Patterico's Pontifications


Obama Administration Lawyer: “Why Liberals Should Back Neil Gorsuch” (Plus Bonus Elizabeth Warren Nonsense)

Filed under: General — Patterico @ 8:30 pm

There’s at least one honest man among the left in this world, and he supports Neil Gorsuch for the Supreme Court:

I was an acting solicitor general for President Barack Obama; Judge Gorsuch has strong conservative bona fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.

Considerable doubts about the direction of the Supreme Court have emerged among Democrats in recent weeks, particularly given some of the names that have been floated by the administration for possible nomination. With environmental protection, reproductive rights, privacy, executive power and the rights of criminal defendants (including the death penalty) on the court’s docket, the stakes are tremendous. I, for one, wish it were a Democrat choosing the next justice. But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws?

I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.

There are also dishonest people among the left — a lot of them. For a hint of the type of claptrap we’ll see in coming days, check out Elizabeth “Pocahontas” Warren:

Before even joining the bench, he advocated to make it easier for public companies to defraud investors. As a judge, he has twisted himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans. He has sided with employers who deny wages, improperly fire workers, or retaliate against whistleblowers for misconduct. He has ruled against workers in all manner of discrimination cases. And he has demonstrated hostility toward women’s access to basic health care.

Blah, blah, blah. It goes on like that. These Native Americans do drone on, don’t they?

Guess what? She is going to lose. So don’t be angry at her. Laugh at her. Point, and laugh.

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

President Trump Nominates Neil Gorsuch!

Filed under: General — Dana @ 5:17 pm

[guest post by Dana]

The best news for Conservatives.

While Democrats are promising a vigorous battle, now is the time to savor the moment.



Tonight, I am proud of President Trump, without reservation. If I may plagiarize myself from a recent post:

In many ways, Gorsuch is the ideal successor to Scalia, as he shares many of Scalia’s attributes. He is an engaging and entertaining writer. He is an originalist, which is the only legitimate method of constitutional interpretation — but one that Scalia did much to make respectable. Gorsuch is an ardent textualist, like Scalia, and shares Scalia’s disdain for a reliance on fickle and often misleading legislative history.

I listened to Trump’s and Gorsuch’s remarks on my drive home, and was impressed by each. Listening to Gorsuch talk of how he clerked for Byron White and Anthony Kennedy (after Justice White retired) reminded me that I was at the Court for Justice White’s last day on the Court. Mrs. P. and I had prime seats, and today I realize that I was probably sitting only feet away from future Justice Gorsuch that day.

To those who got on my case for failing to predict the outcome of the election, let me remind you of two things. First: a lot of you thought the GOP was going to cave on Merrick Garland. I said they wouldn’t — and they didn’t. And to the more extreme of the NeverTrumpers: many of you said Trump would be horrible on Supreme Court nominations. I said I thought he would be very good — and he was.

I’ve rarely been more pleased to have two of my predictions turn out to be correct.

Always Generally trust content from Patterico.

What a great day for America.

— P




[Cross-posted at The Jury Talks Back.]

Democrats May Be Backing off Threat to Filibuster Any Trump Supreme Court Nominee

Filed under: General — Patterico @ 9:00 am

Yesterday, Senator Jeff Merkley of Oregon made the oafish announcement that he planned to filibuster President Trump’s Supreme Court pick, no matter who it was. Speculation ran rampant on the right that this was part of a larger plan by the Democrat Senate leadership. If so, they may be reconsidering:

Senate Democrats are weighing whether to avoid an all-out war to block President Donald Trump’s upcoming Supreme Court pick, instead considering delaying that battle for a future nomination that could shift the ideological balance of the court, sources say.

Democrats privately discussed their tactics during a closed-door retreat in West Virginia last week. And a number of Democrats are trying to persuade liberal firebrands to essentially let Republicans confirm Trump’s pick after a vigorous confirmation process — since Trump is likely to name a conservative to replace the late conservative Justice Antonin Scalia.

The reason for the tactic: Republicans are considering gutting the filibuster for Supreme Court nominees if Democrats stay largely united and block Trump’s first pick. By employing the so-called “nuclear option,” Senate Majority Leader Mitch McConnell could move to reduce the threshold for clearing a filibuster from 60 votes to 51 votes.

That would mean Democrats could lose leverage in the next Supreme Court fight if Trump were to replace a more liberal justice, since the GOP now has 52 seats in the Senate.

Of course, this may just be a move to undo the rhetorical damage from Merkley’s ham-handed declaration. This way, now they can pretend that their filibuster was really because this particular nominee (read: anyone Trump names) was just so, so extreme!

It really is the wrong time for Democrats to go ballistic. Justice Scalia was one of the most conservative justices in decades. No matter who Trump names, it will maintain the balance of power that has existed for years — one that has brought plenty of victories for the left. Sure, the left would like to make some gains, but you have to win a Presidency and some Senate races to do that, don’t you?

Given Mitch McConnell’s recent unwise declaration that the nuclear option is off the table, the Democrats’ decision whether to filibuster the nominee announced today will be very consequential.

[Cross-posted at RedState and The Jury Talks Back, the only place where I will be commenting on this post.]


BREAKING: Trump Fires Acting Attorney General Who Refused To Defend His Immigration Order

Filed under: General — Patterico @ 6:48 pm

streiff at RedState reported just a couple of hours ago that Acting Attorney General Sally Yates, an Obama holdover, had announced that she had ordered the Justice Department not to defend President Trump’s immigration order in court.

Guess what? She is no longer the Acting Attorney General.

President Trump fired his acting attorney general on Monday after she defiantly refused to defend his immigration executive order, accusing the Democratic holdover of trying to obstruct his agenda for political reasons.

Taking action in an escalating crisis for his 10-day-old administration, Mr. Trump declared that Sally Q. Yates had “betrayed” the administration, the White House said in a statement.

The president appointed Dana J. Boente, United States attorney for the Eastern District of Virginia, to serve as acting attorney general until Senator Jeff Sessions of Alabama is confirmed.

I have argued in recent days (see here and here, for example) that — while I agree with the thrust of Trump’s order on a policy level, and want to avoid seeing the United States fall into the trap that Europe has regarding Syrian refugees — Trump’s order, in my opinion, violates the law. I think he lacks the authority to make the changes he made on his own, and needed to work with Congress, which has Constitutional authority over matters of immigration and naturalization.

But that’s my opinion, and I am no immigration law expert. I have also noted that people I respect have disagreed with me, and I have acknowledged that I don’t know for sure how a court would rule. I don’t think the order is so patently illegal that a partisan DoJ official should refuse to defend it.

I think Trump did the right thing here.

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

Justin Amash’s Statement on Donald Trump’s Immigration Order

Filed under: General — Patterico @ 9:30 am

There are few politicians I still respect in Congress. Two that stand out in my mind are Sen. Mike Lee and Rep. Justin Amash. Rep. Amash published a well-argued statement on Donald Trump’s executive order on immigration yesterday, and I think it’s worth reproducing here. Emphasis is mine:

Like President Obama’s executive actions on immigration, President Trump’s executive order overreaches and undermines our constitutional system. It’s not lawful to ban immigrants on the basis of nationality. If the president wants to change immigration law, he must work with Congress.

The president’s denial of entry to lawful permanent residents of the United States (green card holders) is particularly troubling. Green card holders live in the United States as our neighbors and serve in our Armed Forces. They deserve better.

I agree with the president that we must do much more to properly vet refugees, but a blanket ban represents an extreme approach not consistent with our nation’s values. While the executive order allows the admittance of immigrants, nonimmigrants, and refugees “on a case-by-case basis,” arbitrariness would violate the Rule of Law.

Ultimately, the executive order appears to be more about politics than safety. If the concern is radicalism and terrorism, then what about Saudi Arabia, Pakistan, and others?

Finally, we can’t effectively fight homegrown Islamic radicalism by perpetuating the “us vs. them” mindset that terrorists use to recruit. We must ensure that the United States remains dedicated to the Constitution, the Rule of Law, and liberty. It can’t be stated strongly enough that capitalism creates prosperity and improves assimilation into society.

That is a stirring statement of values that makes me proud to be a supporter of Amash’s. I’m not in total agreement with him on every aspect of the statement, as I am not opposed to the notion of a blanket short-term ban on refugees from countries like Syria. Such countries are likely to send us some terrorists who pose a danger to our citizens, as well as other radical supporters of ISIS and sharia who cannot assimilate into a culture of freedom and classical liberalism. Nor am I opposed to a more general short-term ban on immigration from those countries, if done in a constitutional manner, in consultation with Congress. Perhaps my mind could be changed by arguments made in a free and open debate held in Congress, but I doubt it. Right now, like many Americans, I watch what is happening in Europe and I don’t want that to happen to my country.

That disagreement aside, freedom-loving people should be able to agree that an open debate on these matters would be preferable to a rushed diktat from the President’s pen, unreviewed by the Justice Department lawyers generally entrusted with reviewing such orders, and interpreted by partisan hacks like Steve Bannon and Stephen Miller to snare green card holders in its net, over the objections of the Department of Homeland Security. That way of proceeding is chaotic by design, and erodes the respect for the administration held by sentient portions of the citizenry, as well as federal judges who will be asked to rule on such matters.

Also worth reading is Rep. Amash’s Facebook post on the legalities of the President’s order. I won’t quote the whole thing, but here is a relevant excerpt.

It’s not lawful to ban immigrants because of “nationality, place of birth, or place of residence.” This nondiscrimination provision comes from a 1965 law (8 U.S.C. 1152 Sec. 202(a)(1)(A)) that limits the 1952 law (8 U.S.C. 1182 Sec. 212(f)) that the president cites.

It’s lawful to ban nonimmigrants for almost any reason. These are people who are temporarily visiting the United States, like tourists or students.

It’s lawful to ban refugees for almost any reason. But banning all refugees from particular countries is harsh and unwise. We still should admit well-vetted persons.

Understanding these distinctions is important because supporters of President Trump’s executive order continue to wrongly insist that the order is lawful and that President Obama did almost the same thing in 2011. And opponents of President Trump’s executive order continue to wrongly insist that banning refugees violates the Constitution or the law.

I have been writing extensively on the legality of the President’s order, here and here, and I appreciate Rep. Amash weighing in on these matters in such a clear and courageous style. So much unexamined partisan nonsense — including the meme that Obama did exactly the same thing in 2011 — has clouded the issues on this topic that it’s refreshing to see someone bucking the rubber-stamping consensus emerging on the right.

In that vein, I want to extend a personal thanks to Rep. Amash for linking one of my posts on the topic on his Facebook page. I have been a fan of his for years, and indeed, my initial post on the legality of President Trump’s order referenced Rep. Amash. In that post, I said that if the order is illegal, “it should be condemned by anyone in Congress who still cares about limiting executive overreach. That group includes Senator Mike Lee, Representative Justin Amash, and — for the next four years — Democrats.” It’s a treat to see someone you admire sharing your work with others, and I thank Rep. Amash for doing so.

[Cross-posted at RedState and at The Jury Talks Back, which is the only place where I will be commenting on this post.]

Donald Trump’s Supreme Court Pick Should Not Be Thomas Hardiman

Filed under: General — Patterico @ 2:00 am

Donald Trump announces his pick for the Supreme Court this week. The top candidates include Judge Bill Pryor of the 11th Circuit, Judge Neil Gorsuch of the 10th Circuit, and Judge Thomas Hardiman of the 3d Circuit. Some news outlets have suggested that Trump may be leaning towards Hardiman, in part because he thinks Hardiman would be easier to confirm, and in part because his sister, Maryanne Trump Barry (another 3d Circuit judge), recommends Hardiman.

Neither is a good reason to pick Hardiman now, and it’s my view that Judge Hardiman is not the best choice to replace Justice Scalia. Thomas Hardiman appears to be a good judge and might make a solid pick down the road. But not now. Not for Scalia’s seat.

By contrast, Pryor and Gorsuch appear to be suitable candidates to follow Scalia — even if they might be a bit tougher to confirm, and may not have the Maryanne Trump Barry seal of approval.

If Trump is ever going to make an aggressive pick, the time is now, when he is still in a honeymoon period. The Democrats are going to demonize anyone Trump chooses anyway, and each of the three front-runners provides ammunition that dishonest Democrats (and in some cases even dishonest conservatives) can use to twist against them. Trump should not be overly concerned with such predictable partisan nonsense.

Nor should conservative supporters of Trump care too much what Trump’s abortion-loving sister, Maryanne Trump Barry, thinks of Hardiman. Some conservatives consider Trump Barry’s endorsement to be the kiss of death, but Ed Whelan, a former Scalia clerk and someone I trust, warns against this reaction. Whelan reminds us that Barry also testified for Samuel Alito, another 3d Circuit judge . . . and while Alito is not quite in the league of Scalia or Thomas, nobody but partisan leftists are upset that he is sitting on the High Court.

But conservatives aren’t just wary of Barry’s opinion. They’re also concerned that Trump might show an outsized deference to his sister’s opinion — especially since Trump palpably has little conception of constitutional law is, or what judges do.

In short, conservatives don’t need just any judge who is going to make Donald Trump’s sister happy. Conservatives need someone who has been battle-tested. Someone who has been confronted with a choice between the correct result and the result approved by our modern-day leftist intelligentsia, multiple times, and has come out on the right side every time.

In my view, Thomas Hardiman does not have enough of a record of solid calls in controversial cases to give judicial conservatives confidence that he can withstand the heat of deciding a nationally debated case that is central to the culture wars. Of the three current front-runners, Bill Pryor and Neil Gorsuch fit that bill more closely.

Hardiman is conservative, no doubt — in a somewhat authoritarian way at times. He is solid on the Second Amendment, where his decisions give the greatest hope to judicial conservatives that he would be willing to stick his neck out for a principle. Hardiman tends to be more authoritarian on the First Amendment and other issues relating to government power.

But most fundamentally, we don’t really know whether he has the backbone to stare down leftist orthodoxy in a tough case. Understand: judging is not a matter of achieving the “right result” but a question of how you get to the result. Whether Hardiman is a consistent enough judicial conservative to replace Antonin Scalia is, in my mind, an open question. I thought John Roberts was a solid pick despite his relatively sparse record, and folks like Ann Coulter disagreed, saying we didn’t have a solid enough basis to know what Roberts would do.

Turned out she was right.

We can’t make that mistake again.

We don’t have to worry about such things if Donald Trump nominates Bill Pryor. Pryor once described Roe v. Wade as “creating out of thin air a constitutional right to murder an unborn child.” He also called Roe the “worst abomination in the history of constitutional law.” Controversial words, to be sure . . . but Donald Trump has shown that someone can win the Presidency saying things nobody thought candidates are allowed to say. Maybe Pryor could be the Donald Trump of judicial candidates — in that limited sense only, I hasten to add.

Do I praise Pryor for these statements because I am drooling for the chance to overrule Roe v. Wade? Not really. Roe should be overruled — but it seems incredibly unlikely, given the strong language of the Casey decision, that it will ever happen. Conservatives had their chance in 1992, with the Casey decision, and Anthony Kennedy blew it. Pro-lifers are not likely to get that chance again.

No, I praise Pryor for these statements because he’s right, and he had the guts to say it. Roe indeed is a stain on our constitutional history. It is easily among the top five worst decisions in the Court’s history. Bill Pryor called a pig a pig. Good for him.

I became sold on Bill Pryor when I read that he once ended a talk with a prayer, saying: “Please, God. No more Souters.” I think it might be worth quoting the last few sentences of that talk, delivered to a meeting of the Federalist Sodiety when Pryor was the Attorney General of Alabama, because it shines a light (in my view, a very positive light) on his priorities:

My concluding observation is a warning that all is not well with the Court. Each of the decisions I praised today was reached by a five to four majority. We are one vote away from the demise of federalism. And in this term the Rehnquist Court issued two awful rulings that preserved the worst examples of judicial activism: Miranda v. Arizona and Roe v. Wade. The proponents of federal power realize, however, that these results can be changed in our favor with a few appointments to the Supreme Court. Perhaps that means that our real last hope for federalism is the election of Governor George W. Bush as President of the United States who has said his favorite justices are Antonin Scalia and Clarence Thomas. Although the ACLU would argue that it is unconstitutional for me, as a public official, to do this in a government building, let alone at a football game, I will end with my prayer for the next administration: Please God, no more Souters.

Beautiful. You don’t have any question where this guy is going to stand on federalism and respect for the Constitution, do you?

Pryor has been tested as an appellate judge as well. Unlike Hardiman, who has not been confronted with many controversial decisions, Pryor has dealt with some hot-button culture war cases, and Pryor has a solid record in these cases. Pryor wrote a lengthy concurrence in Eternal Word Television Network, Inc. v. Sec’y, U.S. Dep’t of Health & Human Servs., defending the right of a television network not to participate in obtaining contraception for employees (by being forced to deliver a form to its health care plan) when doing so would violate the religious beliefs of the principals. Pryor also approved a voter ID law in Georgia in Common Cause/Georgia v. Billups. These are solid decisions that do not garner applause from the leftists in Big Media or the legal profession’s elite.

Nor is Pryor someone who disregards the law in favor of his religious or political views. In fact, one of the knocks against him among religious conservatives is one of the things I admire about him: his role as state Attorney General in bringing ethics charges against Alabama Supreme Court Justice Roy Moore. Moore had defied a federal court order to remove a large Ten Commandments monument from in front of the state Supreme Court. Moore had clearly acted unethically, and Pryor took the actions he was required to take.

Of course, Pryor’s bold statements and decisions may make him difficult to confirm. The question is whether Trump is willing to spend considerable political capital on a judge whom Democrats will try to Bork an an extremist trying to send us back to the days of back-alley abortions with coat hangers. Nothing galvanizes the radical left like a threat to their ability to ensure the continued killing of millions more babies.

If Pryor isn’t in the cards, we could do worse than Neil Gorsuch — named by ABC News for days as the most likely Trump pick. In many ways, Gorsuch is the ideal successor to Scalia, as he shares many of Scalia’s attributes. He is an engaging and entertaining writer. He is an originalist, which is the only legitimate method of constitutional interpretation — but one that Scalia did much to make respectable. Gorsuch is an ardent textualist, like Scalia, and shares Scalia’s disdain for a reliance on fickle and often misleading legislative history.

Quotes from Gorsuch in this Washington Post profile show Gorsuch’s great respect for Scalia:

“The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” Gorsuch told an audience at Case Western Reserve University School of Law in Cleveland.

Legislators “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” Gorsuch said. But “judges should do none of these things in a democratic society.”

Instead, they should use “text, structure and history” to understand what the law is, “not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

Like Pryor (and Scalia), Gorsuch has stood foursquare for religious freedoms in the face of the assault on those freedoms by the Affordable Care Act. Again, this is the type of thing that upsets the left, as does his unequivocal statement in his book that “all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong.” This seems like a fairly straightforward statement, but it is a dog whistle to the left suggesting that he would not vote their way on abortion cases.

Of course, if the left is correct about that, that just means that Gorsuch is, again, an appropriate successor to Antonin Scalia.

Where Gorsuch differs from Scalia, it is often for the better.

He appears to be less combative, which would deprive us all of entertainment value, but which might make for better relations on the Court and a better chance of pulling centrists along towards a conservative opinion.

Gorsuch also differs from Scalia for the better in his views on the Chevron doctrine: the principle that says courts will defer to executive agency interpretations of law when they are reasonable. For most of his career, Scalia tended to apply the Chevron docrtine with few questions, often showing a disturbing deference to executive agency interpretations of laws (though he seemed to hint at a slight change of heart in more recent cases). Gorsuch, by contrast, has been a fierce critic of Chevron — which is, in my opinion, a good thing, as the executive has too much power these days. Allowing the administrative state to serve as all three branches of government without genuine scrutiny from the courts is not what the Founding Fathers had in mind, and Gorsuch seems to understand this.

As I noted, ABC News has been reporting for days that they are hearing Gorsuch is the top contender for the spot. I hope they’re right. My personal choice would be Senator Mike Lee. But as an opponent of Trump’s during the election, Lee is not realistic — and Donald Trump is the President. Gorsuch “looks the part” which is also important to Trump.

But more importantly, by every metric I can assess, Gorsuch seems like the real deal. If we’re looking for a true successor to Antonin Scalia, it’s not Thomas Hardiman. But we could do a lot worse than Neil Gorsuch.

[Cross-posted at RedState. Also cross-posted at The Jury Talks Back. I’ll be commenting at the Jury link and not here, in accordance with my new policy.]


New Policy on Comments on Posts Bearing the Word “Trump”

Filed under: General — Patterico @ 11:05 pm

If the word “Trump” appears in a post, I’ll be commenting at The Jury Talks Back. I won’t be commenting here. This policy will remain in effect for the foreseeable future, until further notice.

This is for two reasons.

First, I am trying to promote commentary at The Jury Talks Back. The comments section there tends to be a little less lively than here, in part out of habit (we’re all used to commenting at the main site), and in part because I still lack a Recent Comments section there, which means it takes more effort to maintain a conversational flow. But I like the idea of the ethic at The Jury Talks Back, which is that there is a strict adherence to civil conversation. There are no personal attacks and no strawman arguments. The rule is that you behave the same way you would if I had invited you to my living room. I’d like to see more people participating there — and if the prospect of discussing the post with the blog proprietor is a plus (and hey, maybe it’s not), then I can help increase the volume of comments there.

Second, any post with the word “Trump” in it inevitably devolves at some point into personal commentary, usually accusing me of bias against Trump. Even when this sort of commentary comes from only one or two people, I find it irritating and it puts me in a bad mood. It’s pretty much impossible to defend against vague accusations like that. I keep wanting to discuss the actual issue I blogged about, but the issue gets lost when people insist on complaining about me and my views about Trump on a personal level. It’s not fun for me, and if an aspect of the blogging experience is not fun for me, then it makes me want to change it.

And for now, that means commenting at The Jury Talks Back when a post contains the word “Trump.”

People can still challenge my criticism of Trump there. They just can’t criticize me on a personal level while they do so. For now, that’s something I need. I hope readers understand.

Responding to Andrew McCarthy on the Legality of Trump’s Immigration Order

Filed under: General — Patterico @ 4:00 am

Yesterday morning I linked and discussed an op-ed in the New York Times by David J. Bier, arguing that President Trump’s immigration order signed yesterday is illegal. Bier is described as “an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.” Andrew McCarthy at National Review responded to Bier with a piece that purports to rebut Bier’s analysis. I am not an immigration lawyer and do not claim any expertise in this area, but I’m capable of reading a statute and a legal argument, and I thought a post that analyzed the arguments of Bier and McCarthy might be useful to people interested in the topic.

Before I get into the weeds, let me make a couple of general observations.

First, as Bier concedes, to the extent that Trump’s order purports to suspend refugee status for refugees from Syria, Iraq, and other places, I believe it can do so — at least to the extent that no determination has yet been made with respect to a particular refugee. The controversy is not over refugee status but a more general suspension of immigration (the details of which I will discuss below.)

Second, Bier’s argument is not that the United States has no control over its borders, but that decisions to deny immigration to everyone from a particular country is a decision that must be made by Congress, not the President. Nothing in Bier’s argument says the U.S. is helpless in the face of developments in another country.

Third, this post does not address a judge’s decision last night granting a stay of certain actions pursuant to Trump’s executive order. The analysis of this post may be relevant to the litigation of that case, but we don’t know yet, as the judge has not yet released a written explanation of her reasoning.

Now, to the details. Bier argues: “The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin.” At issue is this section of Trump’s order:

I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

Bier argues that suspending entry of people from specific countries, as Trump’s order does, amounts to discriminating on the basis of nationality or place of residence, in violation of 8 U.S.C. § 1152:

Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

Bier says: “Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between ‘the issuance of a visa’ and the ‘entry’ of the immigrant. But this is nonsense. Immigrants cannot legally be issued a visa if they are barred from entry.”

Bier notes that Trump relies in part on a 1952 law “that allows the president the ability to ‘suspend the entry’ of ‘any class of aliens’ that he finds are detrimental to the interest of the United States.” But, Bier argues, this provision was overruled by the later 1965 amendments present in section 1152 quoted above.

McCarthy responds to this argument in several ways. His arguments are dismissive of textualism, and give excessive deference to executive power.



Judge Issues Nationwide Injunction on Portions of Trump’s Immigration Order

Filed under: General — Patterico @ 8:49 pm

A judge has issued an order temporarily staying portions of Donald Trump’s executive order, signed yesterday. The order is here. Relevant government officials are:

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States.

The bottom line here is that people already approved to come into the country are not going to be put on a plane tonight and taken back.

More as developments occur.

Mea Culpa Irony: Liberal Media Blames Political Correctness For Selective Reporting And Arrogant Dismissal Of Americans In The Heartland

Filed under: General — Dana @ 5:24 pm

[guest post by Dana]

A little confessional from NBC’s Chuck Todd about the media’s lack of honesty in reporting about the presidential campaign:

“Where I think political correctness got in the way of what we all knew as reporters and didn’t fully deliver was how hated the Clintons were in the heartland,” the “Meet the Press” host admitted Thursday to former Bush White House press secretary Ari Fleischer in a interview for the “1947” podcast.

“And I think it was a fear of, ‘Oh, is it going to look like it’s sexist, anti-woman if we say that?’” he added, pointing out that on the hustings he saw numerous “Hillary for Prison” signs adorning the front yards of rural America.

“I think we underplayed it a little bit out of political correctness fears,” Mr. Todd said. “No member of the press corps wants to look like they’re singling out a group and making a group feel bad, right, whatever that [group] is.

“If we sort of were straight-up honest and blunt about hey do we understand the level of hatred that’s out there and you know, all the Hillary for Prison signs that are out there, we certainly would have at least made the viewer know, hey, you know, she’s not well-liked in some places in this country in ways that’s times 10 when it comes to Trump,” he said.

It’s deliciously rich that the liberal media was rattled by fears of a potential backlash from the liberal P.C. crowd. So much so, they willfully chose to be less than truthful about what was happening in real America, not only to give cover to Hillary Clinton but to protect themselves from being attacked by the more powerful faction of their tribe. Unbelievable! A bunch of junior high school girls dressed up as professional journalists who were afraid they wouldn’t get to eat lunch at the popular table if they spoke the truth. Not only does this again confirm that the media worked to protect a candidate, but they also worked to project a more favorable public image of that candidate as well. Ultimately, this capitulation to political correctness only served to give more power to the insatiable appetites of America’s unique social caste system. It also served to give a clear reminder to Americans just where the mainstream media’s loyalty continues to reside. Fools that they are, though, because of the media’s weakness, they ended up feeding the very beast they were afraid of being devoured by.

In addition, the hypocrisy of Todd’s claims cannot go ignored. To even give voice to an asserted belief that the press corps didn’t want people to think they were singling out a particular group and make them feel badly is disgraceful. Because, as any resident of the heartland who still has his teeth can tell you, by not accurately reflecting the views of those in that place of America, Todd and his colleagues willfully made a value judgement about the worth and relevance of one group of Americans versus another. By doing this, the media dismissed as less valuable, and inconsequential, a group of Americans that did not reflect their own tribe’s preferences, nor the preferences of their favored candidate. Also, by doing this, these members of the press did, with full intent, invalidate a large swath of the population’s own truth. How on earth does that not evidence a singling out of a particular group and make them feel badly?

Unfortunately, the media followed their own spineless need to self-protect and were willing to sacrifice truth to do so. But if that decision also happened to protect their candidate, then hey, silver lining.

The interview with Todd concludes with this jewel of self-indictment:

Mr. Todd rejected the premise that NBC News or the media in general is driven to “undermine” Donald Trump’s presidency, but admitted there was a “coastal” bias in story selection during the 2016 presidential campaign that poorly served a national audience.

“What do I think we did wrong in this election? The biggest thing is we didn’t tell the stories of all Americans,” Mr. Todd said. “We told the stories of coastal Americans. And ultimately, that’s like the larger trust issue.”

“We were more likely to do a story about the Dreamer that might get deported with new policies than we were about the 19-year-old opioid addict who feels hopeless in Rolla, Missouri. And, I’m not, I don’t pick on Rolla, Missouri, it’s, my point is that we just, we did not equally tell those stories very well, right, and, we were not, that is an out-of-touch issue.”

Oh for godsake, how does someone become so deaf, dumb and blind to their own foolishness? Even in his effort to flesh out his quasi-mea culpa, he remains absurdly clueless. A 19-year-old opioid addict in Rolla, Missouri? Because that’s the only kind of story coming out of a Southern hillbilly haven?

“Coastal Americans.” It reads like a new line from Ralph Lauren: Coastal Americans: Money, education, class, and of course, year-round tans. Of course, with a pedigree like that, there could only be stories that reflect selfless efforts at protecting the underprivileged and persecuted, right? Like, say, Dreamers.

It’s simply breathtaking that even when analyzing the reporting by the press during the 2016 Presidential campaign and admitting it was flawed and biased, Chuck Todd reveals he still hasn’t got a damn clue.

(Cross-posted at The Jury Talks Back.)


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