campaign statements are relevant. In addition, after the election, the President’s advisers have been quoted as saying “the President asked them to come up with a Muslim ban.”

As for standing, the States rely on the Snapp doctrine of parens patriae, as extended by Massachusetts v. EPA, but also on the doctrine that the States have suffered injury as proprietors. The proprietary argument is that the Order unduly affects State tax revenue, and higher education institutions that employ foreigners who are affected by the Order (the employers of persons who are legally in the U.S. and were unexpectedly caught overseas and can’t return, the employees and family of employees who have been affected by the Order, and persons who would be affected by the Order and now cannot travel). First, the States lose tax revenue from persons who cannot come to the U.S. to work or travel. Second, the State funds used to employ persons has been wasted if they cannot perform their functions, which is a burden on the States as proprietors of the institutions. The States cited U.S. v. Texas, the immigration case in which Judge Hanen and the 5th Circuit said additional State costs/burdens in lost driver’s license revenue justified a stay of Obama’s DACA and DAPA orders.

The States also argued that any federal claim for deference because this is a federal immigration order was undermined since the Order is not consistent with the immigration laws passed by Congress, and since the Administration itself hasn’t provided a clear and consistent idea of what the Order means. For instance, in recent days, there have been 5 different Administration statements regarding whether legal residents and green card holders are affected by this Order. As a result, the States argue that hundreds of their legal residents effectively lost the right to travel because of uncertainty about the Order.

Finally, in the initial argument (not rebuttal), the States noted that they are challenging some parts of the Order as applied, and are not challenging the constitutionality of the entire Order. They also assert a States’ rights argument that States should have standing and authority to protect their and their residents’ interests from federal overreach when it comes to religion. [Note by DRJ: This is a precedent that the left might regret.] And the States acknowledge that while they have no authority for a State suing the federal government over an Establishment Clause case, they believe there have not been any Orders like this.

Very illuminating. I thank DRJ both for the analysis and for granting me permission to use it in a post.

DRJ’s comment that “[t]he States apparently did not assert discrimination based on national origin for the purpose of the TRO” may signal that the debate among David Bier, Andrew C. McCarthy, myself, and my commenter SWC may not be central to the immediate litigation in the Ninth Circuit. (For that debate, see posts here, here, and here, and the links therein.) However, the Government’s emergency motion in the Ninth Circuit (h/t to Kevin M. for the link) does raise the issue, and make arguments quite similar to those made by SWC in comments to my posts. Here’s the Goverment’s initial argument on that issue:

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).

I thought Bier disposed of that pretty well in his original op-ed:

Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between “the issuance of a visa” and the “entry” of the immigrant. But this is nonsense. Immigrants cannot legally be issued a visa if they are barred from entry. Thus, all orders under the 1952 law apply equally to entry and visa issuance, as his executive order acknowledges.

As far as the two statutes being “entirely different” acts, I think the point I made in an update to this post and fleshed out in this post has never been rebutted to my satisfaction. Namely:

I have shown that: 1) the two provisions are indeed in conflict when a President issues an order discriminating against immigrants on the basis of nationality or place of residence; 2) the only way to resolve this conflict is to view the President’s power to suspend entry under section 1182(f) as an exception to section 1152(a); and 3) Congress foreclosed the possibility that section 1182(f) functions as such an exception, by listing other exceptions but pointedly refusing to list 1182(f) as one.

The Government continues:

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).

This is also an argument that SWC has made. Again, I think Bier’s retort makes sense:

To resolve this case, Congress amended the law in 1996 to state that “procedures” and “locations” for processing immigration applications cannot count as discrimination. While there is plenty of room for executive mischief there, the amendment made clear that Congress still wanted the discrimination ban to hold some force. A blanket immigration prohibition on a nationality by the president would still be illegal.

In other words, the provision allowing the Secretary of State to set “procedures” is not fairly read as a provision that swallows the nondiscrimination provision whole. However, this is admittedly a close issue, and how a court may rule on it is likely to depend on the particular judges and their general pre-existing views on these matters.

The Government concludes (on this topic):

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.

I don’t think this follows at all. If we were actually at war — a war declared by Congress, and not some amorphous “war on terror” or “war on drugs” or other made-up “war” that is not actually a “war” as defined by the Constitution — then the President’s Article II authority would certainly loom far larger. I would argue that Congress’s decision to declare war would constitute an implicit grant of authority to the President to take necessary actions as Commander in Chief in the area of protecting the country from invasion by its enemies. In the absence of a declared war, however, I think we are back to the Youngstown analysis that I have discussed in my previous posts. Congress’s power in the area of immigration and naturalization is plenary, and only if Congress has delegated that power — a statutory inquiry — or if a state of declared war increases the President’s Article II powers, can a President act in contravention of a law like section 1152(a)’s nondiscrimination provision, which has been duly passed by Congress and signed by a President.

We’ll know a lot more when the Ninth Circuit rules. This is obviously headed towards a 4-4 Supreme Court, so the Ninth Circuit’s ruling may be extra critical at this juncture.

Thanks again to DRJ.

[Cross-posted at The Jury Talks Back.]

118 Responses to “Update on the Appeal of the Seattle Judge’s Order Halting Enforcement of Trump’s Immigration Order”

  1. Ding.

    Patterico (115b1f)

  2. I’ve watched the entire video, and if I had any criticism of DRJ’s post, it would be that it really only summarizes the POV expressed by Washington’s attorney. But, as you note and in fairness to her, because the Judge ruled in Washington’s favor, its quite right to assume (since he didn’t explain) that his reasons for doing so are consistent with some of the points raised by Washington.

    I don’t think Washington made much of the 1152(a)(1)(A) discrimination argument because I think those would be held to fall outside the claims that they can advance either under their PP rationale, or their proprietor rationale for standing.

    I think that’s why they went for the Constitutional challenges rather than the statutory challenge.

    I also think, in part, they are afraid of the 1152(a)(1)(B) analysis if it comes down merely to a statutory challenge.

    But, the judge absolutely did raise the issue with the Gov’t lawyer — Washington didn’t bring it up during their 30 minutes of argument.

    But the DOJ lawyer relied a lot on 1182(f), and in response to Judge launched Bier’s 1152 argument on her. Heck, he might as well have simply read from Bier’s NYT Op Ed piece — it was Monica Crowley level plagarism.

    At the end she responded with the argument that 1182(f) has been relied on in the past to classify alien by nationality (Haitian v. Cuban refugees as one example), and such classifications have never been invalidated on 1152 grounds. Then at the very end she made the 1152(a)(1)(B) argument too, but the Judge had no response.

    Its in the last 5 minutes of her argument, about 56 or 57 minutes through the video.

    shipwreckedcrew (56b591)

  3. I would say that your argument that Bier “disposed” of the distinction between “entry” and “issuance of visa” effectively is misplaced. IMO what Bier did was again waive off an inconvenient textual argument without the benefit of supplying and case authority for his claim that there distinguishing between the two is a “distinction without a difference.”

    shipwreckedcrew (56b591)

  4. If we were actually at war — a war declared by Congress, and not some amorphous “war on terror” or “war on drugs” or other made-up “war” that is not actually a “war” as defined by the Constitution — then the President’s Article II authority would certainly loom far larger.

    Actually, the so-called GWOT was authorized by congress, though the name itself was coined by the Bush administration.

    Authorization for Use of Military Force Against Terrorists

    To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

    Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

    Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

    Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

    Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

    Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

    Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

    It is a real war, not “made up” and the president has war powers that can used against terrorism.

    There are substantive arguments to be made against giving the president such wide-ranging and long-term powers against such an amorphous enemy as militant Islam (or whatever the acceptable pc term is these days for the jihadists). But, congress did give the power and the AUMF is still in effect, therefore, the war continues.

    Anon Y. Mous (9e4c83)

  5. I wish I knew why you think Bier’s attempt to deal with 1152(a)(1)(B) is effective — its empty.

    He says nothing more than (B) creates room for “mischief by the Exec.” Yeah? So what?

    He says “Congress wanted the discrimination ban to hold some force.” Where does he get this? Reading the minds of individual members? Unstated legislative history? The fact that they only created an exception in (B) rather than repeal 1152(a)?

    Remember, this is a guy who 2 years ago was a policy analyst for a back-bench 2nd term GOP congressman from Idaho. I don’t give him the benefit of the doubt for understanding what Congress wanted in 1996 when it created the exception in (B).

    “A blanket immigration prohibition on nationality” would be illegal.

    So if Iran launches a nuke at Isreal, and declares war on the US at the same time, the President is prohibited from directing the State Dept. to stop processing immigrant visa applications from Iranians living in Tehran??

    That argument beclowns Bier.

    shipwreckedcrew (56b591)

  6. The only real issue raised by the arguments of Washington – and not explained anywhere by the judge — are the Equal Protection and Establishment Clause arguments. Both are limited by the nature of Washington’s standing. I think the limitations on Washington’s standing will dramatically impact the scope of any TRO that is allowed to remain in place. Even though DRJ mentions the fact that they raised 1152(a), they made no significant effort to advance that argument in Court. The stuck with the EQ clause because it is the one that their standing argument most directly addresses, and the Establishment Clause argument because they really wanted to drive home the claim of “religious animus” because of Trump’s public statements.

    But he completely botches the Equal Protection rational basis test, so I expect that is going to end up a loser on the basis that the State is unlikely to prevail on rational basis analysis.

    The one issue he raised that gives me pause — because I don’t know the case law — is his comment that the Establishment Clause case law precludes consideration of any religion in the creation of immigration policy or any other policy. His comments suggested that he reads the case law as meaning it doesn’t matter whether the immigration policy burdens/benefits Christians, or burdens/benefits Muslims — the fact that one group in any given country will benefit as a consequence of the religion they practice makes the classification suspect.

    Now this only applies to the “refugee” — Section 5 I think — because the concept of being a “persecuted religious minority” only applies in the refugee context, not the immigrant visa context.

    But that is another basis on which the TRO might be upheld but significantly narrowed.

    shipwreckedcrew (56b591)

  7. Its Sunday. Isn’t there a football game on somewhere?

    shipwreckedcrew (56b591)

  8. He says “Congress wanted the discrimination ban to hold some force.” Where does he get this? Reading the minds of individual members? Unstated legislative history? The fact that they only created an exception in (B) rather than repeal 1152(a)?

    Try harder. Come up with an interpretation of his words that I would agree with that doesn’t sound clownish.

    I could tell you, but you really need some exercise in stating opposing arguments in a way that shows there might be something to them.

    Patterico (115b1f)

  9. It is a real war, not “made up” and the president has war powers that can used against terrorism.

    If if I were to concede this for the sake of argument — and I don’t — It’s not a real war against the countries named in the executive order.

    Patterico (115b1f)

  10. “I thought Bier disposed of that pretty well in his original op-ed:
    Mr. Trump may want to…..”

    aaaahhhh… so Bier shows his bias: Mr. Trump. Not President Trump.

    jb (b3d883)

  11. The gorton opinion was so elegant its hard to believe Robert eruption has any purchase anywhere.

    narciso (d1f714)

  12. “I wish I knew why you think Bier’s attempt to deal with 1152(a)(1)(B) is effective — its empty.

    He says nothing more than (B) creates room for “mischief by the Exec.” Yeah? So what?

    He says “Congress wanted the discrimination ban to hold some force.” Where does he get this? Reading the minds of individual members? Unstated legislative history? The fact that they only created an exception in (B) rather than repeal 1152(a)?

    Remember, this is a guy who 2 years ago was a policy analyst for a back-bench 2nd term GOP congressman from Idaho. I don’t give him the benefit of the doubt for understanding what Congress wanted in 1996 when it created the exception in (B).

    “A blanket immigration prohibition on nationality” would be illegal.

    So if Iran launches a nuke at Isreal, and declares war on the US at the same time, the President is prohibited from directing the State Dept. to stop processing immigrant visa applications from Iranians living in Tehran??

    That argument beclowns Bier.”

    Full context helps one understand.

    Colonel Haiku (2601c0)

  13. And again it ignores the underlying legislation, the pink elephant in the room

    narciso (d1f714)

  14. If if I were to concede this for the sake of argument — and I don’t — It’s not a real war against the countries named in the executive order.

    And I hasten to add that no countries are explicitly named in that order, but they are referred to by statutory provision.

    And yes, I know the whole “those countries were named by Obama” argument. True in part, but mostly false, as to the actions specified in this EO.

    Patterico (115b1f)

  15. And again it ignores the underlying legislation, the pink elephant in the room

    You keep referencing this as though the 2015 legislation — which is obviously what you are referring to — is an explicit grant of authority for this EO. No matter how many times you say it, though, narciso, it isn’t — and I have actually addressed this in more than one place. So, rather than making your cryptic comments complaining that I have ignored this law, why not confront my actual arguments about them? You’re not a dumb guy — in some ways I see you as one of the more knowledgeable and well-read commenters here — but you’re not honestly confronting my arguments on this point.

    Do I need to find them for you again and place them in front of you once more??

    Patterico (115b1f)

  16. “I thought Bier disposed of that pretty well in his original op-ed:
    Mr. Trump may want to…..”

    aaaahhhh… so Bier shows his bias: Mr. Trump. Not President Trump.

    YOU GOT THEM! BIER IS FOUND GUILTY AND CONVICTED OF BIAS!

    Or, maybe, using “Mr.” to refer to everyone, including the current President, is part of the New York Times style guide.

    Here is one example among a zillion.

    Looks like your complaint is . . . wait for it . . .

    Fake News.

    Patterico (115b1f)

  17. So if Iran launches a nuke at Isreal, and declares war on the US at the same time, the President is prohibited from directing the State Dept. to stop processing immigrant visa applications from Iranians living in Tehran??

    That argument beclowns Bier.

    And, as far as my own opinion — and I know SWC was attacking Bier and not me here, but I still feel compelled to make the point — you see that, based on the words of my post, the President would not prohibited from doing that. Right?

    Does Colonel Haiku understand that? I hope so.

    Patterico (115b1f)

  18. No, they were named by the conferees which included senator feinstein,

    narciso (d1f714)

  19. If you read bier’s puffington page, you’d realize there is no viable regime he would accept, as it stands if falls far short of tramp’s promise

    narciso (d1f714)

  20. No, they were named by the conferees which included senator feinstein,

    Named for one purpose. Answer in English — not Sanskrit. :)

    I’ll answer for you: for the purpose of removing those countries from eligibility for a visa waiver program.

    Which is not authority for suspending entry entirely.

    Get it yet?

    Patterico (115b1f)

  21. If you read bier’s puffington page, you’d realize there is no viable regime he would accept, as it stands if falls far short of tramp’s promise

    Not interested in your ad hominem fallacies. Focus on what matters.

    Patterico (115b1f)

  22. Well the link is under my name, I don’t usual
    Lay do this on a tablet

    narciso (d1f714)

  23. If if I were to concede this for the sake of argument — and I don’t — It’s not a real war against the countries named in the executive order.

    The AUMF didn’t specify any countries at all, so of course the countries in the EO aren’t named in the AUMF. That, depending on your perspective, is the beauty/defect of the AUMF; it applies to those who would use terrorism against us. And, that is also who the EO is directed at: those who are potentially some of those terrorists.

    Anon Y. Mous (9e4c83)

  24. I don’t make things up, if I make a mistake i correct as far as I’m able to. Now look over what he’s expressed over a year and tell me he would allow any workable vetting system

    narciso (d1f714)

  25. Now perhaps if the kingdom was on the list

    english.alarabiya.net/en/views/news/middle-east/2017/02/04/I-am-Muslim-and-I-am-not-angry.html

    narciso (d1f714)

  26. Care to discuss the Boston judge’s decision? I haven’t seen you touch on it.

    NJRob (b5bd73)

  27. Care to discuss the Boston judge’s decision? I haven’t seen you touch on it.

    Not really. I have posted a lot today. I read it. It doesn’t really interest me to do a post on it. I will for $100. My PayPal is patterico@gmail.com.

    Patterico (115b1f)

  28. Is anyone else bothered by the continued use of the AUMF? First Obama, and now Trump , who both criticized Bush’s decision to go to war with Iraq , are using “his” AUMF to justify military operations all over the world. And it may very well be used by Trump’s lawyers to justify the EO under discussion.

    I would really love for Congress to either renew the AUMF with a fresh vote , or retire it. The war on Terror is becoming like the War on Drugs and the War on Poverty – unwinnable, but with a lot of stakeholders who would like to see it go on.

    mackwolfe (ceee05)

  29. I’m not going to make up his argument for him. I sited the exact words he used in a prior post, and dealt with every phrase.

    The only one that is “rational” is the idea that by not repealing 1152(a) in toto, but rather making the “nondiscrimination” language (A), and creating a procedural exception in (B), they intended to reinforce the nondiscrimination language as remaining a limit.

    That’s more analysis that he gave.

    I don’t buy the “exception can’t swallow the rule” argument because when inartfully drafted, exceptions can swallow rules.

    There are other doctrines of statutory interpretation that regularly come into play in circumstances such as 1152 v. 1182 — such as the requirement to harmonize the statutes whenever possible, even if strained, in order to have the latter statute overrule the former by implication when Congress has not expressed an intention to do so; and 2) constitutional avoidance, where the question is resolved on non-constitutional grounds where possible and constitutional questions are avoided.

    If you argue that the latter statute overrules the former statute by implication, then the subject matter requires consideration of the constitutional question of the authority vested in the Exec over international affairs by the Constitution. So, depriving the Exec. of authority under 1182(f) by implication based on the passage of 1152 calls into issue whether or not there is now a requirement to consider the constitutional question if, as some might argue, the Pres. possessed the authority embodied in 1182(f) without the need for Cong. authorization under 1182(f).

    Court’s avoid this kind of question — ESPECIALLY in this particular circumstance where longstanding precedent says these issues are reserved for the political branches — by harmonizing the statutes so that the Pres. power under 1182(f) is not limited by implication of 1152(a)(1)(A), with the proviso that if Congress disagrees, its free to amend 1182(f) to say so.

    The tension here is between the Exec. branch power conferred by Congress, and the Exec. branch power curtailed by Congress IF the intent was to limit 1182(f) by implication. It this wasn’t an area of the law with longstanding precedent saying its for the political branches to decide, then avoidance might not be the correct approach. But history says that the Courts should not referee disputes about subjects where the Courts are not generally considered to have a role.

    You take me to task for my language, but I would remind you that I’ve been challenged before on my criticism of this particular aspect of Bier’s analysis, and have mentioned the lack of any substantive response to my criticism.

    That response has still not come.

    shipwreckedcrew (56b591)

  30. An actual declatTion of war, would involve economic mobilizations and other powers we would not employ, so an authorizing resolution from Korea to Iraq has been the alternative

    narciso (d1f714)

  31. Should be “in order to have the latter statute NOT overrule the former by implication…”

    shipwreckedcrew (56b591)

  32. “Declaration of War” has no definition in the Constitution. It is whatever Congress declares it to be. The AUMF suffices. There’s no requirement that the Declaration of War be against a sovereign state. The AUMF is a declaration against non-state actors. It is of no significance to the President’s powers of military and foreign affairs that not countries are named in the AUMF.

    shipwreckedcrew (56b591)

  33. Is anyone else watching this Super Bowl game?

    DRJ (15874d)

  34. Its one for the books has or e Er been this close, so late in the game.

    narciso (d1f714)

  35. 28 — 28 + 56.

    A FG makes it a 59 point game.

    NE is +3, so a FG by NE makes the game a push. Books give back all the money.

    The O/U was at 59.5, and books were heavy on the over last I read. So 59 is a good number for the books.

    A TD by NE crushes the books. The game goes “Over” and NE covers.

    shipwreckedcrew (56b591)

  36. Uh oh.

    shipwreckedcrew (56b591)

  37. 28 + 28 = 56.

    shipwreckedcrew (56b591)

  38. That was an incredible game.

    DRJ (15874d)

  39. Brady should retire. He can never do better than he did in the last quarter and overtime.

    DRJ (15874d)

  40. What’s the over/under on Brady wearing the MAGA hat at the awards ceremony?

    papertiger (c8116c)

  41. EPIC! Doesn’t get any better than that!

    Colonel Haiku (2601c0)

  42. I had to shower and have a cigarette after that, and I don’t even smoke.

    Colonel Haiku (2601c0)

  43. Larry teh Legbreaker is on his way!

    Colonel Haiku (2601c0)

  44. OT – there’s a tremendous article in the current issue of New Yorker on the battle for Mosul and the role of an Iraqi police unit from Mosul.

    shipwreckedcrew (56b591)

  45. That was crazy.

    I have a feeling my cousins, who are huge Patriots fans, are going nuts tonight.

    Patterico (115b1f)

  46. Not really. I have posted a lot today. I read it. It doesn’t really interest me to do a post on it. I will for $100. My PayPal is patterico@gmail.com.

    Patterico (115b1f) — 2/5/2017 @ 6:27 pm

    You want me to do that then I guess I’ll stop using your amazon link.

    Sigh.

    NJRob (43d957)

  47. Nah, I was a jerk with that answer. Sorry. You didn’t deserve that. Just in a bad mood lately. My fault, not yours.

    Bottom line with that decision is that it didn’t say anything interesting to me. It did nothing to resolve the debate we have been having between 1152(a) and 1182(f).

    Patterico (115b1f)

  48. Nah, I was a jerk with that answer. Sorry. You didn’t deserve that. Just in a bad mood lately. My fault, not yours.

    Bottom line with that decision is that it didn’t say anything interesting to me. It did nothing to resolve the debate we have been having between 1152(a) and 1182(f).

    Patterico (115b1f) — 2/5/2017 @ 10:08 pm

    Fair enough.

    That was my feeling with the Washington judge’s ruling. Except the Washington judge didn’t even bother to detail why he ruled as he did. But ultimatlely, it’s why this won’t get resolved either way. Depending on your initial perception, you have a valid defense either way.

    “Difficult cases make bad law.”

    Thank you for the quick response.

    NJRob (43d957)

  49. As an addendum,

    I appreciate your work too much to hold mere words against you. As long as you don’t go Charles Johnson or tell me to leave, I’d never stop visiting your site or continue to try and offset the cost of this site when I can. I read this site and Ace’s as my top 2 pages.

    This is my favorite place for discussion because of the insights offered by those who visit, whether they be you, your guest bloggers or the commenters. Very few places offer such quality discussion, certain individuals exempted.

    NJRob (43d957)

  50. I don’t think people should freak out if the Ninth Circuit leaves the stay in place tomorrow. Everything is very rushed and they may just want to let the case be litigated in the normal course. Doesn’t mean the government necessarily loses in the end.

    Patterico (115b1f)

  51. NJRob,

    It really is an extraordinary collection of people and I don’t think I appreciate that as much as I should.

    Patterico (115b1f)

  52. Well the 9th circus is like a broken clock, so it wouldnt surprise me, then again the fate of the nation is in anthonubkenmedy’s hands, gulp.

    narciso (1dd61b)

  53. And thank you for the kind words. Apologies again for snapping at you. It was a “I don’t need to dance for you like a monkey” sort of response on my part — which was totally inappropriate, because you didn’t ask the question in an entitled way, and so you didn’t remotely deserve that.

    Patterico (115b1f)

  54. I thought Bier disposed of that pretty well in his original op-ed:

    Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between “the issuance of a visa” and the “entry” of the immigrant. But this is nonsense. Immigrants cannot legally be issued a visa if they are barred from entry. Thus, all orders under the 1952 law apply equally to entry and visa issuance, as his executive order acknowledges.

    Sorry, Patterico, this was bulldust the first time and it’s still bulldust. As I pointed out a few days ago, you are reasoning backwards. I’m willing to take Bier’s word that people who we already know aren’t going to be admitted can’t be issued visas, but so what? Bier pretends that therefore people who can’t be denied visas must be admitted, and that just does not logically follow. I already gave a hypothetical example that demonstrated clearly your logical error, and instead of taking two minutes to think about it you simply repeated the error.

    Milhouse (40ca7b)

  55. Milhouse:

    So you’re trying to say that Congress’s intent was to prohibit discrimination in the issuance of visas, but allow the President to discriminate at will regarding entry, making the prohibition on discrimination in the issuance of visas an empty joke. The only reason to prohibit discrimination in the issuance of visas is to prohibit discrimination in the actual entry of an immigrant into the country. What other reason would that prohibition serve?

    That is why your hypothetical does not work. Here is your hypothetical:

    Here’s a forinstance. Suppose the following completely hypothetical laws: (1) It is lawful to discriminate on the basis of sex in employment but unlawful to do so in banking; (2) Unemployed people may not have bank accounts. Would you say that as a result of law #2 firing someone because she’s a woman now constitutes unlawful discrimination in banking?! Or that if the bank complies with law #2 by canceling her account it’s violating law #1 by discriminating against her? I don’t think so. Her boss fired her lawfully because he’s not discriminating in banking, and the bank’s reason for canceling her account is completely non-discriminatory. Nor do I see how it would make any difference if the bank is the employer; it’s still entitled to fire her and then cancel her account, even though it can’t cancel the account without firing her. I hope the analogy is clear.

    The reason your hypothetical does not fit these facts is that employment has a purpose other than merely providing a person access to a bank account. Visas have no purpose other than to provide someone entry to the country. So to make an analogy, you need to pick an A (corresponding to visas) and a B (corresponding to entry) where the only purpose of A is to get access to B. In addition, and perhaps more critically, since Bier says you can’t legally be issued a visa if you’re barred from entry, you have to posit that denial of B legally results in denial of A.

    So, for example, the purpose of a router is to give you wireless access to the Internet. Merely having a router won’t guarantee you access, just as a visa does not guarantee you entry. But that is a router’s only purpose. Also, under the law, if the government denies access to the Internet to a citizen, he may not buy or receive a router. (I am adding that condition to mirror the situation that Bier describes, that barring entry legally means a visa must be denied.)

    So if Congress passed a law that said: “We outlaw all racial discrimination in the sale or distribution of routers” I do not think a President could come along and say: “I am suspending all access to the Internet for blacks, and that does not contravene Congress’s intent!” Again, denying blacks access to the Internet legally means they are not allowed access to a router — this is one of the conditions I set up in the previous two paragraphs — and that legally results in their being denied a router on racial grounds, which is precisely what Congress prohibits, because the only purpose of the router is to access the Internet to begin with. (Don’t start telling me there are other reasons for routers. Maybe there are. For the sake of my hypo we are pretending there are not.)

    You artificially distorted the example by providing an A and a B that are not logically related. I believe the logical error is yours, not mine.

    Patterico (115b1f)

  56. Also, I posed you a hypo in the other thread and you never answered that.

    Patterico (115b1f)

  57. a war declared by Congress, and not some amorphous “war on terror” or “war on drugs” or other made-up “war” that is not actually a “war” as defined by the Constitution

    Wait, are you asserting that a “declaration of War” must include the phrase “we declare war!”?

    When Congress passes a resolution authorizing the use of military force against a defined enemy, with or without a defined goal, they have authorized the Commander-in-Chief to go to war. The Congress — whose power this is in the first place — quite clearly delineated its view of war powers in the War Powers Act. (Which both Bushes followed, but no Democrat president ever has.)

    The AUMF in the recent wars is just as valid as the WW2 declaration. Is there some relevant law that says different?

    Kevin M (25bbee)

  58. Question: would all the problems with 1152/1182 be resolved if Congress passed a simple law that said “1152 does not apply in cases where the President certifies a clear and present danger to national security.”?

    Really the argument here is whether the President’s conduct of national defense, and administration of immigration to that end, can be constrained by Congress, and whether than constraint can be absolute. And I think that this is the problem that many have with the global application of the ban on nationality tests. CLEARLY at some point it must fail.

    Patterico says, well, in a “real war” it would be, drawing the line as suits his case. But we actually have an AUMF that says this IS a war, and clearly ISIS is an enemy in that war. So a 90-day MORATORIUM on immigration from places where ISIS has supporters — until we understand wtf we are doing (having to trust whatsoever in Obama’s assurances) — seems quite reasonable.

    Kevin M (25bbee)

  59. Reading on:

    If if I were to concede this for the sake of argument — and I don’t — It’s not a real war against the countries named in the executive order.

    And I hasten to add that no countries are explicitly named in that order, but they are referred to by statutory provision.

    The AUMF is against a somewhat amorphous foe. But it clearly has been viewed as including al Qaeda and ISIS and similar groups in a number of countries. The EO was aimed at countries whose civil structure has been compromised by these groups, and it’s purpose is to create procedures for dealing with these compromises. The groups that the AUMF targets inform the lists of countries chosen.

    Kevin M (25bbee)

  60. Maybe I missed the comment, but doesn’t the concept of the “specific having precedence over the general” apply in this case? The President is specifically given the power to restrain immigration from countries he feels represent a danger, whereas the non discrimination on basis of national origin statute was a generic provision in a statute having nothing to do with controlling immigration relative to national security.

    Ken in Camarillo (fe2134)

  61. Patterco:

    DRJ’s comment that “[t]he States apparently did not assert discrimination based on national origin for the purpose of the TRO” may signal that the debate among David Bier, Andrew C. McCarthy, myself, and my commenter SWC may not be central to the immediate litigation in the Ninth Circuit.

    This argument was raised in the newspaper, but it wasn’t raised in court.

    This may be either because it was not “invented” by the law groups bringing the cases, plus the fact that they are very fond of the 14th amendment, which they use as a catchall for anything they want from a court, but if they start losing they might bring up this argument; or it might be that they feel that really it’s not a good legal argument, and they may know a bit of law that we are not so familiar with.

    But they did say, according to DRG, that “the Order is not consistent with the immigration laws passed by Congress” Could DRJ explain what was it that they said was inconsistent?

    Is it something even fundamental than David J. Bier’s argument in the New York Times about the 1965 law?

    It would seem to me that if they are correct about that, that “the Order is not consistent with the immigration laws passed by Congress” the Order fails, unless Washington State and all others suing in court are ruled to have no standing, or the president has authority outside of that granted by Congress.

    Sammy Finkelman (9974e8)

  62. Kevin M (25bbee) — 2/5/2017 @ 11:55 pm

    Wait, are you asserting that a “declaration of War” must include the phrase “we declare war!”?

    That could very well be true.

    A declaration of war is a law that kicks other laws (and possibly some international treaties and agreements) into effect, and that’s all it is. It is not a necessary prequisite to the use of force. It probably makes opposition to the war treason.

    It had sme international legal meaning in 1787 – well maybe it didn’t. France did not declare war on Great Britain in 1778, and somewhere I think in the Federalist Papers Alexander Hamilton wrote that it didn’t mean too much any more (words with that meaning) I need to check that.

    The AUMF in the recent wars is just as valid as the WW2 declaration. Is there some relevant law that says different?

    Presidents have held that this is not legally necessary to hvave an authorization, but they also don’t want to test it in court. The restraint on a president’s war making power was supposed to be the size of the army and the navy, and the power of the purse, including the constitutional provision that no appropriation for the military can be made for more than two years, and political consequences.

    Oh – and also they could impeach him. Or retaliate in other ways.

    Sammy Finkelman (9974e8)

  63. Kevin M (25bbee) — 2/6/2017 @ 12:05 am

    would all the problems with 1152/1182 be resolved if Congress passed a simple law that said “1152 does not apply in cases where the President certifies a clear and present danger to national security.”?

    Probably, but Congress isn’t going to do it, especially so long as Donald Trump is president.

    Whatever authority Donald Trump has may very well be limited to whatever authrity Abrahama Lincoln had to do things. Sometimes in such cases, if the danger is real, the courts tolerate in and then rule it illegal after the crisis is over.

    Sammy Finkelman (9974e8)

  64. Here’s a possible precedent, I know it was 60 some years ago

    https://supreme.justia.com/cases/federal/us/345/206/case.html

    narciso (d1f714)

  65. “Sometimes in such cases, if the danger is real, the courts tolerate [it] and then rule it illegal after the crisis is over.”

    The problem here is that the danger is , arguably , not very real. The administration may very well know something we don’t know . But based on the number of past attacks on American soil from citizens of those countries ( zero AFAIK), the risk does not appear to be high enough for the executive to bypass Congress.
    I think there are good arguments on both sides, and I am not sure how SCOTUS will eventually rule on this if it gets there.

    mackwolfe (0439e6)

  66. RE: need for AUMF
    “Presidents have held that this is not legally necessary to have an authorization, but they also don’t want to test it in court”

    I think the Lybia intervention was as clear a test as any. Congress ( and the American public) didn’t care. It seems that as long as there are no boots on the grounds involved ( excluding Special Ops) , the American Public does not consider military action to be “war”. THe problem with that logic is that other countries will certainly consider bombing their facilities an act of war .

    mackwolfe (0439e6)

  67. Libya was a clandestine war, waged in part with unvouchered funds and with Al queda trainers,

    narciso (d1f714)

  68. However the key members of house and senate intelligence including howdy were apprised

    narciso (d1f714)

  69. Thank you, once again I learn more than the simple contents of an article by reading Patterico.CCareful reading of the arguments contained in the writings of yourself and your carefully selected guest writers contain gems linking back to the undergirding structure o our republic and have been invaluable to me as I fill in my understanding thereof.Makes me wish I had taken the advice of our Engineering Dept head and had gone to Law School at the graduate level.

    Neocon_1 (6b4652)

  70. The states appeal is what I expected the judges decision to have been, it leaves out the elephant in the room but that’s to be exoected

    narciso (d1f714)

  71. Just read this at Althouse:

    “But Judge Robart took action and Judge Gorton refrained from taking action. It is Judge Robart who needs to identify a legal basis for interfering with another branch of government. How is it that Gorton gave us a 21-page opinion explaining the doing of nothing and Judge Robart interfered with the actions of the executive branch without putting legal reasons in writing?”

    http://althouse.blogspot.com/2017/02/judge-robarts-brisk-ruling-contained.html

    harkin (36810b)

  72. Dan McLaughlin NRO has posited the Patrick v. Andrew debate as the definitive debate on the question of whether the EO is within or exceeds the powers granted to the Pres. by Congress. Links to both articles and the debate between the two.

    Very nice.

    shipwreckedcrew (56b591)

  73. Althouse identifies the key problem I see in Washington’s approach, and where I think they will ultimately fail:

    And that problem of the breadth of the judge’s order is a standing problem. Standing doctrine not only requires that the plaintiff have a concrete and particularized injury caused by what the defendant is doing. The plaintiff can only demand a remedy that is designed to relieve that injury — not other injuries that may also exist.

    This is sort of a technical legal argument, but the best I can explain it is that the basis for Washington to be allowed to assert harms against the state as “proprietor” (owner of Univ. of Wash and WSU injured by faculty and students unable to attend), and as “parens patriae” (on behalf of all citizens of Washington suffering harm) works as a limit on the types of claims they can make, and the types of remedies they can seek.

    So, for example, since refugees not yet in the country have no right to entry, and if there are no refugees among their faculty and students (unlikely but not impossible), then Washington has no standing to challenge any part of the order dealing with refugees. The fact that some refugees in the future might, if admitted, come to Washington to settle, is too speculative to form a basis for relief and will not be allowed as a basis for standing.

    Since green card holders aren’t covered by the immigrant visa provisions, any faculty who are green card holders are no longer a basis for Washington standing.

    It comes down to only the proposition that student visa holders and faculty members with work visas are subject to not being allowed to return if they depart, or are now currently stranded abroad and unable to enter.

    If those two classes turn out to be empty or very small, Washington’s standing claim begins to disappear.

    shipwreckedcrew (56b591)

  74. narciso @64.

    I looked into what I could find out about this case.

    It was a 5-4 decision. Law clerk William Rehnquist sided with the government, but law clerk, Cronson sided with the respondent. Justice Robert H. Jackson, joined by Justice Felix Frankfurter, filed one of the two dissents. The other, shorter one, was by Justices Hugo Black and Douglas, which cited the Jackson dissent favorably. Apparently Black wanted to add some background information, or a few rhetorical flourishes, that Jackson didn’t want to include, or perhaps it was Justice Black’s problems with substantive due process.

    After the case was over, Ignatz Mezei was paroled anyway into the United States. By that time Ellis Island was being closed down, and there was a new president and Attorney General. Eisenhower was president and Herbert Brownell was Attorney General. actually they were already in office by the time the decision came down, March 16, 1953, but not when it was argued January 7-8, 1953. (two-day argument?)

    Ignatz Mezei had immigrated to the United States in 1923, the last period of relatively large immigration (the quota, which had been imposed effective July 1, 1921, was reduced as of July 1, 1924, and the national origins base shifted from 1910 to 1890 and there was no longer an advantage from arriving on or near the first day of every month)

    He lived in the Buffalo area till 1948, never becoming a citizen, when he attempted to visit his dying mother in Romania, leaving his wife behind. (He had married her when she was widow with three children) He was not allowed into by-then-Communist Rumania and was stuck in Hungary and had difficulty getting permission to leave Communist Hungary.

    Evidently his permanent residence expired, and he secured an immigrant visa. This may have been based on British nationality, since he supposedly was born in Gibralter. (the quota, since 1929, was based on country of birth, not citizenship, by the way) There may be some question about where he was born or what citizenship did his parents have. He was 56 years old in 1953, which means he was born in 1896 or 1897 and was a cabinetmaker by profession, probably not too well educated.

    When he arrived at Ellis Island on February 9, 1950, he was temporarily excluded and then, on May 10, 1950, the Attorney General, which probably means some lower level person and not J. Howard McGrath personally, ordered him permanently excluded, and also claimed that it was on “basis of information of a confidential nature, the disclosure of which would be prejudicial to the public interest” for security reasons. That last claim meant nothing about it could be challenged. The was based on an Emergency Proclamation made during World War II, which was still effect (the proclamation, not the war, I think)

    Now, during the Truman Administration, (this actually continued later, too) DOJ lawyers were very aggressive in claiming presidential privilege, and a lot of such national security claims were made unjustifiably and at least some of the justices were very suspicious of this claim, although apparently that suspicion it could not help his legal case because it was unreviewable by law. They probably thought the exclusion really rested on doubt about his origins, not the possibility he was a big spy, and this should have been disclosed to the respondent. While legally they couldn’t use this as a factor, this doubt almost certainly profoundly affected the dissenters.

    Anyway, Ignatz Mezei was twice sent to France, his country of departure, and twice refused entry. Great Britain also indicated they would not accept him (that is, he was not a British subject) The State Department attempted to get Communist Hungary to take him, but they weren’t interested. He applied for entry to twelve Latin American countries, but all turned him down.

    Then, in June, 1951, he told the Immigration and Naturalization Service that he would exert no further efforts to depart, and asked to be released on the basis of the writ of habeus corpus.

    After four tries, he was successful on the 5th attempt, and on November 9, 1951, a judge on the United States District Court for the Southern District of New York said the exlusion order could not be challenged, but further detention after 21 months, abesnt affirmative proof of respondent’s danger to the public safety was not justified except with affirmative proof of respondent’s danger to the public safety, which the government refused to present even in camera. He ordered him released on $5,000 bond (in 1951 dollars)

    It is not clear from he decision whether he met it, but in any case the government appealed and the Court of Appeals for the Second Circuit upheld the decision, Judge Learned Hand dissenting, on the grounds that the power to detain could not be greater than the power to exclude, and if they had no ability to exclude him, they couldn’t detain him instead. But the court ordered the terms of the bond reconsidered and it was reduced to $3,000, which he met.

    After a December 28, 1953, New York Times editorial about this case, and other public advocacy, (there’s a letter to the editor from Mezei on Jan. 1, 1954 22:7) the Justice Department held a hearing in February, 1954. It developed that Mezei had claimed three different places of birth. Two professional witnesses, Manning Johnson and Louis Reed accused Mezei of working as an active member of the U.S. Communist party. Meizi’s lawyer did not know that Johnson had already admitted to having made false statements under oath in previous cases and received sizable sums in return for his testimony.

    The government also brought out the fact that Meizi had been a member of International Workers Order, which was affiliated with the Communist Party, but also provided low-cost health and term life insurance, medical and dental clinics and cemeteries, as well as a summer camp and other avenues for propaganda. (It had been founded in 1930 after the Workmen’s Circle or Arbeter Ring, which was affiliated with the Jewish Daily Forward newspaper successfully pretty much made it very difficult for, or got the Communists out of their organization, and the Communists left in October, 1929, and formed their own organization. At one point, it had 200,000 members. It was shut down by New York State in 1954.)

    https://en.wikipedia.org/wiki/International_Workers_Order

    While the leadership of IWO sections were members of the Communist Party, most of the IWO’s rank-and-file members were not party members.

    Mezei had also once been convicted of receiving stolen property (seven sacks of flour, a misdeamenor)

    Nevertheless, the claim of a danger to national security clearly was a travesty. But the Board of Special Inquiry upheld the exclusion order. But it also made an off-the-record recommendation to the Attorney General to grant Mezei an immigration parole.

    The exclusion was upheld by the Board of Immigration Appeals on August 9, 1954, but the Attorney General announced the same day that Mezei would be paroled. He returned to Buffalo.

    The case, and another, is said to have been writte about in the University of Pennsylvania Law Review April, 1995. “The Exclusion and detention of aliens: lessons from the lives of Ellen Knauff and Ignatz Mezei” by Charles D. Weisselberg.

    Ignatz Mezei died in Hungary in 1958 according to find a grave. * But according to another website, he lived with his wife and four stepchildren in Derby, N.Y. until she died in 1969. And only then did he go to Hungary, after selling the house, where he is said to have died, largely forgotten, in the 1970s, (1978?) at which point he would have been around 80 years old.

    * The find a grave site seems to have all kinds of spelling and grammatical errors.

    A more recent similar case is ZADVYDAS v. DAVIS (99-7791) 185 F.3d 279 and 208 F.3d 815, Argued February 21, 2001–Decided June 28, 2001

    https://www.law.cornell.edu/supct/html/99-7791.ZS.html

    In ordering his release, the District Court held that the Constitution forbids post-removal-period detention unless there is a realistic chance that an alien will be removed, and that no such chance existed here because Cambodia has no repatriation treaty with the United States. The Ninth Circuit affirmed, concluding that detention was not authorized for more than a reasonable time beyond the 90-day period, and that, given the lack of a repatriation agreement, that time had expired.

    Of course, that’s removal, not exclusion.

    Mezei was in the position of being excluded, rather than removed, although he had been in the United States for 25 years, because he lost his permanent residence, or did not try to reassert it, but instead took what he thought was the easier course of applying to immigrate all over again.

    Sammy Finkelman (9974e8)

  75. “Question: would all the problems with 1152/1182 be resolved if Congress passed a simple law that said “1152 does not apply in cases where the President certifies a clear and present danger to national security.”?”

    Sure. I wouldn’t suggest Congress do so until Bannon is leashed, muzzled and locked in a kennel though. Besides, I want to see the results of more of Wile E. Bannon’s heavy use of ACME products without adequate supervision. The entertainment value is reasonably good.

    Rick Ballard (5e8a41)

  76. Again rick, cannon and miller followed the statute rather rigorously on advice of house staffer, someone inform f chuck, on second thought never mind

    narciso (d1f714)

  77. I think, from what I’m reading, that there are 4 issues here:

    1. Does Washington State have standing?

    2. Will irreparable harm result to anyone if the statusquo is mainintined or not maintained?

    3. Does he state of Washington have a good chance of winning its case?

    4. Should any Temporary Restraining Order apply nationwide or to anyone besides the parties in front of the judge?

    The case for standing is good, because you only need one person affected to have standing. Courts have especially granted de minimus standing when it is an issue that affects many people or will come up again.

    The case for irreparable harm is also good because the harm doesn’t have to be great and in fact this disrupts a lot of things.

    But irreparable harm hinges on whether or not the State of Washington will probably win its case because the only harm is when ou will win your case. Irreparable harm could also apply the other way, but I assume the judge has decided the national security case is really not plausible. Nothing changed on January 20, 2017. There is already screening.

    The issue at hand really is:

    Is the president required to act rationally, or does he have absolute discretion?

    Because if he is required to act rationally, this executive order probably falls. What are the probabilities?

    Having a Temporary Restraining Order apply nationwide is probably against precedent, but it was upheld in the Texas v. United States case which overturned President Obama’s DAPA.

    Sammy Finkelman (9974e8)

  78. Narciso: Who are Rick, Cannon, and Miller? Where did they follow the advice of a House staffer, and with regard to what statute? Chuck I know is New York State Senator and Senate Minority Leader Charles schumer (often called Chuck even in major newspapers)

    Sammy Finkelman (9974e8)

  79. “on advice of house staffer”

    Those would be Goodlatte’s fellows, the ones with their lips stapled shut by NDAs ordered by Bannon, preventing them from discussing the proposed EO with the man who authorizes their continued employment. I’m sure they offered good advice and I doubt they leaked at anywhere near the rate of the OLC holdover sieve but the rapidity of the Democrat response suggests the Bannon/Trump infatuation with NDAs as a weapon to be rather specious.

    Rick Ballard (5e8a41)

  80. bannon and Stephen miller, rick is our very own raconteur, ballard, f chuck wants congress to examine the issue, they already did

    narciso (d1f714)

  81. I native paTterns the visa waiver and the E0 share identical language, albeit an option for discretion precisely what our stone navy ta doesn’t alloe

    narciso (d1f714)

  82. The Washington brief in opposition to the motion for emergency stay was due at Midnight last night. So if anyone finds a link to what they filed how about posting it here.

    shipwreckedcrew (56b591)

  83. Sammy, your view of rationality is not controlling.

    Steve Malynn (b5f891)

  84. I think it was this one, if not its third from the top

    http://cdn.ca9.uscourts.gov/datastore/general/2017/02/06/17-35105%20Washington%20Opposition.pdf

    narciso (d1f714)

  85. @82. The 9th Circuit put up a page with case information on WA and MN v. Trump No. 17-35105.

    This looks like the states’ opposition brief.

    crazy (d3b449)

  86. Whatever authority Donald Trump has may very well be limited to whatever authrity Abrahama Lincoln had to do things

    You mean the guy who pretty much put the Supreme Court under house arrest?

    Kevin M (25bbee)

  87. The case for standing is good, because you only need one person affected to have standing. Courts have especially granted de minimus standing when it is an issue that affects many people or will come up again.

    No it is not. The STATE has a terribly weak economic claim, akin to the effect my taxes would have on the State of California which spends them in a microsecond.

    It is long established that admission decisions regarding non-US persons are not justicable.

    The ONLY case WA state has is that there may be a legal ban on excluding ALL persons from a given country. But this is clearly suspect for a number of reasons, which we have well explored here. There are simple modifications of this order (“and between 12 and 60 years of age”) that would make that argument moot.

    “Is the president required to act rationally…?”

    “rational basis” just means “is there any conceivable reasons someone might do this.” It’s not a high bar. As for deciding if the President is acting rationally, I think you have to look to Amendment 25 for your recourse.

    Kevin M (25bbee)

  88. 83. Steve Malynn (b5f891) — 2/6/2017 @ 10:57 am

    Sammy, your view of rationality is not controlling.

    No, it isn’t, but I think the legal position of the administration is that it is not required to be rational.

    If it is reviewable, and if it is required to be rational, I think it does probably fall, especially the temporary measure cancelling all visas for all citizens of seven assorted countries.

    The substance is not really being defended by more than hand waving.

    Congress, by the way, is not required to be rational when passing laws, unless maybe there’s some risk of violating the constitution. The president, exercising delegated authority, may be required to be rational.

    Sammy Finkelman (9974e8)

  89. I think rational basis is, if not 50%, something plausible.

    I am not sure if is quite rational to use, without modification or thought, a list developed for one purpose for a completely different purpose and to carry that to absurd lengths.

    The no-visa-waiver list required visitors to the U.S., who were citizens of 38 countries that don’t usually require visas, to get visas before visiting the U.S. if they have recently visited any one of seven countries after March 1, 2011 (the approximate start of the Arab Spring – actually some time before ISIS got active in Syria or Libya)

    That list of seven was created mainly to deal with the question of foreign fighters from Western Europe coming to join the terrorists belonging to organizations that maintained terrorist connections abroad. (Congress was concerned that maybe their governments wouldn’t know what they had done. The U.S. was cncerned that not every possible foreign fighter was being put on a terrorism watch list.)

    That is why Syria, Iraq, Libya, and Somalia were on that list, but Nigeria and Afghanistan were not, because terrorists there didn’t recently encourage foreign fighters from western European countries to join them. Al Qaeda and the Taliban in Afghanistan and Pakistan had encouraged lots of people, but earlier and not principally coming from visa waiver countries. Boko Haram in Nigeria seems to not recruiot anyone outside of nearby countries in Africa.

    ISIS, till the very recent past, encouraged foreign fighters to travel to Syria or the other places they were active in. al shabab in Somalia I think was mainly getting people from the United States, because I think the United States is the main country that had Somalis living there. Maybe that’s the reason also for Yemen, because they are countries ISIS is active in.

    Iran and Sudan are there for some other reason.

    The original list was four, specified by a law passed after the Paris and San Bernardino attacks.

    Iraq and Syria were specified by Congress because ISIS is active there (although anyone connected to ISIS entered Iraq through Syria and not through Iraqi-government or Kurdish controlled territory and wouldn’t have an Iraqi stamp in their passport, so Iraq never should have been included, but Congress was too panic stricken, cowardly, or careless to notice.)

    Iran and Sudan were put into the law because these countries supported terrorism and so a visitor to those countries might be involved with that, and maybe needed more scrutiny. Libya, Yemen and Somalia were added to the original list early in 2016. The issue for them must have been was purely foreign fighters coming there.

    The intention of that list never was to totally exclude anyone. It was to subject people, who ordinarily would not get any scrutiny, beyond checking to see if they had been put on a terrorist list by their own country, or by the United States, to somewhat more scrutiny than otherwise. They had to pay a fee and be interviewed for a visa, could get turned down for reasons unrelated to terrorism, and the law made some very specific exceptions.

    https://www.cbp.gov/travel/international-visitors/visa-waiver-program/visa-waiver-program-improvement-and-terrorist-travel-prevention-act-faq

    Based on the circumstances surrounding your travel, you may fall within an established exception to the new eligibility requirements if you were a representative of an international organization, working on behalf of a humanitarian NGO, performed official work as a government employee of a Visa Waiver Program country, have traveled to Iran for legitimate business-related purposes, or your work was related to other official reasons for travel. You must carefully review the options available in the ESTA application to determine which situation applies to you and then select the appropriate information to be considered for a waiver.

    I think journalism is also an exception to the requirement for a visa, (the Q and A is not exhaustive, and repeats itself as well) and this all works on the honor system, although people who believe themselves to be covered by the exceptions to the rule are advised to bring with them to the United States documentation of the purpose of their visit to the seven countries for so long as it shows in their passports.

    The former Prime Minister of Norway, Kjell Magne Bondevik, was caught up in that one, even though he had a diplomatic passport, because he has visited Iran for some event (a conference on extremism believe it or not) and he had to call the ambassador of Norway to be released from detention at the airport. He said he had already come one time to the United States after that visit to Iran, with the Iranian visa in his passport. He was headed this time for the National Prayer Breakfast. He is also a Lutheran minister and president of something called the Oslo Center. (it works closely with the Carter Center in Atlanta.

    Sammy Finkelman (9974e8)

  90. I think rational basis is, if not 50%, something plausible.

    No, on matters that don’t involve basic rights, it is “did they have a reason, or can I think of one (since legislative intent isn’t really germane).”

    So, if I want to ban all sidewalk vendors, and a reason might be vague health concerns, that would be a rational basis. Even if there is copious evidence that there are no health concerns.

    Kevin M (25bbee)

  91. Rational basis is whether the action in question is rationally related to a legitimate government policy.

    That the factual basis underlying the action might be incorrect, IS NOT relevant. That’s why the Judge’s question about “How many people from these 7 countries have been arrested for terrorist actions” was irrelevant. It doesn’t matter.

    The purpose of review is whether the government has a rational connection between its “means” and its “ends.”

    Here the “ends” are to keep danger potential terrorists from slipping into the US through the immigrant visa process.

    Its “means” is the suspension of immigration from certain countries with failed governments and a re-calibration of the screening process.

    The fact that the court might think other countries should have been included, or one or more of the seven named countries should have been excluded, is irrelevant.

    shipwreckedcrew (e90d7c)

  92. I don’t have time right now to break down the Washington brief, BUT I have found more than a couple instances of taking liberties with their citations to 9th Circuit and Supreme Court case law.

    This is a pet peeve of mine, and I catch lawyers all the time taking passages out of context, or clipping off part of a quote and then adding facts to the quote that fit their case, when those facts weren’t present in the case they are citing.

    Here’s one example:

    At the top of page 16, the write:

    A resident denied re-entry must receive a “full and fair hearing of
    his claims” and “a reasonable opportunity to present evidence on his behalf.”
    Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000); Gutierrez v. Holder, 662
    F.3d 1083, 1091 (9th Cir. 2011).

    “Resident(s) denied re-entry” is an apt description of most of the Washington state residents the State purports to be acting on behalf of. They claim that 7000 residents of Washington, either immigrant, student, or work visa holders, come from the 7 named countries.

    The problem with their case cite and why I think its an abuse is that neither case they cite to involved a “resident denied re-entry.”

    Colmenar was a Philippine citizen who made an asylum claim in order to avoid deportation. The holding of the case was that the Immigration Judge did not give him a full and fair opportunity to present his factual basis for being granted asylum based on political persecution.

    Guiterrez was a citizen of Mexico in the country without any status at all. At his deportation hearing he sought relief from deportation and the opportunity to voluntarily depart which would have left the possibility of applying for re-entry.

    I have a practice of harshly criticizing in my pleadings attorneys that do this, and I’m very disappointed to see the AG for Washington engage in it.

    There are other examples that I have found of similar mis-citations to authority, a couple of very crucial ones on the issue of standing. One of them is a real “Alice In Wonderland” “up is down” “black is white” argument.

    I think I’ll put it in another comment on its own.

    shipwreckedcrew (e90d7c)

  93. 82. shipwreckedcrew (56b591) — 2/6/2017 @ 10:44 am

    82.The Washington brief in opposition to the motion for emergency stay was due at Midnight last night. So if anyone finds a link to what they filed how about posting it here.

    DRJ liks to links in the jury thread.

    https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000860

    Is this it?

    http://cdn.ca9.uscourts.gov/datastore/general/2017/02/06/17-35105%20Washington%20Opposition.pdf

    Sammy Finkelman (6f9f42)

  94. A resident denied re-entry must receive a “full and fair hearing of his claims ?

    …is on lines 4 and 5 of page 16, so that’s the right link.

    Sammy Finkelman (6f9f42)

  95. AND ONCE AGAIN SWC appears vidicated on the 1152(a)(1)(B) “procedures” argument. Why? Glad you asked.

    As Patterico points out in the Post, the Gov’t brief argues what I have argued – that the EO is really and adjustment of procedures for processing immigrant visas, in anticipation of having “extreme vetting” procedures apply to countries the Administration deems to be of higher risk.

    1152(a)(1)(B) says the “nondiscrimination language” of (a)(1)(A) does not apply to the authority of the Sec. of State in establishing the procedures for processing immigrant visas, so “nationality” discrimination is allowed — including a complete ban.

    How does Washington respond to this argument in its brief????

    “Crickets”

    Yep. Don’t even mention it.

    The argue 1152 v. 1182, and that 1152 came later in time and therefore amends 1152. But they don’t even address the fact that 1152 was amended, and the implications of that amendment.

    Why? Because I’m right, they know it, and there is no effective response.

    But I’ll get back to bashing what they actually do write a bit later.

    shipwreckedcrew (e90d7c)

  96. Yes, SWC is correct. In fact, SWC it correct as a textualist. You cannot imply that one statute amends another – that is importing a penumbra.

    Steve Malynn (b5f891)

  97. LOL

    The Govt Reply memo STARTS with the argument the the EO is part of a process to modify the procedures for processing immigrant applicants from high risk countries.

    Sheesh – they shud at least pay me a week’s worth orthopedic of my former salary.

    Shipwreckedcrew (5a5600)

  98. Orthopedic ???

    Shipwreckedcrew (5a5600)

  99. Byron York: Judge Robart’s national security expertise

    It’s a good read with strong facts regarding Roart’s distance from reality wrt assertions he made regarding terrorist involvement in the US by citizens of the seven countries.

    Rick Ballard (5e8a41)

  100. Here’s a second example of question citation to authority — but I might characterize this one as a questionable argument based on a wilful misrepresentation of the case law, which they cite correctly, but then argue in a misleading manner:

    On the subject of parens patriae standing, both parties deal with the Supreme Court case of Mass v. EPA, where Mass joined several scientists in attempting to force EPA to begin the process of administration rule making for the purpose of passing regulations on the emissions of CO2 due to its impact on global warming.

    Mass based its standing on what the Court has called “quasi-sovereign” issues unique to states. In the EPA case it was the fact that the damage to coastlines owned by Mass from rising sea levels was a basis for Mass to having standing on behalf of all its residents who collectively own the shoreline land owned by the state.

    In addition, the Court found that in the Clean Air Act, Congress created a process after rejection of a petition by EPA to initiate rule making, the aggrieved party could file an action on the basis that the rejection was arbitrary and capricious. So in addition to its status as owner of state land, Mass. benefited from a Congressional procedural mechanism to take their claim into federal court.

    In dissent, the Chief Justice argued that the majority approach in Mass v. EPA ignored the longstanding precedent that states could not assert “quasi-sovereign” interests against the federal government — which is what Washington is doing here. In responding to the Chief’s criticism, in Footnote 17 of the majority decision, citing Georgia v. Penn R. Co., Justice Stevens wrote:

    … that there is a critical difference between allowing a State
    “to protect her citizens from the operation of federal statutes” (which is
    what Mellon prohibits
    ) and allowing a State to assert its rights under
    federal law (which it has standing to do). Massachusetts does not here
    dispute that the Clean Air Act applies to its citizens; it rather seeks to
    assert its rights under the Act.

    So, within the Mass v. EPA decision which Washington claims supports its claim of parens patriae standing on behalf of Washington residents, there is actually language in a footnote relying on a earlier opinion that states parens patriae standing CANNOT be used as a basis to protect state citizens from the operation of federal law.

    So, does Washington go silent on that issue, and simply decline to address it? After all, isn’t what Washington is attempting to do here is to protect Washington residents from operation of the EO?

    I wish they had only declined to address it. Instead, here is what they wrote at bottom of page 17, and top of page 18:

    But in Massachusetts v. EPA, the Court clarified that “there is a critical difference
    between allowing a State to protect her citizens from the operation of federal
    statutes (which is what Mellon prohibits) and allowing a State to assert its
    rights under federal law (which it has standing to do).” 549 U.S. at 520 n.17.
    Here, the States seek not to protect our residents from federal statutes, but to
    protect our residents against Defendants’ violations of federal law
    . This is what
    States “ha[ve] standing to do.” Id.

    Huh??

    Washington is trying to protect residents FROM federal law based on their view that the law is illegal. That’s still trying to protect them from federal law.

    Washington rewrites the Court opinion in Mass v. EPA by substituting “federal statutes” for “federal law.”

    They then clip on the very end of this passage the quoted language “have standing to do.” The only place in the footnote those 4 words appear is the following text:

    allowing a State to assert its rights under
    federal law (which it has standing to do).

    The context of the State’s “rights under federal law” was the statutory right to challenge the denial of the rule making petition as arbitrary and capricious. The State had standing to pursue that “right” in federal court.

    I know this all sounds like lawyerly mumbo-jumbo, but IMO this is pretty outrageous bullsheet for a State AG and SG to sign their name to a brief that so liberally misuses citations to authority.

    I just never tolerated this stuff very well while with DOJ, and you saw it all the time. As noted, I tried to shame lawyers who engaged in this crap by pointing it out in my pleadings. I didn’t make a lot of friends that way.

    shipwreckedcrew (e90d7c)

  101. There’s now a relatively long Wikipedia article that gives a history of the lawsuits, wthout much of the legal arguments.

    https://en.wikipedia.org/wiki/Legal_challenges_to_Executive_Order_13769

    Some pedantic people are proposing to change the title of he article (back?) to “Legal challenges to Executive Order 13769″ but the title, if not he URL, for now is: “Lawsuits against the immigration policy of Donald Trump”

    Sammy Finkelman (03c829)

  102. This is the text of Executive Order 13769 dated January 27, 2017:

    https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states

    Note Section 3. There’s no extreme vetting proposed. Just a report about countries that do not provide adequate information, (which means cannot or will not identify terrorists) due at the end of February – then the Secretary of State shall request all foreign governments that do not supply such information to start doing it, and then, after another 60 days, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals from thsose countries (except for those on diplomatic passports and the like)

    Section 5 e says:

    (e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis…, when the person is already in transit and denying admission would cause undue hardship—and it would not pose a risk to the security or welfare of the United States.”

    But I don’t know that they did it. That section defines “when the person is a religious minority in his country of nationality facing religious persecution” as automatically falling into the category of “being in the national interest” which is arquirement for waiving the temporary suspension of the admission of refugees.

    Section 8 is something aimed specifically at Saudi Arabia, where what’s really happening is that the government of Saudi Arabia does all the screening. They do a better job of it, actually, and they do it to hide the problem.

    I don’t know what country or countries Section 9 is aimed at. What country charges higher fees to Americans and makes visas valid for shorter perods than the U.S? Maybe China.

    Sammy Finkelman (03c829)

  103. You know, there is nothing stopping the administration from promulgating the visa and refugee rules that the moratorium was designed to delay for. Once that happens, all this becomes moot.

    Kevin M (25bbee)

  104. shipwreckedcrew (e90d7c) — 2/6/2017 @ 6:07 pm

    Washington is trying to protect residents FROM federal law based on their view that the law is illegal. That’s still trying to protect them from federal law.

    They’re trying to protect them from what they assert is a violation of federal law. Was that not the case in Massachusetts v EPA?

    Massachusetts v. Mellon, 262 U.S. 447 (1923) is said to be the first case that established he concept of standing, and held that taxpayer standing was not enough. They’re citing Massachusetts v. EPA (where there was special statutory standing) incorrectly, but that doesn’t mean that there aren’t any other cases that they can and do cite. Mellon doesn’t apply here either. It may affect one grounds, bit not others.

    Washington State is partially basing its standing on the fact that it operates universities.

    The States established two independent grounds for Article III standing: (1) harms to their proprietary interests; and (2) harms to their quasi-sovereign interests. ECF 17 at 2-5.

    With regard to the other grounds, they say:

    …courts have repeatedly found lost tax revenues sufficient to establish proprietary standing. See, e.g., Sausalito v. Oneill, 386 F.3d 1186, 1198 (9th Cir. 2004) (holding that lost property and sales tax revenues caused by increased traffic established standing without any numeric quantification of the harm).

    And in Texas v. United States, 787 F.3d 733 (5th Cir. 2015), the court found that a change in immigration policy that would increase state expenditures created standing. If increased expenditures create standing, there is no logical reason why decreased revenues should not.

    Massachusetts v. Mellon is brought in by the Justice Department to say that Washington State should not have anohther thing yet, parens patriae standing. Washington State says first of all Massachusetts v. Mellon didn’t bar all such suits, and besides Massachusetts v. EPA they cite Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982)

    Sammy Finkelman (03c829)

  105. 103. Kevin M (25bbee) — 2/6/2017 @ 9:20 pm

    You know, there is nothing stopping the administration from promulgating the visa and refugee rules that the moratorium was designed to delay for. Once that happens, all this becomes moot.

    Nobody’s paying any attention to this, maybe because Donald Trump’s previous talk of “extreme vetting” is confusing people, but the “moratorium” is scheduled to become permanent, just maybe with a slightly different list of countries.

    The only new rule will be that aliens who are citizens of certain countries cannot travel to the United States – period.

    https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states

    After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals [of those countries] (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

    I saw someone (a Moslem woman) who was interviewed on WABC-TV on the Sunday interview show thatairs 11 am to 11:30, who understood this, but nobody else so far, and I don’t think even Bill Beuutel picked up on this.

    Because almost nobody’s read the executive order and they are relying on the newspapers to tell them what’s in it.

    Now Donald Trump could choose not to issue this proclamation, or put no countries on this banning of their citizens list, but that’s it. Make no mistake about it: The countries will not be able to meet the demands, except possibly Iraq, or Iraq might be exempted for foreign policy reasons.

    Iran could maybe meet the demands, if it chose to reverse its whole policy on terrorism and tell the United States everything it knows, at least about any Iranian nationals they are asked about.

    That wouldn’t stop them from sending terrorists here – to the United Nations – if they want to, since they can do that anyway using diplomatic passports, or find people from South America, and they never would consider sending any Iranian nationals under deep (non-diplomatic) cover in the first place.

    And I don’t know – 15 countries might be added to the list, including some non-Muslim ones, like North Korea.

    Sammy Finkelman (03c829)

  106. …from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

    Bold the whole sentence please.

    The idea is to develop items of information that must be provided by persons in those countries before visas are approved. In the case of countries where that information is not available, then there might be a catch-22 ban, but it would be due to the lack of information, not the country itself.

    Also, there may be a quota and a preference for religious or ethnic minorities (as measured in that country), which may have the effect of putting Sunni Muslims (or Shiites in Iran) to the back of the line, but would allow Alawites or Yazidis (or Sunnis from Iran), along with Christians and Jews, if any survived.

    Kevin M (25bbee)

  107. Kevin M (25bbee) — 2/7/2017 @ 12:04 am

    The idea is to develop items of information that must be provided by persons in those countries before visas are approved.

    Wrong, wrong, wrong. Not by the persons, but by the country’s government. That’s the key fact.

    Section 3 (a)

    The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

    Section 3 (d)

    d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

    I know, the executive order is written so as to disguise what they are talking about, but judging from what it was said last year about refugees and others that couldn’t be vetted, it’s mainly reliable certification by the country’s authorities that this person is not a terrorist.

    This text of the Executive Order is actually double talk, written to obscure what they are doing, but it will become clear when and if it is implemented, and maybe when they publish that report by February 27 or 26.

    Kevin M:

    In the case of countries where that information is not available, then there might be a catch-22 ban, but it would be due to the lack of information, not the country itself.

    There is a catch 22, but they are obscuring that fact.

    And it’s not lack of information that is known to exist – it’s also not being told information that you don’t know exists – that you have no clue about – to wit, being reliably informed by the government whether person X is, or is not, a member of a terrorist group.

    Also good proof of identity. But a government either maintains accurate impersonation-proof records, or it doesn’t, and if it didn’t in the past, it can’t suddenly do it when requested by the United States of America.

    Now in the real world, you could rely on DNA tests, and you don’t really need birth records, just a record of what they’ve been doing the last five years. Bt Trump wants it from the government, and offers the applicant no alternnaive metod of proving identity or bonafides.

    Sammy Finkelman (03c829)

  108. If Andy McCarthy’s right that 9th Circuit will decide the outcome of the EO challenge because a SCOTUS 4-4 deadlock is unlikely then maybe that explains why @RealDonaldTrump started laying the blame for future bad acts by foreigners on the judiciary in his recent tweetbursts. DHS better hurry up with the new rules.

    crazy (d3b449)

  109. Trump can’t lose on this. No matter what happens, he’ll have either the judges or “DEEEEEP State” to blame.

    He had a good plan. A terrific plan. A great plan. A huge plan. A tremendous plan. The very best plan. It’s not his fault that he was sabotaged [No, I don’t think Trump knows that word but I’m sure Bannon does.] by people who want to see him fail.

    nk (dbc370)

  110. TIL. The Republicans are delaying Sessions’s confirmation because they need his vote in the Senate for other confirmations, most especially DeVoss today.

    nk (dbc370)

  111. Yes that Jenna is very precarious, maybe if heck or ayotte hoax kept their yap shut

    narciso (d1f714)

  112. Sammy @ 105: I predicted just that over the weekend. That the more interesting question in this whole affair will be when “extreme vetting” creates such a high standard in the visa applicant approval process that it becomes a de facto bar to admission of people from any number of countries.

    The EO clearly sets up a process by which the Sec. of State is going to demand information for every applicant from the applicant’s home country that the government of that country is going to be unable or unwilling to provide. The inability and/or unwillingness of the applicant’s home government is going to be the basis upon which immigration from those countries is going to be eliminated for all practical purposes.

    That’s a policy debate worth having. Arguing over the 90 day pause is a side-show.

    shipwreckedcrew (56b591)

  113. The “out” for any such policy is going to be a “case by case” exception provision. But the process for getting “case by case” review of countries on the “banned” list will be agonizingly slow.

    But, IMO, once established by APA rule making, because its in the area of immigration, the regs are going to be pretty much bullet-proof, and subject only to changes from Congress.

    shipwreckedcrew (56b591)

  114. Interesting tidbit on the prospect of 9th Circuit review: If the panel today ends up siding with Washington, the next step for the Admin would be to file an emergency appeal asking for the stay with the Supreme Court. The Justices have the Federal Circuits divided up for purposes of dealing with these kinds of matters, and a single justice can grant an emergency stay until the matter can be taken up by the Supreme Court as a whole.

    The Justice who covers the 9th Circuit is Kennedy.

    He has written some of the most pro-Gov’t opinions on “rational basis” review. The strongest case citation on the subject for the Gov’t is the Heller v. Doe opinion where he shuts down the plaintiffs case by pointing out that simply because a gov’t rationale for a particular policy is wrong on the facts doesn’t mean its “irrational.”

    Kennedy could put in place a temporary stay on his own, while the Sup Court reviews whether or not to intervene.

    shipwreckedcrew (56b591)

  115. Real wildcard on the panel is Judge Canby.

    Long ago history in the Peace Corps. Longtime expert on American Indian Law. Appointed by Carter in 1980. Took Senior Status in 1996 — so he was full-time Judge for 16 years, and has been senior status for over 20 years. Is 83 years old.

    Second Judge on panel is only 46 years old — newly appointed Michelle Friedland. Born in Berkeley, went to Stanford, then to Oxford as a Fulbright Scholar. Only graduated from Stanford Law School in 2000 (wow, makes me feel old). Did Clerk for Sandra Day O’Connor, which is interesting. Spent her entire legal career at a big SF firm, becoming a partner in 2010.

    She was confirmed to the 9th Circuit on a very divided vote of 51-40. She asked Justice O’Connor to administer her oath of office.

    The third judge on the Panel is Richard Clifton from Hawaii. He recently went senior status. Was appointed by Bush 43. Is a moderate conservative. Generally Hawaii has 1 of the seats on the 9th Circuit, and its hard to find better than a “moderate” conservative in the Hawaii legal community.

    shipwreckedcrew (56b591)

  116. 113. shipwreckedcrew (56b591) — 2/7/2017 @ 8:40 am

    113.The “out” for any such policy is going to be a “case by case” exception provision. But the process for getting “case by case” review of countries on the “banned” list will be agonizingly slow.

    I read yet taht they weren’t yet taking any applications, so the review would only happen if somebody important in the U.S. government wanted the person there.

    Sammy Finkelman (6f9f42)

  117. Meanwhile, tomorrow there will be a corrupt election for president taking place in Somalia – so corrupt that, according to the New York Times, but not according to the Associated Press, al Shabab isn’t interfering with it, maybe because they hope to gain some seats themselves.

    https://www.nytimes.com/2017/02/07/world/africa/somalia-election-corruption.html

    https://www.nytimes.com/aponline/2017/02/07/world/africa/ap-af-somalia-troubled-elections.html?_r=0

    Turkey, the United Arab Emirates and Qatar are backing different candidates, and maybe Sudan. Votes are being bought for between $5,000 and $30,000 (I think these are votes by members of the legislature – a sort of Electoral College – who were already selected “by the country’s powerful, intricate network of clans” – not one-man-one-vote. Some legislative seats that were supposed to be reserved for women were filled by men.)

    The seats themselves in the legislature/electoral college go for more. Two seats in the legislature were each bought for $1.3 million apiece. The Parliamentary elections themselves had at least $20 million spent in campaigning and bribes.

    In the previous parliamentary elections, in 2012, many of the clan elders, who were the electors for the Parliament, for elections taht were really caucuses, were given $5,000 bribes each to choose the clan’s representative in Parliament. Some clan elders spoke about taking bribes but said they might be killed for revealing too many details.

    The United States gives Somalia between $150 million and $200 million a year, but lets’s ooters play the corruption game. The Obama Administration (and others) pressed for the vote as an important symbol of a return to normalcy. People are now worried that Donald Trump might cut off aid and totally truin Sommalis, and even bring about famine.

    There will probably be a runoff. Most of the candidates hold foreign passports. Anyone not holding one would have to be crazy to run.

    Sammy Finkelman (6f9f42)

  118. It might seem strange that Somalia, one of the poorest, most neglected countries in the world, would be such a hotbed of geopolitics.

    But according to diplomats, the Emirates and Qatar are backing different candidates here in a rivalry over the Muslim Brotherhood, while Egypt and Ethiopia are supporting different candidates because of their duel over the Nile. And Sudan is supporting certain political figures to keep its access to Somali intelligence services, which also work with the C.I.A. That way, analysts said, Sudan could spy on what the Americans in Somalia were doing.

    There will be no cellphones allowed when the members of Parliament voote, to limit the certainty that someone bribed stayed bought.

    Sammy Finkelman (6f9f42)


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