Patterico's Pontifications

6/26/2017

Supreme Court Allows Most Of Trump Administration Travel Ban

Filed under: General — Dana @ 9:22 am

[guest post by Dana]

Giving the Trump administration some victory after the administration’s temporary travel ban was held up by lower courts, the Supreme Court announced today that the majority of the administration’s temporary travel ban can go into effect:

The Supreme Court is allowing to go into effect the executive order’s temporary ban on entry into the U.S. of citizens of six Muslim-majority nations, but with an exception for people with bona fide connections to the United States. That includes foreign nationals with familial connections in the U.S., students who have been already admitted into an American university, or workers with existing job offers in the U.S.

For people with these bona fide connections, the injunctions put in place by the lower courts are upheld and these individuals will not be banned under the executive order from coming into the U.S.

But anyone else from the six listed countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — and refugees who do not have bona fide connections to the U.S. will be subject to the temporary ban on entry into the United States.

The newly revised travel ban can go partly into effect this week. Arguments are set to be heard in October, which will be past the 90-day review period.

This is interesting:

Notably absent from the court’s decision is any analysis of Trump’s campaign statements. Moreover, the only dissenters from the opinion (justices Gorsuch, Alito, and Thomas) wanted the injunctions vacated in their entirety. They are correct that the court’s ruling will invite further litigation as litigants test the boundaries of the “bona fide relationships,” but the difference between the dissenters and the six remaining justices was only over the proper extent of Trump’s legal victory. For now, the constitutional and statutory primacy of the executive and legislative branches over national security and immigration has been restored.

The judges in the courts below have been celebrated as heroic resistance figures. Yet now even the Supreme Court’s most liberal justices have rejected the lower courts’ overreach.

President Trump released a statement regarding the court’s decision:

“Today’s unanimous Supreme Court decision is a clear victory for our national security,” he said in a statement.

“Today’s ruling allows me to use an important tool for protecting our nation’s homeland,” he added. “I am also particularly gratified that the Supreme Court’s decision was 9-0.”

(Cross-posted at The Jury Talks Back.)

–Dana

189 Responses to “Supreme Court Allows Most Of Trump Administration Travel Ban”

  1. Good morning.

    Dana (023079)

  2. Who woulda thunk it possible!

    Colonel Haiku (f8bfb8)

  3. Interesting point made here that I didn’t make in the other thread when I commented — the absence of any dissent from the liberal wing of the Court.

    If any of the liberal wing of the Court thought that the Constitutional challenges that had been upheld in the lower courts were even close to being persuasive, they would have likely weighed in here with a dissent making that point.

    This is a per curium order, meaning its not attributable to any one Justice — but my guess would be that it came out of the Chief Justice’s chambers. And the provision allowing the injunctions to stand with regard to people with a bona fide connection to the US is likely what he needed to put in there to get the liberal faction to go along without a dissent.

    But all that really does is give another avenue for relief for applicants who could already pursue the case-by-case review provision of the EO anyway. In that way, the ruling does not really change with the Admin had already committed itself to do.

    If the liberal faction thought the religious animus claim or the nationality discrimination claims were likely to prevail in the end, you might have expected one of them — notably a die hard like Ginsberg — to have said so.

    shipwreckedcrew (5d48e9)

  4. This is good news.

    DRJ (15874d)

  5. Also, lets not lose track of the procedural posture of this case – this decision comes only from a motion by the Admin to stay the injunctions issued by the district courts in Maryland and Hawaii, which were upheld in large measure by the 4th Cir and 9th Cir — the 4th Cir on constitutional grounds, and the 9th Cir. on statutory grounds.

    What is on calendar for the fall is the merits case on whether the injunctions themselves are valid or not.

    The Court instructed the parties to address in their merits briefs the question of whether or not the cases are mooted by the expiration of the 90 day and 120 day stays set forth in the EO for review of the procedures in place.

    According to the EO, once those periods expire, the Secretary of State and the Secretary of Homeland Security shall issue new procedures for the processing of all visas from ANY country found to not be able or willing to supply the State Dept or DHS with the required info on visa applicants. These procedures are certain to apply to more than just the 6 countries that were the subject of the EO, and will likely include some countries suffering civil unrest or civil war that are not majority Muslim.

    shipwreckedcrew (5d48e9)

  6. Lets see how quickly the NYT or WaPo can drop a story on Mueller/Russia/Obstruction in order to divert the news cycle of the day away from Trump’s win in the Supreme Court.

    shipwreckedcrew (5d48e9)

  7. There are 3 solid votes (Thomas, Alito, and Gorsuch) that both the 4th Cir’s constitutional argument, and the 9th Cir’s statutory argument (sorry Patrick) are both wrong.

    There are at least 2 other votes (likely Roberts and Kennedy), that both arguments are wrong, but the equities are such that people already in the pipeline to get visas based on a solid connection to the US should be allowed to do so — which basically upholds the EO because it already provided a case-by-case procedure by which individual applicants could seek a visa notwithstanding the fact that they were nationals of one of the six countries. By leaving the injunction in place with respect to those folks, the Court simply gave them a legal remedy (the ability to seek a contempt citation against the government for violation of the injunction) in the event they believe they are wrongly denied a visa under the case-by-case process.

    Between the lines you can see the Court being implicitly critical of the lower courts — IMO most notably the district courts (Hawaii in particular) — for reaching pretty much a decision on the merits of the case based on briefings that deal only with applications for TRO’s and injunctions. The Court’s order spends quite a bit of verbiage on the fact that lower courts must use their equitable power to fashion injunctive relief in a manner that does the least amount of harm to accomplish its purpose.

    The Hawaii district court’s opinion basically decided all the issues, made a merits judgment on the entire case, and then declared the State of Hawaii the winner in the way it fashioned its injunction. The Supremes basically said “Sorry Judge Watson, you don’t have that much authority.”

    shipwreckedcrew (5d48e9)

  8. It’s telling that the court didn’t make any mention about the president’s tweets about Muslims that the 9th circuit noted as significant. This seems a rebuke to the lower courts.

    Dana (023079)

  9. Angela Merkel says a terrorist is just a freund you haven’t slopped a boatload of welfare on yet

    so this is a bold departure from orthodoxy

    happyfeet (a037ad)

  10. Thank you, swc.

    ThOR (c9324e)

  11. Because the law is what matters. The judge in the 3rd circuit saw it clearlyb

    narciso (d1f714)

  12. this is a taste of the hilarious bilge the npr propaganda sluts are spewing out with your tax monies

    read the last paragraph out loud

    For example, both Cox and Zeigler, with the local Indivisible group, said the election proved how powerful a political force women can be.

    “In this area, yes, the effort is absolutely led by women,” Zeigler said. “I do think that there’s a lot of skills or life skills that women are transferring to activism. We are already the communicators in the community, right? We’re the ones on PTAs and neighborhood organizing. It’s largely women. So I think that that network is already there.”

    One of Cox’s main lessons learned from this election is that building community among Democrats is important in a red district because they may not know that other like-minded people exist. To her, holding events where local Democrats can get to know one another can go further than simply assigning volunteers to phone banks and canvassing areas.

    “I’m gonna show up if Lori or Heather or Britney tells me to, because I want to see them, not just because i’m supposed to — in quotes — ‘canvass today,'” she said. “I want to do it because I want to see my new friends, and we’re going to support each other.”

    happyfeet (a037ad)

  13. This is an epic spanking of the lower circuit decisions, especially the Ninth Circuit.

    I remind non-lawyer readers that there is really only one joke about appellate courts:

    Scene: Supreme Court. Opening Oral Argument: “May it please the Court, we are appealing a decision of the Ninth Circuit. And we have other arguments … “

    SPQR (156f39)

  14. Above Shipwreckedcrew correctly points out that its important to keep in mind the procedural posture of this case. The lower courts were ruling on applications for temporary injunctions while the final judgment on the merits of the cases were as yet undecided.

    However, there are a lot of times when in litigation, in both state and Federal litigation, where procedurally temporary injunctions being granted or denied is the real meat of a case. It happens often in intellectual property cases, just as an example.

    SPQR (156f39)

  15. Haven’t those justices read the patterico/9th circuit “obsolete us code still on the books” theory?

    Jcurtis (3ed53d)

  16. Only goes to show you how profoundly Leftism has infected the organs.

    Shows you how much work needs to be done to purge the Bureaucracy of them.

    Frankly, if I was the DOJ, I’d be looking into every Federal Judge’s computer to find anything to terminate.

    Be willing to be a full 50% have some porn on their ‘Puters.

    Blah (44eaa0)

  17. I think the Supree Court decided this on the basis of standing.

    Only in cases where there would be standing for someone to sue was the ban maintained. The various judges who had issued nationwide injunctions had extended it to everyone, standing or not.

    Sammy Finkelman (b66da2)

  18. be = bet

    Blah (44eaa0)

  19. I think the headline is wrong: that most of the travel ban stands.

    Most of the peole who would actually be issued visas have bona fide connections to the United States. About the only exceptions woud be (some, not all) refugees.

    Even for someone wanting to enter a sprts competition there would be standing on somebody’s part.

    Sammy Finkelman (b66da2)

  20. Jcurtis, we may see that the court applies that theory to a final determination of the merits after briefing on the statutory grounds. Or we may find that the Supreme Court intends to allow the issue to become moot and allow the Trump administration to craft a more sophisticated and defensible executive order. The latter course being far more desirable in avoiding a political confrontation between the branches. Something good Chief Justices often see as a goal.

    SPQR (156f39)

  21. The latter course being far more desirable in avoiding a political confrontation between the branches.
    .
    .
    .
    Only branch I see with a problem are Leftist Judges and Leftist States.

    Other than that what is the issue?

    Blah (44eaa0)

  22. Sammy Finkelman, but the reality is that litigating the existence of a “bona fide connection” is something that is fact-based and must be done case by case. Something impractical for almost all applicants. That “exception” looks far bigger than in practice it actually is.

    SPQR (156f39)

  23. Blah, I guess suggesting that you reread my point would be fruitless.

    SPQR (156f39)

  24. So can a University claim Standing b/c grant $$$ are in play?

    Blah (44eaa0)

  25. #24 I did, my point stands. Confrontation is not between branches of Govt, but Leftist Resistance who would make murder legal if the targets were Trump and his supporters.

    What you view as confrontation between two legit parties is not what I view this as. I view this as pure politics by one side who happens to be over represented in every senior level of Govt.

    Blah (44eaa0)

  26. This fight is between the Resistance and the rest of the USA. SCOTUS trying to figure out what they are about.

    Because as the very Judges said … if Hillary had written the law, it would be OK, but since Trump did it bad.

    That says all on this issue, rest is lawyers charging $750 per hour on semantics and dead trees.

    Blah (44eaa0)

  27. Narciso,

    Do you think the Left views itself as useful idiots to the Sharia Loving Theocrats?

    B/c the Sharia Loving Theocrats 100% consider the Left useful idiots.

    Blah (44eaa0)

  28. * Only in cases where there would be standing for someone to sue was the injunction maintained.

    It’s a ban on the ban.

    Actually in effect the Supreme Court issued its own injunction, or is the right way to put it that the Supreme Court modified the injunctions?

    The ban now applies to most people who are citizens of those countries, but not to most citizens of from those countries who would otherwise get visas to enter the United States.

    Sammy Finkelman (b66da2)

  29. I think that the court is almost anxious to declare the whole case moot.

    There might be a new case – on the grounds that President Trump is inventing law – but it won;’t be this one because the whole EO order will be void and it’ll be something else.

    I heard something that, now that it has sort of been upheld, Trump will replace it within a few days.

    Sammy Finkelman (b66da2)

  30. Thank you, SPQR. How does this work with the court given that the 90 day review period will have passed come October when arguments will be heard?

    Dana (023079)

  31. I agree with 21 — the Court is going to call the fight over the injunctions moot in the fall after the temporary periods have expired, and the Admin has announced new procedures for enhanced vetting of immigrant applicants from countries that can’t or won’t provide the information the Admin demands under the new procedures.

    The litigation at that point will be about the new procedures, and the provisions of the EO will at that point be meaningless.

    The Court will send the cases back to the district courts to start over again on litigation not involving the EO, but on the new procedures put in place as provided for in the EO.

    But, the Court MIGHT take the occasion to return the cases with some direction on the subjects that were at the heart of the injunctions — the religious animus claims stemming from campaign statements, and the statutory grounds underlying the 9th Cir’s ruling.

    shipwreckedcrew (5d48e9)

  32. So will a judge vacate a TRO if it is shown that your stalker is related to you or enrolled with you in school or works with you?

    Pinandpuller (c5934a)

  33. Not mentioned in any way at all: Trump’s campaign rhetoric. Almost like it has absolutely no bearing on the case. And those that argued that it did were completely full of it. As were those who aligned themselves with that argument by saying that Trump needs to shut up more. Not legally relevant.

    Anon Y. Mous (0c3f6f)

  34. @27 — not true Narcisco.

    The Hawaii case has always been a grandstand play by the Attorney General of Hawaii who has his sites set on higher office. The AG in Hawaii is an appointed position, not an elected position. But the current AG is a politician at heart, and this has been his Crown Jewel.

    The senior Senator from Hawaii, Mazie Hirono is currently suffering from renal cancer, and IMO she likely doesn’t live out her term — they have already removed one tumor from a rib in addition to removing her kidney. Once renal cancer has spread, it doesn’t respond well to treatment.

    Because Hawaii is a one-party state, the opening of a Senate seat will set off a cascade of dominoes down the chain of office holders. Hirono is next up for election next year, and I expect she will opt to not run even if she lives that long. Both Hawaii’s Congresswomen will likely seek the open seat, which means neither can run for their Congressional seat. The other Senator, Brian Schatz, is very young, and his seat is not likely to open for several more election cycles.

    So if both Congresswomen — Colleen Hanabusa and Tulsi Gabbard — go after the open Senate seat, there will be huge fields of Democrat office holders jockeying for the lead in the two House seats. The AG will be at the head of the pack, and the Trump EO litigation has given him very high name recognition right now.

    shipwreckedcrew (5d48e9)

  35. Obviously, the way the Trump Administration has handled this whole situation has been less than ideal. However, there has been a lot of shoddy and openly biased work by the lower levels of the judiciary in this case that will hopefully be repudiated by however the USSC decides to handle this case, and hopefully whatever results will provide useful guidance going forward.

    M. Scott Eiland (1edade)

  36. M. Scott, I beg to differ re: “less than ideal.”

    At no time could Trump expect legal argument to make any headway at the lower courts the opposition shopped this case to.

    His side made their record in the lower courts, while he made his record to the nation.

    The left viewed this as punishing Trump through legal process, Trump is turning the punishment around on them. During this “process” Trump was attacked continuously by the left, and made the subject of every special election. Until the Ds lost each of these elections on the merits.

    Now the coup de gras will be had in October (well however long it takes the Supremes to decide after oral argument).

    This is Trump’s signature electoral point – he will make the US more safe through border control. His opponents have worked to use the courts to stop him. The open borders folks are playing into his hands.

    Steven Malynn (d29fc3)

  37. This is the actual Supreme Court ruling:

    https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf

    Sammy Finkelman (6f9f42)

  38. Notably absent from the court’s decision is any analysis of Trump’s campaign statements

    No analysis, but you wouldn’t expect it anyway in a per curiam opinion.
    It does mention Trump’s statements in its review of the history of the case:

    The majority [of the 4th circuit] concluded that the primary purpose of §2(c) was religious, in violation of the First Amendment: A reasonable observer familiar with all the circumstances — including the predominantly Muslim character of the designated countries and statements made by President Trump during his Presidential campaign—would conclude that §2(c) was motivated principally by a desire to exclude Muslims from the United States, not by considerations relating to national security.

    In the meat it schedules the case to be heard during the first session of the October term 2017, noting that the “Government has not requested that we expedite consideration of the merits to a greater extent.”

    About the injunctions it says:

    …Having adopted this view of the equities, the courts approved injunctions that covered not just respondents, but parties similarly situated to them—that is, people or entities in the United States who have relationships with foreign nationals abroad, and whose rights might be affected if those foreign nationals were excluded….But the injunctions reach much further than that: They also bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all. The equities relied on by the lower courts do not balance the same way in that context. Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself.

    Justice Clarence Thomas says maybe the injunction should have been upheld with regard to the actual parties themselves and complains that no class has been certified. Now executive branch officials are going to have to figure it out themselves, on pain on contempt and there will be more litigation. And they’ll be directed at the same two courts that this Court has now— unanimously—found sufficiently questionable to be stayed “as to the vast majority of the people potentially affected.|”

    That’s where I think Justice Clarence Thomas Is wrong. It has NOT been stayed “as to the vast majority of the people potentially affected” because these are all countries where it is hard to get a visa from.

    Sammy Finkelman (6f9f42)

  39. So it boils down to a student, a job and a family connection lets you in.

    “The fact is, only one of the 19 9/11 hijackers came to the U.S. on a student visa, according to the 9/11 Commission Report. That one was Hani Hanjour, a Saudi Arabian [Saudi Arabia is not on the Trump travel ‘ban list’] terrorist who piloted the plane that was flown into the Pentagon, according to a 2004 staff report of the National Commission on Terrorist Attacks Upon the United States. In his student visa application, Hanjour provided paperwork showing that he was enrolled in an English as a second language program in Oakland, Calif., but he never attended after arriving in America (a fact that would draw scrutiny today). He did not, however, overstay his student visa.

    Of the other 18 9/11 hijackers, 14 came to the United States on six-month tourist visas and four came on business visas, according to the National Commission on Terrorist Attacks Upon the United States. Once in the U.S., two of the hijack pilots applied to have their immigration status changed to vocational student, but neither used such a visa on their subsequent re-entry into the country.”

    http://www.factcheck.org/2013/05/911-hijackers-and-student-visas/

    “I cannot allow people in our country who want to do us harm.”- Donald Trump 6-26-17
    ____________

    Today’s Beldar The Bitter ‘Watergate, Watergate, Watergate’ Words Of Wonder:

    “Did you put that last bug in?”– President Richard Nixon, Oval Office tapes, September 15, 1972

    DCSCA (797bc0)

  40. ..in the first placed. Virtually every person who gets a visa from these countries has a “bona fide a “bona fide relationship with a person or entity in the United States” or they wouldn’t get the visa.

    With virtually the sole exceptions being (some) refugees.

    Maybe you could have an issue with some new business relationships.

    Sammy Finkelman (6f9f42)

  41. none of this is even remotely controversial but nevertheless I applaud President Trump on this latest victory

    happyfeet (a037ad)

  42. Face it, subversive members of the judicial branch (appointees of Clinton and Obama) are ignoring black letter law to obstruct Trump’s agenda which American voters approved in the most recent national election.

    Legitimate authority in our nation of laws derives only from the consent of the governed in accordance with the Constitution.

    Unelected black robed usurpers, acting well beyond the scope of their circumscribed authority, have actively and wittingly betrayed the most fundamental bedrock principle upon which our system of government depends in an illegal effort to thwart the clear preferences of the electorate.

    ropelight (7f7ed0)

  43. I’ve now skimmed the unanimous per curiam decision and the partial dissent and concurrence by Justice Thomas, joined by Justices Alito and Gorsuch.

    And I’ve skimmed the comments here, especially those by shipwreckedcrew (#4, #6, #8, #33) and SPQR (#14, #15, #21, #23), both of whose remarks I agree with. Some of the other comments here that purport to describe what the SCOTUS did, or why or how it did it, are off the mark, however.

    There are a whole set of preliminary issues that must be addressed in each and every lawsuit in federal court before those courts can even begin to consider whether to grant anyone any relief (injunctions, money, or otherwise). Many of them fall under the general category of “justiciability.” One requirement is that the litigants have standing: Is this a real ‘case or controversy’ in which the litigants on both sides have the sort of personal stake in the outcome that will ensure that the adversary system is working and that both sides are really in a genuine dispute?” Another question is ripeness: Has the dispute gotten far enough along yet that we’re not just predicting the future? Another question is mootness: Has something happened that will make the results being sought meaningless because the original controversy which generated it has somehow gone away?

    Today’s decision made no new law on any of those topics. At most, it flagged some potential issues relating to standing and mootness that may need further examination later, when the SCOTUS reaches the case “on the merits.”

    The parts of the decision in which the SCOTUS distinguished between “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” and those who persons who don’t, aren’t based on concepts of justiciability in general or standing in particular. Rather, they’re revisions made by the SCOTUS to spectacularly narrow the scope of the equitable relief being granted solely for the purpose of the period between now and a final ruling by the SCOTUS on the merits. That part of today’s ruling has very, very limited precedential effect — almost none, in fact — and it will be supplanted entirely when the SCOTUS issues its final opinion. I understand that it may look to a novice like it’s a ruling on standing, but it’s not.

    By the time the case is heard in October, and decided at some date in the weeks or months thereafter, we may indeed be well beyond the expiration of an 90-day study periods, and/or there may be other developments (e.g., withdrawal or modification of the executive orders) which renders the pending disputes moot. Normally when a case becomes nonjusticiable for mootness, the result is that prior orders are vacated and the litigation is dismissed without anyone getting anything. However, I doubt that will happen here. There’s a significant exception to the mootness doctrine known mnemonically as “CORYER” — capable of repetition yet evading review. The classic example of its use was in Roe v. Wade, where the pregnancy of “Jane Roe” was resolved long before her case was finished. The doctrine basically says that when a case wasn’t moot when filed, but instead ripe and brought by parties with standing, and the dispute is of a type that will almost never last long enough for the courts to work their way all the way through it, including appeals, but it’s the kind of dispute that’s inevitably going to keep coming up (and keep becoming moot), then the federal courts may consider it. I suspect that this dispute could avoid mootness under the CORYER exception.

    Beldar (fa637a)

  44. Off topic: http://www.newser.com/story/244836/did-seattles-higher-minimum-wage-backfire.html

    (Fewer hours per job that more than make up, on average, for the wage increase, and also fewer jobs)

    Caveat: maybe some wages have been bid up, and those jobs, now paying more, are not counted in the survey. Also, employers who employed people both in and outside of Seattle were not included. Counter-caveat: Authors had detailed data on the hours and earnings of nearly all employees in Washington state.)

    Sammy Finkelman (6f9f42)

  45. When he finally managed to land on Roanoke Island three years later, the settlement was deserted. The only grim clue was the blood-curdling word “CORYER” carved on a post, the name of a mysterious tribe of sometime cannibals allied with the English and associated with the island now called Hatteras.

    happyfeet (a037ad)

  46. I particularly agree that today’s opinion, although nominally unsigned and on behalf of the entire SCOTUS, is almost certainly the handiwork of Chief Justice Roberts. As the senior Justice joining the majority on how to decide today’s ruling — the Chief is always “deemed” senior to every other Justice, regardless of their dates of appointment — C.J. Roberts would have had the privilege of assigning the writing of this decision to any of the Justices in that majority, so in theory this could have been written by, say, Justice Ginsberg. But especially on this kind of preliminary, mostly procedural ruling — where the SCOTUS is being careful not to set precedents, but simply to announce the rules that are going to temporarily be in effect while the appeal is heard — it’s quite common for Chief Justices to keep those for themselves and to write the “per curiam” opinion. Every other Justice would have read, and had the opportunity to write separately or withdraw from, that per curiam decision; likewise, they all had the chance to read, and decide whether to join in, Justice Thomas’ separate opinion.

    Errata: I ought not have written in #45 above that it was a “unanimous per curiam decision.” Today’s order was unanimous in striking down the parts of the lower courts’ injunctions that were stricken. And that is indeed very significant. But it was 6/3 in the carve-out which upheld — pending a final decision — those injunctions as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” In its final decision on the merits, it’s entirely possible that some of those six who didn’t join in Thomas’ separate opinion might nevertheless then come to agree with him that the entirety of the lower court injunctions ought be dissolved; the obvious candidates for that would be Roberts himself along with the ever-fickle and might-be-retiring-let’s-hope-so Justice Kennedy. I do expect that in due course, however, we’ll see a scathing dissent from one or more of Justices Ginsberg, Breyer, Sotomayor, and Kagan. But it’s likely even then to be only a partial dissent, because by going along with the per curiam today, even those six have necessarily implied that the government has already shown a probability of success on the merits on at least some of their attacks on the Fourth and Ninth Circuit rulings.

    Beldar (fa637a)

  47. That Croatan, pikachu, true to form hirono calls gotsuch the fourth horseman, does,he get a cape.

    narciso (86546a)

  48. 45. Beldar (fa637a) — 6/26/2017 @ 12:23 pm

    The parts of the decision in which the SCOTUS distinguished between “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” and those who persons who don’t, aren’t based on concepts of justiciability in general or standing in particular. Rather, they’re revisions made by the SCOTUS to spectacularly narrow the scope of the equitable relief being granted solely for the purpose of the period between now and a final ruling by the SCOTUS on the merits. That part of today’s ruling has very, very limited precedential effect — almost none, in fact — and it will be supplanted entirely when the SCOTUS issues its final opinion. I understand that it may look to a novice like it’s a ruling on standing, but it’s not.

    It’s not a ruling on standing, but the category “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” seems to be based on the idea of standing, and seems to say, for purposes of the injunction standing should be interpreted very liberally.

    That is, the injunction applies to any person where someone potentially might have standing to sue on his behalf, with the exception of situations where the connection is established solely for the purposes of this case, like an organization adding someone to its client list.

    Whether anybody actually has to go into court or not depends on how DHS interprets it – if it very stubborn, there’ll be some attempts to get guidance from the courts.

    Sammy Finkelman (6f9f42)

  49. my bad

    happyfeet (a037ad)

  50. Meanwhile the court whiffed on peruta, soundz one would need a,cleanup on aisle 5

    narciso (86546a)

  51. Mr. Finkelman, with due and genuine admiration for your tenacity and civility, you’re in over your head, and I don’t have the patience to further correct what you’re writing. I recognize your good intentions, but you’re misusing terms that you don’t understand, and I fear you’ll lead others into error.

    Beldar (fa637a)

  52. Now,that couldn’t be viewed as inciting language could it?

    narciso (86546a)

  53. I’m surprised the justices didn’t cite the “he’s with me” exception that was layed out in Butabi Bros et al v The Roxbury.

    Pinandpuller (c5934a)

  54. Is it weird that the open borders Libertarians would fight to the death for your right to exclude ugly chick’s from your nightclub?

    Pinandpuller (c5934a)

  55. I suspect that this dispute could avoid mootness under the CORYER exception.

    So if President Trump continues to maintain that he has unlimited discretion to declare the entry into the United States, of any category of non-U.S. persons, detrimental to the United States, without the possibility of any judicial review as to whether or not there is any rational basis for that declaration – the grounds for the 9th circuit decision – that’s likely to be reviewed.

    Sammy Finkelman (6f9f42)

  56. And in fairness, Mr. Finkelman: You’re doing better at trying to figure this out and paraphrase it here than Shepard Smith is doing on Fox News right now.

    Despite what the media (including Fox News) are saying, a large portion of this ruling was indeed unanimous.

    Beldar (fa637a)

  57. The Supreme Court did not use the word standing but it looks to me like that’s the underlying concept here. That’s how I transIate what they’ve done. It seems very obvious.

    I can’t help it if the Supreme Court avoided clarity because they didn’t want to say it exactly that way.

    The Establishment clause and other constitutional arguments depended on an opinion as to what Trump really did in this case, which he denied he was doing and was only upheld by the 4th circuit. The court might also want to dismiss it, because, just consider, what if ISIS declared itself a separate religion? Boko Haram now kills all babies of its fighters at 30 days – that’s not permissible under any known version of Islam. But it might be called a religion.

    https://www.nytimes.com/2017/06/21/magazine/boko-haram-the-boys-from-baga.html

    Whenever a woman at Mustapha’s base delivered a son, he reported the birth to the babban emir. The other emirs did the same. One month after the birth, a man from the palace would come to collect the baby, and everyone would know. In the palace courtyard, the baby would be put on a special table with a hole in the middle. Anybody could watch as they lay the baby flat, neck over the hole. The emir from the unit would be given a special knife — sharp, double-edged with a black handle. He would use it to slaughter the baby. The blood would drain through the hole and into a bucket. That was how the insurgents slaughtered their sons. Mustapha couldn’t ask questions. He slaughtered four babies this way. It was just something that needed doing.

    ISIS also doesn’t its fighters to have children, but they give or gave – it may not be functioning very well any more in Syria the “wives” birth control, but they are at a lower technological level in Africa.

    Sammy Finkelman (6f9f42)

  58. @ Mr. Finkelman (#57): I agree that Trump will have options available to him that could indeed make this dispute more likely to survive to a final ruling on the merits, rather than being dismissed as moot. He likewise could take steps that would effectively guarantee that it would become moot.

    The problem with CORYER doctrine is whether the possibility of future executive orders relating to similar immigration issues satisfies the “capable of repetition” doctrine. It has to be more than just hypothetically capable. In Roe, it was reasonable to assume that yes, indeed, even though Jane Doe’s pregnancy had been resolved, many other women would be in her exact situation in the future. Depending on what the POTUS does between now and the final decision, the “capable of repetition” part of the analysis might get stronger or weaker.

    Beldar (fa637a)

  59. I want a bunch of hot muslim women like Huma Abedin to get all covered up and go to the most exclusive club in NYC. When they don’t get admitted it’s a Muslim ban, right?

    Pinandpuller (c5934a)

  60. But see, this is where you go off the rails, sir:

    The Supreme Court did not use the word standing but it looks to me like that’s the underlying concept here. That’s how I translate what they’ve done. It seems very obvious.

    I can’t help it if the Supreme Court avoided clarity because they didn’t want to say it exactly that way.

    I assure you that the author of the per curiam opinion (presumably C.J. Roberts) was not trying to avoid clarity. To the contrary, he was carefully avoiding making anything that looked like a ruling on the merits on standing or mootness. So your “translation” is wrong and likely to mislead others. Your certainty is amusing but misplaced.

    Beldar (fa637a)

  61. Narciso

    Sen Hinono,”You Sank My Battleship!”

    Pinandpuller (c5934a)

  62. I suppose the four old lib justices aren’t the Four Corpse-men?

    Pinandpuller (c5934a)

  63. @31 Sammy

    Is there any difference between inventing laws and discovering rights?

    At a minimum if you discover a right it should be named after you.

    Pinandpuller (4f8515)

  64. Dana, its my belief that as shipwreckedcrew wrote at 6/26/2017 @ 11:07 am, that the Supreme Court will, early in the next Term, punt the case back down to the district court(s) on the basis of mootness and restart the litigation over the actual executive orders then in effect. Further, I’m betting that this order will provide the outline of any future injunctions until final judgments are entered in those case(s). This order takes the bulk of the political posturing out of this litigation. Probably a major goal of the SCOTUS.

    SPQR (a3a747)

  65. My esteemed friend, Beldar, at 6/26/2017 @ 12:23 pm, in agreeing with my #14, were you also endorsing my observation that there is only one appellate court joke?

    SPQR (a3a747)

  66. Give me a 4-4 Court and a place to park my fat a** and I will move the world. -Justice Kennedy

    Just don’t move the world to America. -Justices Thomas, Alito and Goresuch

    Pinandpuller (4f8515)

  67. Thanks for your insight, Beldar. Very enlightening!

    After all the crowing by what passes for journalists and the media about how the Trump administration was out of its element, and pwned over the travel ban, it will certainly be interesting to see how they portray this over the next several days.

    Colonel Haiku (f8bfb8)

  68. Well they have a whole henhouse of egg, so they will try to yell squirrel.

    narciso (d1f714)

  69. This was much more than I expected out of Roberts. I anticipated the court would take on the case, but leave all current rulings in force. To me, that SCOTUS unanimously agreed to allow most of DJT;s order to take effect is a major, major, indicator that sanity will prevail and a big-time slap down of the lower courts involved is on the way.

    Alas, it’s but one finger in the massive breaches of the protective dyke limiting the floodtide of judges who take unto themselves to create law out of whole cloth.

    Ed from SFV (3400a5)

  70. Yes you have to give him props on this one.

    narciso (d1f714)

  71. Is this settled law?

    mg (31009b)

  72. 65 Pinandpuller (4f8515) — 6/26/2017 @ 1:33 pm

    .@31 Sammy

    Is there any difference between inventing laws and discovering rights?

    Yes, there is.

    Inventing laws is done by the Executive and involves the Executive wither exercising additional powers or imposing additional prohibitions.

    Discovering rights is done by the courts of law and involves imposing retrictions, and sometimes requirements or conditions, on the Executive. (mostly. It could also be restrictions on the courts and the Legislature)

    At a minimum if you discover a right it should be named after you.

    The Harry A. Blackmun right to have a doctor perform an abortion.

    Sammy Finkelman (b66da2)

  73. It may help to clarify “bona fide connection to the United States” if you understand that petitions for family unity visas and work visas are not brought by the foreign national named on the visa. They are brought by a United States citizen or permanent resident relative, or by a U.S. corporate employer, who wants the foreign national here. Their sponsors.

    I would also extend minimal due process to returning student F-1 visa holders, but I don’t see the bona fide connection for new F-1 applicants no matter how much a TOEFL course in Hawaii might want their money. That category does not have U.S. sponsors.

    nk (dbc370)

  74. The per curiam opinion did not define “bona fide connection to the United States” except to give some examples, and one (very extreme) counter-example.

    Sammy Finkelman (b66da2)

  75. @ SPQR (#67): Absolutely, yes! Then there’s the oral argument corollary, which goes: “At oral argument, any joke told by a member of the panel is hilarious, and any joke told by anyone else is unwise.” But that’s not limited to the Ninth Circuit. (Depending on how well I know the trial judge, I may broadly depart from this rule at that level.)

    @ mg (#73): Do you ever concede that anything is settled law? It’s settled in the sense that this order is unlikely to be revised or withdrawn before the hearing on the merits of the case. Today’s ruling doesn’t make much, if any, new precedent, and it doesn’t tell other courts very much of anything that they ought to do in similar cases. But the eventual ruling on the merits, after oral argument next October, presumably will indeed set some precedent concerning the relevant statutes — if the case survives that long.

    @ Col H (#69): You’re welcome, but I was mostly seconding what swc & SPQR had already written.

    @ Ed from SFV, who wrote (#71):

    I anticipated the court would take on the case, but leave all current rulings in force. To me, that SCOTUS unanimously agreed to allow most of DJT’s order to take effect is a major, major, indicator that sanity will prevail and a big-time slap down of the lower courts involved is on the way.

    I agree that a big slap-down is the most likely result if the SCOTUS actually gets to the merits. Something in the Fourth and Ninth Circuits’ opinions was too much for the four-Justice liberal wing (Ginsberg, Breyer, Sotomayor & Kagan) to swallow. But the fact that none of them wrote separately makes me wonder whether they’ll be looking for a way to deep-six this issue, i.e., prevent the SCOTUS from reaching the merits based on some procedural hurdle.

    What drives me nuts about these decisions is the presumption that the third branch of government gets to undo the actions of the second branch of government any time a quorum from the third branch, after engaging in news-reading and mind-reading, decides to impute to the second branch of government an improper or illegal or even unconstitutional motive. I can’t imagine any more egregious insertion of politics into law, nor any more egregious violation of judicial ethics, nor any more institutionally offensive re-balancing of our institutional checks and balances. That is what I’m guessing not even the liberal block could sign their names to, even though they are daily trying to achieve comparable results by nibbling around the edges through “policy choices” and interpretation of their “living, breathing Constitution.”

    That is to say, those four liberal Justices aren’t quite as shameless as the politicians and partisans of the modern national Democratic Party. If they pick a case like this to have that fight on, they might lose, and end up with a sweeping precedent that could extend far beyond just immigration law. So I think they’ll look for ways to claim that it’s moot or that someone’s standing has changed. It’s not inconceivable to me, in fact, that sometime in a few months, the respective plaintiffs in these cases (which really means their Dem lawyers/AGs, who are actually driving their bus) might decide to drop them as quietly as possible, vowing of course to continue the resistance to the bitter end by all other means, rather than see some really sweeping precedent they don’t want to live with. But that’s wild speculation at this point.

    Beldar (fa637a)

  76. In thinking through some of the legalities that surround injunctive relief generally, and looking at some other commentators on other sites, there is one curious aspect to the opinion that I’m not quite what to make of.

    A threshold requirement for imposing preliminary injunctive relief, and sustaining the imposition of preliminary injunctive relief on appeal, is a finding by the judge or tribunal that the party who seeks injunctive relief has a likelihood of success on the merits. By leaving in place even part of the lower court injunctions, SCOTUS seems to be uncritically accepting that finding out of the lower courts.

    On the other hand, the actual injunctions themselves weren’t before the Court — just a motion by the Gov’t to stay the injunctions. So it might be that the “likelihood of success on the merits” aspects of the lower court proceedings wasn’t considered by the Supreme to be before them.

    The “success on the merits” aspect of the test works along a sliding scale, and moves inverse to the severity of the harm that would result to the moving party if the relief was denied.

    In other words, the greater the potential harm from denying relief, then the less likelihood of success on the merits need be shown. The inverse is also true — the less serious the likely harm, then a more substantial likelihood of success on the merits must be shown.

    By narrowing the scope of the injunction, the Court focused only on people who are most likely to suffer significant harm from a lack of injunctive relief – the specific plaintiffs in the two suits at issue, and applicants similarly situated. Since they have demonstrable concrete harm that would result from a lack of injunctive relief, the Court likely accepted that even a minimal likelihood of success on the merits was sufficient to deny the stay as to them until the merits of the injunctions can be considered.

    shipwreckedcrew (5d48e9)

  77. Further to #77 and the question of whether the federal courts get to second-guess the POTUS’ subjective motivations and intentions:

    I was making this argument to a very good friend & colleague, my favorite in-person progressive debating partner, with whom I’ve been arguing politics ferociously without a single hurt feeling or harsh word for a dozen and a half years now. He’s a Jew, and as we were finishing our lunch — having aired but not resolved our different opinions — he said, “Well, I’m old enough to remember certain people being rounded up and put in concentration camps because political leaders were racists!”

    To which I replied, “Yes, me too, and also to know that the examples of that having actually happened here are Woodrow Wilson and Franklin D. Roosevelt.” That earned a “touché” and a smile, and we’ll resume the argument in due course.

    Beldar (fa637a)

  78. @ swc, re #78: Yes! Precisely! This opinion is awfully thin on all that discussion, isn’t it?

    I read that as Roberts writing as a minimalist to keep the unanimous SCOTUS on un-staying most of the executive order and avoid a sharp dissent. He’s kicking the can down the road. I fear that because he is judicially cautious — genuinely loathe for the SCOTUS to use sharp elbows versus the other two branches of government, even when it could — he might go along with them if there’s a way to ditch the case later on a justiciability or other threshold (non-merits) issue.

    Beldar (fa637a)

  79. The per curiam opinion cited Mandel, 408 U. S., at 763–765 (permitting American plaintiffsto challenge the exclusion of a foreign on the ground that the exclusion violated their own First Amendment rights) which dealt with standinbg, and said or implied it should apply to all such cases, but said the injunctions reach much further than that.

    Now the examples:

    For individuals, (meaning I think a connection with an individual) a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member qualifies for injunctive relief.

    If the connection is with an entity, it must be formal, documented, and formed in the ordinary course (of business) Examples are students admitted to the University of Hawaii, a worker who accepted an offer of employment from an American company, or a lecturer invited to address an American audience.

    Sammy Finkelman (b66da2)

  80. it’s like Trump raised a magic terrorist-proof force field what will keep us safe to where we can pursue the happiness without fear of getting hit by a steven king maximum overdrive evil islamic clown truck

    woot!

    are you ready for the summer??

    happyfeet (28a91b)

  81. ugh

    *stephen* king

    this is just not my day

    happyfeet (28a91b)

  82. Is the Court saying the aliens who fit the exemption they left in place for now must be granted visas and admitted or that they should be given due process as other aliens from the rest of the world are?

    crazy (d3b449)

  83. “….credible claim of a bona fide relationship with a person or entity in the United States.” That’s not trivial. The courts will be clogged —– good for business, as always.

    Sanity:

    “….it is the role of the ‘political branches’ to shape the institutions of government in such a fashion as to comply with the laws and the Constitution.”
    —— Justice Thomas

    Lenny (5ea732)

  84. Since they have demonstrable concrete harm that would result from a lack of injunctive relief, the Court likely accepted that even a minimal likelihood of success on the merits was sufficient to deny the stay as to them until the merits of the injunctions can be considered.

    Does this mean, technically, that at least six Justices found a likelihood of success on the merits (albeit a “minimal” one) as to those plaintiffs?

    I mean, a “minimal” likelihood sounds like so little — until you realize it’s still a “likelihood.”

    Patterico (8d3eae)

  85. I can easily see the “Trump talked about a Muslim ban!!!1!” rationale going nowhere in SCOTUS.

    I am more interested to see how they deal with the statutory issue.

    Or whether they do.

    Patterico (8d3eae)

  86. 84. crazy (d3b449) — 6/26/2017 @ 4:09 pm

    84.Is the Court saying the aliens who fit the exemption they left in place for now must be granted visas and admitted or that they should be given due process as other aliens from the rest of the world are?

    It’s the latter. Which could makew it seem like this case is all about nothing but it’s not.

    Sammy Finkelman (b66da2)

  87. @ Patterico, who asked (#86):

    Does this mean, technically, that at least six Justices found a likelihood of success on the merits (albeit a “minimal” one) as to those plaintiffs?

    Nobody dissented from the dissolution of the injunctions as to everyone except those with a “credible claim of a bona fide [U.S.] relationship.” So I’d say that nine Justices must have decided (although they didn’t much talk about this! because you don’t rub it in the liberal block’s faces, probably) that there was a sufficient likelihood of success, taking into account where the other knobs are at the moment on this case.

    Beldar (fa637a)

  88. It looks like the Supreme Courtdid not review the issue of the likelihood of success on the merits.

    It talked about equitable discretion and who would be harmed more if for the time being, things went against what would ultimately be determined as to their rights in the case.

    Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents…The purpose of such interim equitable relief is not to conclusively determine the rights of the parties, University of Tex. v. Camenisch, 451 U. S. 390, 395 (1981), but to balance the equities as the litigation moves forward. In awarding a preliminary injunction a court must also conside[r] . . . the overall public interest.” … Here, of course, we are not asked to grant a preliminary injunction, but to stay one. In assessing the lower courts’ exercise of equitable discretion, we bring to bear an equitable judgment of our own.

    Sammy Finkelman (b66da2)

  89. So I’d say that nine Justices must have decided (although they didn’t much talk about this! because you don’t rub it in the liberal block’s faces, probably) that there was a sufficient likelihood of success, taking into account where the other knobs are at the moment on this case.

    Huh.

    Patterico (8d3eae)

  90. Likelihood of success for whom?

    Sammy Finkelman (b66da2)

  91. Mentioning Mendel is important since its the controlling precedent,

    narciso (d1f714)

  92. Gee, I kind of anticipated this.

    Especially this.

    This is a relief because the Fourth and Ninth Circuit opinions are more or less insane. They seem to me a symptom of the left’s unhinged will to power in the face of Trump.

    Sorry, Patrick.

    Mike K (f97920)

  93. I’ve never read the “likelihood of success” aspect of injunctive relief jurisprudence to mean 50.1% or higher.

    There can be a “low” likelihood of success that is still a “likelihood” of success. The lower threshold is accepted as sufficient when the severity of the harm that will result from the denial of relief is more severe.

    shipwreckedcrew (5d48e9)

  94. The interesting thng about this case is Donald trump”s effort not to render it moot.

    On June 14, evidently in response to the argument that§2(c) was about to expire, President Trump issued a memorandum to Executive Branch officials. The memorandum declared the effective date of each enjoined provision of EO–2 to be the date on which the injunctions in these cases “are lifted or stayed with respect to that provision.” …The Government takes the view that, if any mootness problem existed previously, the President’s memorandum has cured it.

    The ninth circuit also did “narrow the injunction so that it would not bar the Government from undertaking theinternal executive reviews directed by EO–2.”

    I don’t understand how or if the Ninth circuit injunction can modify the 4th circuit’s injunction.

    Sammy Finkelman (b66da2)

  95. Meanwhile CNN – that bastion of honest reporting – sheds a few… http://money.cnn.com/2017/06/26/media/cnn-announcement-retracted-article/index.html

    Colonel Haiku (f8bfb8)

  96. Spicer today (transcription including italics mine): “The President was honored by the nine-zero decision that allows him to use an important tool to protect our nation’s homeland.”

    That actually does sound like Trump — like this decision is somehow a personal tribute to him from everyone on the SCOTUS.

    He makes everything all about him, and so far, that’s creating lots of extra work for his and the administration’s lawyers.

    Beldar (fa637a)

  97. Probability of success ought not be confused with preponderance of the evidence. It’s always a relative term, relative because it’s a prediction that’s being compared to other predictions. Courts shy away from saying things like “greater than 50% chance of success” because that implies that you can come up with a similar numerical value for the other equitable factors that are supposed to be weighed, and you’d be multiplying apples and giraffes.

    Beldar (fa637a)

  98. nrciso @93. Do you mean Mandel?

    Kleindienst v. Mandel, 408 U.S. 753, 770 (1972).

    But that’s citing from the Government’s brief.

    It’s alsmo mentioned in the decision:

    See Mandel, 408 U. S., at 763–765 (permitting American plaintiffsto challenge the exclusion of a foreign national on the ground that the exclusion violated their own First Amendment rights).

    I don’t know why, if the case is Kleindienst v. Mandel it is cited as Mandel but maybe that’s because there’s too many cases with Kleindienst, since Richard G. Kleindienst was the Attorney General for a year.

    Sammy Finkelman (b66da2)

  99. Yes its the only case of that time in that era, there was afroyim v rusk a decade earlier.

    narciso (d1f714)

  100. Put another way: “probability of success” is supposed to be one factor that courts — when sitting in equity and in that capacity determining what interim orders to grant to permit the case to be heard on its merits — consider as part of the proverbial and familiar “balancing tests” that law professors and circuit judges love so well. If the imminence of harm is off the charts, if the degree of harm is likewise, if the status quo is about to be massively changed without an injunction restraining that, if public policy strongly disfavors the result that will come about without the injunction or strongly favors the result that will come about if it’s granted, etc. — which is only a partial list of the typical bases touched in this kind of interim procedural motion (to stay or continue an injunction pending appeal) — then you might get your interim relief even if you have a relatively low showing of probability of success on the merits. But courts generally refuse to get into the business of trying to quantify that in empirical terms or percentages.

    Beldar (fa637a)

  101. Afroyim was about an unrelated matter, naturalization, Mendel involved that telltale section of the immigration act

    narciso (d1f714)

  102. Regardless theynactually looked at the underlying law, now this may have been in part by the fatty general of Hawaii but remember the rationale for bringing this care is nit what is stated.

    narciso (d1f714)

  103. Another traditional factor in whether you can get an injunction is whether there are alternative remedies available to you — the proverbial “adequate remedy at law,” as opposed to “in equity.”

    For instance, just before Texaco closed on its acquisition of Getty Oil, Pennzoil presented its application for a preliminary injunction to the Delaware Chancery Court — a remarkably odd courtroom to me, because it has no jury box. At the conclusion of the evidence from both sides, the Chancellor ruled that Pennzoil had shown an adequate probability of success to justify him issuing an injunction to block the merger — meaning he thought it likely that Pennzoil would ultimately win on its claim that Texaco had tortiously interfered with Pennzoil’s prior contract to acquire (part of) Getty. But he nevertheless refused to grant an injunction to block the merger, because he concluded that Pennzoil had an adequate remedy at law: Pennzoil could sue Texaco for money damages.

    Whereupon Pennzoil immediately dismissed its case in Delaware and refiled it in the 151st District Court of Harris County, Texas, where the courtroom assuredly has a jury box.

    In an immigration case against the government, though, the private-party plaintiffs wouldn’t have a money-damages claim (or at least not anything resembling a straight-forward one) against the government, so that’s probably not an impediment to injunctive relief.

    But I mention this just to reaffirm that these rulings are multi-part balancing tests that are pretty subjective, even if you can sense the general outlines of the directions that courts are more likely or less likely willing to go.

    Beldar (fa637a)

  104. One positive development at this site is there is no more use of CNN as a source for anything. This Lichtblau fellow reported on the story cited and the story that he claimed Comey was going to deny that he told Trump he was not under investigation and that Comey had told him this.

    Colonel Haiku (f8bfb8)

  105. … there is no more use of CNN as a source for anything.
    Colonel Haiku (f8bfb8) — 6/26/2017 @ 5:19 pm

    I noticed that, too, Colonel. Nice to know we notice the same things. Oh, and happy Monday to you, Colonel!

    felipe (023cc9)

  106. Is this really the big win for Trump that some are suggesting? I certainly think this is good (for Trump and for us) because the travel ban was partially lifted, and it’s being reported as a win for Trump.

    However, I think the ban was only lifted as to immigrants with no ties to the US — people who had not come here under a visa, with a sponsor, or who don’t have family here. I think other immigrants are still protected by the ban. If I remember the evidence in the trial courts, most of the immigrants affected by the ban were immigrating with visas, sponsors, or family in the US. Thus, while I’m happy about this result, in practice it only seems to impact new immigrants with no ties to the US. Even refugees may still get protection if they have family here.

    Am I misunderstanding this Order?

    DRJ (15874d)

  107. Sorry, Patrick.

    Hey, look, it’s the troll who said he would not post here again, posting here again!

    Who could have predicted this? (Except me? I predicted it.)

    Ooh look, he’s also hawking the same lie he hawked here before — that I am disappointed by this policy result!

    Doubly unshocking!

    Patterico (8d3eae)

  108. Am I misunderstanding this Order?
    DRJ (15874d) — 6/26/2017 @ 5:27 pm

    This is a penetrating question, DRJ. We find ourselves in time and space, not in a vacuum, with information, both proffered and denied; and disinformation omnipresent vying for our attention.

    Allow me the indulgence of channeling Narciso in this moment, with an allusion to 1984:

    It was this moment, during the 15 minutes of hate, that our eyes met.

    felipe (023cc9)

  109. Lictblau was a very tendentious reporter, involved in the stellar wind link

    narciso (d1f714)

  110. It’s the Twilight Zone, felipe.

    DRJ (15874d)

  111. With respect you gave that cat and think regress diarist, a great deal of authority in the early rounds and he doesn’t seem to find any durable screnung regimen. That is valid

    narciso (d1f714)

  112. If the imminence of harm is off the charts, if the degree of harm is likewise, if the status quo is about to be massively changed without an injunction restraining that, if public policy strongly disfavors the result that will come about without the injunction or strongly favors the result that will come about if it’s granted, etc. — which is only a partial list of the typical bases touched in this kind of interim procedural motion (to stay or continue an injunction pending appeal) — then you might get your interim relief even if you have a relatively low showing of probability of success on the merits

    Is all that stuff the case here?

    Even if so (which seems unlikely to me), the somersaults involved in saying a “likelihood” or “probability” of success can exist when it’s less than 50%, — while it may be that this can legally happen — give me a sort of vertigo that is hard to get past.

    Patterico (8d3eae)

  113. I’m a simple man from Fort Worth, Texas, and when you tell me there is a likelihood of success but it’s under 50%, my poor brain can’t handle the stress. All the California conditioning in the world can’t change it.

    Patterico (8d3eae)

  114. I think they looked at the law, found it passed muster, hence the injunction was mostly lifted

    narciso (d1f714)

  115. A victory for institutional integrity!

    Colonel Haiku (f8bfb8)

  116. As opposed to ASPCA, who is a candidate for institutionalization!

    Colonel Haiku (f8bfb8)

  117. Maybe they should change the wording to “possibility” of success…

    Patterico (8d3eae)

  118. I always treated “likelihood of success” as a corollary to “equity will not order a pointless act”. “If you don’t stand a chance to win on the merits, what’s the point of giving you a TRO or preliminary injunction?” So it does not have to be a big hurdle. About the same as sustaining a motion to dismiss.

    The real test for TROs or preliminary injunctions is the weighing of the relative harms to the parties if the status quo is maintained or disturbed. Because that is their purpose. To maintain the status quo until full trial on the merits. Not to prejudge the merits of the case, except to the extent that it’s not a waste of time.

    nk (dbc370)

  119. I’m no civil expert so this all may be true, but if so the language needs to change.

    Patterico (8d3eae)

  120. Irreparable harm.

    And I can see it where a college needs its teaching assistants on August 26. Not so much when a Hawaiian doctor has to wait a few months until trial on the merits before his mother-in-law can move in with him and his wife.

    nk (dbc370)

  121. How many teaching assistants recruit from Syria or Yemen?

    narciso (d1f714)

  122. Teaching assistants are graduate students, working on their MS and PhD. There’s got to be some F-1s who stayed on after their four years. And I’ve known several doctors from Syria doing their residencies and fellowships in Chicago university hospitals on trainee visas.

    nk (dbc370)

  123. @ Patterico, who asked (#117):

    Is all that stuff the case here?

    Oh, I certainly didn’t mean to imply that it is. I’m speaking just in generalities, about how trial and appellate courts typically write about these balancing tests when they do choose to write about it. This per curiam order doesn’t much do more than quickly gesture in the general direction of these equitable touchstones, like an absent-minded vicar doing his Spectacles, Testicles, Wallet, and Watch as he wanders into his church while still thinking about lunch. (Dunno why that analogy occurred to me, but it followed me home and I’m keeping it.)

    This case has obviously already gotten more attention from individual SCOTUS members than the typical cert petition. They could have done a one-liner per curiam simply announcing the result, without specifying who voted how, simply ruling one way or the other on whether the Fourth and Ninth Circuit injunctions would or wouldn’t be continued pending appeal. It’s fair to infer that they’ve spent more time making internal predictions about how each of them is likely to rule when they do get to the merits — otherwise you certainly wouldn’t be seeing this detailed per curiam opinion with its comparatively detailed specification of the limited injunctions that the Court was continuing pending final decision, nor a substantive partial dissent & concurrence from three.

    But as to all nine of them apparently agreeing that the government has made an adequate showing of probability of success on the merits, it may well be that you could never get all nine of them, or even five of them, to agree on language explaining why they came to a different result in the balancing test for total-strangers versus US-connected aliens. And that’s okay, and almost certainly prudent and preferable, at this early stage.

    Beldar (fa637a)

  124. The Legal Realists folks insist that equity is where it’s most obvious that judges are basing their results on their gut feelings, which they then just come up with language later to justify.

    But you went to the law courts when someone broke a rule, and you went to the chancellor when someone did something really unfair. Chancellors have always gotten to base their decisions on slippery gut hunches corresponding to their personal conceptions of what’s fair and just.

    Beldar (fa637a)

  125. Yes but that’s isn’t the piubt you know who was brilliant mit trained microbiologist afia siddiqui (curiously she was pared in a plutarchs lives way, with. Ayan hirsi Ali, by debirah scoggins and hirsi Ali came up on the worse side of the comparison.

    narciso (d1f714)

  126. Ditto what nk said (#120).

    Beldar (fa637a)

  127. Maybe the government only has a likelihood of success when it comes to banning/restricting some immigrants affected by this EO, e.g., immigrants who have never been here and have no ties to the US. If so, then perhaps the Court believes the statutory provisions (banning discriminatiin based on national origin) doesn’t apply to them, but it does apply to immigrants who have legal status and/or other ties to the US.

    DRJ (15874d)

  128. But as to all nine of them apparently agreeing that the government has made an adequate showing of probability of success on the merits

    As to the folks for whom the injunction remains, it is the plaintiffs and not the government who made that adequate showing, no?

    Patterico (8d3eae)

  129. Yes.

    DRJ (15874d)

  130. Yes, it is the plaintiffs and not the government who made that adequate showing.

    DRJ (15874d)

  131. Yes, and that is because there isn’t another Thomas or girauch on the coyrt

    narciso (d1f714)

  132. Ooh look, he’s also hawking the same lie he hawked here before — that I am disappointed by this policy result!

    I don’t want to embarrass you, Patrick, but even I have some sense of satisfaction at showing your accusation that I was “lying” was your usual Trump derangement syndrome.

    I’m that human.

    I will not intrude on your delusions anymore. Why not just ban me like the leftist blogs do ?

    Mike K (f97920)

  133. Maybe? 😉

    The per curiam is not very clear on this. It may be applying the standard to granting the stay — enjoining the injunctions — and looking at the likelihood of success of the government when SCOTUS hears the fully-briefed case.

    The separate opinion of Thomas, Alito and Gorsuch is much clearer. They are discussing the granting the stay by SCOTUS and the irreparable harm the government will suffer if the preliminary injunctions are not stayed, not the preliminary injunctions.

    nk (dbc370)

  134. There is great clarity to justice thomas’sopinion, by contrast the rest might as well be lipsynching, just like his dissent in boumedienne echoed recent events in Iraq and bordeaux

    narciso (d1f714)

  135. If the government has a likelihood of success as to immigrants with ties to the US, then wouldn’t the Court have lifted the injunction as to them, too?

    DRJ (15874d)

  136. Trump sends FBI director nomination to the Senate

    happyfeet (28a91b)

  137. Not necessarily, because likelihood of success is not dispositive by itself unless it’s obvious that there’s none at all. The balancing of the relative irreparable harm is more important. That’s why Thomas is focusing on the irreparable harm the government will suffer if the stay is not granted.

    nk (dbc370)

  138. Beldar – Reading tea leaves is typically a fool’s game. I long ago gave up hope that Roberts would run a principled court, à la Rehnquist. Yet, today this court showed a very strong inclination to affirm the executive’s broadly construed right to direct protections of our shores from foreigners.

    If there is any vestige remaining of the Roberts who Bush nominated, I don’t see him forfeiting this one chance to have a unified SCOTUS make a decision on plain meaning and separation of powers. I hope that a 5-4 decision (Kennedy is usually reasonable when it comes to legitimate state security interests, I believe) strongly asserting the Executive’s prerogative to act and for a smackdown of allowing campaign rhetoric to somehow be justiciable in statutory matters would be enough for Roberts to let this go all the way.

    Ed from SFV (3400a5)

  139. The strong point is that Trump wants to be the guy who bans people and take credit/blame for it and it scares the piss out of those who don’t want to be seen as the bad guy later on. Did RBG leave the Patterico/9th hanging? I read somewhere it was 9 to 0. That sucks that RBG voted more conservative than Justice Patterico if he was hearing it.

    jcurtis (a21f29)

  140. From Thomas’s opinion:

    The two “most critical” factors we must consider in deciding whether to grant a stay are “(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits” and “(2) whether the applicant will be irreparably injured absent a stay”. Where a party seeks a stay pending certiorari, as here, the applicant satisfies the first factor only if it can show both “a reasonable probability that certiorari will be granted” and “a significant possibility that the judgment below will be reversed.”

    Could be that Thomas, Alito and Gorsuch already know how they’ll vote when the case comes down? 😉

    nk (dbc370)

  141. Both concurrent and dissent cited this case:
    https://www.law.cornell.edu/supct/html/08-681.ZS.html

    narciso (d1f714)

  142. @ Patterico, who asked (#131):

    As to the folks for whom the injunction remains, it is the plaintiffs and not the government who made that adequate showing, no?

    Nope. The plaintiffs got their injunctions in the trial courts. The courts of appeals left those injunctions in place while they were considering, then affirmed — leaving the injunction against enforcement of the executive order(s) in place. The government then sought a stay of the injunctions pending consideration of their cert petitions and ultimately, resolution in the SCOTUS.

    As the proponent of the stay motions, then, the government had the burden of establishing its entitlement to the stay. And part of that showing of entitlement was the government’s probability of success on their cert petitions challenging the injunctions against enforcement of the executive orders. You’re right that this was effectively the converse of the showing the plaintiffs were originally supposed to have made, and that the district courts and courts of appeals agreed that the plaintiffs had made, of their probability of success on the merits. But one of the reasons the plaintiffs chose these places to sue was that they thought they’d win in their hometown courts and be affirmed by these two circuits, meaning that the government would have to be the petitioner in the SCOTUS, and also, for example, that an evenly-split SCOTUS would end up thereby affirming the courts of appeals’ judgments.

    Beldar (fa637a)

  143. From Thomas’ opinion, on this point (most citations omitted):

    The two “most critical” factors we must consider in deciding whether to grant a stay are “(1) whether the stay applicant has made a strong showing
    that [it] is likely to succeed on the merits” and “(2) whether the applicant will be irreparably injured absent a stay.” Where a party seeks a stay pending certiorari, as here, the applicant satisfies the first factor only if it can show both “a reasonable probability that certiorari will be granted” and “a significant possibility that the judgment below will be reversed.” When we determine that those critical factors are satisfied, we must “balance the equities” by “explor[ing] the relative harms to applicant and respondent, as well as the interests of the public at large.” [Cf. Holder v. Nken,] (noting that the factors of “assessing the harm to the opposing party and weighing the public interest” “merge when the Government is the opposing party”).

    The Government has satisfied the standard for issuing a stay pending certiorari. We have, of course, decided to grant certiorari. And I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed.

    Thus does Justice Thomas put his own spin on just how strong a showing has been made. But at least at this point, six other Justices, including C.J. Roberts and Justice Kennedy, didn’t sign on to that characterization. That doesn’t me they disagree; but four of those six probably do, and one or two of the others might, depending on which side of the bed Justice Kennedy exits on the day of oral argument.

    Beldar (fa637a)

  144. I’ll bet you also, without looking to confirm it, that with an hour’s work on Westlaw, I could find you a half dozen other SCOTUS cases which used language slightly different than the phrases quoted by Justice Thomas regarding “significant possibility of reversal.” I know lawyers who do lots of injunctions who regularly maintain two sets of “canned briefs” in parallel: Here are the cases that I quote and argue when I’m opposing injunctions, and here are the cases that I use when I’m on the other side.”

    Beldar (fa637a)

  145. Errata #147: “That doesn’t mean they disagree ….”

    Beldar (fa637a)

  146. I don’t know whether to credit the rumors that Justice Kennedy is considering resigning in the very near future, but if he were to do so, Trump could get that seat filled by October and gain a much more reliably supportive vote, presuming he picks from the famous list of 21 (now 20 again).

    Beldar (fa637a)

  147. @ nk: You spotted the same language and got it quoted here more quickly! Good on you; I ought to refresh my browser window more often before posting.

    Beldar (fa637a)

  148. I would pit Thomas’s credibility on these issues, above the other crew who have counseled vacillation rather than string action, I was cincerne d that the court might go wobbly. As they did with hamdan, they still might

    narciso (d1f714)

  149. He was a plaintiff in boumedienne:
    dailycaller.com/2017/05/31/gitmo-alum-detained-in-raid-against-french-isis-cell5

    narciso (d1f714)

  150. Beldar,

    Thanks. I am with family and have not done more than scanned the opinions, so your comments are helpful. Perhaps, then, it would be more accurate to say, as to the people for whom the injunction remains in place, that the lower court found they had a likehilhood of success, and a six-member majority of the Supreme Court has thus far not Indicated that they believed this judgment is wrong — as to those plaintiffs.

    Patterico (8d3eae)

  151. No, it seems to me more the case that, for purposes of granting the stay, the Court deferred to the lower courts’ assessment that the interests of those plaintiffs outweighed the irreparable harm likely to be suffered by the government:

    The courts below took account of the equities in fashioning interim relief, focusing specifically on the concrete burdens that would fall on Doe, Dr. Elshikh, and Hawaii if§2(c) were enforced. They reasoned that §2(c) would “directly affec[t]” Doe and Dr. Elshikh by delaying entry of their family members to the United States. IRAP, 857 F. 3d, at 585, n. 11; see Hawaii, 2017 WL 2529640, at *7–*8, *24. The Ninth Circuit concluded that §2(c) would harm the State by preventing students from the designated nations who had been admitted to the University of Hawaii from entering this country. These hardships, the courts reasoned, were sufficiently weighty and immediate to outweigh the Government’s interest in enforcing §2(c). Having adopted this view of the equities, the courts approved injunctions that covered not just respondents, but parties similarly situated to them—that is, people or entities in the United States who have relationships with foreign nationals abroad, and whose rights might be affected if those foreign nationals were excluded. See Mandel,408 U. S., at 763–765 (permitting American plaintiffs to challenge the exclusion of a foreign national on the ground that the exclusion violated their own First Amendment rights).

    nk (dbc370)

  152. @ Patterico, who wrote (#154):

    Perhaps, then, it would be more accurate to say, as to the people for whom the injunction remains in place, that the lower court found they had a likelihood of success, and a six-member majority of the Supreme Court has thus far not indicated that they believed this judgment is wrong — as to those plaintiffs.

    Beldar (fa637a)

  153. Bah. Hit “Submit” too soon.

    Yes, I think that’s essentially right. If Thomas’ position picks up two more — and it might, especially if Kennedy were promptly to retire, but maybe even if not; Roberts may be inclined to duck a ruling if he can, and that might make him the fifth vote with the liberal block to ditch it on mootness or standing or another procedural detour.

    Beldar (fa637a)

  154. That’s a bit garbled (#157). Let me try again. Yes, I agree.

    And apart from that, if Thomas picks up two more votes after argument when they reach the merits (assuming they do), then that would result in five Justices finding a (relatively) high probability of success on the merits for the government’s case, meaning the injunctions would be dissolved in their entirety. The remand would probably result in a rubber-stamp final judgment, unless the Fourth and Ninth Circuits or their trial court constituents decide to thumb their noses at the SCOTUS, which sometimes does happen, particularly from the Ninth.

    But if everyone stays on the trajectory suggested by today’s order, then the two most likely outcomes, in my estimation, are: (1) Roberts joins the liberals to duck the merits on some threshold justiciability or procedural ground, followed by (2) a repeat of today’s decision, again maintaining the distinction between those with US ties and those who don’t have those.

    Trump might (and probably should) also consider, in the meantime, voluntarily amending to confirm the second version of the executive order, which is already pretty close to compliance, into full and slavish compliance quoting from today’s order. That might be the best way to influence this toward a clear “win” and some precedential importance, rather than a no-decision kissin’-yer-sister sort of result.

    Beldar (fa637a)

  155. And the reason I rank them in that order of likelihood — guessing about guesses about guesses, am I now? — is that I think the liberal block wants to duck this fight, keeping their powder dry for some more favorable terrain to demonstrate their fidelity to La Résistance.

    Beldar (fa637a)

  156. (That mixed metaphor was just for you, Steve57. Cheers.)

    Beldar (fa637a)

  157. As for the difference between being petitioner and respondent (or appellant and appellee in the courts of appeals), the way it was explained to me when I was being drilled on how to react to these emergency motions when I was a law clerk was:

    Assume that someone has made a motion asking us, at the appellate level, to un-do something done by the lower court. And then assume that besides asking us that in a barebones motion, neither the movant nor anyone else files another piece of paper. Who wins then, with everyone having failed to come forward with any evidence, argument, or persuasion as to how we should rule? Answer: the side which had the burden of overturning the ruling below is the one that loses in that situation.

    But it might not be much of a “burden” as long as you actually bother to file your briefs and make your arguments. And it shouldn’t be: there shouldn’t be much if any of a penalty attached to being the petitioner or the appellant, beyond simply requiring that you make your best showing to persuade the higher court that it needs to act. Once both sides have briefed and argued the point, the “burden” is at best a tie-breaker in very close cases.

    Beldar (fa637a)

  158. no Trumpers must be bumming- CNN has colon cancer

    mg (31009b)

  159. I really enjoy civil injunction practice, actually. I got a taste for it when I edited a book review by a then-up-and-coming legal star, Doug Laycock (then at Michigan, later at Texas (did you have him by chance?), now at Virginia), on a book by Owen Fiss called “The Irreparable Injury Rule.” Then I dealt with it as a Fifth Circuit clerk. And then I did M&A stuff in the early 1980s that was almost entirely an injunction practice. Expedited discovery, balls-out evidentiary hearings on a compressed timetable, billions and the future of giant corporations like Gulf Oil at stake — fun stuff for a baby lawyer.

    Beldar (fa637a)

  160. “CAUGHT ON TAPE: “CNN Producer Says Russia Narrative “bullsh*t”. If secretly made tapes of Trump’s “grab them by the p*ssy” gaffe are fair game, is why this not? Hint: Ratings”

    https://pjmedia.com/instapundit/caught-on-tape-cnn-producer-says-russia-narrative-bullsht/

    Colonel Haiku (f8bfb8)

  161. As is so much we read these days…

    Colonel Haiku (f8bfb8)

  162. I should read nothing but box scores to save what sanityI have left.

    mg (31009b)

  163. The true “garbage people”.

    Colonel Haiku (f8bfb8)

  164. Yes the 9th circus (The most reversed circuit on the planet) found likelihood of success, good gravy we have to rake this carp seriously.

    narciso (952603)

  165. The return of charlie cheetah and the stooge that took out Allen west
    http://dailycaller.com/2017/06/26/house-dems-hired-a-fired-mcdonalds-worker-as-their-it-guy/

    narciso (952603)

  166. Rakin’ teh carp, rakin’ teh carp

    — Judas Priest

    That’s one for the ages, narciso!!!!!!!!!!

    Colonel Haiku (796ffc)

  167. Shirley coronello, also justice Thomas warns there will be a flood of litigation because this compromise is unworkable.

    narciso (952603)

  168. Regarding injunctive relief against the US Government regarding executive action on immigration and border controls: No court has any business making any subjective calls.

    Any court making a subjective call is usurping the constitutional authority of the executive branch.

    It really is that simple an analysis.

    If there is objective evidence of executive wrongdoing, then it is not a policy question – absent objective evidence of wrongdoing, this is a non-justicable question.

    Steven Malynn (d29fc3)

  169. I will not intrude on your delusions anymore.

    You’ll be back. Again.

    Why not just ban me like the leftist blogs do ?

    That’s clearly what you want. I won’t give it to you.

    Patterico (8bd537)

  170. “The Supreme Court’s decision is consistent with this long-standing precedent. In fairness to the courts and some commentators, there are good-faith reasons to argue against the travel order. Indeed, I predicted at the outset that there would be conflicting decisions in the courts. However, it was the tenor and basis for the decisions that I found disturbing. Courts that once gave President Obama sweeping discretion in the immigration field seemed categorically opposed to considering the same accommodation for President Trump. For commentators, viewers were given a highly distorted view of the existing law — brushing aside decades of cases while supporting the notion that a major federal policy could live or die by the tweet..”

    http://thehill.com/blogs/pundits-blog/the-administration/339523-opinion-trumps-travel-ban-victory-should-force-media-to

    harkin (536957)

  171. Thanks, harkin. Their agenda has been transparent from the get-go.

    Colonel Haiku (796ffc)

  172. Here is the thing instead of taking a lap, for getting OT right turkey gets all introspective well the Hawaii decision was based in large part on a leakedcdhs memo that was proven wrong by events down under and Manchester and
    London.

    narciso (d1f714)

  173. OT — VERY INTERESTING

    shipwreckedcrew (fb7ea4)

  174. But at least its a real memo, not like comes unicorn, justice Thomas has seen this movie before, the court grants a limited opening, and then keeps going. Re the whole round of detainee cases.

    narciso (d1f714)

  175. Jeff Zucker in public this week:

    CNN has been around for 37 years, our trustworthiness today is the same as it was a year ago, before people in high offices started questioning it. We know that through our own brand research. Just because somebody says you are not trustworthy, that doesn’t mean it is so … those who rely on CNN trust CNN more than ever.”

    Jeff Zucker this month as per a CNN producer:

    “Just to give you some context, President Trump pulled out of the climate accords and for a day and a half we covered the climate accords. And the CEO of CNN (Jeff Zucker) said in our internal meeting, he said good job everybody covering the climate accords, but we’re done with that, let’s get back to Russia.”

    How hilarious would it be if the only heads to roll over Russiagate were Obama flunkies and CNN employees (I know, I know, redundant).

    harkin (536957)

  176. Tunisia where the Arab spring was supposed to be the jewel, instead theynare the single largest cohort of Islamic state recruits

    https://pjmedia.com/homeland-security/2017/06/26/tunisias-moderate-muslim-brotherhood-leader-implicated-in-assassination-of-political-rival/

    narciso (d1f714)

  177. sorry — here’s the comment:

    Very interesting story out this morning in CIRCA on an unreported aspect of Flynn investigation.

    Three years ago Flynn became a public supporter of a resigned/retired female FBI agent who had an open EEOC claim against the FBI for sexual discrimination. Her name was Robyn Gritz, and for many years she had worked as a counter-intelligence/counter-terrorism agent assigned to various inter-agency working groups doing targeting of high level terrorist figures. She also worked on various terrorism related hostage rescue operations.

    Based on the story, she was highly regarded in military intelligence circles for her efforts, but came under various kinds of scrutiny inside the Bureau from her supervisors for all kinds of Bureau-related minutiae. When she was considering filing a sexual discrimination claim, when when to speak to EEOC counselors about her options. Between speaking to the counselors and actually filing her complaint, Bureau management opened and OPR investigation of her. OPR is “Office of Professional Responsibility”, and its like Internal Affairs for police departments. She filed her EEOC complaint a week later. The FBI Official who authorized the OPR?? Andrew McCabe, current acting Director who was Comey’s No. 2.

    As she was putting together her documentary evidence for her EEOC hearing on her complaint, she obtained letters of support from military officials she had personally worked with, attesting to her professional competence. Gen. Michael Flynn, who was head of the Defense Intelligence Agency when she worked on inter-agency task forces, provided her with one glowing letter, written on his Pentagon stationary.

    This would put Flynn at odds with FBI management who 1) Gritz was suing for sexual discrimination, and 2) was attempting to discipline Gritz internally through an OPR process, which can lead to termination or forced retirement. At some point in the process of filing her EEOC complaint, Gritz amended it to name McCabe as one of the Bureau officials who discriminated against her.

    The story says that McCabe was upset that a high ranking military official in the intelligence community would side with an agent in a dispute against Bureau management. It quotes FBI sources with direct knowledge of the situation saying that McCabe disparaged Flynn personally when it came to light that he was supporting Gritz.

    But most significantly, it was McCabe, as FBI No. 2 to Comey, who would have first reviewed, and then tee’d up for decision by Comey, the issue of opening a counter-intelligence investigation of Flynn and his contacts with Russia.

    McCabe eventually became the bureau’s No. 2 executive and emerged as a central player in the FBI’s Russia election tampering investigation, putting him in a position to impact the criminal inquiry against Flynn.
    Three FBI employees told Circa they personally witnessed McCabe make disparaging remarks about Flynn before and during the time the retired Army general emerged as a figure in the Russia case.
    The bureau employees, who spoke only on condition of anonymity for fear of retribution, said they did not know the reason for McCabe’s displeasure with Flynn, but that it made them uncomfortable as the Russia probe began to unfold and pressure built to investigate Flynn. One employee even consulted a private lawyer.
    7 of 31
    “As far as the troops in the field, the vast-majority were disgusted with the Russia decision, but that was McCabe driving the result that eventually led [former FBI Director James] Comey to make the decision,” said a senior federal law enforcement official, with direct knowledge of the investigation.

    I had plenty of experiences over the years involving FBI agents involved in OPR investigations. When the Bureau has an agent they want to get rid of, this is the well-established pattern. McCabe wanted to get rid of Gritz, who worked for him for a time when he had a management position in the FBI Counterterrorism Section. He would have known of — and likely directed — her negative performance review after years of glowing reviews. He authorized the OPR investigation of her the day before she filed her EEO complaint alleging sexual discrimination.

    Then Flynn comes along and writes her a glowing letter on Pentagon stationary for use against Bureau management trying to discipline and/or get rid of her. At some point she had named McCabe as an FBI official who had created a hostile work environment for her, making her claims very personal. If that kind of claim was to have stuck against McCabe in the PC environment of the Obama Admin., it would have ended his climb up the FBI management ranks.

    So, the story concludes that McCabe supported to Comey the opening of a counter-intelligence investigation into Russian contacts with Flynn in part as payback for Flynn having supported Gritz’s sexual discrimination claim 3 years earlier.

    Based on my experience, there is NOTHING about this story that rings untrue. This is EXACTLY how the Bureau functions internally.

    shipwreckedcrew (fb7ea4)

  178. And that is perhaps the most frightening words one could hear. Now they already had it in for general Lynn because he wouldn’t softpedal the. Coming wave of Islamic state, because he had run across many of these names like Al harzi in Iraq as head of special forces and while running the Intel board in Afghanistan.

    narciso (d1f714)

  179. 114. Patterico 6/26/2017 @ 5:55 pm

    the somersaults involved in saying a “likelihood” or “probability” of success can exist when it’s less than 50%, — while it may be that this can legally happen — give me a sort of vertigo that is hard to get past.

    The language of the opinion by Thomas quoted by nk @143 and Beldar @147-8 means that:

    likely to succeed on the merits” = “a significant possibility that the judgment below will be reversed.”

    119. Maybe they should change the wording to “possibility” of success…

    “likely to succeed on the merits” comes from Hilton v. Braunskill 481 U. S. 770
    (1987) and that, in turn, seems to be earlier language.

    But that doesn’t mean actually likely, but only a strong showing that it likely. Maybe because the court can’t really evaluate the likeliness of prevailing.

    It’s a double doubt, a likelihood of it being likely, so that could work out maybe to the petitioner having approximately at least a 25% chance of prevailing on the merits..

    Nken v. Holder 556 U. S. 418, 434 (2009)

    https://www.law.cornell.edu/supct/pdf/08-681P.ZO

    said it was more than a mere possibility that relief will be granted, which is the kind of phrase that means less than 50% but definitely more than 5%.

    Sammy Finkelman (b66da2)

  180. This may the place where the language “likely to succeed on the merits” either comes from, or re-endorses it. It cites a lot of other cases:

    Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008),

    This was mainly a preliminarty injunction case,where you had an environmemtal group on one side, with claimed scientific and other interests, and the U.S. Navy on the other, with claimed national security interests. The opinion focused mostly on irreparable harm.

    https://www.law.cornell.edu/supct/pdf/07-1239P.ZO

    A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. See Munaf v. Geren, 553 U. S. __, __ (2008) (slip op., at 12); Amoco Production Co. v. Gambell, 480 U. S. 531, 542 (1987);
    Weinberger v. Romero-Barcelo, 456 U. S. 305, 311–312 (1982).

    Sammy Finkelman (6f9f42)

  181. Munaf v Geren cites cases:

    http://scholar.google.com/scholar_case?case=14497875088497463489&hl=en&as_sdt=6&as_vis=1&oi=scholarr

    A preliminary injunction is an “extraordinary and drastic remedy.” It should never be awarded as of right, Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834, and requires a demonstration of, inter alia, “a likelihood of success on the merits,” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 428, 126 S.Ct. 1211, 163 L.Ed.2d 1017

    Sammy Finkelman (6f9f42)

  182. GONZALES, ATTORNEY GENERAL, ET AL.
    v.
    O CENTRO ESPIRITA BENEFICENTE UNIAO DO VEGETAL ET AL

    546 U.S. 418 (2006)

    http://scholar.google.com/scholar_case?case=7036734975431570669&q=Gonzales+v.+O+Centro+Esp%C3%ADrita+Beneficente+Uni%C3%A3o+do+Vegetal,&hl=en&as_sdt=6,33&as_vis=1

    The Government begins by invoking the well-established principle that the party seeking pretrial relief bears the burden of demonstrating a likelihood of success on the merits. See, e. g., Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975).

    Sammy Finkelman (6f9f42)

  183. Revisiting the tea leaves a bit from this case — probably to the interest of no one.

    Thomas notes in his dissent that the Court is implicitly signaling that the government is likely to prevail on the merits. The per curiam opinion, as has been noted here, is completely silent on the subject.

    As I and others noted above, the opinion likely came out of the chambers of the Chief Justice. Avoiding any discussion of the merits of either side in the underlying litigation is probably how he went about getting the 4 liberal bloc members to agree to not dissent. As a per curiam opinion, he didn’t need to get him to join with his opinion, he just needed them to not dissent.

    If they had dissented, it would have likely created a very stark contrast of opinion between the where Thomas’ opinion ends up, and where a dissent from one of the liberal justices ended up. That would have left a very ugly split in full view, with both sides of the issue claiming support by SCOTUS.

    Along with the promise to not dissent, I’m guessing the Chief let the liberals know that it was his view that the whole fiasco should be mooted out by the fall, and if there are further challenges to the Admin. after it announces its new enhanced vetting processes, the case will likely back at the court in a much better posture procedurally, and with at better developed record.

    But, one inescapable opinion that i think comes out of the decision is that the announced bases for the two Appeals Courts’ decisions are seriously undermined by the fact that parts of the EO were allowed to take effect.

    Recall that the 4th Circuit decision declared the entire EO unconstitutional as a violation of the First Amendment’s Free Exercise clause. The Ninth Circuit decision found that the EO violated the statutory limits on Presidential power under the INA, in that it did what the INA said the President could not do, which is discriminate against visa applicants based on national origin.

    Both of those underpinnings would work to bar ANY enforcement of the EO against any applicants from the six countries. Under the rationale advanced by the Appeals Courts, there is not basis to distinguish between classes of applicants in the manner that the Supreme Court’s opinion allows.

    In other words, if the basis for the EO did actually place it in violation of the First Amendment, it would be no less so in violation of the First Amendment for applicants having no bona fide connection to the US than for applicants having a bona fide connection to the US. The difference in their status wouldn’t alter the constitutional infirmity identified by the Fourth Circuit.

    So even allowing a part of the EO to go into effect without dissent is a tacit acknowledgement that the EO was not, at its inception, a violation of the First Amendment’s Free Exercise clause, and/or that the President’s authority over matters of national security is not completely subsumed beneath the rights set forth in the First Amendment.

    The same analysis would apply to the 9th Circuit’s decision. There, in a point of legal analysis which Patrick went along with, the Court found that under the INA the President could not discriminate on the basis of national origin with regard to visa applicants because of the amendment passed by Congress to the INA in the 1960s. By allowing the EO to go into effect on a limited basis, the SCOTUS is allowing the Admin to discriminate on the basis of national origin with regard to visa applicants. The distinction between bona fide and non-bona fide connections doesn’t make the action any less discriminatory.

    I think if any of the liberal justices had felt strongly on either of these issues, they would not have gone along with the opinion.

    So they either agree in large measure that the rationale of both Appeals Courts was wrong, OR — more likely in my view — the message was sent by the Chief that he would be of a mind to moot out the case when its heard in October, and wait to see if the political branches could sort out the problem before the SCOTUS had to take sides.

    Not making any reference to the merits — along with a promise to not have the merits actually reviewed in these two cases — probably carried the day in getting the liberals to simply side-step the whole problem rather than put the SCOTUS in a position of having to pick sides with either the Admin, or with two of its Appeals Courts.

    Something that most lawyers who watch the Supreme Court are aware of, but not many others, is that the SCOTUS ALMOST NEVER takes a case when the lower courts are in near agreement on a subject. Almost all Supreme Court cases come out of situations where there is a split in the lower courts, and an opinion of the SCOTUS is necessary to bring some uniformity to the law nationwide.

    So, if SCOTUS had taken these cases, where the two Appeals Courts were on the same side — as well as several district courts — only to then rule in favor of the Admin and overrule its own inferior courts, that would have been a HIGHLY unusual outcome.

    shipwreckedcrew (ce92ec)


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