This is really quite good.
The Ninth Circuit has declined to immediately vacate the order from the Seattle judge halting enforcement of most parts of President Trump’s executive order on immigration. The order is here. They have set an expedited briefing schedule for the hearing on the government’s emergency motion, with the final papers due at 3 p.m. tomorrow, and a ruling to follow at any time after that.
The District Judge provided almost no legal justification for his order (which is not entirely uncommon in a TRO situation, although he might have given us a hint, given the level of importance of the issues). There is, however, video of the hearing, which you can see here. I’ve not watched the video in its entirety, but my commenter DRJ has, and she provides this summary of the states’ arguments, which she authorized me to reproduce in a post. Because of the lack of legal authority in the judge’s order, understanding the states’ arguments provides a window into the basis for that order. Here is DRJ’s analysis, with very light editing:
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 affected 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 commentary 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 President’s 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 v. EPA, but also on the doctrine that the States have suffered injury as proprietors. The proprietary argument is that the Order unduly affects State tax revenue, and higher education institutions that employ foreigners who are affected by the Order (the employers of persons who are legally in the U.S. and were unexpectedly caught overseas and can’t return, the employees and family of employees who have been affected by the Order, and persons who would be affected 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 U.S. v. Texas, the immigration case in which Judge Hanen and the 5th Circuit said additional State costs/burdens in lost driver’s 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 recent days, there have been 5 different Administration statements regarding 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 a precedent that the left might regret.] And the States acknowledge that while they have no authority for a State suing the federal government over an Establishment Clause case, they believe there have not been any Orders like this.
Very illuminating. I thank DRJ both for the analysis and for granting me permission to use it in a post.
DRJ’s comment that “[t]he States apparently did not assert discrimination based on national origin for the purpose of the TRO” may signal that the debate among David Bier, Andrew C. McCarthy, myself, and my commenter SWC may not be central to the immediate litigation in the Ninth Circuit. (For that debate, see posts here, here, and here, and the links therein.) However, the Government’s emergency motion in the Ninth Circuit (h/t to Kevin M. for the link) does raise the issue, and make arguments quite similar to those made by SWC in comments to my posts. Here’s the Goverment’s initial argument on that issue:
Washington argued in district court that the President’s authority under § 1182(f) is limited by 8 U.S.C. § 1152(a)(1)(A), which provides, with certain exceptions, that “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.” But this restriction does not address the President’s authority under § 1182(f) to “suspend the entry” of aliens, which is an entirely different act under the immigration laws. An immigrant visa does not entitle an alien to admission to the United States, and even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010). There is no inconsistency between § 1152(a)(1)(A) and the President’s issuance of the Order under § 1182(f).
I thought Bier disposed of that pretty well in his original op-ed:
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. Thus, all orders under the 1952 law apply equally to entry and visa issuance, as his executive order acknowledges.
I have shown that: 1) the two provisions are indeed in conflict when a President issues an order discriminating against immigrants on the basis of nationality or place of residence; 2) the only way to resolve this conflict is to view the President’s power to suspend entry under section 1182(f) as an exception to section 1152(a); and 3) Congress foreclosed the possibility that section 1182(f) functions as such an exception, by listing other exceptions but pointedly refusing to list 1182(f) as one.
The Government continues:
In any event, even if there were thought to be some potential inconsistency between § 1152(a)(1)(A) and § 1182(f) , 8 U.S.C. § 1152(a)(1)(B) makes clear that the statute does not “limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications * * *.” This establishes that the Order is not covered by the restrictions of subsection (A), because the Order directs a review and revision of procedures for processing of visa applications and adopts procedures for a temporary suspension and then resumption of processing of certain visa applications following that review. See, e.g., Order §§ 3(a), 5(a).
This is also an argument that SWC has made. Again, I think Bier’s retort makes sense:
To resolve this case, Congress amended the law in 1996 to state that “procedures” and “locations” for processing immigration applications cannot count as discrimination. While there is plenty of room for executive mischief there, the amendment made clear that Congress still wanted the discrimination ban to hold some force. A blanket immigration prohibition on a nationality by the president would still be illegal.
In other words, the provision allowing the Secretary of State to set “procedures” is not fairly read as a provision that swallows the nondiscrimination provision whole. However, this is admittedly a close issue, and how a court may rule on it is likely to depend on the particular judges and their general pre-existing views on these matters.
The Government concludes (on this topic):
Furthermore, while the review is pending, the Secretaries of State and Homeland Security have discretion to grant visas on a case-by-case basis. Id. §§ 3(g), 5(e). Washington’s interpretation of the two provisions, in contrast, would lead to the untenable result that the United States could not suspend entry of nationals of a country with which the United States is at war, which would raise a serious constitutional question about Congress’s ability to restrict the President’s Article II authority to ensure the nation’s security.
I don’t think this follows at all. If we were actually at war — a war declared by Congress, and not some amorphous “war on terror” or “war on drugs” or other made-up “war” that is not actually a “war” as defined by the Constitution — then the President’s Article II authority would certainly loom far larger. I would argue that Congress’s decision to declare war would constitute an implicit grant of authority to the President to take necessary actions as Commander in Chief in the area of protecting the country from invasion by its enemies. In the absence of a declared war, however, I think we are back to the Youngstown analysis that I have discussed in my previous posts. Congress’s power in the area of immigration and naturalization is plenary, and only if Congress has delegated that power — a statutory inquiry — or if a state of declared war increases the President’s Article II powers, can a President act in contravention of a law like section 1152(a)’s nondiscrimination provision, which has been duly passed by Congress and signed by a President.
We’ll know a lot more when the Ninth Circuit rules. This is obviously headed towards a 4-4 Supreme Court, so the Ninth Circuit’s ruling may be extra critical at this juncture.
Thanks again to DRJ.
[Cross-posted at The Jury Talks Back.]
Mitch McConnell, in an interview with Jake Tapper this morning, called Vladimir Putin a “thug,” contradicting President Trump’s apologia for Vladimir Putin’s murderous regime:
JAKE TAPPER: Let’s start right there. Are you comfortable with the President of the United States seeming to equate U.S. actions with those of Putin’s authoritarian regime?
McCONNELL: Well, look: Putin’s a former KGB agent. He’s a thug. He was not elected in a way that most people would consider a credible election. The Russians annexed Crimea, invaded Ukraine, and messed around in our elections. No, I don’t think there’s any equivalency between the way that the Russians conduct themselves and the way the United States does.
This is quite a different attitude than that shown by President Trump in his interview with Bill O’Reilly, set to air today. Jay Caruso mentioned that interview here (and Marco Rubio’s criticism of it here), but I don’t think we’ve shown you the video yet — so here is the relevant portion of Trump’s interview, taken from the clip of Tapper’s interview with McConnell:
TRUMP: I say it’s better to get along with Russia than not, and if Russia helps us in the fight against ISIS, which is a major fight, and Islamic terrorism all over the world —
TRUMP: — major fight, that’s a good thing. Will I get along with him? I have no idea. It’s very possible —
O’REILLY: But he’s a killer, though. Putin’s a killer.
TRUMP: A lot of killers. You got a lot of killers. What, you think our country’s so innocent?
Let’s put aside the screaming hypocrisy of every person who pissed and moaned about Obama’s apology tour, but defends Trump on this. It’s said that money is the mother’s milk of politics, but I submit that’s wrong: the real mother’s milk is the willingness to engage in absurd, laughable hypocrisy. If Obama had said something like this, the right would have lost its collective you-know-what over it. But as I said, let’s put that aside.
This is an outrageous and unacceptable comment coming from the President of the United States. Some will no doubt argue that a comment like this is necessary for diplomacy. That is hogwash. Not only is it unnecessary, it’s counterproductive. In his book Winter Is Coming, Garry Kasparov made the following observation:
Totalitarian regimes everywhere love to tell their citizens that for all their professed interest in democracy and human rights, Americans and Western Europeans are just as corrupt as their own leaders.
Donald Trump is confirming that exact false claim — and he is doing so as President of the United States. This is not the tradition of American presidents. As Kasparov observes:
Ronald Reagan would talk with his Soviet counterparts but, as Václav Havel once told me, Reagan would also toss the list of political prisoners on the table first!
So. It’s nice to see McConnell telling the truth about Putin, while Trump is doing nothing but justifying Putin’s murderous dictatorship.
Why, then, do I say McConnell shows only “slightly” more cojones than Trump? Because he still won’t criticize Trump:
TAPPER: Does it trouble you that he said this? I mean, I’m trying to imagine your response if President Obama had defended the murderous regime of Putin by saying: “You think our country’s so innocent?”
McCONNELL: Well, look. I’m not going to critique the President’s every utterance, but I do think America’s exceptional, America is different. We don’t operate in any way the way the Russians do. I think there’s a clear distinction here that all Americans understand, and no, I would not have characterized it that way.
McConnell says there’s “a clear distinction here that all Americans understand” — and Tapper wonders whether that is true of our President . . . to which McConnell gives the same bland sort of answer.
It’s not enough for Mitch McConnell to call Putin a thug. He should be calling out Trump, too.
Finally, a word about the possibility of a strategic alliance with Putin to fight terrorism. Is that a good idea? It’s not impossible. We need partners to fight terror. As the right constantly points out, we allied with Stalin in World War II. Nixon reached out to Mao, the greatest mass murderer in human history.
But any such cooperation has to be done with open eyes. A responsible president has to consider more than simply how to achieve the immediate goal in front of his face. He also has to consider how his cooperation with bad people in that effort will strengthen those bad people. America’s persistent engagement in what Thomas Sowell called “Stage One thinking” has caused it to arm Islamic terrorists, and to create and strengthen new enemies, for decades.
In determining whether to engage in a cooperative effort with Putin, we must assess the entire expected result of the cooperative effort — including the extra legitimacy and power it gives Putin.
But any way you slice it, Trump’s comments are a huge and unnecessary propaganda bonanza for Putin and every other state killer across the globe.
California State Officials To Residents: If You Don’t Walk, And Talk And Think Like Us, We Will Hang You Out To Dry
[guest post by Dana]
In the aftermath of the recent rioting at UC Berkeley, where extremists physically attacked and injured individuals hoping to hear Milo Yiannopoulos speak, it was dismaying to see the casual response of California’s state officials toward the mayhem and toward the individuals committing acts of violence. Equally disturbing was the casual disregard of the First Amendment rights by these same state officials. As a resident of the state, and one who checks the box of several protected identity groups, I find this lack of concern particularly disturbing. We now know with certainty that a number of top state officials are not equal-opportunity defenders of all Californians. They are not committed to making a public stand against all acts of violence and bigotry, and are not equal-opportunity protectors of our right to speech and to peacefully assemble. Because, as they have clearly demonstrated, a vigorous condemnation of violence and an equally vigorous condemnation of speech being shut down is reserved for a select group. And that group is the one that espouses only the liberal company line. Understanding this, where does that leave Golden State residents who do not hold to the tenets of liberalism? Nowhere safe, that’s for sure. Because when my elected officials cannot even agree on the very basic principle that all acts of violence demand to be wholly condemned by anyone in state leadership, and that any efforts to shut down speech are likewise to be equally condemned, we are left with a unique form of state-sanctioned bigotry that endangers any who dare to think and speak differently.
Consider that California Gov. Jerry Brown, who took the time to promise immigrants, both legal and illegal, that the state “will defend everybody — every man, woman and child — who has come here for a better life and has contributed to the well-being of our state,” has remained silent in the face of the Berkeley rioting and its aftermath. How is his deafening silence not a tacit approval of the violent and oppressive acts of rioters? Shame on him.
Let’s consider some of the responses of other California officials. Leading the pack in fundraising for the 2018 state governor’s race, current Lt. Gov. Gavin Newsom equates Milo Yiannopoulos with the violent rioters, and equates vitriol with violence, while conveniently ignoring that pesky issue of speech. Further, it is President Trump who is the target of his wrath:
Hatred has no home on California’s public university campuses in any form, from vitriol to violence. We witnessed both extremes at UC Berkeley’s campus last night, from the racism and misogyny of fly-by-night provocateur and white supremacist Milo Yiannopoulos, to the excessive response of a *few protestors. Both create fear, neither embody freedom.
Freedom of speech lives in the fabric of UC Berkeley; Cal is everything Trump University is not. President Trump’s asinine threat to pull funding from Cal showed zero awareness of the real-world implications of a President’s words and actions. Stripping federal funds from UC would only create more innocent victims and more Trump carnage.
President Trump is quick to attack American students, immigrants, women, the LGBT community, journalists, and our international allies but he is either too weak or too ignorant to stand up to white supremacists and others who spew hatred. That’s why the President and his extremist acolytes like Yiannopoulos need to hear from the resistance, loudly and repeatedly. We must continue to step in and stand up to resist reckless rhetoric and actions in a peaceful and forceful manner.
Newsom’s claims of *a few protestors depends on how you define “few”. And clearly, the definitions of “peaceful” and “forceful” are up for debate as well…
But for Godsake, can we just not all agree, no matter our political preferences, that freedom of speech obviously no longer lives in the fabric of UC Berkeley? Weren’t we all just witness to that fact? Reality isn’t what we wish it to be, or need it to be. It simply is what it is. And sometimes that hurts our political side of the aisle. But it can also shine a spotlight on that which needs to be admitted to, and worked on to change.
This response is from California Senate Leader Kevin de Leon:
From Congresswoman Barbara Lee, whose district includes Berkeley:
From Congresswoman Karen Bass, representing California 37th US Federal Congressional District, who didn’t even mention the rioting and violence:
And, from the State of California’s executive branch, as well as state politicians who are being named as potential contenders for the governorship and/or have already officially announced they are running, including Gov. Jerry Brown, Sen. Kamala Harris (former state AG), state Attorney General Xavier Becerra, Sen. Dianne Feinstein, Secty of State Alex Padilla, John Chiang, State Treasurer, former State Superintendent Delane Eastin, Mayor of Los Angeles Eric Garcetti, and former Mayor of Los Angeles Antonio Villaraigosa, no condemnation of the violence, no advocacy for speech, but instead, nothing but crickets.
(Cross-posted at The Jury Talks Back)