Patterico's Pontifications


Michael McConnell’s Criticism of the Ninth Circuit Decision on Trump’s Immigration Order

Filed under: General — Patterico @ 9:30 pm

Stanford law professor and former federal appeals court judge Michael McConnell has a piece at that criticizes the Ninth Circuit decision on Trump’s executive order. The piece is titled A Flawed Restraining of a Flawed Order.

McConnell’s piece is notable not only for what it says, but also what it doesn’t say . . . and for what it concedes.

Before getting to the legal analysis, McConnell makes this observation:

Much of the interest, and hysteria, was predicated on a demonstrably false characterization of the Order as a “Muslim ban.” President Trump has only himself to blame for that misunderstanding, since he called for such a ban on the campaign trail and his Administration offered almost no explanation of the narrow scope or the justification for the Order. It was almost as if the Administration hoped to set off a hysterical and uninformed debate, or to throw the immigrant and refugee community into a state of fear and uncertainty. I cannot believe that to be true, but sometimes carelessness and haste have the same effect that malice would.

. . . .

The incompetent and overhasty implementation of the executive order, leading to chaos and distress, gave the Order an aura of illegitimacy. The President’s inappropriate personal criticism of the judges and the judicial process did not help his case.

It is not the goal of this post to detail McConnell’s legal arguments in their entirety, but I’ll give a quick synopsis, together with my own observations when appropriate.

McConnell argues that the court’s finding of standing is unprecedented, declaring: “It is like holding that a grocery store could challenge taxes imposed on its customers because they will have less money to spend at the store.” This dismissive pronouncement, in my opinion, fails to adequately address the cases cited by the Ninth Circuit, such as Craig v. Boren, which is not far removed from the grocery story hypothetical that McConnell flatly deems absurd. As the Ninth Circuit stated:

Vendors, for example, “have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function.” Craig v. Boren, 429 U.S. 190, 195 (1976).

In Craig v. Boren, a vendor of beer was allowed to challenge an Oklahoma statute that prevented her from selling 3.2% beer to young males while allowing sales of that beer to young females. The vendor had standing, said the Supreme Court, explaining:

The legal duties created by the statutory sections under challenge are addressed directly to vendors such as appellant. She is obliged either to heed the statutory discrimination, thereby incurring a direct economic injury through the constriction of her buyers’ market, or to disobey the statutory command and suffer, in the words of Oklahoma’s Assistant Attorney General, “sanctions and perhaps loss of license.” Tr. of Oral Arg. 41. This Court repeatedly has recognized that such injuries establish the threshold requirements of a “case or controversy” mandated by Art. III.

This sounds a lot like McConnell’s grocery store example, and I don’t think McConnell’s analysis sufficiently addresses cases like this.

McConnell tries to distinguish cases cited by the Ninth Circuit “where the plaintiff has a special relation with the alien” by declaiming: “The State has no special relationship with the affected aliens.” That too is not obvious to me. The opinion cites the harms to state universities unable to accommodate visiting scholars, interview prospective employees, or bring sponsored interns to their campuses. It is not obvious to me that these relationships are less close than the relationships of beer vendors to their customers.

A better standing argument, in my opinion, was made by Dan McLaughlin, who believes that the ruling on standing regarding “current or planned faculty or students from the seven countries” was a “reasonable enough ruling, as far as it goes” but such a ruling

would normally not give [the states] standing to challenge other aspects of the executive order in which they have no concrete interest, such as the 120-day suspension of the refugee program (Section 5(a)), the indefinite ban on Syrian refugees (Section 5(c)), or the provisions of the order requiring future consideration of religious-minority status for refugees claiming religious persecution (Sections 5(b) and 5(e)).

This complaint relates to McConnell’s next complaint, which relates to the merits. McConnell says that the Due Process claims brought by the states do not apply to all classes of aliens. Before I address that argument, which may well have some merit, let me first note an important concession by McConnell.

Importantly, McConnell concedes — by noting that the Government had conceded in court — that “the executive order never properly applied to green card holders” and also “could not apply to previously admitted aliens temporarily abroad.” It is a somewhat overlooked aspect of this litigation and this decision that this assertion is almost entirely noncontroversial, to those who are paying attention to the details. Both supporters and critics of the order admit, for the most part, that you can’t apply it to green card holders. Most also admit that previously admitted aliens who just happen to be out of the country for a short time could not legally be prevented from returning.

The real issue appears to be: what about other aliens, like those who have never been in the country? Surely it’s far from obvious that they have a due process right to entry. This is the weakest part of the Ninth Circuit decision. As McConnell says:

The court then said: “More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.” That is precisely backwards. If the State of Washington’s case is a facial challenge, the existence of a nontrivial number of constitutional applications is reason to reject the challenge. If the State of Washington’s case is an as-applied challenge, relief must be confined to those applications that are unconstitutional.

The Ninth Circuit tries to get out of this bind by arguing that the Government’s proposed remedy still might leave some Due Process issues unresolved. This strikes me as a bit of a copout — a by-product of the rushed nature of the litigation. Rather than taking the time to decide which parts of the order are truly probably unconstitutional, the Court in essence throws up its hands and blames the Trump administration for forcing this issue on them so suddenly. If the mystery judge who has called for en banc review of the decision has a problem with anything, it’s probably this aspect.

I want to conclude the post by knocking down a couple of pieces of Conventional Wisdom I see circulating among people on Twitter, including some smart people. One such article of faith is that the Court screwed the pooch by failing to cite 8 U.S.C. 1182(f). To people not analyzing the case too closely, the entire case begins and ends with that statute. Indeed, Trump had a political (if not a legal) masterstroke in reading the provision out loud to a group of sheriffs. People on Twitter are circulating a viral image of the text of 1182(f) with the important parts highlighted, and several people have tweeted that image to me triumphantly, as if to say: “AHA! You never heard of THAT now, didja?!”

Well, yeah. That statute has been central to several posts I have done about this issue. Here’s the thing, though. It’s a statute. If the Ninth Circuit thinks the executive order has due process problems — and remember, it plainly does as to green card holders and other visa holders — those are problems rooted in the Constitution. And the Constitution trumps any Congressional statute. The Ninth Circuit panel may not be right about the ways that the order allegedly restricts the status of aliens who have obtained no visa and hold no green card — but to the extent that they are right about any of the constitutional claims (and as I noted above, they are right about some of them, as even the administration and McConnell concede), those constitutional concerns supersede any statute passed by Congress, no matter how bright the highlighting on its text.

The second piece of Conventional Wisdom out there is that the Ninth Circuit based its decision on Trump’s campaign rhetoric, to find that this was a “Muslim ban.” I had no fewer than three Twitter users throw that assertion at me in the course of about ten minutes this evening. The problem is, that is flatly untrue. As I observed before, two of the judges seemed convinced by this argument at oral argument, but in order to get the third judge on board with a unanimous per curiam opinion, the court explicitly reserved its ruling on this issue. This was not the basis for the ruling, no matter how many times Conventional Wisdom says it is.

Again: as I have said before, while parts of this decision might be wrong (I am no immigration law expert, remember), it’s clearly not as outrageous as it is being portrayed by many. The best course of action is not to take it to the Supreme Court (an option that the administration has wavered on today) but to have Trump write a new order that doesn’t apply to green card holders or other visa holders, and that does not violate rules on immigration set by Congress — and then to work with Congress on any aspects that require Congressional involvement.

In other words, follow the law and act like an adult. Horrors! What will these damned judges ask him to do next?

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

Woman Is Harrassed By Protesters And Physically Blocked From Entering Public Building, But To Intolerant Left, She’s Just Getting Schooled

Filed under: General — Dana @ 6:47 pm

[guest by Dana]

Just imagine if media outlets had reported that Sen. Elizabeth Warren “got a lesson” in Senate rules a few days ago on the Senate floor… Holy cow. It would have been the Women’s March all over again. On. Steroids.

So, Education secretary Betsy DeVos made her first visit to a public school in Washington D.C. today. That she was harassed by protesters who prevented her from entering the public school is unsurprising. And because those on the left have a well-earned reputation of intolerance toward those who think differently or view the world through a different lens, it was equally unsurprising to see such an extraordinary level of intolerance on display:

Interestingly, media outlets seemed to easily overlook the harassment of DeVos and justify it with a victorious She had it coming! tone. It’s especially amusing when you consider that all she did was attempt to enter a public building. Imagine had she actually violated a provision in the rules of the Department of Education!

Here are a few examples of media framing the incident.

From the Daily Kos:


From The Washington Post:


From The New York Times:


Fortunately for DeVos, #ShePersisted, and entered the school elsewhere, allowing her to meet face-to-face with faculty and administrators.

But frankly, with ratings like these, I’m surprised all of the public schools in D.C. aren’t clamoring for the Education secretary to visit:

WASHINGTON — D.C. has the second to worst public school system in the United States, according to a new study from WalletHub, which analyzed dropout rates, math, reading and SAT scores, among other metrics.

The city has the lowest math, reading and SAT scores of any school system in the U.S. It has the highest dropout rate and ranks last in school safety, according to the study.

The city’s graduation rate is disturbingly low, committee members reported: In 2014, the rate was 59 percent for public schools and 69 percent for charter schools.

(Cross-posted at The Jury Talks Back)


Trump Favorably Cites Blog Post That Called His Executive Order “Incompetent Malevolence”

Filed under: General — Patterico @ 10:00 am

This morning Donald Trump tweeted:

The blog post he quotes, at Benjamin Wittes’s LAWFARE blog, is here. It does say what Trump says, it’s true:

Remarkably, in the entire opinion, the panel did not bother even to cite this statute, which forms the principal statutory basis for the executive order (see Sections 3(c), 5(c), and 5(d) of the order). That’s a pretty big omission over 29 pages, including several pages devoted to determining the government’s likelihood of success on the merits of the case.

But the post also says that “[t]he Ninth Circuit is correct to leave the TRO in place” — and also says the promulgation of Trump’s executive order was accomplished with “incompetent malevolence.”

Eventually, the court has to confront the clash between a broad delegation of power to the President—a delegation which gives him a lot of authority to do a lot of not-nice stuff to refugees and visa holders—in a context in which judges normally defer to the president, and the incompetent malevolence with which this order was promulgated.

To be fair to Trump, though, that’s the end of a 700-word blog post. So many words! The President is a busy man, and cannot be expected to read the entirety of something he quotes.

UPDATE: Hahahahaha. The tweet came from something our President saw on the teevee. This segment came 12 minutes before his tweet.

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

Trump Unfairly Attacks New York Times for “Fake News”

Filed under: General — Patterico @ 9:15 am

Donald Trump tweeted this morning:

He is referencing this article in the New York Times, the lede of which stated, at the time Trump made his tweet:

President Trump told President Xi Jinping of China on Thursday evening that the United States would honor the “One China” policy, reversing his earlier expressions of doubt about the longtime diplomatic understanding and removing a major source of tension between the United States and China since shortly after he was elected.

Two paragraphs later, the article later states:

The concession was clearly designed to put an end to an extended chill in the relationship between China and the United States. Mr. Xi, stung by Mr. Trump’s unorthodox telephone call with the president of Taiwan in December and his subsequent assertion that the United States might no longer abide by the One China policy, had not spoken to Mr. Trump since Nov. 14, the week after he was elected.

So what happened here? Did Trump really miss the first line of the article? Did he really misread “had” as has? No; what he did is cite a version of the article that was true when it was published. Mediaite explains:

But Trump is citing a version of the article that was written before he spoke with Xi Thursday night. At the time the article was written, Trump actually hadn’t spoken to Xi since November and The Times story was completely factual.

The article was updated late Thursday night once the White House released its readout of their newest call. The article now reads that Xi “had not spoken to Mr. Trump since Nov. 14, the week after he was elected,” and the headline was updated from “China’s President, Stung by Taiwan Call, Is Said to Shun Trump,” to “After Silence From Xi, Trump Endorses the ‘One China’ Policy.”

As best as I can tell, Mediaite’s account is accurate. According to a useful site that does comparisons of revisions in news articles (a site linked by Mediaite), the language Trump quoted was contained in a version of the article published at 9:38 p.m. Eastern last night. I can’t find a definite time that the news of Trump’s phone call was released, but Fox News had a tweet calling it “breaking” news as of 11:21 p.m. Eastern.

By this morning, when Trump tweeted out his “fake news” complaint, the story had been updated to reflect the new phone call.

It looks like what happened was: the New York Times published its story, Trump released the news of the phone call, and the New York Times updated its story. “Fake news”? Not so much.

More important than the quibbles over Trump’s unfair attack on the Times is the change in policy. The thrust of the original version of the Times article was that Xi was snubbing Trump over his refusal to sign on to the “One China” policy. Then Trump made a great deal and acknowledged it. Now they’re the best of friends! Yay!

Now, I’m not saying that Trump’s team got wind that the New York Times was going to do a news article about Xi snubbing Trump, and made a change in policy so they could call the New York Times fake news. That would be crazy. What I am saying is that the timing of all this is interesting. There’s a story there somewhere.

But it doesn’t mean that Trump’s “fake news” complaint is fair.

This time.

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

UH-OH: Looks Like Michael Flynn Talked to Russia About Sanctions After All

Filed under: General — Patterico @ 8:00 am

Not good:

National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.

Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.

Flynn on Wednesday denied that he had discussed sanctions with Kislyak. Asked in an interview whether he had ever done so, he twice said, “No.”

On Thursday, Flynn, through his spokesman, backed away from the denial. The spokesman said Flynn “indicated that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

There’s one reason and one reason only that you back away from a denial like that: you’ve been caught. Flynn’s previous statements hung Mike Pence out to dry:

“They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russia,” Pence said in an interview with CBS News last month, noting that he had spoken with Flynn about the matter. Pence also made a more sweeping assertion, saying there had been no contact between members of Trump’s team and Russia during the campaign. To suggest otherwise, he said, “is to give credence to some of these bizarre rumors that have swirled around the candidacy.”

Now a lot of people are “suggesting otherwise”:

Neither of those assertions is consistent with the fuller account of Flynn’s contacts with Kislyak provided by officials who had access to reports from U.S. intelligence and law enforcement agencies that routinely monitor the communications of Russian diplomats. Nine current and former officials, who were in senior positions at multiple agencies at the time of the calls, spoke on the condition of anonymity to discuss intelligence matters.

All of those officials said ­Flynn’s references to the election-related sanctions were explicit. Two of those officials went further, saying that Flynn urged Russia not to overreact to the penalties being imposed by President Barack Obama, making clear that the two sides would be in position to review the matter after Trump was sworn in as president.

. . . .

An administration official stressed that Pence made his comments based on his conversation with Flynn. The sanctions in question have so far remained in place.

So far it appears to be unnamed officials pushing this story, but the fact that Flynn’s spokeshole is backtracking leads me to believe they’re on to something. It’s perhaps worth noting that, in what could be a coordinated effort on the part of the sources, the New York Times is reporting the story as well as the Washington Post (the source linked above). The Times there is a transcript of the phone conversation in question. The communications are described as “unambiguous and highly inappropriate” by the anonymous officials quoted in the Times.

I don’t think this issue is going away.

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

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