Patterico's Pontifications

2/7/2017

Analysis of Today’s Court Argument on Trump’s Immigration Order, or, Trump Needs to Shut His Yap

Filed under: General — Patterico @ 10:04 pm

I have listened to the oral argument today in the Ninth Circuit regarding the stay of President Trump’s executive order on immigration. My brief takeaway is that Donald Trump may — may! — have talked his way into legal trouble with this one.

First, a couple of preliminary issues, before we get to the merits:

Standing — It sounds to me as though there are not two votes for standing based on parens patriae doctrine, but there are likely at least two (possibly three) votes for standing based on the states’ proprietary interests.

Scope of the order — A lot of time was spent (and possibly wasted) discussing whether the court was going to treat the District Court’s order as a TRO (temporary restraining order), as the District Court characterized it, or as a preliminary injunction, due to the length of the stay already ordered. This probably is not too significant an issue, but may have some relevance as to the length of the injunction if it is left in place. I think the Court may treat it as a preliminary injunction and write what they called a “reasoned opinion” so this can be taken to the Supreme Court with a full legal analysis in place for review.

Merits — So will the stay remain in place or not?

I’m not sure, but I think it will.

My impression is that Judge Canby, the Carter appointee, is going to vote to uphold the TRO.

Judge Clifton, the Bush appointee, sounds ready to vacate the stay as written, but perhaps let a modified stay remain in place as to lawful permanent residents. (More about that below.) His argument — and it was a pretty good one, I thought — was that you can’t really call this a Muslim ban when it affects maybe 15% of the Muslim population in the world. Meanwhile, he notes, there clearly are legitimate reasons to worry about these countries.

If I’m right, that leaves Judge Friedland, the Obama appointee, as the swing vote. She was not as easy to read as the other two judges, but to my ears, she was troubled by the evidence presented by the states about the President’s intent — based on his oft-stated declaration that he was going to institute a “Muslim ban.” If I had to bet, I’d say that evidence is going to carry the day for Judge Friedland. I wouldn’t lay a lot of money down on that bet — but that’s how I’d bet.

I often hear people say: “Who cares what Trump says? What matters is what he does!” As Donald Trump might say: Wrong! This case is a stark reminder that what the President says always matters. It matters to dissidents in countries run by totalitarian dictators. It matters to those dictators themselves, as they assess how far they can push the envelope. It matters to the stock market, which jumps like a golfer with the yips any time Trump puts a company name in a tweet.

And, as this case shows, it may matter to the safety of our country. Because, even if the order is necessary to the security of our country, if the yutz went around making it sound as if he was prejudiced against Muslims — and he did — those very statements could jeopardize the legality of the order.

Donald Trump’s mouth isn’t something we can all be entertained by, without consequence. He needs to get it under control. And, of course, he won’t. Ever.

So. Four years of this.

Finally, I think even Judge Clifton, the Bush appointee, was troubled by the fact that the order, on its face, applies to lawful permanent residents (LPRs). Sure, the White House counsel has told us since that it doesn’t — but the administration has said multiple different things about this, and the order as written still arguably applies to LPRs. I think even Judge Clifton would be on board with staying the executive order to the extent it applies to LPRs. This is an indictment of the chaotic manner in which the order was rolled out — but we already knew that.

P.S. The Court briefly discussed the interplay between sections 1152 and 1182(f) that I have debated with Andrew McCarthy — but showed little interest in the argument, primarily because (as I have always acknowledged) that argument doesn’t affect the treatment of refugees and other temporary visitors. Therefore, it does not allow the court to avoid the greater issues such as religious discrimination, that can be claimed by refugees and temporary visitors. Consequently, I expect this issue to be barely mentioned, if at all, in the final opinion.

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

WATCH LIVE NOW: Oral Arguments in Ninth Circuit on Nationwide Stay of Trump’s Immigration Order

Filed under: General — Patterico @ 3:00 pm

As of the publication of this post, the argument is happening right now, at 3 p.m. Pacific, 6 p.m. Eastern. It will last one hour. The live stream is available at the Web site for the Ninth Circuit Court of Appeals. This link should take you straight to the streaming video. [UPDATE: Sorry, arguments in the Ninth Circuit are usually video, but I’m told this time it was just audio.]

The judges include two Democrat appointees, and one Republican appointee:

The three-judge panel includes Judge William C. Canby Jr, an appointee of President Jimmy Carter, Judge Michelle T. Friedland, who was appointed by President Barack Obama, and Judge Richard R. Clifton, an appointee of President George W. Bush.

A decision could be issued today. Stay tuned.

This case is likely going to the Supreme Court, where the Court is divided 4-4 along ideological lines. A tie in the Supreme Court has the effect of affirming the lower court decision (without precedential value). That means there’s a good chance the Ninth Circuit will have the final word on this for now. The stakes are very high.

Those wishing to delve deeper (perhaps after the hearing) might benefit from a few links. The ruling being appealed can be read at this link. Video of the arguments in the District Court below can be viewed here. A commenter of mine summarized the states’ arguments in the District Court here. And the Government’s emergency motion in the Ninth Circuit, setting forth the Government’s position, is here.

For further background reading, including a debate between myself and NRO’s Andrew McCarthy on the legality of the executive order, read here, here, and here, and the links therein.

UPDATE: My apologies. Oral arguments in the Ninth Circuit are usually made available in video form, but I’m told this was audio only. I’d change the headline, but it’s over now…

UPDATE x2: If you missed it, here is the archived video (which contains only audio).

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

Sean Spicer (and Donald Trump) Didn’t Like that Saturday Night Live Spoof

Filed under: General — Patterico @ 9:00 am

A worthy leftover from the weekend. That Saturday Night Live spoof of Sean Spicer by Melissa McCarthy got a lot of attention — and not just outside the White House. Sean Spicer told Extra over the weekend that he thought McCarthy’s performance could be dialed back a bit for his taste:

The White House press secretary gave his take on Melissa McCarthy’s impression of him in a surprise “SNL” skit, in which McCarthy poked fun at his tightly wound demeanor in press conferences.

Explaining that he’d first heard about the sketch while leaving church Sunday morning, Spicer said his texts had been blowing up so much he thought there must be a national emergency.

Spicer told “Extra” exclusively he felt the impression was a little exaggerated. His advice was that McCarthy “needs to slow down on the gum chewing; way too many pieces in there.” Though he thought it was a really “funny” show, he felt that McCarthy “could dial back” a bit.

No way! A satirical depiction of a political figure was exaggerated?! This cannot stand!

Anyone with a smidgen of common sense knows you just laugh off something like this — period, full stop. Spicer’s whining is a recipe for Melissa McCarthy to be back at the podium this Saturday night, screaming in a high, reedy voice: “And I understand some people have been making fun of me! That’s fine, you know, but YOU COULD DIAL IT BACK A BIT!!!!” Then she’ll grab the podium and march it at another journalist.

Soon Sean Spicer will be writing all their jokes for them.

A hint of why Spicer isn’t simply laughing it off without reservation can be found in this POLITICO piece (it’s POLITICO, so grab your fistfuls of salt, but it rings true). The detail that’s too good to check: Trump hates the depiction because it was done by a woman:

And the devastating “Saturday Night Live” caricature of Spicer that aired over the weekend — in which a belligerent Spicer was spoofed by a gum-chomping, super soaker-wielding Melissa McCarthy in drag — did not go over well internally at a White House in which looks matter.

More than being lampooned as a press secretary who makes up facts, it was Spicer’s portrayal by a woman that was most problematic in the president’s eyes, according to sources close to him. And the unflattering send-up by a female comedian was not considered helpful for Spicer’s longevity in the grueling, high-profile job in which he has struggled to strike the right balance between representing an administration that considers the media the “opposition party,” and developing a functional relationship with the press.

“Trump doesn’t like his people to look weak,” added a top Trump donor.

It’s bristling at every slight that makes you look weak. But Trump has never quite understood that.

In case you missed the original spoof, here it is in all its grandeur:

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


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