Analysis of Today’s Ninth Circuit Decision on Trump’s Immigration Order
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.]
Ding.
Patterico (115b1f) — 2/9/2017 @ 6:58 pmI know it’s early in the analysis stage, but have you read David French’s thoughts at NR yet? Certainly doesn’t consider the ruling as legally sound.
Mike (3c1a6b) — 2/9/2017 @ 7:03 pmit’s always best to err on the side of getting innocent people killed by murderous refugee terrorists
(it’s a harvard thang you’re not supposed to get it)
happyfeet (28a91b) — 2/9/2017 @ 7:03 pmDo you think that the 9th Circuit would rule differently if the EO were re-written to clearly exclude LPRs?
Mike P. (3343f6) — 2/9/2017 @ 7:04 pmsince the TRO put the U.S. back in the same state of affairs that had existed for years.
As I understand it, one year in the singular, or whatever the time since Obama changed the rules himself.
Kishnevi (4a5f25) — 2/9/2017 @ 7:05 pmI don’t pretend to know whom to believe. But for what it’s worth Ted Cruz disagrees with you.
elissa (0c5899) — 2/9/2017 @ 7:14 pmSome stati quo should not be preserved. “So, ma’am, you say your husband has been getting drunk and beating you for years and you want him ordered out of the house and kept away from you? Now, after all these years, what difference will a few more months make until we get to hear his side of the story?”
nk (dbc370) — 2/9/2017 @ 7:15 pmI don’t think we need to do as Dick the Butcher suggested in Henry the VI. I think killing half of the lawyers would send a message.
Jim (a9b7c7) — 2/9/2017 @ 7:19 pmWe know if two incidents involving nationals of the seven countries. In one, two Iraqis arrested for actions performed in Iraq before they arrived here. The other of course being the Somali truck guy in Ohio, who injured but did not kill anyone.
In contrast, the killers in San Bernardino, Boston, Orlando, etc were from countries not at all effected by this order, and one of course was born here.
If I were to draw up an EO like this I think I would take that into account. And if I thought there wasn’t enough authorization under existing law, get Congress to make the law, using my bully pulpit to make them seem soft on terrorism if they didn’t.
You know, the logical and constitutional way…
Kishnevi (4a5f25) — 2/9/2017 @ 7:22 pmI don’t think it would have been unanimous, but in light of Trump’s previous “we need to have a Muslim ban” comments, I think it might have been a 2-1 decision. And I would be more sanguine about the prospects for reversal in the Supreme Court.
Ted Cruz is playing politics and not discussing the due process issues, in my opinion.
Patterico (115b1f) — 2/9/2017 @ 7:22 pmI like Cruz’s thinking on this. Here’s a guy with a real reason to dislike the President and he appears to overcome his personal dislike of the man.
Colonel Haiku (2601c0) — 2/9/2017 @ 7:24 pmIt was a fairly minor change in rules, as the court noted:
I have been saying the same thing for days now, every time someone invokes this talking point as a talisman. Have not gotten an explanation from anyone.
Patterico (115b1f) — 2/9/2017 @ 7:26 pmAs we sit and consider this decision, at the Eiffel Tower the French are building a barricade to protect citizens and tourists (plus a massive structural wonder) from advocates for the religion of peace.
The failure over there is a precursor to the failure that will happen here without a massive national awakening.
Harkin (f2f14e) — 2/9/2017 @ 7:27 pmAnd I guess you’re drawing a contrast to me? Good bye. See y’all at The Jury Talks Back.
Patterico (115b1f) — 2/9/2017 @ 7:27 pmthe Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.
Under rational basis review, the court is not entitled to either evidence or an explanation. Just a legitimate governmental interest and a rational relationship of the government’s action to the furtherance of that interest.
nk (dbc370) — 2/9/2017 @ 7:31 pmWTF…
Colonel Haiku (2601c0) — 2/9/2017 @ 7:34 pmPrediction… if it isn’t scuttled (can’t see that happening), it goes to SCOTUS and is reversed.
Colonel Haiku (2601c0) — 2/9/2017 @ 7:40 pmMark steyn, thinks the ‘aesthetic boundary’ is sheer foolishness
narciso (d1f714) — 2/9/2017 @ 7:42 pmColonel, if you weren’t trying to draw a contrast with me, just say so.
Patterico (115b1f) — 2/9/2017 @ 7:47 pmAh well I stopped following your blog in October when you were in full Never Trump lather. Checked in to day to see if you had settled down. Nope. Will check again in 90 days, but in meantime I can do without your stuff.
Skeptical Voter (1d5c8b) — 2/9/2017 @ 7:49 pmI’m no lawyer, but I have faith that common sense will prevail. Probably a naive position, but I have hope.
Colonel Haiku (2601c0) — 2/9/2017 @ 7:50 pmI was not, Patterico. You’re the lawyer. I’m just hoping you are wrong about this.
Colonel Haiku (2601c0) — 2/9/2017 @ 7:51 pmOK. Sorry I overreacted.
Patterico (115b1f) — 2/9/2017 @ 7:54 pmCool, I can do without readers who make comments like that. Bye.
Patterico (115b1f) — 2/9/2017 @ 7:54 pmWhy that seemed like a foolish premise:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/09/the-9th-circuits-dangerous-and-unprecedented-use-of-campaign-statements-to-block-presidential-policy/?utm_term=.a729f4c671d4
narciso (d1f714) — 2/9/2017 @ 8:05 pm“The U.S. Court of Appeals for the 9th Circuit has just upheld a nationwide temporary injunction on President Trump’s executive order relating to refugees and visas from certain countries. I think the court’s opinion is weak in most respects, but I will address one of the most interesting and potentially far-reaching aspects.
Generally, the president has vast discretion in issuing visas. One of the major arguments against the executive order is that while in principle a president can limit immigration from the seven affected countries, it would be unconstitutional for President Trump in particular to do so, because in his case the action is motivated by impermissible religious bias. The central exhibit for this argument is his campaign statements about a “Muslim ban.”
While the 9th Circuit did not address this at great length, focusing instead on due-process arguments, it did accept the basic validity of the form of the states’ argument. “The States’ claims raise serious allegations and present significant constitutional questions,” wrote the court.
There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive. The 9th Circuit fairly disingenuously cites several Supreme Court cases that show “that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” But the cases it mentions do nothing more than look at legislative history — the formal process of adopting the relevant measure. That itself goes too far for textualists, but it provides absolutely no support for looking before the start of the formal deliberations on the measure to the political process of electing its proponents.”
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/02/09/the-9th-circuits-dangerous-and-unprecedented-use-of-campaign-statements-to-block-presidential-policy/?utm_term=.11dbd070cf01
Colonel Haiku (2601c0) — 2/9/2017 @ 8:09 pmSo you’re saying throw the baby out with the bathwater?
AZ Bob (f7a491) — 2/9/2017 @ 8:09 pmNarciso!!!
Colonel Haiku (2601c0) — 2/9/2017 @ 8:10 pmInteresting piece: we can’t look at campaign statements as evidence of a politician’s intent because campaign statements are lies.
Patterico (115b1f) — 2/9/2017 @ 8:11 pmI think that’s what the court was saying: this is illegal in some respects so we’re just not rewriting it. That’s the President’s job.
Patterico (115b1f) — 2/9/2017 @ 8:12 pmhttps://pjmedia.com/instapundit/256931/
Colonel Haiku (2601c0) — 2/9/2017 @ 8:20 pmSo maybe there will be a fast re-write.
AZ Bob (f7a491) — 2/9/2017 @ 8:24 pmI think that’s what the court was saying: this is illegal in some respects so we’re just not rewriting it. That’s the President’s job.
That is judicial restraint I appreciate (Cf. the Obamacare cases) but in this instance I question the Court’s motive for exercising it. To wit, it helps them reach the result they want.
nk (dbc370) — 2/9/2017 @ 8:25 pmReal judicial restraint would have been lifting the TRO (or preliminary injunction, sigh).
nk (dbc370) — 2/9/2017 @ 8:27 pmIts all pretend coronello, if one leaves out awlaki, the lackawanna 6, ramzi bin al shibh, then of course one doesn’t see any problem with immgtration from Yemen, re Somalia has there been a whole string of incidents in aha as well as Minnesota, Sudan is a lesser case, but I’m sure there are examples, Afghanistan, the long island railroad attack and I think something happened near my neck of the woods, I can’t recakl
narciso (d1f714) — 2/9/2017 @ 8:28 pmAnd I don’t think that campaign speeches are judicially noticeable like the Congressional Record is.
nk (dbc370) — 2/9/2017 @ 8:30 pmI just fail to see, in my admittedly ignorant and not-learned and non-legal background, how in he** we get to any of the merits.
Arizona had proof beyond proof of the harm and havoc caused by felonious non-deportees and were laughed out of court in THIS Circuit, as to standing. The federal government decides place, time, and manner of immigration policy and authority and enforcement. Period. Full stop.
Now? If only there were proof as to the urgency in strict vetting of ALIENS from and on foreign soil. What utter garbage. And Washington insists they have the narrowest of narrow economic interests, unlike the proven mortal perils as Arizona now suffers, and the Circuit turns all precedent of honoring the judgment of the executive on matters of security and immigration, and says of course you have standing!
“We’ll decide where danger exists!”, they insist. What’s next, pre-approval of battle plans? Don’t laugh. It is very easy to imagine a judge shutting down the potential use of certain weaponry in certain areas, likely crammed with “innocent civilians.” Have we not had court decisions finding that parties who are not signatories are still entitled to all benefits of the Geneva Conventions?
DJT was dead right to put any future harm which comes due to the stay of his order on the heads of these 4 judges. They do not deserve the respect which would normally accrue to one wearing the substantial robes as each does.
I am pleased that we are getting more clarity as to the sham Judiciary we have had for a very long time. The average voter will have a great opportunity to watch as this latest trashing of the Rule of Law moves forward under a very bright sun.
Ed from SFV (3400a5) — 2/9/2017 @ 8:30 pmYeah, I doubt it. Trump would rather fight the courts than quietly fix his mistakes, forcing him to admit error.
Patterico (115b1f) — 2/9/2017 @ 8:34 pmOf course its kabuki, that has certainly been true since 1994 and prop 187, 209, 8, SB 1070
narciso (d1f714) — 2/9/2017 @ 8:35 pmThe lesson Was seen after Kate steinle, did this event make them reconsider the wisdom of sanctuary cities, heck no they doubled down
narciso (d1f714) — 2/9/2017 @ 8:45 pmPer now Attorney General Sessions:
Since September 11, 2001, we know that at least 40 individuals who were admitted to the United States as refugees have been convicted for, or implicated in, terrorism or terrorism-related offenses – and the total is likely much higher. Some were admitted as adults, others as children, but these cases refute the false assertion that those admitted to the United States as refugees never engage in terrorism. But because these facts do not fit within his worldview, President Obama rejects them. And in so doing, he rejects his sacred oath for what he perceives as political gain.
This is part of Session’s list:
– On May 25, 2016, in the U.S. District Court for the Northern District of Texas, Bilal Abood was sentenced to four years in prison for making a false statement to the FBI. Abood, an Iraqi translator for the U.S. military, was admitted to the United States through the Special Immigrant Visa program for Iraqi translators in 2009, and subsequently became a citizen. Abood enlisted in the Army and went through basic training at Fort Jackson in 2010, but left for unknown reasons. According to court documents, after being prevented from boarding an international flight, Abood told FBI agents that he intended to go to Iraq to visit family. Subsequently, Abood left the United States through Mexico and then traveled through various countries to get to Syria to join ISIS. A subsequent search of his computer revealed that he pledged an oath to the leader of ISIS, despite denying that he had ever made such a pledge.
– On January 7, 2016, in the U.S. District Court for the Eastern District of California, Aws Mohammed Younis Al-Jayab was charged with providing materially false, fictitious, and fraudulent statements and representations to the United States government. He was separately indicted on March 17, 2016 for attempting to provide material support to acts of violence overseas. Al-Jayab – a Palestinian born in Iraq – was admitted to the United States as a refugee in 2012. According to the criminal complaint, beginning in October of 2012 – the very same month he first arrived in the United States – Al-Jayab began communicating with numerous individuals about his intention to go to Syria and fight for terrorist organizations. In April 2013, Al-Jayab made multiple statements to another individual (later identified as Omar Faraj Saeed Al Hardan) regarding his experience handling weapons and killing individuals in Syria. In November 2013, just one year after being welcomed to the United States as a refugee, he traveled to Syria and posted on social media that he was fighting with various terrorist organizations, stating “America will not isolate me from my Islamic duty. Only death will do us part.”
– On January 7, 2016, in the U.S. District Court for the Southern District of Texas, Omar Faraj Saeed Al Hardan was charged in an indictment with attempting to provide material support to a foreign terrorist organization, making false statements, and attempting to procure citizenship or naturalization unlawfully. The indictment states that he attempted to provide training, expert advice and assistance, and personnel – specifically himself – to a terrorist organization. Al Hardan – a Palestinian born in Iraq – was admitted to the United States as a refugee in 2009, and obtained a green card in 2011. When applying to become a U.S. citizen, he knowingly responded, certified, and swore untruthfully that he was not associated with a terrorist organization when, in fact, he associated with members and sympathizers of ISIS throughout 2014. During an interview in October 2015, Al Hardan falsely represented that he had never received any type of weapons training, when in fact he had received automatic machine gun training. According to media accounts, Al Hardan told his wife “I will go to Syria. I want to blow myself up. . . . I am against America.”
– On August 12, 2015, in the U.S. District Court for the District of Idaho, Fazliddin Kurbanov was found guilty of conspiring and attempting to provide material support to a designated foreign terrorist organization and possessing an unregistered destructive device. Kurbanov is a native of Uzbekistan who came to the United States as a refugee in 2009. U.S. Assistant Attorney General John Carlin stated that he “conspired to provide material support to the Islamic Movement of Uzbekistan and procured bomb-making materials in the interest of perpetrating a terrorist attack on American soil.” According to press reports, Kurbanov began his life as a Muslim, but his family claimed that they faced persecution after they converted to Orthodox Christianity. After coming to the United States with his family as a refugee, Kurbanov is said to have converted back to Islam and radicalized.
– On April 20, 2015, in the U.S. District Court for the District of Minnesota, Guled Ali Omar was charged with conspiracy and attempt to provide material support to ISIS. Omar was born in a Kenyan refugee camp, and sources indicate he came to the United States as a refugee when he was a child, obtained a green card, and subsequently applied for and received citizenship. Omar is the younger brother of another indicted fugitive, Ahmed Ali Omar, who left the United States in 2007 to fight for Al-Shabaab. Another one of his brothers, Mohamed Ali Omar, was convicted in March of 2015 of threatening federal agents when they came to the family’s residence to interview Guled Omar. During a press conference, U.S. Attorney for the District of Minnesota, Andy Luger, said that Omar “never stopped plotting,” and had previously attempted to leave the United States.
– On April 20, 2015, in the U.S. District Court for the District of Minnesota, Abdurahman Yasin Daud was charged (along with six others) with conspiracy and attempt to provide material support to ISIS. Daud, a Somalian refugee who came to the United States as a child, and subsequently obtained a green card. Daud and another individual drove from Minnesota to San Diego to attempt to get passports, cross the border into Mexico, and fly to Syria in to join ISIS.
– On February 18, 2015, Al-Hazmah Mohammed Jawad was arrested as he attempted to board a flight to Jordan to join and fight with ISIS in Iraq. Jawad was admitted to the United States in 2013 as an Iraqi refugee and he subsequently obtained a green card. Jawad was charged with making a false statement to U.S. government officials. He also stated that he “had been to the shooting range and had been running to get in shape and prepare for his upcoming travels,” and that a uniform was waiting for him in Iraq.
– On February 5, 2015, in the U.S. District Court for the Western District of Texas, Abdinassir Mohamud Ibrahim was sentenced to 15 years in federal prison for conspiring to provide material support to Al-Shabaab, a designated foreign terrorist organization, and for making a false statement in his immigration paperwork. Ibrahim is a native of Somalia who came to the United States as a refugee in 2007 at the age of 22 and subsequently obtained a green card. Ibrahim knowingly lied on his citizenship application and previously lied in his request for refugee status, by falsely claiming that he was of a member of the minority Awer clan in Somalia and subject to persecution by the majority Hawiye clan. Ibrahim was actually a member of the Hawiye clan and not subject to persecution. In fact, according to court documents, “Ibrahim’s family was famous . . . [and] [t]hrough his clan lineage, Ibrahim was related to known Somali terrorists[.]” Ibrahim also admitted he lied on his citizenship application by having previously lied on his refugee application by falsely claiming that he had not provided material support to a terrorist group, when he had in fact provided material support in the form of cash to an Al-Shabaab member.
– On February 5, 2015, in the U.S. District Court for the Eastern District of Missouri, Abdullah Ramo Pazara was named in an indictment against six individuals. Pazara, a native of Bosnia who sources indicate came to the United States as a refugee, later obtained a green card and became a citizen in 2013. Pazara was never charged in this case because he is believed to be dead. According to court documents, the others who were indicted provided material support to Pazara, who left the United States to go to Syria and fight with ISIS just 11 days after becoming a citizen. Among other things, Pazara allegedly told an individual about a mission where they “captured a large area, killed eleven individuals, captured one, and added that they intended to slaughter the prisoner the follow[ing] day.” According to press reports, at the time Pazara was purportedly killed in Syria, he was a deputy to one of the top ISIS commanders.
– On February 5, 2015, in the U.S. District Court for the Eastern District of Missouri, Ramiz Zijad Hodzic was charged with conspiring to provide material support and resources to terrorists, providing material support to terrorists, and conspiring to kill and maim persons in a foreign country. Hodzic is a native of Bosnia, and a purported Bosnian war hero who came to the United States as a refugee. According to the indictment, among other things, Hodzic obtained money that he used to “purchase materials and supplies including: United States military uniforms, tactical combat boots, military surplus goods, tactical gear and clothing, firearms accessories, optical equipment and range finders, rifle scopes, equipment, and supplies . . . intending that the materials and supplies would thereafter be transferred to, and used to support” Abdullah Ramo Pazara and ISIS.
– On February 5, 2015, in the U.S. District Court for the Eastern District of Missouri, Sedina Unkic Hodzic was charged with conspiring to provide material support and resources to terrorists, and providing material support to terrorists. Sedina is the wife of Ramiz Zijad Hodzic and a native of Bosnia who came to the United States as a refugee. According to the indictment, Sedina, along with her husband, collected money from third parties and wired it to terrorists abroad. Also according to the indictment, Sedina shipped six boxes of U.S. military uniforms, combat boots, tactical clothing and gear, military surplus items, firearms accessories, rifle scopes, optical equipment, first aid supplies, and other equipment to terrorists abroad.
– On February 5, 2015, in the U.S. District Court for the Eastern District of Missouri, Armin Harcevic was charged with conspiring to provide material support and resources to terrorists, and with providing material support to terrorists. Harcevic is a native of Bosnia who came to the United States as a refugee, and subsequently obtained a green card. According to the Indictment, Harcevic collected money from third parties and wired it and his own funds to terrorists abroad.
– On February 5, 2015, in the U.S. District Court for the Eastern District of Missouri, Nihad Rosic was charged with conspiring to provide material support and resources to terrorists, providing material support to terrorists, and conspiring to kill and maim persons in a foreign country. Rosic is a native of Bosnia who sources indicate came to the United States as a refugee, obtained a green card, and subsequently applied for and received citizenship. According to the indictment, Rosic sent funds to terrorists abroad, and attempted to travel to Syria to join terrorists in Syria and Iraq. According to press accounts, Rosic was a truck driver and former mixed martial arts fighter who had previously been charged with endangering the welfare of a child after punching a woman in the face while she held a child, and in a separate incident, was charged with assault after allegedly beating his girlfriend with a belt.
– On February 5, 2015, in the U.S. District Court for the Eastern District of Missouri, Mediha Medy Salkicevic was charged with conspiring to provide material support and resources to terrorists, and providing material support to terrorists. Salkicevic is a native of Bosnia who sources indicate came to the United States as a refugee, obtained a green card, and subsequently applied for and received citizenship. According to press accounts, Salkicevic was formerly an employee with a cargo company that deals with items coming in and out of Chicago’s O’Hare International Airport. According to the indictment, Salkicevic collected money from third parties and wired it and her own funds to terrorists abroad.
– On February 5, 2015, in the U.S. District Court for the Eastern District of Missouri, Jasminka Ramic was charged with conspiring to provide material support and resources to terrorists, and providing material support to terrorists. Ramic is a native of Bosnia who sources indicate came to the United States as a refugee, obtained a green card, and subsequently applied for and received citizenship. According to the indictment, Ramic collected money from third parties and wired it and her own funds to terrorists abroad.
– On January 29, 2015, in the U.S. District Court for the Eastern District of Virginia, a federal warrant was unsealed for the arrest of Liban Haji Mohamed for allegedly providing material support to Harakat Shabaab Al-Mujahidin, also known as Al-Shabaab and Al-Qaeda. Mohamed is a native of Somalia who sources indicate came to the United States as a refugee, obtained a green card, and subsequently applied for and received citizenship. He is believed to have left the United States on July 5, 2012, with the intent to join Al-Shabaab in East Africa. Mohamed previously lived in the Washington, D.C. area and worked as a cab driver, and is believed to have snuck across the border to Mexico after being placed on the no-fly list. Carl Ghattas, Special Agent in Charge of the FBI’s Washington, D.C. Field Office emphasized the importance of locating Mohamed, “because he has knowledge of the Washington, D.C. area’s infrastructure such as shopping areas, Metro, airports, and government buildings . . . [t]his makes him an asset to his terrorist associates who might plot attacks on U.S. soil.”
– On January 31, 2014, in the U.S. District Court for the Southern District of California, Ahmed Nasir Taalil Mohamud was sentenced to six years in prison for conspiracy to provide material support to a foreign terrorist organization. Mohamud was admitted to the United States as a refugee from Somalia. He worked as a cabdriver in Anaheim, California where he raised money for the terrorist organization Al-Shabaab. According to the Department of Justice, “[t]he United States presented evidence that Nasir . . . conspired to provide money to al Shabaab, a violent and brutal militia group that engages in suicide bombings, targets civilians for assassination, and uses improvised explosive devices.”
– On November 18, 2013, in the U.S. District Court for the Southern District of California, Issa Doreh was sentenced to ten years in prison for “conspiracy to provide material support to terrorist, conspiracy to provide material support to foreign terrorist organization, conspiracy to launder monetary instruments, and providing material support to foreign terrorist organization.” Doreh was admitted to the United States as a refugee from Somalia and subsequently obtained a green card and became a citizen. Doreh worked at a money transmitting business that was at the center of the conspiracy, which also involved Ahmed Nasir Taalil Mohamud.
– On January 29, 2013, in the U.S. District Court for the Western District of Kentucky, Waad Ramadan Alwan was sentenced to 40 years in federal prison, followed by a life term of supervised release for a number of offenses related to terrorism. Alwan is a native of Iraq who was admitted to the United States as a refugee in 2009. According to the Department of Justice’s press release, “Alwan, whose fingerprints were found on an unexploded IED found in Iraq, pleaded guilty earlier in the case on December 16, 2011, to all counts of a 23-count federal indictment. He pleaded guilty to conspiring to kill U.S. nationals abroad; conspiring to use a weapon of mass destruction (explosives) against U.S. nationals abroad; distributing information on the manufacture and use of IEDs; attempting to provide material support to terrorists and to AQI; and conspiring to transfer, possess, and export Stinger missiles.” (emphasis added). During the investigation, while “unwittingly working with an FBI informant, Alwan drew diagrams of roadside bomb models and boasted about attacks on American troops in Iraq.” In a discussion with an FBI informant, Alwan allegedly said that he was skilled with a sniper rifle, and that his “lunch and dinner would be an American [soldier].”
– On January 29, 2013, in the U.S. District Court for the Western District of Kentucky, Mohanad Shareef Hammadi was sentenced to life in prison for a number of offenses related to terrorism. Hammadi is a native of Iraq who was admitted to the United States as a refugee in 2009. According to the Department of Justice’s press release, “Hammadi pleaded guilty on August 21, 2012, to a 12-count superseding indictment. Charges against him included attempting to provide material support to terrorists and to AQI; conspiring to transfer, possess, and export Stinger missiles; and making a false statement in an immigration application.”
This is not esoteric research. This is part of the Congressional record.
Yoda jr (310909) — 2/9/2017 @ 8:57 pmNow that might dictate a longer list, Bosnians, Uzbek’s and the like, but still there is evidence
narciso (d1f714) — 2/9/2017 @ 9:02 pmYoda Jr, the bandwidth musn’t be with you.
Cruz Supporter (102c9a) — 2/9/2017 @ 9:08 pmSheesh.
Yoda jr, that’s an impressive list. But how many Americans died here in the US because of any of those terrorists?
Oh, none. They were supporting terror back home, not here. The ones who really did kill Americans here in the US would not have been kept out if Trump’s order had been in effect when they arrived. Or, in the case of the Orlando killer, when their parents cane here.
You’re proving my case. As Narciso notes, the list of countries should be longer. What Trump provided us is itself kabuki.
Kishnevi (4a5f25) — 2/9/2017 @ 9:28 pmI think Kontorovich has a point, and it’s a significant one, enough to take to the Supreme Court.
WarrenPeese (d5b1bb) — 2/9/2017 @ 9:31 pmI think the point of everything that has happened in the last several days is the fight.
I think Patterico is right in his analysis of the ruling and that Bannon, Trump and the rest of the crew are counting on the press, partisans and everyone else to get caught up the fight and overlook how easy it is to re-write the order to avoid the legal issues. They want this to go as far as possible for as long as possible because they most people aren’t looking at the details of the order and the legal fight but are concerned about safety, that partisans will use a controversial issue to mark out territory for the perpetual pissing contest and the press will likely get lost in the turmoil and never press them on why they don’t just re-write the thing. (#1)In the end this is probably a play to expand administration sympathies with the public(#2) and weaken the public standing of the courts in an environment where the congress, the press and the political opposition are already weak.
1 might also be counting on liberal leaning press agencies not to even mention it for fear of being painted as paper/channel that helped the administration get the ban through.
2 look at the poll numbers for those who agree with the order and juxtapose those numbers with Trump approval numbers just before the release of the order.
george (d4f19e) — 2/9/2017 @ 9:32 pm“By accepting the use of preelection statements to impeach and limit executive policy, the 9th Circuit is taking a dangerous step. The states’ argument is in essence that Trump is a bigot, and thus his winning presidential campaign in fact impeaches him from exercising key constitutional and statutory powers, such as administering the immigration laws.
“This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.”
Eugene Kontorovich
AZ Bob (f7a491) — 2/9/2017 @ 9:35 pmA few points and a couple of corrections.
1. The procedural posture of this case (important probably only to lawyers) is that the government was seeking an emergency stay of the TRO pending appeal. That means the burden was on the government to make the necessary showing required by law for the relief they were seeking, which was the opposite of the situation before the district court in Seattle when considered the State’s request for a TRO.
That was one of the points raised by the Court in the hearing when the Gov’t lawyer on appeal said “events are unfolding at a fast pace” or something like that. The Judge said, “You filed for the emergency stay. Why not wait until you had all your facts marshaled”?
The appeals court decision was pretty much dictated when they found that the Gov’t had not its burden of proving likelihood it would prevail on the merits — and by that it didn’t mean merits in the district court, but rather the merits on appeal of the district court’s TRO. Since the Gov’t didn’t offer anything other than its two memoranda, and it hadn’t really presented any evidence in the district court since the court held the hearing on such short notice, there wasn’t really a record on which the Court could enter a different decision. Back at the district court the State had filed several affidavits with their application for a TRO.
This was a risk of moving so fast to challenge the District Court order.
But, at the same time, the District Court had greatly disadvantaged the Govt in seeking review by not producing an opinion in granting the TRO which had any substance which could be attacked.
Combining that with a procedure in holding the hearing only 3 days after Washington had filed for the TRO pretty much made it physically impossible for DOJ to put together a meaningful opposition to the TRO.
Remember, its now been reported that that “spontaneous” protests at various airports was anything buy spontaneous. They had been well planned, and the organizers were simply waiting for the EO’s to be issued based on the campaign promises that had been made.
Its pretty obvious that the complaint filed by Washington was also well planned, getting filed along with multiple affidavits only 3 days after the EO was signed.
Judge Robart added to the difficulties by producing what was pretty much an unhittible substance-free ruling.
What I find very weak in the opinion produced by the panel is the fact that it engages in a horrendous amount of conclusionary reasoning from largely self-serving affidavits, but then simply bats aside the well-established principle that courts give great deference to the actions of the political branches on issues of immigration and national security.
Yes, the Gov’t lawyer did a horrible job — and in fact misstated the historical standard for judicial review — giving the Court a nice strawman to knock down. Anyone who reads the cases — and I read all of them that were cited — can see that the Courts repeatedly engaged in judicial review of Executive action regarding immigration and national security. The two most salient points that SHOULD have been made in writing and at the argument was that the review engaged in by the Courts has UNIFORMLY been highly deferential to the policy pronouncements made by the political branches, AND in nearly every such case the government has ultimately prevailed on the merits.
The lesson to be drawn from those cases was NOT that the EO’s were unreviewable, but that the historical nature of the review and the outcome of similar challenges over a long long period of time shows that the plaintiffs almost never prevail. Thus, the argument to be made was not that the State lacked standing or that the visa holders didn’t have reviewable claims, but rather that the State and the visa holders would likely lose after the case was fully developed factually and legally.
On the basis of one hearing in Seattle where only the State was able to present factual evidence, and one hearing before the Ninth Circuit where neither side presented and evidence beyond that which was heard in the Seattle proceeding, you now have a preordained conclusion in press and the public that the EO was illegal.
And that’s just not true.
shipwreckedcrew (56b591) — 2/9/2017 @ 9:41 pmCon’t — contrary to much misinformation, this decision was not with regard to an appeal of the District Court’s ruling. It was an application for an emergency stay of the district court’s ruling until an appeal could be heard.
There are several twists it could now take.
The District Court is going to have a more formal and detailed hearing on the State’s motion for prelim injunction. Once the District Court enters that injunction, on a fully developed record with evidence and argument presented from both sides, the Gov’t can appeal that injunction to the 9th Cir. This would be a DIFFERENT APPEAL than the one it is considering now on the TRO. My guess is that the Gov’t will likely abandon its appeal of the TRO, and go through the process of the Prelim Inj. This will mean its not going to ask the Sup. Ct to address today’s decision. I think cooler and more informed heads at DOJ will now prevail with Sessions in charge, and the decision will be that the record on the TRO was terrible because it was one sided, and the Gov’t will be able to make a much stronger record when given the opportunity in a Prelim Inj. hearing next week.
Judge Robart will then issue another decision. He might just make his TRO permanent, or he might modify it based on new information or arguments he receives at the next hearing. That Prelim. Inj. can then be appealed, and the government — on a much better record — can seek an emergency stay of the Prelim Inj. while the appeal is being developed.
While that is taking place they should make he effort to amend the EO to address changes they’ve already acknowledged they are willing to make — exempting Green Card holders for instance, and not preventing long time residents from being able to leave the country and not fear an inability to return.
They should also establish in the EO procedures by which current visa holders, if denied entry, can challenge the denial. That would address the due process issues raised by the Appeals Court. These are all small fixes that would take arguments away from Washington either in the District Court or the 9th Cir.
shipwreckedcrew (56b591) — 2/9/2017 @ 9:51 pm41 — that is exactly the kind of evidence that the government will put in at the hearing next week on the Prelim Injunction. That bitch slaps Judge Robart who said “so far as I can tell not a single person from these 7 countries has been arrested for terrorism” — which was really just an untrue left-wing talking point that had been repeated by the press.
shipwreckedcrew (56b591) — 2/9/2017 @ 9:53 pmThe Court doesn’t get to substitute its own list for Trump’s list. Its a policy decision. The purpose of the policy is to prevent future attacks. “Past performance does not guarantee future results” means it doesn’t matter that no one in the seven countries has yet been SUCCESSFUL in carrying out a terrorist attack, the Pres. doesn’t have to wait for success before having justification to take action.
And the simplest response to the “Establishment Clause” claim is that its the Jihadist who make terrorist activity part of their religious calling. It’s not possible to craft a policy to combat terrorism that ignores the religious aspect of the actors. That’s tantamount to saying every bomb dropped from a B2 Stealth Bomber on Taliban fighters in Afghanistan was an Establishment Clause violation because it targeted Muslims for discriminatory treatment in that no bombs were targeted at Christians.
Same thing can be said of ISIL.
I kind of like that argument actually. I might send it along to one of my friends at DOJ with a note that they should sneak it into the brief somewhere
shipwreckedcrew (56b591) — 2/9/2017 @ 9:59 pmIs “mouthing off” free speech you disagree with? To anyone who cares about free speech, such thinking is downright creepy.
That the court feels it has a right to put a politician’s stump speeches on trial is beyond the pale.
ThOR (c9324e) — 2/9/2017 @ 10:24 pmThat would be much appreciated shipwrecked, as stated ‘this not the beginning of the end, but the end of the beginning.
The roblem is this is not a static analysis, the terrorists get a ballot as well, as we have seen in europe
narciso (9a2fde) — 2/9/2017 @ 10:24 pmSuch great posts, SWC! Thank you so much.
What about the way Arizona was shutdown by this Circuit for lack of standing in a federal matter as they begged to be able to prevent even more existent mortal peril? Surely, this is a disparate granting of standing? I do understand different sections/statutes may well have been in play.
Ed from SFV (3400a5) — 2/9/2017 @ 10:27 pmThis is only an error if you are interested in playing small ball. As usual, Trump is swinging for the fences and it’s looking like another dinger to me.
ThOR (c9324e) — 2/9/2017 @ 10:41 pm> That would address the due process issues raised by the Appeals Court. These are all small fixes that would take arguments away from Washington either in the District Court or the 9th Cir.
If the administration were to reissue the EO with these fixes made, then I would argue the system had worked: the administration had issued an EO with serious procedural flaws that denied people legal rights, was called on it by the courts, and fixed it.
I have zero expectation that the administration will do that, but I hope to be surprised.
aphrael (3f0569) — 2/9/2017 @ 10:53 pmPatterico wrote: “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”
So in reality, while they are giving the impression that they are standing up to Trump, speaking truth to power, shutting him down, what they are really saying is:
“re-write the order, to fix the problems we identified, and then we can all revisit the issue”
Trump could issue a new executive order tomorrow morning that expressly exempts the protected groups, and the plaintiffs in this case would have to file a new lawsuit to try to stop the new EO? And Trump’s DOJ would get a second bite at the apple in terms of getting together the facts and law to argue to support the travel ban, now that they know what the plaintiffs’ arguments are?
That doesn’t sound like judicial overreach to me. It sounds very modest. So even if their reasoning is bad (and I don’t have much of an opinion about that, certainly not an informed one at this point) the impact is modest.
Daryl Herbert (7be116) — 2/9/2017 @ 11:10 pmThat’s why smart lawyers and the WH counsel’s office will frame it as “Do you want the policy, or do you want vindication?”
shipwreckedcrew (56b591) — 2/9/2017 @ 11:10 pm> Trump could issue a new executive order tomorrow morning that expressly exempts the protected groups, and the plaintiffs in this case would have to file a new lawsuit to try to stop the new EO? And Trump’s DOJ would get a second bite at the apple in terms of getting together the facts and law to argue to support the travel ban, now that they know what the plaintiffs’ arguments are?
Yep.
> That’s why smart lawyers and the WH counsel’s office will frame it as “Do you want the policy, or do you want vindication?”
This may be overstating it, but I feel like the WH counsel’s office has an ethical duty to try to persuade the President to reissue the EO.
aphrael (3f0569) — 2/9/2017 @ 11:14 pmShipwreckedcrew,
> you now have a preordained conclusion in press and the public that the EO was illegal.
> And that’s just not true.
What’s the argument that, *as applied to legal permanent resident aliens*, the EO is legal? I haven’t seen anyone put together that argument, and the WHC appears to me to have implicitly conceded the point.
aphrael (3f0569) — 2/9/2017 @ 11:16 pmYou can apply to LPRs, you just have to provide them with due process — notice and an opportunity to be heard.
As long as there is a rational basis for applying it to them, AND it comports with due process, it can be applied to them. They are still only visa holders, not naturalized citizens. Their presence is based on the permission of the US Government.
shipwreckedcrew (56b591) — 2/9/2017 @ 11:39 pmSure. But the EO doesn’t provide them with notice and an opportunity to be heard, so *as currently written* it doesn’t comport with due process. So unless you modify the EO to provide that due process, how is it legal?
I totally get that a modified EO which provides due process would be legal; what I’m wondering is what the argument is for the proposition that *this* EO, which doesn’t provide due process, is legal (as applied to them).
aphrael (3f0569) — 2/9/2017 @ 11:42 pmWell. Trump mouths off. I wish he wouldn’t and I hope this teaches him a (oh, who am I kidding?) lesson. But a textualist approach to EOs would ignore that, especially if the EO is at such complete disagreement with the off-mouthing.
Kevin M (25bbee) — 2/10/2017 @ 12:21 amI would hope that Sessions is able to tell the President to curb his dogs when it comes to legal work, and to hire folks who want to work and help get the President’s job done. From what I can see, the current lot at DoJ are, to be charitable, incompetent.
I was watchig an old TV show that had W in the background, and the thought hit me that, for all his faults, I ‘d trade W for Trump without blinking. This is going to be long 4 years.
Don’t get me wrong, I want Trump to succeed. I just see no indication he has game.
Kevin M (25bbee) — 2/10/2017 @ 12:22 amI kind of like that argument actually. I might send it along to one of my friends at DOJ with a note that they should sneak it into the brief somewhere
Careful. Judge Robarts might order some Christians bombed.
Kevin M (25bbee) — 2/10/2017 @ 12:31 amI am praying that no American is killed because of idiot, hack judges. If Americans are killed, I will pray for this judges death.
mg (31009b) — 2/10/2017 @ 3:12 amI would rather have a bag of dog poop for president than boosh.
mg (31009b) — 2/10/2017 @ 3:24 amI would rather have a bag of dog poop for president than boosh.
Your wish is granted.
Sorry, mg, I just could not resist a straight line like that.
nk the magical genie (dbc370) — 2/10/2017 @ 3:58 amWould Trump’s amended order satisfy the 9th Circuit, do you think, if it exempted from it all persons whose final destination was Washington or Minnesota, as shown on their airplane ticket?
nk (dbc370) — 2/10/2017 @ 5:24 amivanka makes fabulous bags but not for poop
they’re for taking it to the next level
happyfeet (28a91b) — 2/10/2017 @ 6:19 amWhat if she offered a free visa (not the card, the kind you come to America with) with a purchase of $_____ or more?
nk (dbc370) — 2/10/2017 @ 6:24 amAn eclectic sort
http://www.globaljihad.net/?p=2950
narciso (d1f714) — 2/10/2017 @ 6:33 amThis man must be neutered…
“When it comes to the activities of George Soros, however, much is known. Soros is a man of the deep Left whose campaign to destabilize the U.S. is powerful and pervasive. Should he be allowed to operate freely, he will continue to wreak enormous damage, aided by a large constituency composed in part and at various removes of the individuals and groups he has subsidized. There is no doubt about the extent of his interference in domestic affairs. And there is no doubt that something needs to be done about it, certainly before his likeminded son Alex inherits his empire and persists in advancing the father’s regime-change and conflict-creation agenda.
Soros believes, as he writes in The Age of Fallibility: Democracy, Human Rights and Open Society, that “sovereignty is an anachronistic concept,” a conviction that explains his push for the principle of open borders that also characterizes the European Union. Although the Schengen Agreement has proven disastrous for Europe, as terrorists and “fakefugees” (Selwyn Duke’s phrase) travel freely across its territory, Soros wants the same disintegrative effect to develop in the U.S. When he goes on to state that “the main obstacle to a stable and just world order is the United States,” his intention to sow discord and weaken the nation he detests is amply clear.
This is why he is so virulently antagonistic to Donald Trump, who wants to make America great again and disassemble Obama’s regulatory nightmare. (There is little question that Soros was behind the violent disruptions of Trump’s political rallies.) Soros is all for a multilateral world, an international legal system that rules over individual states and institutions, and an end to the free market, which means, Becket Adams explains in The Blaze, “that transactions between private parties would be governed by state intervention, including restrictive regulations, taxes, tariffs and enforced monopolies.”
https://pjmedia.com/trending/2017/02/09/what-to-do-about-george-soros/
Colonel Haiku (d8affe) — 2/10/2017 @ 6:34 ambe our guest be our guest put our service to the test
hello little immigrant
welcome to the land of accessories and legal employment
that wretch you passed on the way in, her name is Guadalupe
did you see how sad she looked?
Can anyone tell me why Guadalupe looks so sad?
Yes yes she is a naughty illegal criminal and her butt is being deported because cause of when you assume you can sneak into the USA and work illegally you make an ass out of you and also your whole family.
don’t be a Guadalupe!
and please to not forget to visit the gift shop gracias gracias
happyfeet (28a91b) — 2/10/2017 @ 6:34 amIt’s a solid legal opinion because you support the conclusion.
It’s the typical power grab that this court in particular tries. It will ultimately fail because we have the right to control our borders. May the 9th get split and they all fail.
NJRob (43d957) — 2/10/2017 @ 6:42 amThe ahia attack wasnt the first instance of vehicular jihad in the states
http://www.nbcnews.com/id/11660817/ns/us_news-crime_and_courts/t/driver-charged-after-suv-plows-through-crowd/#.WJ12_RjMyck
narciso (d1f714) — 2/10/2017 @ 6:47 amYou expect them to be accountable, or even show shame:
narciso (d1f714) — 2/10/2017 @ 6:54 amhttps://lawreview.law.lsu.edu/2014/03/24/va-supreme-court-virginia-tech-not-liable-for-failing-to-warn-students-during-2007-mass-shooting/
But putting Louis tally in , wee a misstep.
narciso (d1f714) — 2/10/2017 @ 7:16 am62 — I’m not sure the EO as written doesn’t provide “due process”. I think the Court has jumped to that conclusion based on a very incomplete record.
I was taught in law school that whenever you confront a “due process” question, the first thing you should ask is “What process is due” because you don’t know whether its being denied unless you first understand what is required.
This is an immigration matter where — even with PLRs — the visa holders status in the country is permissive.
I would have to do some decent amount of research, but I think there would probably be support in the case law that the “case by case” review for exceptions to the ban could very well satisfy the due process requirement if it was better understood what the nature of that process is going to entail. Because that’s pretty much what happens now in visa denial cases. You apply for a visa, you get denied, and you ask for a review by a consular official.
Given that its an immigration issue, a high level of deference is afforded to the Executive, and I would guess that only the bare minimum of “process” is going to be needed. PLR would maybe get more since they are in the US, and have a liberty interest in not having their right to travel restricted.
Remember, the EO didn’t say a PLR was subject to deportation — it didn’t purport to cancel the PLR status — it just was interpreted to mean that a PLR who left the country within the next 90 days would fall under the entry restriction when seeking to return, i.e., the ban for the first 90 days, and potential “extreme vetting” after 90 days.
So, the argument could be advanced that the EO as written affords “due process” to any visa holder to whom the ban applies as written, and it would only be “as applied” that there could be a challenge on the basis that the “process” afforded by the “case by case” review is not sufficient.
shipwreckedcrew (56b591) — 2/10/2017 @ 7:17 amFor anyone who wants a better understanding of why the Ninth Circuit opinion is legally unsound, but pretty much ordained by the limited record that was before the Court, I would refer you to Dan McLaughlin’s column at National Review Online today.
A key “inside lawyerball” issue that I’ve tried to focus on is the fact that the “nature” of Washington’s standing in large measure dictates what parts of the EO Washington might be allowed to challenge.
Washington is pushing the paterns patriae argument because they believe it gives them standing to challenge every provision of the EO on any constitutional grounds that might apply to any individual resident of Washington. That’s why its such an obscure doctrine and generally disfavored. The law basically says that if all residents of Washington have claims such that the State might seek to assert them under the PP doctrine, then the better practice would be for an individual resident, either on his own or on behalf of others, should bring those claims and not the state.
The 9th did not adopt the PP standing argument — it dodged it. But in doing so it probably allowed Washington to hold on to too much with regard to the TRO. If Washington’s only standing is in its proprietary capacity — as operator of the Universities who have lost students or faculty to the ban — then it doesn’t have standing to challenge the refugee ban. Washington didn’t offer any factual basis in teh district court or the appeals court that its operation of the university is effected by the refugee ban. How could it? Refugees aren’t visa holders, and Washington has no factual basis to claim that refugees will be students or faculty members at their universities if allowed entry.
Also, Washington doesn’t have standing as a proprietor to assert Establishment Clause claims with regard to the refugee provisions that propose to disfavor Muslims in the future by providing preferences to minority religion members over majority religion members. Its mere speculation than anyone connected to the Washington universities will fall under these new provisions in the future when they go into effect.
But, as McLaughlin noted, the Appeals Court didn’t decide any of these issues — it really took a pass on them by pointing out that it had a very limited record from the District Court to work with, and there was little in the way of actual evidence for it to review in making its decision.
shipwreckedcrew (56b591) — 2/10/2017 @ 7:49 amMaybe Seattle and/or San Francisco should become the only ports of entry for travelers from the 7 countries in question.
crazy (d3b449) — 2/10/2017 @ 8:06 amUnderstanding different types of “due process”.
Simple example that should make this an easy concept.
The Fifth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law.
You’re charged with a federal crime and arrested.
To hold you in custody pending trial — i.e., deprive you of your liberty temporarily while the case is decided — the government must show by a preponderance of the evidence at a bail hearing in front of a judge that you are a flight risk or a danger to the community if released on bail. If they do, you’ve been given the “process” required, and your liberty can be temporarily denied to you on that basis.
To sentence you to a term of imprisonment as punishment for the crime you are alleged to have committed (i.e., to deprive you of your liberty for a longer period of time), the government must convince 12 jurors of your guilt beyond a reasonable doubt in a public trial where all your constitutionally provided trial rights (to counsel, confront and cross-examine witnesses, etc) are afforded to you. If they are, and you are still convicted, you have been given your “due process”, and you can be deprived of your liberty.
So the “process” that is “due” depends on the circumstances.
That’s why IMO the EO provision providing for case-by-case review and making of exceptions to the ban when “in the national interest of the US” could turn out to satisfy the very minimal “process” rights that are “due” to persons who are mere visa holders, since their entry into the country is permissive and subject to Exec. control.
shipwreckedcrew (56b591) — 2/10/2017 @ 8:27 amLegal issues aside, let’s examine the political aspects of this standoff. It seems that one solution that the court could have made was to take a scalpel and remove the offending portions. But it instead threw it back into Trump’s corner to re-write.
Trump on the other hand could go ahead and clean up the executive order and get the heart of his order be implemented. (I would favor this approach.)
But Trump may decide to let the chips fall as they may. Instead he can make political capital on the next terrorist attack. He can blame the liberals who hate America that prevented him from protecting this country. This strategy is what Democrats do all the time. In that respect, I fear that Trump behaves like a Democrat.
AZ Bob (f7a491) — 2/10/2017 @ 8:52 amThis morning there seem to be a number of conservative legal experts who are advising Trump to back down. They tell us that it is easy to foresee an adverse result in Supreme Court and that, for the sake of the Constitution, the Trump Administration needs to back down – at least for the time being.
The problem is that Trump stands to win political points regardless of how the Supreme Court rules. If he prevails at the highest court, he is vindicated; if he loses, the judiciary beclowns itself in the court of public opinion. That’s a win-win. Besides, what’s the Constitution to Trump, if he can get the court to conger up another Roe v. Wade-like legal travesty? Such a result would further erode respect for the courts and cement Trump’s hold on power. It would also provide him a Get Out of Jail Free card, of sorts, by providing him with cover for future terrorist attacks within our shores. As I’ve said before, just as confronting an out of control MSM garnered big points for Trump, confronting an out of control judiciary offers a similar reward. Considering how much Trump enjoys getting his opponents to behave foolishly, I sure wouldn’t count on Trump backing down. Not now.
At some point, early in this discussion, it was argued that there is a problem with “this particular judge.” Recent developments, as well as the comments by French and others, make clear that the problem is, in fact, systematic. No surprise there.
ThOR (c9324e) — 2/10/2017 @ 8:53 amIf he prevails at the highest court, he is vindicated; if he loses, the judiciary beclowns itself in the court of public opinion.
the constitution isn’t really a player in this cause of all the judges are so whimsical
the only real difference at the end of the day is how many americans get slaughtered by bloodthirsty terrorist refugees
Mr. Trump wants less slaughter and the filthy berobed judgetrash want more slaughter
they’re gonna have to figure out how to meet in the middle somehow
happyfeet (28a91b) — 2/10/2017 @ 8:59 amYeah, that’s what we need. Some good old fashioned “compassionate conservatism” branded BIG GOV’T with a side of war mongering and nation building.
While defensible at the time, in retrospect it was almost universally a failure. It is in no small part DUE TO GWB that we currently have Trump and not Rubio or Jeb or Cruz
deadrody (c419ff) — 2/10/2017 @ 9:02 amOh, it certainly does that. I would damn sure hope, with a modicum of deference to the executive branch, that more than just the conservative justices would put an end to this farce. You can parse all the legal arguments you want, but the fact is, the executive makes immigration policy. PERIOD. Just because a short EO does not spell out how due process is provided, does not mean it is not provided. And if it were, then a specific person afflicted by that failure should have standing to sue to block the order.
Saving that, this is one of the most blatant, public examples of the court vastly overstepping it’s intended function.
As you say, taking this to SCOTUS is a win-win. Either Trump wins – and handily – or we face the real constitutional crisis that the politicized court system has been headed towards for almost 5 decades.
deadrody (c419ff) — 2/10/2017 @ 9:07 am“judges are so whimsical”
Thanks, happy. I was trying to come up with a description, myself, that was sufficiently belittling. I can’t top that. It would make a good book title: “The Whimsy of the Law.”
ThOR (c9324e) — 2/10/2017 @ 9:15 amPatterico’s post has an interesting, but ultimately misleading, take on the 9th Circuit’s order.
The issue regarding LPRs is non-controversial – in that almost all legal minds (including various other judges) feel that application of the order to Green Card holders is unlawful and potentially unConstitutional.
Where the decision limited to that, along with a statement that the Court refuses to sever that portion – this decision would be within jurisprudential norms.
But the findings on standing, the intervention into security determinations, and the extension of due process rights to non-citizen, non-legal resident visa holders make this decision fundamentally more dangerous.
The implications are profound: an illegal immigrant from Somalia leaves the US for a terrorist training camp in Afghanistan… they cannot be denied re-entry without notice and a hearing.
The UK is hit by a new, worse version of the plague, easily transmitted like a cold, which stays dormant and undetectable for one month, then blooms and kills 50% of children & elderly, 10% of working age adults / teens…. Still need to give folks notice and process before rejecting entry if they held a visa.
Are you kidding me? Sure, the Courts would probably find a way to weasel out of the second scenario – but that means that the legal principle that they are applying is wrong.
GrantLR (ae10d6) — 2/10/2017 @ 9:22 amSWC (re post 82) – you are right… but didn’t you hear, now that the process due is notice and hearing for everything – because every inconvenience is a deprivation of liberty, and there is a “liberty right” for illegal aliens and foreigners without any status in the US to enter the US.
Yeah, didn’t see that in the Constitution – but some judges said so!
GrantLR (ae10d6) — 2/10/2017 @ 9:25 amshipwreckedcrew (56b591) — 2/9/2017 @ 11:39 pm
Enshrined in statute. The president has no authority to add grounds for removal.
shipwreckedcrew (56b591) — 2/10/2017 @ 7:49 am
The court seems to have said that any nationals might become students, and it is probably factually true that one or more anticipated students were to be admitted to the United Sattes as refugees.
The court also distinguiahed what Trump had done from Kleindienst v. Mandel, 408 U.S. 753 (1972) on the issue of reviewability. The Mandel standard, it said, applies to lawsuits challenging an executive branch official’s decision to issue or deny an individual visa based on whether or not the particular facts presented by that visa application conforms to a congressionally enumerated standard, and said there was no right to demand consistency and no right to challenge anything where there was a valid reason. But here we’re dealing with the President’s promulgation of a sweeping new immigration policy.
Sammy Finkelman (96f386) — 2/10/2017 @ 9:43 amTrump is re-writing the order, which surprises NBC:
http://www.nbcnews.com/news/us-news/white-house-rewriting-trump-s-controversial-travel-ban-order-sources-n719356
Work on this actually began a few days ago.
Sammy Finkellman (6f9f42) — 2/10/2017 @ 1:03 pmThe court seems to have said that any nationals might become students, and it is probably factually true that one or more anticipated students were to be admitted to the United States as refugees.
Speculative injury? Pretty sure that isn’t allowed (and a bad idea generally).
Kevin M (25bbee) — 2/10/2017 @ 1:05 pm58. shipwreckedcrew (56b591) — 2/9/2017 @ 11:10 pm
Trump may shoot for both:
NBC News article:
Sammy Finkellman (6f9f42) — 2/10/2017 @ 1:08 pmKevin M (25bbee) — 2/10/2017 @ 1:05 pm
At this preliminary stage it probably can be.
And the state can argue their university will get more applications than usual that they have no idea if they can accept.
Also, there is probably somebody who has standing in the case of virtually any person affected.
There is also the issue that if the prsident has authroity to invalidate multi-entry visa on a large scale, that itself causes a lot of trouble.
I didn’t see any argument made about whether the president was the authority granted to him by Congress. Just that his authority could be reviewed. And maybe constitutional limits.
Sammy Finkellman (6f9f42) — 2/10/2017 @ 1:33 pmSlightly OT:
The Court of Federal Claims has ordered the government to pay $214 million to an Obamacare insurer under the Risk Corridor program, even though Congress SPECIFICALLY refused to authorize Risk Corridor payments over the moneies collected for that purpose (which were woefully insufficient). Basically, the Obamacare mop-up fund is broke and this judge has ORDERED the Treasury to start cutting checks.
LA TIMES (Hiltzig)
Court decision (PDF)
Kevin M (25bbee) — 2/10/2017 @ 2:34 pmanother sleazy George W. judge there Mr. M
just when you think the fabulous Bush legacy is ripe to bursting…
happyfeet (28a91b) — 2/10/2017 @ 2:43 pmYeah, well W never got into a tweet war with a beauty queen. Never will, either.
Kevin M (25bbee) — 2/10/2017 @ 2:54 pmW would never done the tweets ever ever cause he’s in the upper class of ivy league trash elites what – if they deign to tweet at all – they have people for that
also he’s ignorant about everyday american life
happyfeet (28a91b) — 2/10/2017 @ 3:00 pmIn my opinion Twitter is an unpleasant and unnecessary development of the 21st century. It is possible that I may mention this again at some future time, as well.
elissa (35b739) — 2/10/2017 @ 3:03 pmelissa (35b739) — 2/10/2017 @ 3:03 pm
I hear you, I really do. However this may stave off the continued decline of the written word. The decline of thought, not so much.
felipe (023cc9) — 2/10/2017 @ 3:09 pmmicroblogging for the love of chockit chip bread pudding with that ridiculous sauce on top find me an uglier word than microblogging
happyfeet (28a91b) — 2/10/2017 @ 3:18 pmi’ll wait
happyfeet (28a91b) — 2/10/2017 @ 3:18 pmYep, elissa… Twitter is a cess pool and I can’t say much good about the rest of the social media for that matter. But I must say felipe makes a good point there about the written word.
Colonel Haiku (d8affe) — 2/10/2017 @ 3:20 pmI heard an interesting thing the other day regarding presidential appointments of federal judges.
Even Bush appointees to the 9th need to be acceptable by the senators in the states of the 9th by the “rules” the senate goes by. Something with those blue slip thingies. (Can one buy those on Amazon??) Even Buckley (had he ever been president) would have had a hard time appointing a conservative judge to the 9th circuit.
So, “9th circuit” says a lot more than “Bush appointee”.
maybe ya’ll knew that already, but perhaps good to be reminded
MD in Philly (f9371b) — 2/10/2017 @ 3:21 pmyeah i just hate him so i never miss my moment to poop on his stupid head
Jeb! was the last straw
happyfeet (28a91b) — 2/10/2017 @ 3:21 pmThat was really how Harry Reid was able to push through Obama’s DC Circuit appointments, more so than by nuking the filibuster. No Senatorial privilege in the DC Circuit.
nk (dbc370) — 2/10/2017 @ 3:34 pm@96 The Judgment Fund can’t have much left in it either after Obama surrendered billions to Iran from it. Yet another reason for Congress to get out of the healthcare business.
crazy (d3b449) — 2/10/2017 @ 3:45 pmWhooee–new developments at the 9th circuit!
elissa (35b739) — 2/10/2017 @ 3:48 pmDon’t keep us in suspense, elissa.
nk (dbc370) — 2/10/2017 @ 3:51 pmall i could find was a powerline post about the sleazy ninth circuit judgesluts being all opposed to splitting up their jurisdiction
happyfeet (28a91b) — 2/10/2017 @ 3:53 pmhere
happyfeet (28a91b) — 2/10/2017 @ 3:53 pm9th circuit will be voting on whether to reconsider the 3-judge panel decision en-banc
https://twitter.com/chrisgeidner/status/830191036609789953
elissa (35b739) — 2/10/2017 @ 3:55 pmMD in Philly,
There are currently 118 judicial vacancies for Trump to fill, a number of which can be ascribed in part to Senatorial privilege. There are another 14 posts coming open due to sitting judges taking senior status or retiring. That’s 15% of the current judiciary – the privilege is definitely a double edged sword.
Rick Ballard (5e8a41) — 2/10/2017 @ 3:56 pmAn active judge on the 9th Cir has issued a sua sponte call for a vote on whether the Panel’s Order should be taken up en banc.
There are 25 active judges. It will take 13 votes in the affirmative for the matter to go en banc.
shipwreckedcrew (e90d7c) — 2/10/2017 @ 3:56 pmthe stamped filing is included in my link above
elissa (35b739) — 2/10/2017 @ 3:59 pmtechnically they just need 12.6
happyfeet (28a91b) — 2/10/2017 @ 4:00 pmIt’s up to the DOJ. It can strip the 9th Circuit of jurisdiction by appealing to the Supreme Court. Tactics.
nk (dbc370) — 2/10/2017 @ 4:10 pmHmm, a pro-ban judge who truly thinks the unanimous decision was wrongly decided, or a troll who wants Trump to savor another, possibly 0-25, defeat?
Dave (711345) — 2/10/2017 @ 4:11 pmDon’t be askeered, Dave. Let’s all just go with the flow for a few hours and not over-react.
elissa (35b739) — 2/10/2017 @ 4:14 pm“It’s up to the DOJ.”
President
Rick Ballard (5e8a41) — 2/10/2017 @ 4:15 pmLittlehandsTrump has announced a rewrite with even bigger and better words.> Even Bush appointees to the 9th need to be acceptable by the senators in the states of the 9th by the “rules” the senate goes by.
Notoriously liberal states like Arizona and Idaho?
aphrael (e0cdc9) — 2/10/2017 @ 4:18 pmYou know, I’ve been on both sides of state TROs. And I would never have appealed on the ex parte record. When I was defending, I brought a motion, supported by affidavits and certified exhibits, to vacate the TRO and made my own record.
I think the best strategy for the DOJ is to go back to the trial court and try to pick up the ball — make an adequate record in support of the government’s position — instead of further hand-waving with appeals.
nk (dbc370) — 2/10/2017 @ 4:18 pmNotoriously liberal states like Arizona and Idaho?
They’re apportioned. So many “California judges”, so many “Arizona judges”, etc..
nk (dbc370) — 2/10/2017 @ 4:21 pmMD in Philly (f9371b) — 2/10/2017 @ 3:21 pm
nk (dbc370) — 2/10/2017 @ 3:34 pm
Thank you, guys, for the info and insights. Honestly, I am so naive about these matters, I feel like the village idiot who was astonished to find that the directions to emptying sand out of a boot were written on the heel.
felipe (023cc9) — 2/10/2017 @ 4:21 pmI remember Dianne Feinstein making a big stink about a President trying to replace a “California judge” with a non-Californian once, but it was a long time ago and I can’t remember his name.
nk (dbc370) — 2/10/2017 @ 4:23 pmif we really wanna save the sweet defenseless american babies from getting raped and butchered by the muslim refugee terrorists the best thing is if Team Trump writes a new EO
this en banc thing sounds dorky
happyfeet (28a91b) — 2/10/2017 @ 4:26 pmFile under fix it before this happens: Abu Bakr al-Baghdadi v. Trump, a Ninth Circuit . . . Parody?
crazy (d3b449) — 2/10/2017 @ 4:36 pmTrump voters and the President, himself, have many agendas. One is to reform immigration. Another is to shake up the establishment – especially the PC enforcers. Trump, unlike so many Presidents, is in a hurry to make good on his promises. The EO controversy seems a promising vehicle.
Trump has already made quick work of the media, the biggest PC enforcer. They were once viewed with some suspicion; through the magic of “fake news’, they are now a national laughingstock. Another PC enforcer is the judiciary and the legal establishment, more generally. As with the media, the legal profession is already viewed with suspicion. Now well get to see what Trump can do to turn the legal establishment into a laughingstock using Tweets about “so-called” judges and fake law.
From what I’ve read, Trump intends to both generate a new EO, but, also, litigate the old one. With this strategy, he accomplishes both of his objectives. Pretty slick.
The EO may have been inadvertently poorly written, but what it has handed Trump is pure serendipity.
ThOR (c9324e) — 2/10/2017 @ 5:01 pmDave, at 119: it’s unclear. The identity of the judge was not disclosed in the order.
aphrael (e0cdc9) — 2/10/2017 @ 5:02 pm> From what I’ve read, Trump intends to both generate a new EO, but, also, litigate the old one. With this strategy, he accomplishes both of his objectives. Pretty slick.
As a procedural matter I don’t understand how that works; it seems to me that a new executive order would moot all cases involving the first executive order.
aphrael (e0cdc9) — 2/10/2017 @ 5:06 pmaphrael couldn’t that be done simply by implementing newer and more thorough vetting procedures without withdrawing the EO? Litigation continues and extreme vetting becomes a new target for the left.
crazy (d3b449) — 2/10/2017 @ 5:12 pmaphrael–what do I know, but I guessed maybe DOJ would try to focus and limit the 9th on the very specific narrower state issues and complaints they technically adjudicate and are already in progress–while the WH issues new improved EOs which address national security and immigration policies.
elissa (35b739) — 2/10/2017 @ 5:17 pmCrazy – I don’t think so, no. At a minimum there has to be due process for legal permanent residents (and some others), and it needs to be encoded in an executive order or in legislation.
Nobody other than the President has the legal authority to *modify* the executive order.
The Office of the White House Counsel *tried* to modify the executive order by issuing a guidance memorandum instructing the executive agencies to not apply the order against legal permanent residents, BUT, as the 9th circuit panel noted, it has no authority to do that; only the President can do that.
aphrael (e0cdc9) — 2/10/2017 @ 5:17 pmTrump, unlike so many Presidents, is in a hurry to make good on his promises. The EO controversy seems a promising vehicle.
ThOR (c9324e) — 2/10/2017 @ 5:01 pm
This one thing, alone, sets Trump apart from all Presidents in my lifetime. It is truly wonderful to see campaign promises kept. This, in the sight of The Lord. God bless Donald Trump.
felipe (023cc9) — 2/10/2017 @ 5:21 pmIn my opinion Twitter is an unpleasant and unnecessary development of the 21st century. It is possible that I may mention this again at some future time, as well.
A lot like the CB craze of the 70’s. Can you imagine a president who took to CB radio to blast his critics?
Kevin M (25bbee) — 2/10/2017 @ 5:24 pmooh excellent analogy i love that
happyfeet (28a91b) — 2/10/2017 @ 5:25 pmLitigation is what they want. The lawyers make money on the taxpayer dime, the law gets corrupted, the judges collude to run government, the working man gets screwed-again, the left gets to wage sedition against the elected government with impunity. For some reason it has become acceptable for the left to wage lawfare on the laws, desires and will of the people. This Republic has failed because the law has failed this Republic. When laws make it impossible to keep people out we don’t have a country.
And this is all done because the left has convinced people that “equality” is better than “Liberty”.
It’s become illegal to keep the enemy out!
https://4.bp.blogspot.com/-dRo6ydYJ3XQ/WJ345cOI33I/AAAAAAABe7I/cXNbkBBmd3Ylc_ja2z3eNE4qgMbSBwQBgCLcB/s1600/rSOWYFg.jpg
Rev. Hoagie® (785e38) — 2/10/2017 @ 5:26 pmOr that damn radio on the 30’s. Can you imagine a president who took to fireside chats to blast his critics. Get used to technology or die.
Rev. Hoagie® (785e38) — 2/10/2017 @ 5:29 pmNotoriously liberal states like Arizona and Idaho?
It depends on the district. Feinstein & Harris split up the 4 CA districts. Senators for other states deal with theirs. So, you may have judges from AK, AZ, NV, ID & MT on a panel as well as the coastal communists.
Kevin M (25bbee) — 2/10/2017 @ 5:29 pmCan you imagine a president who took to fireside chats to blast his critics.
Not every &^*%ing night.
Kevin M (25bbee) — 2/10/2017 @ 5:30 pmThe circus states many things, few of them have turned out.
narciso (d1f714) — 2/10/2017 @ 5:31 pmKevin M (25bbee) — 2/10/2017 @ 5:24 p
Pithy, Kevin M. The audience is much broader, though, since his critics prolly follow him as well.
felipe (023cc9) — 2/10/2017 @ 5:32 pmRev. Hoagie® (785e38) — 2/10/2017 @ 5:29 pm
felipe (023cc9) — 2/10/2017 @ 5:33 pmBingo.
Prediction: they vote not to review, nearly unanimously. Why? Because 1) the panel is basically correct, 2) the DoJ lawyer did a poor job in the argument, 3) the other side spent a LOT of time setting this up, and 4) the District Court judge left them a mud fort to attack.
Kevin M (25bbee) — 2/10/2017 @ 5:33 pmtwitter’s a dork medium for vapid self-promoters
there’s no shying away from that
happyfeet (28a91b) — 2/10/2017 @ 5:34 pmnarciso (d1f714) — 2/10/2017 @ 5:31 pm
Ringling bros, Barnum & Baily, or the Roman circus; A matter of vantage.
felipe (023cc9) — 2/10/2017 @ 5:35 pmThanks aphrael – IF DHS/DOS/DOJ have worked out the new vetting procedures the EO ordered them to develop during the 90-day pause they should just be able to implement them administratively as long as the door stays open and non-immigrants receive due process if delayed, detained or denied, right?
crazy (d3b449) — 2/10/2017 @ 5:36 pmAlso, FDR didn’t call them “Fireside rants.”
Kevin M (25bbee) — 2/10/2017 @ 5:36 pmAtta boy Kevin, push them goal posts.
Rev. Hoagie® (785e38) — 2/10/2017 @ 5:39 pmAlso, FDR didn’t call them “Fireside rants.”
Kevin M (25bbee) — 2/10/2017 @ 5:36 pm
Of course he didn’t. But let’s ask Huey Long about it.
felipe (023cc9) — 2/10/2017 @ 5:40 pmHave a little patience with Kevin, Rev. Lord knows it goes a long way. I’ll be charitable and guess that it sounded better in his head, and perhaps we understood it differently than intended.
felipe (023cc9) — 2/10/2017 @ 5:44 pmBesides Michael moynihan and rogin sometimes he was the only good reporters at the basilisk:
narciso (d1f714) — 2/10/2017 @ 5:48 pmhttp://news.nationalpost.com/full-comment/eli-lake-why-its-naive-to-argue-that-trumps-travel-ban-is-helping-to-create-islamic-terrorists
What Trump does on Twitter is essentially a rant. He just doesn’t have enough words allowed to really get a roll. But he IS shouting. It’s off-putting. It’s one of those character things that caused me to want anyone else in the primaries. I’m glad that Hillary didn’t win, but that is such a low bar it’s hard to see under it.
Kevin M (25bbee) — 2/10/2017 @ 5:51 pmnk at 123 — exactly right. In addition to nothing going right in Seattle, the way the procedure was handled stacked the deck against them. This TRO is in place on such a horrible record, and then the TRO itself is so substance free, there isn’t anything to get a handle on in continuing to fight in the 9th.
Go back to Seattle, make a better record with factual submissions, file a much more comprehensive and thought-out brief, and then if you still lose before Robart, there is something to fight with in the 9th next time, and if you lose there, you have a better record in the Sup. Ct.
shipwreckedcrew (e90d7c) — 2/10/2017 @ 5:51 pmOr admit that you should have written a better EO, withdraw the one you have (mooting the whole thing), and put out a new one without all the own goals in it.
Kevin M (25bbee) — 2/10/2017 @ 5:56 pmFrom some comments I’ve read here I want to make clear that when I brought up twitter earlier I was not pointing explicitly or exclusively to the president’s overuse of twitter, because I do think his direct unfiltered communication with the public has had value. Of far greater concern to me is the use of twitter to spread rumors, intimidation, hate, arrange riots, etc.; is having to endure celebrities opining vulgarly and ignorantly and contributing little of value; and worst of all twitter as a place otherwise normal decent people seem to believe, apparently in waves of narcissism, that others are waiting with baited breath to hear what they have to say on the topic of the hour, whether or not they are privy to all the facts.
elissa (35b739) — 2/10/2017 @ 5:59 pmThis captures it all for me:
Rev. Hoagie® (785e38) — 2/10/2017 @ 6:09 pm*bated* breath i mean
happyfeet (28a91b) — 2/10/2017 @ 6:11 pmoh wait
happyfeet (28a91b) — 2/10/2017 @ 6:11 pmelissa (35b739) — 2/10/2017 @ 5:59 pm
You are such a classy lady, elissa. We Yahoos are just having a spot of absurd fun.
felipe (023cc9) — 2/10/2017 @ 6:16 pmRats, #158 went to moderation. I was afraid of that since there were a few naughty words in it. I could have cleaned it up but frankly that would have been akin to putting a sheet on Venus de Milo.
Rev. Hoagie® (785e38) — 2/10/2017 @ 6:18 pmI would advise Trump to see what he could do with a new EO, but I would also certainly keep on litigating this one. There’s something called estoppel. Since the courts struck down this TRO as a whole, the government could be estopped from enforcing any part of it in a future order if the government abandons this case and allows entry of final judgment.
nk (dbc370) — 2/10/2017 @ 6:21 pmRev. Hoagie® (785e38) — 2/10/2017 @ 6:18 pm
felipe (023cc9) — 2/10/2017 @ 6:23 pmHA!
struck down this *EO*
nk (dbc370) — 2/10/2017 @ 6:23 pmWell lets see if the circus will see reason, with another order, magic eightball suggests no.
narciso (d1f714) — 2/10/2017 @ 6:35 pmSo you agree that the court was correct to view the EO in light of his promises to impose an unconstitutional ban on Muslim entry if elected?
Dave (711345) — 2/10/2017 @ 6:46 pmDave (711345) — 2/10/2017 @ 6:46 pm
felipe (023cc9) — 2/10/2017 @ 6:52 pmDid they?
m.therecorder.com/#/article/more-latest-news/1202779007958/In-Travel-Ban-Case-Ninth-Circuit-Spontaneously-Requests-Briefing-on-En-Banc-Review?mcode=1202617583589&curindex=2&_almReferrer=https:%2F%2Fwww.google.com%2F
narciso (d1f714) — 2/10/2017 @ 7:01 pm138
That graphic is, all things considered, not a good one to use, since most most of the Germans asking for refugee status were Jews and other groups targeted by the Nazis. But there is a good parallel. Look up the German American Bund. There were enough American born sympathizers that until Dec 7 1941 the Reich didn’t really need to send Nazi agents. They could simply recruit US citizens.
The jihadis need only recruit people born here.
A talking head on CNN claimed (I haven’t looked to see if the claim is accurate) that, among the list of 78 “terrorism” acts the Trump admin. released, of the countries from which the perpetrators came, the biggest groups came from France, the US and Belgium.
As I said the EO is really kabuki theater.
Kishnevi (1b8c69) — 2/10/2017 @ 7:04 pmYes that is a next order problem, can you imagine banning European passport holders of north African extraction?
narciso (d1f714) — 2/10/2017 @ 7:08 pmWe have to start somewhere. Then we see what works, what doesn’t, and tweek. rinse and repeat. Four years is so very short.
felipe (023cc9) — 2/10/2017 @ 7:13 pmThe most obvious step is to require prospective entrants to provide proof they are not sympathetic to the jihadis. Because it involves changes to the visa waiver program, it probably has to go through Congress. If the French don’t like it, then “I fart in your general direction”.
Kishnevi (1b8c69) — 2/10/2017 @ 7:21 pmyes, it has to go through Congress. Trump would do well to finally partner with the Congress to fulfill his promises.
felipe (023cc9) — 2/10/2017 @ 7:23 pmInteresting
Here is new video of Melania and the president in the plane flying down to Florida and briefly talking with reporters about the EO. Can’t get over how relaxed and calm be seems.
https://youtu.be/ZfyDEzjXL_M
elissa (35b739) — 2/10/2017 @ 7:28 pmMelania adds a lot of value just by being herself
poised and unruffled
she’s not just our first lady she offers us a glimpse of glamor and grace too long denied
happyfeet (28a91b) — 2/10/2017 @ 7:39 pmThank you for correcting my spelling error earlier Mr. feets. I appreciate that because I am hard on myself and always want to do better.
elissa (35b739) — 2/10/2017 @ 7:42 pmAre you aware the current meme among Democrats is that Melania is on the verge of divorcing him, but can’t because of appearances.
For all I know, she might be, but the only evidence is wishful thinking by Democratic loyalists.
Kishnevi (1b8c69) — 2/10/2017 @ 7:42 pm🙂
happyfeet (28a91b) — 2/10/2017 @ 7:45 pmReally? I would have thought the opposite (Trump divorcing her, or perhaps taking a Washington-based mistress around Ivanka’s age) is more likely.
For one thing, the pre-nup means she will no longer live like a billionaire after a divorce. I find it rather implausible that Trump’s wealth was not a significant factor in her decision to marry an unattractive, uncouth, overweight man 25 years her senior. Of course, she won’t be starving, or anywhere close to it, and it may well be that she’s decided that no amount of money is worth continuing to subject herself and her child to his depravities.
On the other hand, in Trump’s mind, the rest of the world exists only to exult and gratify him, and Melania isn’t fulfilling her purpose in life when she’s a hundred miles away. His past statements demeaning and objectifying women are well known (“You know, it doesn’t really matter what [the media] write as long as you’ve got a young and beautiful piece of ass”), and he has demonstrated clearly that he has no scruples about adultery.
Dave (711345) — 2/10/2017 @ 8:08 pmDave’s all romantic and in the mood for Valentine’s Day.
elissa (35b739) — 2/10/2017 @ 8:13 pmDave’s still hung over from the spirit of Christmas!
Cruz Supporter (102c9a) — 2/10/2017 @ 8:20 pm… or maybe just the spirits of Christmas? (LOL)
Dave’s all about teh love… He’s a Feces and he loves walks on teh beach at night and sitting in front of a fireplace. Float, float on, Dave…
Colonel Haiku (2601c0) — 2/10/2017 @ 8:31 pmDave @ 167
Nice try.
ThOR (c9324e) — 2/10/2017 @ 8:32 pmFloat, float on, Dave…
Colonel Haiku (2601c0) — 2/10/2017 @ 8:31 pm
HAHA! That’s a keeper!
felipe (023cc9) — 2/10/2017 @ 8:37 pm” He’s a Feces and he loves walks on teh beach”
a Pisces. This reminds me of a song from the 70’s. Maybe a song by WAR?
felipe (023cc9) — 2/10/2017 @ 8:40 pmMy link at 169, suggests there’s at least one grown up at the 9th circus
narciso (27a49a) — 2/10/2017 @ 9:05 pmyour link at 169, worketh not.
felipe (023cc9) — 2/10/2017 @ 9:08 pmhttp://www.powerlineblog.com/archives/2017/02/somebody-get-me-out-of-here.php
narciso (d1f714) — 2/10/2017 @ 9:28 pmNo, felipe, Dave’s a Feces. That 70’s song was “Float On” by…. Teh Floaters
Colonel Haiku (2601c0) — 2/10/2017 @ 9:29 pmI stand correctaled, er, corrected.
felipe (023cc9) — 2/10/2017 @ 9:55 pm