Patterico's Pontifications

2/9/2017

Analysis of Today’s Ninth Circuit Decision on Trump’s Immigration Order

Filed under: General — Patterico @ 6:41 pm

As you have no doubt heard, the Ninth Circuit today issued an opinion upholding the District Court’s TRO halting much of Trump’s order on immigration. This post analyzes the decision, which can be read here. Throughout, I’ll grade my own previous predictions about the ruling.

My overall impression is that this is a sound legal ruling — and that Donald Trump is personally to blame for it. By allowing Steve Bannon & Co. to write the order in a sloppy and overbroad manner, and further allowing them to decide that it applied to green card holders, Trump issued an the order that was bound to fail.

Perusing Twitter tonight, I see that many people who support the policy behind the order (as I do), but who have not followed the legal arguments closely, are saying this is just another leftist Ninth Circuit decision. But the order is a unanimous “per curiam” (through the court) ruling. It was joined by a judge appointed by George W. Bush who, at oral argument, expressed skepticism towards the idea that the order was motivated by religious bias, and seemed receptive to the argument that these countries might pose a threat.

The Twitter lawyers point out that this was not a ruling on the merits — and that’s right . . . but the merits still factored into the decision. A subtle point — brought up in the oral argument but missed by many observers — is that once the District Court entered the injunction, the burden shifted to the Government to show on appeal that it was likely to win in the trial court. The Court held that the Government had failed to make that showing. This portion of the ruling, then, does relate to the merits. The Court also held that the Government failed to show irreparable injury, since the TRO put the U.S. back in the same state of affairs that had existed for years.

According to the opinion, the executive order’s principal potential flaw was that it may have deprived a substantial number of people of due process, in three ways (the following paragraph describes the states’ arguments, which the Government failed to rebut for purposes of this appeal):

First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.

The decision to interpret the order as applying to lawful permanent residents was reportedly made by Trump advisers Steve Bannon and Stephen Miller. This was clearly the most troubling aspect of the order to the judges — as well as the aspect of the order that stood out to most objective observers as the dumbest part of the order. As I said in my analysis of the oral argument: “I think even Judge Clifton would be on board with staying the executive order to the extent it applies to LPRs [lawful permanent residents].” What I didn’t predict outright was that Judge Clifton would find this enough to join an opinion upholding the entire TRO; I had expected that he would file a concurring opinion agreeing that the TRO was appropriate as applied to LPRs, but only as to LPRs.

The Government argued that the issue of the application of the executive order to LPRs was moot, because the White House counsel had interpreted the order as not covering LPRs. But the court was not convinced, noting that the White House counsel is not the President — and, since the Administration had given so many contradictory statements on this point, nobody can be certain that they won’t apply it to green card holders again:

[I]n light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings

Basically, the court said the order is clearly illegal in denying re-entry to LPRs and non-immigrant visa holders, and they aren’t going to rewrite the order (or let the White House counsel rewrite it) to conform to the law. That’s the President’s job. The court said that the Government’s different proposals for limiting the scope of the TRO still resulted in potential due process violations.

The lack of due process for LPRs was the central aspect of the opinion, and it was completely avoidable. The fault lies with Donald Trump.

As to the argument that Trump was targeting Muslims, the Court’s language seemed carefully crafted to maintain the unanimous nature of the opinion. I predicted there were two votes for a finding of possible religious discrimination, based on Trump’s repeated statements during the campaign that he wanted a Muslim ban — but Judge Clifton was clearly skeptical of this claim. The Court dealt with this by saying: “The States’ claims raise serious allegations and present significant constitutional questions” (language clearly inserted by Judges Canby and Friedland) but refused to use this as a ground to uphold the TRO, instead reserving the issue for later, after further litigation in the District Court (an evident concession to Judge Clifton to get him on board with this opinion).

This means that Donald Trump’s mouthing off about a Muslim ban wasn’t the reason for today’s decision — but it could still have legal consequences down the line.

In other aspects more of interest to lawyers than others, the court (as predicted) found standing based on the states’ proprietary interests, and treated the injunction as an appealable preliminary injunction rather than a TRO proper, because of the length of the briefing schedule. (These are also aspects I predicted correctly based on the oral arguments.)

In summary, this is a solid legal opinion and I don’t see it being reversed by the Ninth Circuit en banc or by the U.S. Supreme Court. The judges did their jobs and they did them well. They won’t get a lot of credit for this from political partisans, but they’ll get it from me.

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

Ninth Circuit Upholds TRO Halting Trump’s Immigration Order

Filed under: General — Patterico @ 5:32 pm

The order is here. It’s unanimous. I’ll have an analysis this evening.

[Cross-posted at RedState.]

Replacement for Sessions in Senate is Strange

Filed under: General — Patterico @ 10:15 am

Luther Strange, that is. The announcement comes in this press release from the office of Alabama Governor Robert Bentley:

Governor Robert Bentley announced on Thursday the appointment of Luther Strange to Alabama U.S. Senator. Strange will fill the Senate seat vacated by U.S. Senator Jeff Sessions who was confirmed Wednesday night to serve as United States Attorney General. Previous to the appointment, Strange served as Alabama’s Attorney General, first elected to office in 2011.

“This is truly a remarkable time in our state’s history,” said Governor Bentley. “Alabama has surely been well represented by Senator Sessions, and I am confident Senator Strange will serve as a fine representative for our people. His leadership on a national level, service as a statewide elected official and long record of taking on tough federal issues are the very qualities that will make him a strong conservative Senator for Alabama.”

. . . .

“I am greatly honored and humbled to accept the appointment to Alabama’s Senate seat vacated by Senator Jeff Sessions,” said Attorney General Luther Strange. “Senator Sessions’ commitment to public service is nearly unparalleled in Alabama history and his departure from the Senate leaves tremendous shoes to fill. I pledge to the people of Alabama to continue the same level of leadership as Jeff Sessions in consistently fighting to protect and advance the conservative values we all care about.”

The announcement says: “The Special election for the U.S. Senate seat will take place in 2018.” In an interesting twist, DecisionDeskHQ explains, the Governor “is currently in the middle of a personal scandal” — and Strange “appears to be investigating the Governor.” The Governor will now be able to name Strange’s replacement as Alabama Attorney General.

Strange.

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

Kellyanne Conway Touts Ivanka Trump’s Clothing Line from White House, Apparently Violating Ethics Rules

Filed under: General — Patterico @ 10:00 am

This gang just can’t help themselves, can they? Here’s the video. The plug for the President’s daughter’s line of clothing comes at 1:11:

Go buy Ivanka’s stuff, is what I would tell you. I hate shopping, I’m gonna go get some myself today.

5 CFR [Code of Federal Regulations] 2635.702 states in relevant part:

§ 2635.702 Use of public office for private gain.

An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations.

Nothing will come of this, because we collectively shrug our shoulders at ethical violations these days. It began with President Trump inappropriately tweeting out an angry message about Nordstrom’s decision — which it said was based on financial considerations — to terminate Ivanka’s line of clothing. (I guess Nordstrom should lose money to keep the cash flowing to Ivanka.) Then it was Sean Spicer saying the decision was “unacceptable.” Now we have Kellyanne Conway, Counselor to the President, standing in the White House briefing room, openly plugging the financial interests of the President’s daughter.

It’s not the biggest thing in the world on its own, but it’s indicative of a rotten culture. They don’t think twice about doing stuff like this. Ethics? Schmethics.

Of course, none of this is really about money. It’s about ego. Donald Trump’s ego is now the Prime Mover in all American policy. This is just another example.

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


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