Patterico's Pontifications

2/7/2017

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.]

102 Responses to “WATCH LIVE NOW: Oral Arguments in Ninth Circuit on Nationwide Stay of Trump’s Immigration Order”

  1. R.I.P. Richard Hatch, star (he played Apollo) of the original Battlestar Galactica tv series

    Icy (906a36)

  2. Not very impressed with the oral advocate – he’s a “special counsel” to DOJ. Not sure why they brought him in when there are very good oral advocates in the SG’s office, one of whom signed the reply.

    shipwreckedcrew (99f654)

  3. This proceeding doesn’t really have much to do with the legality of the order (which the lower court hasn’t even ruled on yet), does it?

    Dave (711345)

  4. I think he’s the former Assistant AG Civil Division. He’s not well versed on immigration law IMO, and he’s the wrong guy to have argue this. I don’t get the vide that he has done a lot of appeals oral arguments, and that’s a particular skill set. That’s why the SG’s office would have been a better choice.

    shipwreckedcrew (99f654)

  5. Prediction: Government wins.

    More bold prediction: Feds win.

    JRM (de6363)

  6. Yeah, I was really not impressed with the skills of the DoJ’s attorney.

    aphrael (e0cdc9)

  7. Ditto this: Yeah, I was really not impressed with the skills of the DoJ’s attorney. aphrael (e0cdc9) I wonder if the DOJ is trying to teach Trump a lesson.

    Regret (5da42f)

  8. Doubt it. Most likely, just a lawyer with too high an opinion of himself who took on a job that might not have been entirely within his competence. Now who else (though not a lawyer) did that recently …?

    nk (dbc370)

  9. Hatch had a major role on the reimagined BSG as well as a devious politician. Eventually Adama had him taken out and shot.

    Kevin M (25bbee)

  10. He also seems to suffer from the blind format. Since there are no body language cues I could see how this would be difficult. Still this can’t be the first time. BTW, is there no Skype?

    Kevin M (25bbee)

  11. My guess is that they narrow the scope of the TRO as entered, and instruct the Dist Judge to make a more complete record upon entry of a Prelim Inj if he chooses to make his TRO permanent.

    They won’t allow the TRO to go forward on the Establishment claims because there’s really no immediate harm on the Establishment claims.

    While I think their standing argument is dubious on the “proprietary” claim, I think this panel is going to allow it, but then limit the TRO to claims they can make on that basis — which concerns people in Washington state with visas — either student, work, or immigrant visas.

    I think the court might raise some “concerns” about likelihood of success on the merits on some of these theories as a signal to Robart he might need to give them some more thought.

    Specifically you heard a lot a talk about Mellon and Kerry v. Din, and why can’t Washington raise claims on behalf of third parties the same way the Plaintiffs did in those two cases?

    What the DOJ lawyer should have said is “Don’t lose sight of the fact that in both cases the Plaintiffs ultimately LOST the case, and the Gov’t action in excluding the aliens was affirmed. So while some review was allowed, the fact that both Plaintiffs lost should suggest to this Court that Washington faces a much steeper climb than they think with regard to the likelihood that they will prevail on the merits.”

    I argued 23 times before the 9th Cir during my previous career, and never lost substantively. I had 3 cases sent back to the District Court for the District Judge to correct minor errors in sentencing, but never had a major setback of a conviction on appeal.

    I thought it was some of the most fun and most satisfying work I got to do. And I’m going to get to do it again on February 22 in a civil case.

    shipwreckedcrew (99f654)

  12. SWC’s note about the quasi-sovereign interests only pertaining citizen’s rights, not claims against federal law.

    Kevin M (25bbee)

  13. The guy who argued the case would have been picked by the Assistant AG for the Civil Division.

    Right now that is probably a career person who is in an “Acting” capacity. The political appointees won’t begin arriving until Sessions is confirmed. They held up Sessions’ vote so he could vote on DeVos since it looked like that was going to end up 50-50 (it did), and his vote was needed.

    shipwreckedcrew (99f654)

  14. That’s quite a record, shipwrecked.

    narciso (d1f714)

  15. Ah, an explanation for the poor quality of the DoJ’s lawyer:

    the government changed lawyers at the last minute because the originally-planned lawyers had previously worked at a law firm that filed an amicus brief on Washington’s behalf.

    https://www.bloomberg.com/news/articles/2017-02-07/trump-team-shuffles-lawyers-in-hours-before-travel-ban-hearing

    aphrael (e0cdc9)

  16. They’ve turned off the stream, so I guess I’ll have to wait for the audio file to hear the rest.

    Kevin M (25bbee)

  17. I have questions:

    if there’s a 4-4 split at SCOTUS, could another circuit reach the opposite result and have it go back to SCOTUS for another 4-4 decision?

    if there’s another circuit that decides it before this case goes to SCOTUS, and the other circuit goes in the opposite direction, could SCOTUS hear both cases at once? And if so, what would a 4-4 split mean?

    If SCOTUS judges can tell that a 4-4 split is likely, can they decide which circuit opinion to take up for review, knowing that whatever comes up for review will become the law if there’s a 4-4 split?

    Just asking…

    Daryl Herbert (7be116)

  18. This hearing is being conducted over the phone I read.

    Sammy Finkelman (6f9f42)

  19. Yes what happened with the 3rd circuit decision, which got it right?

    narciso (d1f714)

  20. > if there’s a 4-4 split at SCOTUS, could another circuit reach the opposite result and have it go back to SCOTUS for another 4-4 decision?

    Yes and no.

    So, in general, if an appeals court finds [x] in case [y], but a different appeals court finds [not-x] in case [z-which-is-similar-to-y], both decisions stand as precedent in the respective circuits.

    In this case, because the named parties were served with a TRO that binds them nationwide, while a different appeals court could reach a different decision, their choice to do so wouldn’t lift the TRO.

    aphrael (e0cdc9)

  21. > If SCOTUS judges can tell that a 4-4 split is likely, can they decide which circuit opinion to take up for review, knowing that whatever comes up for review will become the law if there’s a 4-4 split?

    Yes, but there’s a caveat: when an appeals court decision is upheld by virtue of a tie at the Supreme Court, it is NOT BINDING PRECEDENT outside the circuit which authored it.

    aphrael (e0cdc9)

  22. Such as having someone appeal the original ruling that upheld the EO.

    Kevin M (25bbee)

  23. Daryl Herbert (7be116) — 2/7/2017 @ 4:34 pm

    If SCOTUS judges can tell that a 4-4 split is likely, can they decide which circuit opinion to take up for review, knowing that whatever comes up for review will become the law if there’s a 4-4 split?

    If there’s a 4-4 split in the Supreme Court, and a split between the circuits, there is a different law in each circuit. When the Supreme Court splits 4-4, it is just the same as if the Supreme Court ahd not agreed to take the case.

    Since 1925, the Supreme Court has been able to take only the cases it wants. Four justices are required to take up a case. I think there have been Courts of Appeals, the intermediate level, since 1891. Before that there were only district courts and the Supreme Court.

    https://en.wikipedia.org/wiki/Judiciary_Act_of_1891

    Sammy Finkelman (6f9f42)

  24. That path would work, sure.

    If the TRO is upheld, then this goes to the Supreme Court.

    If the TRO is upheld at the Supreme Court, then the entire thing goes back to the District Court for generation of a Preliminary Injunction, at which point it can go to the Ninth Circuit again.

    I do not know if the same panel would hear that case.

    aphrael (e0cdc9)

  25. Yes, but there’s a caveat: when an appeals court decision is upheld by virtue of a tie at the Supreme Court, it is NOT BINDING PRECEDENT outside the circuit which authored it.

    So, let me get this straight. The judge issued a nationwide TRO. This TRO was appealed to the 9th circuit for a stay. But the 9th circuit cannot stay the order outside the 9th circuit. Or can they? If they refuse could an appeal be made to the 2nd Circuit to quash the TRO there?

    How does a district court get more power than it’s circuit court has?

    Kevin M (25bbee)

  26. #5

    – Prediction: Government wins.

    More bold prediction: Feds win.

    JRM (de6363) — 2/7/2017 @ 3:59 pm

    That would mean America wins

    Joe (debac0)

  27. If SCOTUS judges can tell that a 4-4 split is likely, can they decide which circuit opinion to take up for review, knowing that whatever comes up for review will become the law if there’s a 4-4 split?

    I believe a 4-4 is equivalent to never hearing the case in the first place.

    Dave (711345)

  28. Kevin M – I think our wires got crossed somewhere.

    [a] The 9th Circuit can certainly stay the TRO nationwide.
    [b] The Supreme Court can certainly stay the TRO nationwide.

    Seperately from that,

    [c] In a world in which different circuit courts disagree, and the Supreme Court deadlocks, the Supreme Court deadlocking does not establish a nationwide rule; it upholds the decision but does not create a precedent which binds other circuit courts.

    So, to draw that back here:

    [a] the District Court has issued a TRO which binds the named parties, and since the named parties are nationwide actors, it binds them nationwide.

    [b] Assume that the Ninth Circuit upholds the TRO and the Supreme Court deadlocks.

    [c] Now, play forward nine months. The Ninth Circuit grants the PI and then decides for WA on the merits. Meanwhile, the 1st circuit decides the Boston case for DHS on the merits. Different circuit courts have reached different decisions. Imagine the Supreme Court takes one of the cases and deadlocks. That deadlock has no precedential value; *both* circuit court decisions still stand.

    aphrael (e0cdc9)

  29. @11 SWC. When you say the 9th may limit the scope of the TRO do you mean to the 9th circuit only not nationwide? Kevin M’s point @25 is one I’ve wondered about since Robart’s issued the TRO.

    crazy (d3b449)

  30. R.I.P. ‘Professor’ Irwin Corey. 102.

    Good run, great laughs.

    DCSCA (797bc0)

  31. Aphrael–

    But there was another district court which upheld the order. Why didn’t that take precedence, also nationwide? Do the plaintiffs get multiple bites of the apple until they win?

    Kevin M (25bbee)

  32. Kevin M – somewhat, yes.

    The district court’s order is binding on the named parties and their agents. In the case of the district court which *upheld* the EO, there is no instruction to the Trump administration; there is no order to bind, because the EO was upheld and no TRO or Preliminary Injunction issued.

    But *even if they were* — WA is suing in district court saying they’ve been hurt. The district court in WA is not required to abide by precedent set by some district court elsewhere in the country; and even if it *were* requierd to abide by precedent, it would be allowed to distinguish WA’s case from whatever the case was in the other proceeding.

    aphrael (e0cdc9)

  33. But aphrael, if another circuit had the exact same case are ruled differently, you would have a circuit split on something that is, perforce, national. This is like on of those things they used to make evil computers blow up in 60’s TV shows.

    Kevin M (25bbee)

  34. Well, sure. And under ordinary circumstances you’d expect the Supreme Court to pick up such a circuit split ASAP. It’s just complicated by the wierdness of a likely evenly split 8-member court.

    aphrael (e0cdc9)

  35. DOJ should not have switched lawyers. If the two new guys, who were previously with Jones Day, didn’t do any work on the Washington brief — how could they have?? — there was no conflict in them arguing on behalf of the Admin.

    Not sure whose idea that was.

    shipwreckedcrew (99f654)

  36. Crazy at 29: the 9th circuit can limit the scope of the TRO nationwide. In particular, the government is asking that the TRO be limited so that it only applies to those people who form the basis for Washington’s standing claim – eg, permanent residents and other people with existing ties to Washington, as opposed to completely new immigrants and refugees who have no existing ties and therefore cannot be the basis for standing.

    aphrael (e0cdc9)

  37. OK. Crossing posts.

    Then ANYTHING that WAS decided by the first court should be off the table here. But it seemingly isn’t. Now WA is claiming to be acting on behalf of it’s citizens and institutions, but their claims bring the same arguments about the EO’s legality that were already decided.

    It seems like heads I win, tails you lose.

    Kevin M (25bbee)

  38. I believe a court that upheld the order would effectively be saying: “the plaintiffs who challenged this do not have a valid case, therefore their request for this court to do something is denied”. This does not give the order any additional legal force, it simply denies a particular challenge, and would have have the effect of precedent, forestalling similar challenges within the jurisdiction of that court (only).

    If another court, somewhere else, finds the order unlawful, or unconstitutional, it could impose relief nationwide, regardless. If appeal of that relief, ultimately to a 4-4 supreme court, does not overturn the decision, the relief would stand.

    Dave (711345)

  39. Well, sure. And under ordinary circumstances you’d expect the Supreme Court to pick up such a circuit split ASAP. It’s just complicated by the wierdness of a likely evenly split 8-member court.

    Given the fact that the whole thing is presumably moot in 83 days (or sooner) when the new, improved information requirements are promulgated, I don’t see the legal process concluding much of anything anyway.

    Kevin M (25bbee)

  40. > Then ANYTHING that WAS decided by the first court should be off the table here.

    No. Absolutely not; that’s not the proper procedure.

    A decision made in a different district, or a different circuit, is *never* binding precedent anywhere *outside that circuit*.

    So in a district in the 1st circuit, some people sued, saying “the government’s action hurt us in this way, and we are asking for a restraining order to make them stop.” The district court said “no, you aren’t entitled to that restraining order”.

    In another district in the ninth circuit, different people sued, saying “the government’s action hurt us in this way, and we are asking for a restraining order to make them stop.”

    The district court in the ninth circuit is not required to abide by, or even *consider*, the decision rendered in the first circuit.

    That’s the way the system has always worked.

    aphrael (e0cdc9)

  41. Clearly the DoJ should have gone with Mr crew.

    Kevin M (25bbee)

  42. @29 — Yes, I think they will 1) narrow the scope of the TRO with regard to who it covers — visa holders from Washington state (Minnesota didn’t make a factual showing in the District Court, but might attempt to do so when the case goes back for the Prelim Inj), AND vacate the part of the order that makes it nationwide.

    Basically, Washington has standing on propietary grounds only with respect to visa holding visitors who have contact with Washington, not visa holding visitors with contacts to other states.

    This will also allow the development of other cases in other circuits, which will better prepare the subject to be addressed in the Supreme Court.

    Kennedy could do the same thing.

    Basically the point would be to have the 9th Cir. uphold a TRO/Prelim. Inj. that applies to the Ninth Circuit, let a few other cases percolate in other Circuits, and once you have a split of circuits, with several cases having been briefed nationwide, the Sup. Ct will be much better positioned to take it up and resolve the matter — likely with 9 judges instead of 8.

    shipwreckedcrew (99f654)

  43. So, like I said, they get 12 bites at the apple. And where they win, voila, national injunction.

    And 45 days from now, when 3 recent “refugees” shoot up the Mall of America, I gonna bet than none of these folks takes responsibility.

    Kevin M (25bbee)

  44. Shipwreckedcrew: given that the AG hasn’t been seated and the acting AG was newly appointed less than five days ago, I think it’s entirely possible that lines of authority might be confusing inside DoJ right now, and I think it’s likely that as an organization they’re ill placed to do their best work until things settle down some.

    That’s not a knock on Trump or on the acting AG, incidentally; it’s an acknowledgment that even expected changes in the organizational hierarchy can harm work product for a little bit, combined with an acknowledgment that this is hardly the normal set of expected changes.

    aphrael (e0cdc9)

  45. My question continues to be whether or not what President Trump said on the campaign trail re a Muslim ban is pertinent to EO, which does not have any reference to Muslims being banned? The government lawyer mentioned something about the court shouldn’t take into account “what was printed in the newspapers”…

    Dana (023079)

  46. Oh my. I’m glad this failure of a Trump initiative is somewhat tangential to the security of our country. Which is to say we’re no worse off than we were in the weeks, months, and years before the order. Which doesn’t mean that there isn’t a need for improvement.

    On the plus side, it gives Trump a chance to learn what it’s going to take to be competitive in this new arena. On the deficit side, this will serve as an encouragement for the left to attack other executive orders. Hopefully Trump will exercise additional discretion in picking the subject matter for the next round, and perhaps he’ll increase the level of effort devoted to preparing the order. This loss will cost him a lot of momentum, and a series of losses would be catastrophic. He needs some clear wins in the coming months.

    OT: Pence had to cast the deciding vote in the Betsy DeVos confirmation. Collins and Murkowski lined up with the Ds. The cartel is just beginning to flex its power. I saw yesterday that Soros had contributed to the Rubio and Bush campaigns, among other “Republicans”. I wonder why it’s taken so long for these public records to be noticed. And the leaking of the DNC emails has been traced to Congressional employees. No Russian connections at all.

    This battle is not going to be easy for Trump or the country.

    BobStewartatHome (c24491)

  47. It’s the difference between stare decisis and res judicata. Stare decisis is law that is binding on everyone within the court’s jurisdiction. Res judicata is a judgment that is binding only on the parties before the court.

    Under res judicata: If the Government loses, it is enjoined from enforcing the EO anywhere the District Court or the Ninth Circuit tells it not to enforce it. If it wins, it only wins against Washington and Minnesota. The other 48 states and every Abdul, Hassan or Ali, can try their own luck and see if they can do a better job.

    Stare decisis: The court’s opinion is law. I’ll repeat it. Law. Binding on everybody within the court’s jurisdiction. The District Court’s within its district; the 9th Circus within its circuit; the Supreme Court nationwide. No matter who was in court.

    nk (dbc370)

  48. So if there’s a split between circuits, which SCOTUS can’t resolve, maybe people from the travel ban countries could fly in to Portland, but not Houston.

    They couldn’t fly to Houston with a connecting flight to Portland.

    But if they flew to Portland, they could take a connecting flight to Houston? Or would they have to stay out of the territory of the circuit in question to avoid being picked up and sent back?

    Also, if there was a circuit split, which circuit has jurisdiction over stuff that the US gov’t does outside of the USA? Is that the DC Circuit?

    Also, even if the 9th Circuit overturns the travel ban, isn’t it likely that foreign airlines and foreign governments will continue to honor the ban, because they don’t want to piss of the President?

    Daryl Herbert (7be116)

  49. It seems like heads I win, tails you lose.

    Each court decides on the merits of a particular claim.

    You are being confused by the jurisdiction of each court being local (the judgement of one court does not limit what another court somewhere else can decide when confronted by an identical set of facts) and the remedy being nationwide.

    Dave (711345)

  50. My question continues to be whether or not what President Trump said on the campaign trail re a Muslim ban is pertinent to EO, which does not have any reference to Muslims being banned? The government lawyer mentioned something about the court shouldn’t take into account “what was printed in the newspapers”…

    This is like “legislative intent” based on newspaper reports of a committee hearing. A week reed indeed.

    Kevin M (25bbee)

  51. You are being confused by the jurisdiction of each court being local

    No, I got that all right. Perhaps upset that one answer effectively trumps the other answer.

    Kevin M (25bbee)

  52. Portland, but not Houston.

    Well, Seattle, if they limit it to WA state.

    Kevin M (25bbee)

  53. And 45 days from now, when 3 recent “refugees” shoot up the Mall of America, I gonna bet than none of these folks takes responsibility.

    Because they would have none.

    Dave (711345)

  54. Kevin M.,

    That it came up today during the arguments without any clear statement made on the weight of his campaign statements either way, makes me wonder.

    Dana (023079)

  55. No, Daryl. If the federal government loses in any court, it has lost everywhere the court’s order extends to. A Houston court can enjoin the government from stopping passengers at La Guardia if that’s the relief granted. That’s because the federal government was in court. On the other hand, if Governor Abbot loses in Houston, I can sue in Chicago because I had nothing to do with the Houston case.

    nk (dbc370)

  56. Dana: this was addressed a bit by Washington’s lawyer. The idea is that under certain circumstances, when the allegation is “this action was motivated by a constitutionally impermissible motive”, courts are *required* to look beyond the literal text of the document – because of course if the enacting body had an impermissible motive, the document itself wouldn’t say so.

    Imagine that California passed a law prohibiting the state from working with third party organizations that help place children for adoption, unless those third party organizations were equally willing to place with both gay and straight families. Catholic Charities might want to argue that this was actually motivated by an impermissible animus against Catholics; the expectation would be that of course the law wouldn’t *say* that was the motive, so the court has to look beyond the law in order to tell whether that’s the motive or not.

    aphrael (e0cdc9)

  57. Thanks SWC. Hopefully the administration can get the new vetting rules together before ending up at SCOTUS where Kennedy’s vote could easily go with the libs as it did with the GITMO gang in Boumedienne.

    crazy (d3b449)

  58. Thanks, nk. It seems that the government’s best bet is to issue the permanent vetting rules ASAP, in such a way that it is not, purely, a nationalities ban.

    It will be funny though when the quota and preference system effectively bans Muslims, much as the normal quotas and preferences ban working-age Mexicans (favoring dependent relatives of current residents).

    Kevin M (25bbee)

  59. NK – oddly enough, district court decisions are not precedentially binding on the district court which issued them (according to Judge Gorsuch’s book on the law of precedent, which I’m currently reading. :))

    aphrael (e0cdc9)

  60. Aphrael,

    And yet the Blaine Amendments still stand in many states.

    Kevin M (25bbee)

  61. (a) it’s not clear that a rule prohibiting state money from being distributed to religious schools is necessarily motivated by animus; it could be motivated by a desire to avoid de facto establishment.

    (b) so to make an ‘improper animus’ claim you’d need to sue in the states which have such amendments, with evidence indicating that they were motivated by animus.

    aphrael (e0cdc9)

  62. My question continues to be whether or not what President Trump said on the campaign trail re a Muslim ban is pertinent to EO, which does not have any reference to Muslims being banned?

    It would be nice if Trump learned that shooting his mouth off and pandering to his cheerleaders by promising to do obviously unlawful or unconstitutional things (his campaign promise to end freedom of the press being one of many other examples) has negative consequences.

    But, Trump, learn? Who am I kidding…

    Dave (711345)

  63. Since the issue arose because two laws were somewhat in conflict, I think the Judge said it was murky, the way to resolve this is for the House and Senate to quickly pass a law resolving the conflict and have Trump sign the bill into law. This would put the left on notice that they need to be careful of what they wish for. And it would demonstrate that the Republicans can work together for the good of the country.

    BobStewartatHome (c24491)

  64. BobStewartAtHome: while there is *an* issue which arises because the EO may conflict with existing statute, there are *also* constitutional issues being claimed, and those won’t be settled by new statutes. 🙂

    aphrael (e0cdc9)

  65. What constitutional issues can a wannabe immigrant present? Every precedent says he has no standing at all.

    Kevin M (25bbee)

  66. Does the US government have the legal and moral right to make distinctions between countries of origin?

    I guess we’ll soon find out…

    Colonel Haiku (2601c0)

  67. The fundamental “constitutional” issue raised by Democrats is whether Trump can do anything as President. They want to use his campaign rhetoric as a disqualifier for virtually everything. Beyond that, the new law could clarify the application of the exemptions. I don’t believe foreigners applying for a visa have any constitutional rights. And I am puzzled by the claim that Washington State has suffered some damage to its institutions by this EO. The only thing at risk to the institution that is Washington State is the vote of illegal aliens … (routinely registered to vote while applying for their drivers license) … for Democrats.

    It’s time like this that I wish Cruz had been a better candidate. I wonder if Trump has enough sense to ask Cruz to review what he’s doing? And I wonder if Cruz would help out.

    BobStewartatHome (c24491)

  68. The Consul in wherever could deny a visa to someone for ANY reason and there would be no Constitutional issue, directly. Or has the Bill of Rights been incorporated with respect to non-US persons? Pretty sure that discriminating against Communists or Nazis was OK.

    There *could* be a statute involved saying that certain discrimination, even outside constitutional protections, was unlawful. As 1152 blah blah may do. But still the would-be immigrant cannot pursue that claim, it would take a US person (perhaps a resident relative) to make it. Not sure that I want states playing pro bono lawyer, either.

    Kevin M (25bbee)

  69. The fundamental “constitutional” issue raised by Democrats is whether Trump can do anything as President.

    And they will pursue this “full court press” until either Trump breaks or the voters hand them a decision. Those 10 or so Dem Senators coming up in blue states in 2018 are going to find out.

    Kevin M (25bbee)

  70. If I were Trump’s people I’d put forth a vetting regime immediately that required more information that strictly necessary on people from those countries, then dial it back later. We have MANY country-by-country visa requirements. The rules are different between Canada and North Korea, for example. That’s not “discrimination” but “reasonable caution.” This isn’t a heightened scrutiny thing at all.

    Kevin M (25bbee)

  71. The deems hated Cruz’s plan designed by gaffneys even more resolutely, that would be like draining the sea.

    narciso (d1f714)

  72. You saw the chaos in Somalia, anything outside mogadishu is a free fire zone, Libya except for hafter’s fiefdom, large swath of Syria Afghanistan, similar problem

    narciso (d1f714)

  73. The government is required to follow the laws, even in dealing with foreigners.

    There is no right to be admitted, but there is a right to be treated lawfully. It’s hard to believe people don’t understand that distinction.

    If you think otherwise, is it your position that, say, an Arab-American who worked for the State Department could deny all visa requests from Israel, simply because he doesn’t like Jews, and those affected would have no recourse?

    Dave (711345)

  74. Neither McConnell nor Ryan are going to be in any hurry whatsoever to aid Trump in recovering from this face plant. The White House didn’t bother to appoint a Congressional liaison until yesterday (a senior aid to the Speaker took the job). Both McConnell and Ryan will be using a curb bit until Trump Rex settles down a bit and has someone explain Article I until he understands it more completely.

    Rick Ballard (5e8a41)

  75. Mcturtle and ryan who went along with the kabuko that is cve now Ron Johnson is something else again, he must be wondering “Is everybody on crazy pills’

    narciso (5765cf)

  76. 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…

    Patterico (115b1f)

  77. If you think otherwise, is it your position that, say, an Arab-American who worked for the State Department could deny all visa requests from Israel, simply because he doesn’t like Jews, and those affected would have no recourse?

    Those affected would have no standing to sue. No one has a right of entry. They could, however, raise a stink along other channels and such a consular officer in Israel might get sent packing one way or the other. In the US, there would be an outcry as well. If they had relatives who sponsored their entry, perhaps they have standing. But it would NOT be because the excluded person brought suit.

    Yes, those entering have the right to be treated according to the rules, but the rules are NOT the same for every entrant. Canadians come in all the time with very little documentation. If you come from Burma, the rules are different.

    Kevin M (25bbee)

  78. Yeah, conference calls make lousy video.

    Kevin M (25bbee)

  79. Neither McConnell nor Ryan are going to be in any hurry whatsoever to aid Trump in recovering from this face plant.

    It was the DoJ that wrote and proofed the EO. Perhaps it was intended to fail.

    Kevin M (25bbee)

  80. Dave, what about a lefty, working for the IRS processing applications by U. S. citizens for non-profit status, who routinely denies the request? Do the applicants have a right to legal recourse? Apparently not. And, to top it off, the lefty is allowed to take the 5th while giving testimony to Congress.

    There are no real rules if you are part of the cartel. It’s all influence and special pleadings.

    BobStewartatHome (c24491)

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

    Patterico (115b1f)

  82. Dave, what about a lefty, working for the IRS processing applications by U. S. citizens for non-profit status, who routinely denies the request? Do the applicants have a right to legal recourse?

    In the IRS scandal, no applications from conservative organizations for tax-exempt status were denied. Many were unreasonably delayed, however.

    This points out precisely why due process is so important, and why granting government bureaucrats “discretion” to treat similarly-situated individuals differently is an invitation for abuse and injustice.

    Apparently not. And, to top it off, the lefty is allowed to take the 5th while giving testimony to Congress.

    Your argument is unassailable. Anyone suspected of wrong-doing should forfeit all constitutional rights until proven innocent. I can’t believe President Trump hasn’t issued an executive order to make that happen yet.

    Dave (711345)

  83. ‘Dave’s not here’ coronello, of course he isn’t aware that obama actually tightened up rules on Israelis, as well.

    narciso (d1f714)

  84. So sure of himself, narciso. So confident of his untruths.

    Colonel Haiku (2601c0)

  85. Here’s the phony NYU prof/lunatic (Gavin MacInnes fiasco) who ends up being just another sad performance artist… I guess that’s what you call this (NSFW)… http://www.rebogallery.com/masshole-love.html

    Colonel Haiku (2601c0)

  86. A warning: some things can’t be unseen.

    Colonel Haiku (2601c0)

  87. Now you tell us, but the title was a clue.

    narciso (5765cf)

  88. Internalizing all that hatred can’t be good for our friend Dave’s heart.

    Cruz Supporter (102c9a)

  89. Colonel Haiku

    There ain’t enough warm butter in the world to get that thing down. Definitely haram.

    Pinandpuller (16b0b5)

  90. Billy Thread-Jack here,

    Did anyone see the nevertrump/neverhillary dream debate tonight?

    The Thrilla’ from Vanilla?

    Pinandpuller (16b0b5)

  91. I call bull shi+

    LOL. Did you even read the links you posted? The first one documents 3 *left-wing* groups denied tax-exempt status.

    The I.R.S. denied tax exemption to the groups — Emerge Nevada, Emerge Maine and Emerge Massachusetts — because, the agency wrote in denial letters, they were set up specifically to cultivate Democratic candidates. Their Web sites ask for evidence that participants in their training programs are Democrats.

    (emphasis added)

    The other two are consistent with what I wrote in response to the false statement made by BobStewartAtHome: no tax-exempt applications from conservative organizations were denied. Many were unreasonably delayed, however.

    From the Inspector General’s report:

    The IRS used inappropriate criteria that identified for review Tea Party and other organizations applying for tax-exempt status based upon their names or policy positions instead of indications of potential political campaign intervention. Ineffective management: 1) allowed inappropriate criteria to be developed and stay in place for more than 18 months, 2) resulted in substantial delays in processing certain applications, and 3) allowed unnecessary information requests to be issued. Although the processing of some applications with potential significant political campaign intervention was started soon after receipt, no work was completed on the majority of these applications for 13 months…. For the 296 total political campaign intervention applications [reviewed in the audit] as of December 17, 2012, 108 had been approved, 28 were withdrawn by the applicant, none had been denied, and 160 were open from 206 to 1,138 calendar days (some for more than three years and crossing two election cycles)…. Many organizations received requests for additional information from the IRS that included unnecessary, burdensome questions (e.g., lists of past and future donors).

    (emphasis added)

    Dave (711345)

  92. Cruz is solid dependable, doc Brown is chock full of crazy,

    narciso (5765cf)

  93. They did deny and they delayed and delayed and delayed, which, in the end, is as good as denying. Right, Honest Dave?

    Colonel Haiku (2601c0)

  94. narciso

    So Bernie didn’t get the Delorian up to 76 mph?

    Pinandpuller (16b0b5)

  95. They did deny and they delayed and delayed and delayed, which, in the end, is as good as denying. Right, Honest Dave?

    So if applications had, in fact, been denied (which they weren’t), and somebody claimed instead that they had only been delayed, you would accept that as an accurate characterization, right, Honest Colonel?

    Anyway, thank you for posting all those links confirming exactly what I originally wrote: No tax-exempt applications from conservative organizations were denied. Many were unreasonably delayed.

    I don’t know why you felt obligated to defend a false statement and contradict a truthful one, but at least you’ve clearly documented your error.

    Dave (711345)

  96. Wow, wow, wow.

    There was so much missed today in the hearing by the DOJ lawyers, and having read many of the cited cases now, the questioning by the judges missed many key issues of landmark Establishment Clause cases.

    But the Washington lawyer blatantly mis-stated the ruling of at least a couple that I remember. I’m going to go back and listen again.

    In the DOJ lawyers defense, August Flenjte is a career attorney, and currently holds the position of Deputy Assistant Attorney General in the Civil Division, but I can’t find what section he is in. Having him argue the case would only make sense if he was in the Immigration Appeals section. It not, I cannot figure out why they didn’t get someone from that Section to argue the case since Immigration cases in Appeals Court is what they do.

    But this was much more than an immigration case, as was clear. It was a standing case (immigration background would have helped), and an Establishment Clause case (immigration background not helpful).

    I’ve seen it referenced that he’s a “Trial Attorney” in the Civil Division — that’s what they are all called. That doesn’t mean he has any real courtroom experience, and once he became Deputy Assistant AG, that takes him out of the ranks of the Trial Attorneys who handle individual cases. He might not have ever argued and appeal in a Circuit Court before — it sort of sounded like that.

    I’ll have a few posts on substantive matters over the next few hours as I listen again and continue reading cases.

    shipwreckedcrew (56b591)

  97. Heard some interesting speculation earlier on Hannity from Laura Ingraham and Jay Sekulow. Remember that Ingraham clerked two terms for Clarence Thomas, and is a Dartmouth and UVa Law School grad. She knows her stuff. And Sekulow has argued 10 times before the Supreme Court, and has had his amicus briefs cited in Court decisions many times.

    Sekulow made the case, and Ingraham agreed, that its quite likely this does not end up as a 4-4 split in the Supreme Court. While they think Ginsberg and Kagan are lost causes, they both thought Breyer and Sotomayor would be more skeptical of the proposition that the courts can enjoin Presidential action re foreign affairs and immigration, thereby courting a constitutional crisis.

    Someone behind closed doors in the Supreme Court is likely to say “How do we enforce such a ruling — especially if it ends 4-4 — where the “action” is in US Embassies in foreign lands?”

    Sotomayor is not an academic. She spent her career before going on the bench of the Second Circuit as a prosecutor.

    Breyer has been either on the Appeals Court or the Supreme Court since 1980. This “temporary ban” is not an issue upon which to spark a crisis. Both are more likely to wait for cases that come out of the policy put in place after the temporary period ends.

    This is an issue where cool heads on the Court preserve its integrity as an institution, and keep its powder dry for a fight still to come.

    shipwreckedcrew (56b591)

  98. no tax-exempt applications from conservative organizations were denied. Many were unreasonably delayed, however.

    You are a word-smith Dave. What an excellent point. Why deny an application when you can just shelve it? Brilliant. Oh you must work for the Government! Such an insight.

    Did you ever consider that the purpose of the proposed entity was to perform some activity in an upcoming election that would fall under the exemption rules, and there would be little interest in undertaking those tasks after the election? Of course you did, and that is what makes you so pleased with the outcome. And for many applicants, it was two election cycles not just one. So that makes it a two-fer! Gosh, we are so lucky to have you enlightening us with your cleverness. And the Inspector General’s report was such a comfort to you, wasn’t it. Why it’s like having your own lawyer be the judge and jury. The report kind of danced around some of the materials required by the IRS like the text of sermons they listened to in their churches, but these details are of no consequence, right?

    Speaking of consequences, you are sadly misinformed of the consequences of using the 5th to avoid answering a question before Congress. But she got away with it, which served only to undermine what little confidence the public had in the integrity of the Republican leadership. And Trump is the fruit that grew on that tree. Call it Karma.

    BobStewartatHome (c24491)

  99. There was denial and also years of delays for hundreds of conservative orgs by the IRS. Years, which is effectively death by bureaucracy. The IRS had to make public apologies for it. Denial is documented in those links.

    Colonel Haiku (2601c0)

  100. “Nearly seven years after it applied to the IRS for nonprofit status, the Albuquerque Tea Party has finally been given a decision: Denied.

    The tax agency, under orders from a federal judge, is belatedly tackling the remaining tea party cases that it delayed for years, and so far the tea party isn’t doing well. Only one of the three groups in the case was approved, and the other two, including Albuquerque, got notices of proposed denials last week.”

    Colonel Haiku (8cfa8b)


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