The Jury Talks Back

2/4/2017

The Judge Who Halted Trump’s Immigration Order Has Made Some Wacky Rulings in the Past

Filed under: Uncategorized — Patterico @ 6:30 pm

Last night I reported that a federal judge in Seattle, James Robart, has issued a sweeping nationwide order temporarily blocking the Trump administration from enforcing key parts of President Trump’s recent executive order on immigration. Today, we are learning more about that judge . . . and some of it is unsettling.

For example, last August, the Seattle Times reported that Judge Robart had favorably cited the “black lives matter” movement in a ruling on a civil dispute:

U.S. District Judge James Robart, pointedly reacting to the Seattle police union’s rejection of a tentative contract, said Monday he would not let the powerful labor group hold the city “hostage” by linking wages to constitutional policing.

“To hide behind a collective- bargaining agreement is not going to work,” Robart said during a dramatic court hearing he opened by laying out a path for police-accountability reform and closed with an emotional declaration that “black lives matter.”

. . . .

Robart ended the hearing with deeply personal remarks, in which he noted a statistic that showed, nationally, 41 percent of the shootings by police were of blacks, when they represented 20 percent of the population.

“Black lives matter,” he said, drawing a startled, audible reaction in a courtroom listening to the words coming from a federal judge sitting on the bench.

Also troubling are Judge Robart’s attempts to dictate the terms of proposed statutes, based in part on the “expertise” of “consultant” Merrick Bobb, a hack who runs around posing as a police expert when he knows next to nothing. From the Seattle Times story:

During Monday’s hearing, [Judge Robart] provided a blueprint for what he would like to see in the legislation, based on various proposals produced by city officials, the Community Police Commission (CPC) and the court-appointed federal monitor, Merrick Bobb.

My eyes are rolling so hard I could probably knock down bowling pins with them.

But wait, there’s more! Judge Robart also denied a request for a man (“John Doe”) expelled from Amherst to depose and obtain records from a “victim” of sexual assault — records that might show that the woman was the aggressor and that Doe was expelled improperly — because it would hurt the “victim’s” feelings. Robby Soave at Reason.com explains the background:

The incident in question took place years ago, during the late night / early morning hours of February 4-5, 2012. Jones was Doe’s girlfriend’s roommate at the time. Jones went to Doe’s dorm room and sexual activity ensued: Jones performed oral sex on Doe.

But Doe was blackout drunk at the time—a detail that Amherst administrators deemed “credible,” on subsequent review. Of course, it’s questionable whether a blackout drunk student can actually provide the level of consent that Amherst’s sexual misconduct policy requires.

Other factors cast doubt on the idea that Jones was the victim and Doe the perpetrator. After leaving Doe’s dorm room, Jones texted another male student and asked him to come to her dorm room for sex. She also texted a residential advisor about her “stupid” decision to engage in sexual activity with her roommate’s boyfriend. In these text messages, Jones admitted that she was “not an innocent bystander.” She also complained about how long it was taking this second male student to do anything sexual with her. She did not file a complaint against Doe until two years later.

Doe was expelled. He then sued Amherst, and subpoenaed Jones for a deposition and for “documents and records of statements she made about the alleged assault.” Judge Robart denied the request because of Jones’s feelings:

An in-person deposition of boundless scope would impose a substantial burden on Ms. Jones. (Subpoena at 1; see also Resp. at 7 (“Until a deposition begins, it is very difficult to know where it will lead and impossible to predict all the topics that may be explored with a witness.”).) The deposition would force Ms. Jones to relive a night in which she asserts Mr. Doe sexually assaulted her. (See, e.g., Clune Decl. ¶ 3, Ex. 4; Resp. at 6-7.) It would also reraise the subsequent investigation, hearing, and period of publicity that Ms. Jones has endured. (Id. ¶ 3, Ex. 5 at 11-12; Am. Compl. ¶¶ 54, 56.) It takes no leap of logic to reason that a live deposition would impose emotional and psychological trauma upon Ms. Jones.

I would imagine that being expelled over a B.S. allegation would also “impose emotional and psychological trauma” on someone. But when you’re a male accused of sexual assault in a college environment, facts often don’t matter. You’re presumed guilty — and even in a civil proceeding which is all about determining whether you actually did what you were accused of, you’re not entitled to key evidence on that question.

According to this judge.

These decisions do not instill confidence in the judgment of this particular jurist.

We’ll see what happens.

[Cross-posted at RedState.]

45 Comments »

  1. Judge Robart touched my brain in a bad place. Don’t ask me to describe where, it would be too traumatic, just take my word for it.

    Comment by Quibus Vigilius — 2/4/2017 @ 6:56 pm

  2. On the bright side, my guess is Trump will be far more motivated to appoint conservative judges if these court proceedings continue to be filed.

    Comment by DRJ — 2/4/2017 @ 8:19 pm

  3. I’ve spent much of the past hour in a back-and-forth with a smug Harvard law professor on Twitter about this post (the RedState version).

    Comment by Patterico — 2/4/2017 @ 8:21 pm

  4. For some reason, he apparently prefers the title “so-called professor.”

    Comment by DRJ — 2/4/2017 @ 9:57 pm

  5. The sad part about this is that the local media here in Seattle is selling him as a “conservative” who was put in by GWB and is an active member of the GOP. There are some links at the local paper of note, Seattle Times, where they have all the editorial folks and column writers all basically take the tack that “This is YOUR Judge GOP! WHY DONT YOU LiKE HIM!!!!” with all the mentioning of his various rulings that were pro-GOP planks.

    I am ambivalent about the whole travel pause with the signal-to-noise ratio about the “ban” reaching a point of “I just don’t care anymore”. The sad part is that our state AG appears to be of the same mold that a few CA AG’s have been over the years, that is headline grabbing, fact avoiding and job ducking type with respect to what the wishes of the voters (yea I know the state went HRC, but this AG has internally chosen to not fight a few other tax related laws to the detriment of our voters wishes).

    Comment by Charles — 2/4/2017 @ 10:18 pm

  6. On the bright side, my guess is Trump will be far more motivated to appoint conservative judges if these court proceedings continue to be filed.

    One of those seats is Robart’s who took senior status in June.

    Comment by Kevin M — 2/4/2017 @ 11:53 pm

  7. Heh. That’s ironic, Kevin.

    Comment by DRJ — 2/5/2017 @ 6:43 am

  8. The Administration’s appeal to the 9th circuit for a stay:

    https://assets.documentcloud.org/documents/3452225/The-Department-of-Justice-s-appeal-to-restore.pdf

    Extremely well reasoned and clear as can be. It seems that my reading of the TRO was the same as theirs.

    For details on 1152 vs 1182, see here:

    http://patterico.com/2017/02/04/the-judge-who-halted-trumps-immigration-order-has-made-some-wacky-rulings-in-the-past/#comment-1973978

    Comment by Kevin M — 2/5/2017 @ 9:02 am

  9. I watched the video of the hearing. In order to get relief via Temporary Restraining Order (TRO), the States must show irreparable injury, a likelihood of success on the merits, and a balancing of equities.

    The States argue that the Order violates Due Process and, to a lesser degree, Equal Protection because it discriminates based on religion. The States concede that aliens and refugees who have never been in the U.S. have no Equal Protection rights, but their sponsors and families in the U.S. do. The focus of the States’ case is legal residents and US sponsors and families impacted by the Order.

    The States apparently did not assert discrimination based on national origin for the purpose of the TRO (although they might for the purpose of the case in chief). Instead, the States argue that some, not all, provisions of the Order violate the Establishment Clause by discriminating against one religion.

    The States contend that even though the Order does not purport to ban Muslims on its face, the fact that it applies to predominantly Muslim nations coupled with Trump’s rhetoric (which is apparently detailed in the pleadings or briefs, and covers the campaign until the present) about wanting a Muslim ban, means it is appropriate to look behind the words of the Order in deciding whether there is a rational basis for the Order. The Judge asked about the difference between what Trump said during the campaign “based on what he said in New Hampshire in June” and a Presidential Executive Order with comment explaining it. The reply was that it might go to weight but the Order was so early in Trump’s term — a mere week — that his campaign statements are relevant. In addition, after the election, the Presidents advisers have been quoted as saying “the President asked them to come up with a Muslim ban.”

    As for standing, the States rely on the Snapp doctrine of parens patriae, as extended by Massachusetts vs EPA, but also on the doctrine that the States have suffered injury as proprietors. The proprietary argument is that the Order unduly impacts State tax revenue and higher education institutions that employ foreigners who are affected by the Order (as the employers of persons who are legally in the U.S. and were unexpectedly caught overseas and can’t return, and as the employees and family of employees who have been impacted by the Order, and as persons who would be impacted by the Order and now cannot travel.) First, the States lose tax revenue from persons who cannot come to the U.S. to work or travel. Second, the State funds used to employ persons has been wasted if they cannot perform their functions, which is a burden on the States as proprietors of the institutions. The States cited US vs Texas, the immigration case in which Judge Hanen and the 5th Circuit said additional State costs/burdens in lost drivers license revenue justified a stay of Obama’s DACA and DAPA orders.

    The States also argued that any federal claim for deference because this is a federal immigration order was undermined since the Order is not consistent with the immigration laws passed by Congress, and since the Administration itself hasn’t provided a clear and consistent idea of what the Order means. For instance, in the past days, there have been 5 different Administration statenements on whether legal residents and green card holders are affected by this Order. As a result, the States argue that hundreds of their legal residents effectively lost the right to travel because of uncertainty about the Order.

    Finally, in the initial argument (not rebuttal), the States noted that they are challenging some parts of the Order as applied, and are not challenging the constitutionality of the entire Order. They also assert a States’ rights argument that States should have standing and authority to protect their and their residents’ interests from federal overreach when it comes to religion. (Note by DRJ: This is precedent the left might regret.) And the States acknowledge that while they have no authority for a State sueing the federal government over an Establishment Clause case, they believe there have not been any Orders like this.

    Comment by DRJ — 2/5/2017 @ 10:07 am

  10. The problem with the Establishment Clause argument is that the DANGER that the Order seeks to protect against comes solely from a subset of Muslims. It is hard to see how an immigration vetting regime could fail to touch upon the sect and/or creed of the applicant. The nature of the Muslim outlook on the world makes religion a primary, if not the first, fact to take into account.

    If anything, the EO’s suggested end state, where members of minority religions are given preference, under a cap, smacks of religious preference. But then the persecution in those countries is overtly religious, so I don’t know. It would not have been religious discrimination to accept German Jews in preference to other Germans in 1939.

    Comment by Kevin M — 2/5/2017 @ 10:48 am

  11. Robart’s ruling basically thumbs his nose at Article III standing entirely.

    Comment by SPQR — 2/5/2017 @ 10:56 am

  12. I agree the Judge was not as concerned with standing as other issues, SPQR.

    Comment by DRJ — 2/5/2017 @ 11:32 am

  13. Kevin M,

    Both courts essentially treated the claims before them as efforts to treat the Order as a Muslim ban. The Massachusetts court refused to do that, saying the Order was rational on its face and did not target Muslims. The Seattle Judge found there was evidence of a bad faith basis for the Order that undermined the rational basis standard. Specifically, Trump and his advisers talked about Muslim bans so much and for so long that they tainted this Order.

    Your first link — the federal government’s filing in the 9th Circuit — includes the opinion of the Massachusetts District Court denying an injunction. On page 19 of that opinion, the Court states that the 1st Circuit does not follow the case of American Academy of Religion vs Napolitano, which held that a “well-supported allegation of bad faith” could render a valid decision as not bona fide. The Seattle Judge did not reject that case, and IMO that was a big part of the different outcomes.

    Basically, Trump’s big mouth got him into this. We’ll see if his big mouth can get him out of it.

    Comment by DRJ — 2/5/2017 @ 11:55 am

  14. If Islam is a danger, Congress should change the law to allow religious discrimination.

    Comment by DRJ — 2/5/2017 @ 11:58 am

  15. Except the pause is very narrowly focused
    on seven countries, specified in the law

    Comment by narciso — 2/5/2017 @ 12:27 pm

  16. SPQR,

    One of the Standing cases the Petitioners relied on in the Seattle case is City of Sausalito vs O’Neil, where the 9th Circuit held that a city had standing to stop federal redevelopment of a military base because of its proprietary interest in ongoing revenue, traffic, and an aesthetically pleasing environment. That strikes me as a low standard for Standing.

    The federal government in the Seattle case spent a lot of time and effort in its argument and pleadings but that may be a waste at the trial and circuit court level, although hopefully not if this makes it to the Supreme Court. Meanwhile, the Seattle petitioners were able to allege actual costs incurred by higher education in sponsoring foreign workers for visas who are now unable to get in the country. Given the current Standing law in the 9th Circuit, that’s virtually a slam-dunk argument.

    Comment by DRJ — 2/5/2017 @ 12:41 pm

  17. My last comment should have said the federal government spent a lot of time and effort on Standing.

    Comment by DRJ — 2/5/2017 @ 12:43 pm

  18. Trumps overblown rhetoric helped get him elected but it’s also helping him blow his chance to change things. He can change. He can get serious instead of always trying to get even. It’s his choice.

    Comment by DRJ — 2/5/2017 @ 1:12 pm

  19. DRJ, the redevelopment of real estate in situ in a state is quite different from immigration policy affecting individuals who by definition are only prospectively residents.

    If a state has standing regarding treatment of foreign prospective immigrants, then they have standing for everything non nally

    Comment by SPQR — 2/5/2017 @ 1:19 pm

  20. ….. nominally purely Federal. Can states now sue to stop a war since those foreign nationals might be tourists?

    Comment by SPQR — 2/5/2017 @ 1:20 pm

  21. Extremely well reasoned and clear as can be. It seems that my reading of the TRO was the same as theirs.

    For details on 1152 vs 1182, see here:

    http://patterico.com/2017/02/04/the-judge-who-halted-trumps-immigration-order-has-made-some-wacky-rulings-in-the-past/#comment-1973978

    That response parallels the discussion I had with SWC here in nearly every respect. Very interesting. Thanks for that.

    Frankly, SWC’s arguments are more compelling than Andrew McCarthy’s were, and SWC’s arguments appear to be the arguments that the government is relying upon.

    Comment by Patterico — 2/5/2017 @ 1:34 pm

  22. DRJ,

    Thank you for that summary. May I quote it and turn it into a post?

    Comment by Patterico — 2/5/2017 @ 1:41 pm

  23. SPAR,

    I agree with you about Standing but the 9th Circuit does seem to have different standards. Plus the Seattle court relied on US vs Texas for Standing, which is also an immigration case. Immigration and national security may be the apex of Presidential powers, as the federal government attorney argued, but Obama’s overreach on immigration set the stage for this ruling.

    Comment by DRJ — 2/5/2017 @ 1:45 pm

  24. Of course, Patrick. Thank you for reading it.

    Comment by DRJ — 2/5/2017 @ 1:46 pm

  25. Can states now sue to stop a war since those foreign nationals might be tourists?

    Comment by SPQR — 2/5/2017 @ 1:20 pm

    They shouldn’t but, after reading all this stuff, I think they could in the right court.

    Comment by DRJ — 2/5/2017 @ 1:47 pm

  26. Patterson,

    I intended my comment as a summary of Petitioners’ argument only, because doing more would be too long. But I think the first paragraph of 13 might add clarity to what the courts are doing if there is a way to make that point.

    Comment by DRJ — 2/5/2017 @ 1:51 pm

  27. But 13 is my opinion so, on second thought, it might be better to leave it out.

    Comment by DRJ — 2/5/2017 @ 1:52 pm

  28. Will you also correct my misspelled word in the last paragraph? Suing, not sueing.

    Comment by DRJ — 2/5/2017 @ 1:58 pm

  29. Yup.

    Comment by Patterico — 2/5/2017 @ 2:19 pm

  30. Can I post it at RedState too?

    Comment by Patterico — 2/5/2017 @ 2:48 pm

  31. DRJ @ 13 — it appears to me that the the comment on consular nonreviewablility does not explain the rule with sufficient completeness. This is ordinarily a case-by-case determination, and I’m not sure how well it translates to a policy announcement like the EO.

    But the 9th Cir. has explained the issue — and the limit to the recognized exception to consular nonreviewability as follows in Bustamante v. Mukasey:

    “[I]t has been consistently held that the consular official’s decision to issue or withhold a visa is not subject either to administrative or judicial review.”  Li Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir.1986).   However, courts have identified a limited exception to the doctrine

    where the denial of a visa implicates the constitutional rights of American citizens

    .   See, e.g., Adams v. Baker, 909 F.2d 643, 647-48 (1st Cir.1990);  Burrafato v. United States Dep’t. of State, 523 F.2d 554, 556-57 (2d Cir.1975);  Saavedra Bruno v. Albright, 197 F.3d 1153, 1163 (D.C.Cir.1999).   The exception is rooted in Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), a suit brought by American citizens challenging on First Amendment grounds the exclusion of a Belgian national who was an advocate of “world communism.”   The Supreme Court specifically noted that an unadmitted and nonresident alien himself had no right of entry, and that the case came down to the “narrow issue” whether the First Amendment right to “receive information and ideas” conferred upon the American citizens the ability to compel Mandel’s admission.  Mandel, 408 U.S. at 762, 92 S.Ct. 2576.   The Court acknowledged that First Amendment rights were implicated, but emphasized the longstanding principle that Congress has plenary power to make policies and rules for the exclusion of aliens.  Id. at 765-66, 92 S.Ct. 2576.   Noting that Congress had delegated to the executive conditional exercise of this power with regards to certain classes of excludable aliens, the Court held that “when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests ….”  Id. at 770, 92 S.Ct. 2576.

     Joining the First, Second, and D.C. Circuits, we hold that under Mandel, a U.S. citizen raising a constitutional challenge to the denial of a visa is entitled to a limited judicial inquiry regarding the reason for the decision.   As long as the reason given is facially legitimate and bona fide the decision will not be disturbed. 408 U.S. at 770, 92 S.Ct. 2576.1  Here, Alma Bustamante asserts that she has a protected liberty interest in her marriage that gives rise to a right to constitutionally adequate procedures in the adjudication of her husband’s visa application.   The Supreme Court has deemed “straightforward” the notion that “[t]he Due Process Clause provides that certain substantive rights-life, liberty, and property-cannot be deprived except pursuant to constitutionally adequate procedures.”   Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).   Freedom of personal choice in matters of marriage and family life is, of course, one of the liberties protected by the Due Process Clause.   See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974);  see also Israel v. INS, 785 F.2d 738, 742 n. 8 (9th Cir.1986).   Presented with a procedural due process claim by a U.S. citizen, we therefore consider the Consulate’s explanation for the denial of Jose’s visa application pursuant to the limited inquiry authorized by Mandel.   Concluding that, on the record presented to us, the reason was both facially legitimate and bona fide, we affirm the judgment of the district court.

    As set forth in the complaint, Jose was denied a visa on the grounds that the Consulate “had reason to believe” that he was a controlled substance trafficker.   This is plainly a facially legitimate reason, as it is a statutory basis for inadmissibility.  8 U.S.C. § 1182(a)(2)(C).  The Bustamantes concede this, but note that the district court did not also address whether the reason given for the visa denial was bona fide as well as facially legitimate.   They urge that in order to complete the analysis we must remand to the district court for factual development, during which the defendants will be required to present specific evidence to substantiate the assertion that Jose was a drug trafficker.   We decline to do so, because the complaint fails to make an allegation of bad faith sufficient to withstand dismissal.

    While the Bustamantes alleged in their complaint that Jose is not and never has been a drug trafficker, they failed to allege that the consular official did not in good faith believe the information he had.   It is not enough to allege that the consular official’s information was incorrect.   Furthermore, the Bustamantes’ allegation that Jose was asked to become an informant in exchange for immigration benefits fails to allege bad faith;  if anything, it reflects the official’s sincere belief that Jose had access to information that would be valuable in the government’s effort to combat drug trafficking.   Moreover, the Bustamantes do not allege that Jose was asked to do anything illegal or improper.   Under Mandel’s limited inquiry, the allegation that the Consulate was mistaken about Jose’s involvement with drug trafficking, and offered to make a deal with Jose on the basis of this mistaken belief, fails to state a claim upon which relief could be granted.

    So, “bona fide” doesn’t mean the justification needs to be correct. In other words, it doesn’t need to be accurate to say that nationals of the 7 suspect countries do actually constitute a heightened terrorist threat. That’s a facailly valid justification, and whether its “right” or “wrong” factually is irrelevant.

    Comment by shipwreckedcrew — 2/5/2017 @ 2:55 pm

  32. If you read the Seattle order closely, you see that he DID NOT cite the Texas case for standing — he cited it only for the proposition that a nationwide injunction was necessary to promote uniformity.

    I actually expected a much stronger argument which both sides seem to have missed — maybe it was in the briefs — that unless you have a nationwide injunction, the relief granted the Washington institutions might be illusory because there is no guarantee that the impacted travelers seeking to return to Washington can make it to a port of entry within the district court’s geographic jurisdiction. In order for a UW professor or student to return from Syria, for example, they might need to make entry into JFK or Dulles. So without nationwide application, relief would likely not be afforded consistent with the order.

    Bottom line — if the only thing Robart is going to produce is the order he sent out Friday night and is available on line right now, then he’s going to get reserved. There is nothing in there which is subject to meaningful review. The 9th has NO EXPLANATION from him for why he made the findings he did, so he’s left them simply to guess. If he doesn’t produce more I would be surprised if they upheld him. I think they might stay his order and send it back for the Prelim Inj. hearing and tell him he needs to do more to support himself.

    Comment by shipwreckedcrew — 2/5/2017 @ 3:07 pm

  33. DRJ — in re-reading my comment on consular nonreviewability, it occurred to me that even the recognized application of the exception requires that the US citizen advocating review of the rejection of the foreign applicant, must have a claim of significant magnitude. The Mandel case was based on the First Amendment right of the US Citizens to “receive information” from the alien who was a alien applicant. The Bustamante case was a wife who wanted to get her husband admitted, but he was denied based on suspicion he was a drug trafficker.

    I don’t think “loss or revenue” by Washington is going to measure up in terms of advancing a “compelling” interest sufficient to overcome the doctrine of consular nonreviewability.

    Maybe they could also advance the First Amendment rights as were advanced in Mandel, but the Plaintiffs lost in Mandel.

    Comment by shipwreckedcrew — 2/5/2017 @ 3:13 pm

  34. @ 21 — that’s because Andy used to call me and ask me for advice. Normally I’d talk him in off the ledge, and send him down a path that was more defensible. If he had called me before he wrote his column taking you on, he would have gotten it right.

    ;>)

    Comment by shipwreckedcrew — 2/5/2017 @ 3:16 pm

  35. I see you discusding at least two issues — whether there us a rational/compelling interest for the Presidrnt’s EO, and whether the States have Standing to challenge the EO. Is that correct?

    As I understand the States’ Standing argument, the proprietary argument made the most sense to me (and possibly the Judge, based on his reaction). It says the State-funded and owned universities spent time, effort and money sponsoring foreigners for visas so they could come teach, but now they are not able to enter the US. The foreigners may not have standing to object here, but the State can assert its interests and the interests of their employers and families already in the US. My limited reading of California law suggests that is enough to trigger Standing.

    Comment by DRJ — 2/5/2017 @ 4:10 pm

  36. I agree with you that the basis for the Court’s holding on the substance is unclear and not explained in the TRO order.

    I think both the Seattle and Massachusetts Judges seemed to apply the rational basis test, i.e., that the President’s EO would stand if there were a rational basis for it on its face. If so, the Mandel case would be a valid basis to bar certain aliens from entering. But I’m not convinced the Seattle court got to that point.

    Thus, while the Massachusetts court held there was a rational basis for Trump’s EO, my impression is that the Seattle court may have accepted the States’ argument that thre was evidence of Trump’s bad faith that cast doubt on whether the EO was a bona fide order.

    Comment by DRJ — 2/5/2017 @ 4:29 pm

  37. If he doesn’t produce more I would be surprised if they upheld him. I think they might stay his order and send it back for the Prelim Inj. hearing and tell him he needs to do more to support himself.

    Comment by shipwreckedcrew — 2/5/2017 @ 3:07 pm

    Maybe that’s what he wants.

    Comment by DRJ — 2/5/2017 @ 4:32 pm

  38. swc, in rebuttal, the States’ attorney reiterated that the harm to Petitioners was “in an Order that was motivated largely by religious animus.” That was one of Petitioners’ points in oral argument and his concluding point in rebuttal.

    Further, the Judge stated during the federal government’s argument that Section 5 of the EO “favored one religion over another.” Doesn’t that suggest the judge views this as a case involving religious discrimination? I’m not saying I agree with this result, only that it appears to me that is what he did.

    Comment by DRJ — 2/5/2017 @ 8:09 pm

  39. Perhaps it’s more accurate to say that the issue is:

    1. Whether the EO is facially valid and enforceable (as the federal government argues), or

    2. Whether the Court should look at the underlying facts and evidence to determine if the EO is rationally based (as the Petitioner States argue).

    I think the Seattle Judge must have decided 2 is the issue and resolved it in Petitioners favor, because otherwise he would not have granted the TRO.

    Comment by DRJ — 2/5/2017 @ 8:22 pm

  40. There are a few issues that require careful sorting out. The hearing was like a shotgun on a white wall. That’s not going to withstand appellate scrutiny.

    As I see it, “proprietary standing” isn’t going to get Washington an “Establishment Clause” violation.

    Even if it did, the “Establishment clause” claim only applies to Section 5 on Refugees, where there are provisions for favoring persecuted minority religion practitioners. For the Proprietary standing argument to allow them to make that claim, they are going to have to show that REFUGEES are trying to get to UW and WSU but cannot. All their factual affidavits dealt with visiting aliens, not refugees. Either immigrant visa holders, student visa holders, or employment visa holders (professors). None of them fall under Section 5 so they don’t have a Section 5 claim on “Establishment Clause” grounds.

    So the State’s claims are both on EP and DP grounds for visa holders and/or dissuaded visa applicants. Its well established law that such EP claims are given rational basis review. If there is a rational connection between the “means” and the “ends” as set forth, nothing else matters — even if the “means” is factually incorrect.

    Basically, it doesn’t matter that there is no evidence that anyone from the seven named countries has ever been arrested in connection with a terrorist investigation in the US (which is a meaningless and specious asserting anyway). All that matters is that it is logical to have a policy that gives heightened scrutiny — even up to the point of blanket prohibition — to those coming from countries that are state sponsors of terrorism, or are unable to supply the State Dept. with information the State Dept says it needs.

    It is not the role of the courts to do factfinding to look behind the stated reasons for validity in the justification. That’s what that very long post of mine on rational basis review makes very clear from a 2015 opinion by Kennedy.

    Comment by shipwreckedcrew — 2/5/2017 @ 9:56 pm

  41. SWC – Is the 9th Circuit famous for upholding procedures that an eeeeeeeevil Republican insists upon?

    Outcomes, my friend. Outcomes are all that matter to those leftist jackals.

    Will Roberts coax SCOTUS to do the right thing? Or, are we looking at a 4-4 free-for-all?

    Comment by Ed from SFV — 2/5/2017 @ 10:07 pm

  42. As I suggested in the post, I do think the Ninth Circuit decision could be the final word. 4-4 means the lower court decision is upheld.

    Comment by Patterico — 2/5/2017 @ 10:11 pm

  43. The rational basis cases where the district court’s misapply the standards are often unanimous.

    As Kennedy’s opening language in Heller v. Doe explained:

    We many times have said, and but weeks ago repeated, that rational basis review in equal protection analysis “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” FCC v. Beach Communication, Inc., 508 U. S. ___, ___ (1993) (slip op., at 5-6). See also, e. g., Dandridge v. Williams, 397 U.S. 471, 486 (1970). Nor does it authorize “the judiciary [to] sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations

    Lower courts always get too involved in deciding what they thing the “right” outcome should be, and the Supreme Court repeatedly tells them its not their job to decided “right” from “wrong” on rational basis review.

    Comment by shipwreckedcrew — 2/5/2017 @ 10:34 pm

  44. I’m terrible at tipos.

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