Michael McConnell’s Criticism of the Ninth Circuit Decision on Trump’s Immigration Order
Stanford law professor and former federal appeals court judge Michael McConnell has a piece at Hoover.org 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.]
I will start out by noting that the beer vendor was not a third party herself. SHE was directly prevented from serving certain customers. That is not the same as if she was protesting a “No Left Turn” sign that reduced potential traffic past her store, which is the kind of injury the state is claiming in the better assertion of standing.
Kevin M (25bbee) — 2/10/2017 @ 9:38 pmThe 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.
And, again, there are no restrictions placed on the university. There may be people they would like to have that are unavailable, but it has nothing to do with any onus placed on the state. Tnird party vs first (or second) party is a clear difference.
Kevin M (25bbee) — 2/10/2017 @ 9:42 pmBut besides that standing question, the rest of this is pretty spot on. Particularly the duty of the courts to at least attempt to pick out the wheat from the chaff. Thanks for this, Patterico.
Kevin M (25bbee) — 2/10/2017 @ 9:48 pmI think the Ninth Circuit analogizes the universities’ teaching and research missions to the beer vendors’ mission to sell beer.
I think McConnell is way, way too dismissive of the court’s standing arguments. That doesn’t mean the court is right. I am not a standing expert. But McConnell flippantly dismisses stuff that is not so easily dismissed.
Patterico (115b1f) — 2/10/2017 @ 9:53 pmAnalog using in a clearly distinguishable fact pattern is bad legal analysis.
Shipwreckedcrew (3d65c3) — 2/10/2017 @ 10:17 pmNo one is saying that they can’t teach, nor that they cannot teach to anyone who presents themselves. The potential student base is reduced, but that is more akin to the beer vendor’s foot traffic than any direct limitation on the vendor.
Would the vendor have standing to sue if the city removed a crosswalk two blocks from their store, and there was 0.05% less foot traffic?
Kevin M (25bbee) — 2/10/2017 @ 10:19 pmThis reminds me of Wickard, but backwards.
Kevin M (25bbee) — 2/10/2017 @ 10:21 pmIf it was germane to at least one of these 4 tool judges to create a record of DJT’s motives, it is most certainly germane for those of us who question the legitimacy of the TRO when we assign prejudices and biases to the judges.
Hence, it is quite reasonable to call into question whether the decree (ruling) was based, at least in part, on a belief that there was a de facto Muslim ban in the EO within the minds of the judges.
This was a separation of powers moment. There is zero finding of irrationality on the part of either DJT or BHO when it came to identifying the problematic nature of these 7 countries. It thereby follows that there is no irrationality to DJT wanting a pause. Yet, all 4 judges decided that it falls to judges to determine the wisdom and degree of urgency regarding national security policy.
Just watch as the new/improved EO is judicially restrained/enjoined. A genuine constitutional crisis is looming.
Ed from SFV (3400a5) — 2/10/2017 @ 10:44 pmGod is great
Beer is good
and people are crazy
Pinandpuller (fa9a69) — 2/10/2017 @ 11:15 pmThis country has too many hack judges. Brought to you by The Soros people along with malcontent conservatives who enjoy using b.s. judicial terms in screwing the middle class. It will reach a tipping point in which the middle class will bury these traitors. Amazing how many conservatives side with Soros.
mg (31009b) — 2/11/2017 @ 3:15 amTypical snooty establishment thinking.
Magic eightball would suggest so, to pretend that eon sprung like Athens, is lightly disingenuous,now five of these countries like Yemen since 2015 have no place to issue the visas
narciso (d1f714) — 2/11/2017 @ 6:08 amSo the ninth circuit went off on the wrong analogy, ignored the underlying statute and hence opened up a vast penumbra, this is why they called a sua sponte hearing.
narciso (d1f714) — 2/11/2017 @ 6:18 amI think the decision borders on malpractice, considering the stakes involved
narciso (d1f714) — 2/11/2017 @ 6:33 amWe discussed before the role of senators of the states included in a district,
MD in Philly (f9371b) — 2/11/2017 @ 6:43 amAre the judges in a district equally appointed by the states involved, or is it linked to population,
i.e., are there an equal number of judges cleared through CA and AZ, or does CA get a whopping amount more?
Thank you, thank you very much.
I’ve said it before, said it a thousand times (ok, hyperbole),
MD in Philly (f9371b) — 2/11/2017 @ 6:45 amI wish lawyers and media people and politicians could be sued for malpractice as easily as doctors.
Judges are included in that somewhere.
MD in Philly (f9371b) — 2/11/2017 @ 6:45 amRagsdale likely sabotaged the roll out, but it took time to figure this out, whereas obamacare was flawed at implementation
narciso (d1f714) — 2/11/2017 @ 6:53 amMexico’s threatening to support terrorism unless America stands down and promises not to deport the yucky illegal immigrants Mexico doesn’t want to take back
these are evil people
happyfeet (28a91b) — 2/11/2017 @ 7:09 amIt 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.
Why did the order come down late on a Friday afternoon when all the office-level managers and bosses had gone home for the weekend just like everybody knows they do? The order went out to the frontline troops and they had no way to contact their higher-ups for questions and clarifications on the order. You think the chaos caused by a bunch of low-level workers with no clear directions from their bosses was an accident? I’d suggest the order went out the way it did because Trump’s team knew there would be questions raised about how to handle the order and they wanted to make sure there was nobody around to ask them those questions, possibly question the terms, and nobody to suggest to the troops that maybe this was an unclear order coming down the pike, that parts of it were possibly illegal and maybe they should stall around on the implementation until they had some time to get some clarification on what exactly the new rules were.
Trump said repeatedly throughout the campaign that he wasn’t going to reveal his secret plans for doing great stuff because it’s dumb to announce to the enemy ahead of time what your plans are. Trump sees government bureaucrats as his enemy, just as he sees anybody that might oppose his will as an enemy. He sprung this EO attack on his enemies in the Federal government, not his enemies the terrorists. To the extent that parts of the EO weren’t legal or constitutional, well, maybe Trump sees the laws and the Constitution as his enemies, too.
Jerryskids (3308c1) — 2/11/2017 @ 7:21 amDistrict judges are subject to the approval of the respective states’ two Senators, MD. And, yes, California does get more District judges than Idaho since it has more people and consequently a busier court docket, but their influence is only within their own districts and not circuit-wide like the Court of Appeals judges. https://www.law.cornell.edu/uscode/text/28/81
nk (dbc370) — 2/11/2017 @ 7:37 amClick next at prev|next at the upper right of the text to go through all the states.
nk (dbc370) — 2/11/2017 @ 7:42 amYes he did it on Friday, in fricken plain view, fell for the astroturf, then again he recommended Obama for law review, once upon a tome.
narciso (cc7af4) — 2/11/2017 @ 8:01 amYemen was a country we decided we couldn’t send detainees back there after the underwear bomber plot, which was directed by two fmr detainees released from , because of lawfare by the ccr the Che loving lefty redoubt of kunstler
narciso (da3982) — 2/11/2017 @ 8:33 amIt was a success story of the administration till 2015, When the Houthis formed the regime out and we lost the embassy there, the kingdom invaded with their own deft touch and put their puppet back, we can no more trust visas from there then we can from Caracas, and that story is three years old.
narciso (da3982) — 2/11/2017 @ 8:37 amNow this game of whackamole has claimed Sheri and rubbaish, (his lawyer talked about he was a frustrated poet) and wuhaishi, now al raymi is up at bat, he was the target of the raid two weeks ago.
narciso (da3982) — 2/11/2017 @ 8:42 amTake somalia, source of attacks in ahia, destination from Minnesota, the new presidents reign probably extends as far as mogadishu.
narciso (da3982) — 2/11/2017 @ 8:44 amThis is what was wanted right:
http://www.foxnews.com/politics/2017/02/10/were-going-to-see-more-sanctuary-cities-cave-in-face-trumps-funding-threats.html
narciso (da3982) — 2/11/2017 @ 8:51 amI pointed out in the other thread, how the brits pulled out of yemen, particularly after a brutal battle called the crater, aka Stirling castle, it went essentially east bloc, until after 1990 she one of the chieftains saleh started the civil war and enlisted returnees from Afghanistan to fight it
narciso (da3982) — 2/11/2017 @ 9:00 amYou’ve got to consider the balance of nature, too. If you deport all the MS-13 and Latin Kings, who’s going to shoot the various Disciples?
nk (dbc370) — 2/11/2017 @ 9:07 amOf the mara (named after a fireant) are blsmrd on the us as well.
narciso (d1f714) — 2/11/2017 @ 9:10 amthat’s what the uniformed piggy piggies is for
it’s how they earn them piggy pensions!
happyfeet (28a91b) — 2/11/2017 @ 9:17 amWell pikachu cops are frustrated even in Miami, they would arrest Ms and then they would have to let them go.
Of course it wee the old leftwing tripe, that corrupt right wing got wee at fault then, but now that its headed by a former guerilla, Ceres, quells surprise, the problems persist.
narciso (d1f714) — 2/11/2017 @ 9:29 amdoes Mr. Trump know about this?
happyfeet (28a91b) — 2/11/2017 @ 9:32 amYes pikachu, tars why the kerfluffle over sanctuary cities.
narciso (d1f714) — 2/11/2017 @ 9:40 amSomewhat off-topic: Boy does California want a big piece of that $1 trillion infrastructure money.
http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-california-submits-100-billion-in-1486590025-htmlstory.html
Kevin M (25bbee) — 2/11/2017 @ 9:53 amok good
happyfeet (28a91b) — 2/11/2017 @ 9:53 amDont they realize they got to give something or some people up? Fresno and the 287g keepers have first dibs
urbanleftbehind (247c99) — 2/11/2017 @ 10:22 amNk gets it but the LKs are largely citizen and LPR.
urbanleftbehind (247c99) — 2/11/2017 @ 10:23 amMD — there were a couple questions asked about this yesterday, and while I’m not sure this is directly responsive to your question about judges and states, here is the way it works.
District court judges – the trial court judges in the federal system — are “approved” by the home state Senators, regardless of party for the most part. But the home state senators know that the people they recommend for district court judges must be acceptable to the WH when the WH is held by the other party. When the WH and the Senator are the same party, you get a very liberal/conservative nominee. When they are different parties, you get a more moderate middle of the road nominee.
The number of judges in a given JUDICIAL DISTRICT varies according to population and case load. So a place like Hawaii has 4, whereas Los Angeles has 30 (?- not sure of the exact count right now). How many each district has is a bit political, and there are political efforts to keep or add to the number of judges in a district because resources are allocated based on number of judges. The “final” determination is made by the Admin. Office of the Courts. For example, the Eastern District of California has always had fewer judges than would be justified by its population and case load, but it lacks the clout of the Northern or Central Districts (SF and LA). Hawaii has one more judge that is really justified, but for decades was protected by the power of Daniel Inouye in the Senate.
Circuit Court judges are different. Because the 9th Circuit covers 11 western states, individual senators from individual states play only a limited role in how vacancies are filled. There are 29 judgeships in the 9th Circuit, and only 25 are filled right now. But, there is a historical acknowledgement that every one of the 11 states should have at least one judge on the 9th Cir. who comes from that state in order for the roster of judges to represent the geographic diversity of the circuit. Its not so formal as to require a judge from a particular state to be replaced only by another judge from the same state, the Senators from the smaller states do aggressively seek to influence the potential nominee pool when an active judge from that state takes senior status.
Someone mentioned in another thread yesterday that Feinstein sought to protect a “California” seat when there was an opening by insisting that the replacement come from California. I remember her doing that, I just don’t remember which judge it was.
In 2003, Proctor Hug was being replaced. Hug had been a lifelong resident of Nevada. Nominated to replace him was Jay Bybee. Bybee had grown up in Nevada, and had gone to BYU. When he moved out of DC (he was at DOJ) to join the 9th Circuit, he settled in Boise, ID. So while it wasn’t a “Nevada to Nevada” swap, he was considered to have enough connection to the mountain state region of the 9th Cir. that he was a good choice to replace Hug.
Right now Richard Clifton from Hawaii has gone senior status, so his seat is open. Clifton was on the 3 judge panel that just ruled. Before him Herbert Choy was a 9th Circuit Judge from Hawaii, nominated by Nixon. Choy went Senior Status in 1984, and was not replaced by a Hawaii judge. Buy Choy was a regular participant in cases even after he went Senior so it wasn’t seen to be crucial that another Hawaii judge replace him. But when Choy became less active (he died in in 2004) Clifton was nominated to replace Cynthia Holcomb Hall in 2002.
This battle plays out mostly among the population centers in the West, largely as a result of having large law firms with political influence. So while the states don’t have huge populations, Phoenix and Seattle get well represented on the Court, along with LA and SF.
shipwreckedcrew (56b591) — 2/11/2017 @ 10:28 amhttp://www.washingtonexaminer.com/report-72-terrorists-came-from-7-muslim-countries-trump-targeted/article/2614582
narciso (d1f714) — 2/11/2017 @ 10:38 amThanks shipetrcked, remember the fracas they raised over bybee re his partvin the interrogation business
narciso (d1f714) — 2/11/2017 @ 10:48 amBack in the w era, addington and bybee’s associate Haines were made into demons, and was denied an appellate judgeship
narciso (d1f714) — 2/11/2017 @ 10:50 amSo, yesterday in the afternoon there was a “sua sponte” call for a vote among the 25 active judges to re-hear the case en banc. These are VERY RARE. It only takes one judge to request a vote.
Whoever this judge is, I doubt that he expects the court to vote to take up the case. Its in a procedurally poor spot, with a very limited record, and it will be in a much better position to be reviewed after Robart holds a more involved hearing in two weeks and issues a Prelim Injunction.
So, why call for the vote now?? Well, I happen to have been personally involved in a similar situation as this back in 1997 with regard to a controversial decision involving the federal sentencing guidelines as they were applied to a case I prosecuted, before the Guidelines were ruled to be “advisory” only. A bit of detail on that below.
But, what I fully expect to develop here is that there will be an order issued next week — maybe on Friday (the parties are to submit briefs whether or not en banc review is appropriate on Thurs) — stating that a majority of active judges who have voted have not called for en banc review. What that order does, however, is create an opportunity for one or more of the active judges to write a dissenting opinion from the Order that the case not be taken up for en banc review.
These “dissents” from denial of en banc review are a venue where various judges really air out their views on subjects of notoriety and controversy in cases where they weren’t personally involved in the panel decision. Because the panel decision “speaks for the Court”, a court with 29 voices on controversial subjects, the dissent from en banc review is the opportunity that judges who strongly disagree with a panel decision can voice that disagreement. They have are not precedent, but they can be a warning shot to district judges and litigants in other cases that there is a controversy brewing.
My guess is that either Kozinski or Bybee, the two most conservative active judges — and Kozinski has been a Supreme Court candidate when he was younger — are right now writing a scathing critique of the District Court’s handling of the TRO, and the opinion of the 3 judge panel.
Kozinski is not shy about taking on his collegues on constitutional issues such has this.
And, it would also no surprise me if Reinhardt, one of the most liberal judges on the Court for the past 30 years, writes an opinion either concurring in the denial of en banc review or calling for en banc review, and directly goes after the criticism is published in the Dissenting Opinion.
So, the call for en banc review is a bit of gamesmanship by the various wings of the Court’s ideological spectrum, and it might be very entertaining to read what it is they produce.
shipwreckedcrew (56b591) — 2/11/2017 @ 10:53 amHe would but I think Thomas replaced him in 2014, perhaps o’diurmid, sic, will do it.
narciso (d1f714) — 2/11/2017 @ 11:03 amwhy do the judgetrash get to do gamesmanship with our tax monies
it just feels wrong
happyfeet (28a91b) — 2/11/2017 @ 11:04 amYes its a sharp sign of dissaproval. The left always have a narrative and its about race sex or ethnicity, except when you are unperson. From these groups
narciso (d1f714) — 2/11/2017 @ 11:07 amI think Jeffrey Toobin’s trying to subtly prepare the left by urging them to cool their jets a little with respect to rushing into their 9th circuit victory celebration.
http://www.newyorker.com/news/daily-comment/the-vulnerabilities-in-the-ninth-circuits-executive-order-decision
elissa (ad3907) — 2/11/2017 @ 12:58 pmAnother view
https://www.wsj.com/articles/the-ninth-circuit-ignores-precedent-and-threatens-national-security-1486748840
narciso (d1f714) — 2/11/2017 @ 1:25 pmJudges who make rulings against a guy who insulted them because he insulted them are vile beyond belief.
If they are not impartial they are useless.
Fred Z (05d938) — 2/11/2017 @ 2:27 pmMeanwhile back in the land of consequences….
“Chancellor Angela Merkel is setting aside €90m (£76m) in taxpayers’ money to create a fund which will pay migrants to withdraw their asylum applications and leave Germany voluntarily.
The handouts will form part of a 16-point plan to speed up the removal of rejected asylum seekers, after Tunisian migrant Anis Amri murdered a Polish lorry driver, hijacked his vehicle and drove it into a Christmas market in Berlin while awaiting deportation.
Germany rejected 170,000 asylum claims in 2016 but, according to the Mail, just 26,000 were repatriated. 55,000 more decided to leave voluntarily – apparently leaving 81,000 bogus applicants unaccounted for.
“We rely heavily on voluntary departures,” admitted Chancellor Merkel, who was announcing the package after falling behind the Social Democrats in polls for Germany’s upcoming elections.”
http://www.breitbart.com/london/2017/02/11/merkel-will-pay-migrants-leave-germany/
harkin (afc7a6) — 2/11/2017 @ 3:17 pmHow does one Tweet triumphantly? My tweets just seem so dull when held up to the standard. Advice?
Anne (f9e4c5) — 2/11/2017 @ 3:35 pmthe mostest triumphant tweet is your last one
gogogo
happyfeet (28a91b) — 2/11/2017 @ 3:39 pme.g.
tony the tiger cereal child molester
#buymoarkelloggs
#badtouchhellyes
happyfeet (28a91b) — 2/11/2017 @ 3:45 pmput stuff from michigan in your child’s mouf
#buymoarkelloggs
happyfeet (28a91b) — 2/11/2017 @ 3:46 pmKellogg’s CEO: Massive Layoffs at Time of Massive Boycott Total Coincidence
happyfeet (28a91b) — 2/11/2017 @ 3:51 pmAnne!! Lots of exclamation points!!!
Rev. Hoagie® (785e38) — 2/11/2017 @ 3:51 pmNow the NFL is going after Red States that don’t have tranny rest rooms. The NFL is politically incompetent.
mg (31009b) — 2/11/2017 @ 3:54 pmhttps://s3.amazonaws.com/assets.forward.com/images/cropped/schumer-cover-1486755595.jpg
narciso (d1f714) — 2/11/2017 @ 3:55 pmAn own goal in a key election?
urbanleftbehind (b9e8fd) — 2/11/2017 @ 4:04 pmhttp://www.haaretz.com/world-news/europe/1.770915?v=957337AD1CAFBF164813AF50A43A3F7A
More fake news and diligent fact checking
https://pjmedia.com/instapundit/257093/
narciso (a7e6d2) — 2/11/2017 @ 4:16 pmall the navy boats they have awesome tranny bathrooms
they call them heads
and it is so good
#foodstamplegacy
#anditissogood
happyfeet (28a91b) — 2/11/2017 @ 4:17 pmHow does one Tweet triumphantly? My tweets just seem so dull when held up to the standard. Advice?
You’d be surprised at how much your appearance reflects your attitude, Anne. Do you have orange skin with white cucumber-slice circles around your eyes? Do you comb your hair up from the hairline and then back down again and hold it in place with a quart of AquaNet? Try it, and see the change in your outlook, your attitude, and your tweets!
DISCLAIMER: Results not guaranteed unless you also have small hands.
nk (dbc370) — 2/11/2017 @ 4:32 pmhttp://investmentwatchblog.com/why-couldnt-paul-ryan-be-one-of-the-good-guys/
mg (31009b) — 2/11/2017 @ 4:33 pmBecause he’s the combine’s man.
narciso (a7e6d2) — 2/11/2017 @ 4:39 pmPaul Ryan’s a slicked-up cheeks-spread receptacle for perv-daddy Mitt Romney
and it is so good
#anditissogood
happyfeet (28a91b) — 2/11/2017 @ 4:41 pm==Kellogg’s CEO: Massive Layoffs at Time of Massive Boycott Total Coincidence==
I question the timing.
elissa (ad3907) — 2/11/2017 @ 4:45 pmi’m a total ho for a bowl of frosted flakes so I don’t trust my own judgment on this
#theytastesogood
happyfeet (28a91b) — 2/11/2017 @ 4:47 pmI’d eat Alpo before I’d buy Kellogg’s.
mg (31009b) — 2/11/2017 @ 4:52 pmyes yes yes
that is very perspicacious
plus that hyper-sweetened kellogg’s flake-feces git all up in you teef
#donotswallow
happyfeet (28a91b) — 2/11/2017 @ 4:55 pmI see a lot of people saying this. It’s not impossible, but I’m less sanguine than many others about the notion that it’s Kozinski. He’s not a huge fan of unbridled executive power. And I don’t see him as particularly conservative so much as libertarian. He’s done the “dissent from a denial of en banc on an immigration case” thing before, but it was to warn about the dangers of executive power, and to complain that Obama didn’t work with Congress to pass a law with DACA. Sample quote:
I am also intrigued by this footnote:
I don’t think you’re going to find Kozinski screaming that Trump’s authority in this area is plenary and unreviewable. I could be wrong, but I don’t think so.
Patterico (115b1f) — 2/11/2017 @ 4:57 pmi met my first friend tonight what said I deleted my facebook account
he said
yeah i deleted it all
all i have is instagram now
which is of course also owned by the zuckertwat
but he said he’s much happier this way
i said
so you teach people how to spread their wings and fly?
happyfeet (28a91b) — 2/11/2017 @ 4:59 pmlawyers are so 80s
happyfeet (28a91b) — 2/11/2017 @ 5:00 pmI haven’t had Pop-Tarts in a long time. I think I’ll buy a box the next time I’m at the Jewel just to give the finger to Breitbart.
nk (dbc370) — 2/11/2017 @ 5:01 pmThomas replaced kozinski back in 2014, thanks a lot mcturtle.
narciso (a7e6d2) — 2/11/2017 @ 5:03 pmUnless the bake shop has fresh brownies. You can take this protest stuff too far, you know.
nk (dbc370) — 2/11/2017 @ 5:03 pmBtw despite the inevitable sjw elements, the expanse is very well done again.
narciso (a7e6d2) — 2/11/2017 @ 5:05 pmthe combo of sugar and flour dough are very very bad for you nk.
elissa (ad3907) — 2/11/2017 @ 5:06 pmKozinski maxed out his term. The next senior judge took over. https://www.law360.com/california/articles/602195/new-9th-circ-chief-judge-thomas-takes-over-from-kozinski
No nefariousness involved.
nk (dbc370) — 2/11/2017 @ 5:06 pmCongress did delegate the authority in 2015, as much as they have pretended not to.
narciso (a7e6d2) — 2/11/2017 @ 5:08 pmthis is link to 9th circuit webpage in case anybody wants to poke around
https://www.ca9.uscourts.gov/
elissa (ad3907) — 2/11/2017 @ 5:08 pmIn theory could the pres-or congress- cut funding to the extreme vetting? Does anyone know what goes into the vetting and the cost to the govt?
Israel (fd3452) — 2/11/2017 @ 5:08 pmpop-tarts are fascinating
they’re very highly regulated like travel and sun-tanning and trans-fats and natural gas pipelines
to where they’ve trial marketed high fiber ones
and high calcium ones
and high protein ones
but the michelle obama kid-food fascists keep slapping them violently in their face like cher did on nicolas cage in moonstruck
kellogg’s keeps trying to make them healthier
but the failmerican government keeps slappin them down
happyfeet (28a91b) — 2/11/2017 @ 5:09 pmhe combo of sugar and flour dough are very very bad for you nk.
That’s just fake government science to justify the sugar-tax, among other things, elissa.
nk (dbc370) — 2/11/2017 @ 5:09 pmfake news
junk science
don’t get it twisted
happyfeet (28a91b) — 2/11/2017 @ 5:11 pmPoptarts and Twinkies are the ultimate frankenfoods. Like cockroaches, they can survive nuclear war.
elissa (ad3907) — 2/11/2017 @ 5:12 pmi like the frostered strawberry ones
happyfeet (28a91b) — 2/11/2017 @ 5:12 pmAuthority to name countries not eligible for a visa waiver program.
As I point out every time you bring up this squirrel.
You never respond to me directly.
It’s very annoying
Patterico (115b1f) — 2/11/2017 @ 5:12 pmand i don’t even smoke marijuana
happyfeet (28a91b) — 2/11/2017 @ 5:13 pmBy not capitalizing “combine”, Narciso avoided paying royalties to John Kass.
urbanleftbehind (847a06) — 2/11/2017 @ 5:14 pmIt’s your life to live, Mr. Feets. And you only have one. Use it wisely.
elissa (ad3907) — 2/11/2017 @ 5:14 pmnow you tell me
happyfeet (28a91b) — 2/11/2017 @ 5:15 pmWell they did Seth frantzman pointed it out, since he travels frequently to these countries, now judge gorton didn’t acknowledge that but he figured out the authority, he saw past the bluster.
narciso (d1f714) — 2/11/2017 @ 5:29 pmTrump fired Meatloaf.
North Korea fired missile.
“No way!” tweeted Trump, back in the day.
Tonight, nothing to say.
“And you, sir, are a steely-eyed missile man.” – NASA Capcom Bill Pogue, [Brett Cullen] ‘Apollo 13’ 1995
DCSCA (797bc0) — 2/11/2017 @ 5:30 pmLots of things got lost in the noise. Among them, that it has always been the law that a visitor’s visa or an ESTA authorization from a visa waiver country does not guarantee admission into the United States. You buys your ticket and you takes your chances.
nk (dbc370) — 2/11/2017 @ 5:36 pmWe need CNN to broadcast that Mexico has cleaner water than the U.S.
mg (31009b) — 2/11/2017 @ 5:40 pmIn Spanish.
At the end of the day it is the President who has the responsibility to defend and protect .All the debate cannot diminish this awesome responsibility.
john morrissey (ecf9a2) — 2/11/2017 @ 6:25 pmHe cannot delegate it, he cannot defer it, he cannot ignore it
The parsing of phrases and sentence structure, the search for drafting errors is simply revenge against Trump for winning.
“Houston, be advised: Rich Purnell is a steely-eyed missile man.”
The Martian, where the crew tells Houston they are off the reservation, and an homage to Apollo 13.
Kevin M (25bbee) — 2/11/2017 @ 7:45 pmI note that Trump has nothing to say about the North Korean missile. I wonder what it means when Trump isn’t talking.
Kevin M (25bbee) — 2/11/2017 @ 7:47 pmThe parsing of phrases and sentence structure, the search for drafting errors is simply revenge against Trump for winning.
It is part of a no-holds-barred, scorched-earth insurrection against Trump and the GOP. If he does an Easter-egg roll it will be anti-Semitic. If he kisses his wife, it will be assault. If he farts, it will lead the news. And we will be subjected to this at least until the midterms.
Kevin M (25bbee) — 2/11/2017 @ 7:50 pmOn the “proprietary standing” issue, I expect upon further examination, the following questions to be posed to Washington:
1. Aren’t you injured as a proprietor with regard to students losing the ability to travel on their visas only if you aren’t able to replace them with other students? How many applicants were rejected by UW this past year? If you lose 500 students from the 7 impacted countries, how is you harm not mitigated simply by admitting 500 students who were denied admission??
2. If you have lost the ability to attract faculty members from the 7 impacted countries, why aren’t you able to simply replace them with other hires?
Since the state’s claim is lost revenue, I think they need to have answers for these questions. I suspect a “diversity” benefit claim is not going to justify a standing claim as a “proprietor.”
shipwreckedcrew (56b591) — 2/11/2017 @ 7:50 pmAnd “Are there no American students you could admit, or instructors you could employ?”
Kevin M (25bbee) — 2/11/2017 @ 7:52 pmAs I said up top in the analogy of the liquor store case they cited, the visa issue only reduces their “foot traffic”, it doesn’t bar them from serving any customer who shows up (which the cited case directly did).
Kevin M (25bbee) — 2/11/2017 @ 7:55 pmThe argument doesn’t make sense, what is their insistence on drawing from those seven countries,instead of the other 50 members of the oic?
narciso (3f8409) — 2/11/2017 @ 7:59 pmSo was it the expected booster, or did they pull a switch.
narciso (3f8409) — 2/11/2017 @ 8:03 pmIt bears remembering that Wendy Sherman whonnegotiayrd this deal, was also behind the deal with the mullahs
narciso (3f8409) — 2/11/2017 @ 8:05 pmSo was it the expected booster, or did they pull a switch.
The don’t know yet (or aren’t saying if they do). It was one stage and it went 300 miles.
Kevin M (25bbee) — 2/11/2017 @ 8:42 pmProbably not, then, but we do have to consider a response in the future
narciso (3f8409) — 2/11/2017 @ 8:44 pmhttp://joshblackman.com/blog/2017/02/11/the-statutory-legality-of-trumps-executive-order-on-immigration-part-iv/
narciso (3f8409) — 2/11/2017 @ 9:26 pmDoes anyone here think that they wouldn’t have tried to block Trump’s EO no matter how well it was written?
Colonel Haiku (2601c0) — 2/12/2017 @ 9:12 amthat’s very cynical Mr. Colonel
these judges honestly believe that murderous muslim terrorists from nasty hyper-violent dirty countries have more rights than the people they slaughter because constitution
you have to remember it’s all about protecting the rights of the minority from the fascist majority (citizens) that’s why constitution is so good
happyfeet (28a91b) — 2/12/2017 @ 9:28 amGod could come down from the heavens and write it in front of their eyes and Shumers bloomers would still persist in making azzes of themselves.
mg (31009b) — 2/12/2017 @ 9:57 amDoes anyone here think that they wouldn’t have tried to block Trump’s EO no matter how well it was written?
As I said, they will attack him for an Easter-egg roll.
Kevin M (25bbee) — 2/12/2017 @ 10:10 am111 and 112… Yes! This EO is so important that no mistakes ought to be allowed, as it will set a precedent. IMO, the Trump administration can and should be faulted for its hasty roll-out, but certainly not for its intent.
Colonel Haiku (2601c0) — 2/12/2017 @ 10:35 am“current or planned faculty or students from the seven countries” was a “reasonable enough ruling, as far as it goes”
So, if a state university planned to admit illegal aliens, or hire such as instructors, and the new level of enforcement by the feds made this impractical, the college would have standing to sue? Over enforcement of a federal statue?
Kevin M (25bbee) — 2/12/2017 @ 11:23 amWe need Patterico’s incisive legal analysis of this latest round of litigation.
Dave (711345) — 2/12/2017 @ 12:49 pmInterestingly, two days before the Ninth Circuit issued its decision on the EO, another panel of the 9th issued a ruling in a different case on the very subject of 5th amendment due process rights of aliens apprehended in the US.
JUDGE BYBEE, writing for the majority held:
Discovering this little tidbit of analysis so close in time to similar issues raised with respect to the EO leads me to suspect it was Bybee who called for a vote on en banc review, and it will be Bybee who writes a dissent if that review is denied — as I expect will be the case.
His reasoning here raises a point I made in an earlier thread — it was not enough for Robart or the 9th Cir. panel to say that Washington would likely succeed on the due process claims without first addressing the question of “what process is due” to the persons from the 7 countries who are covered by the EO. Depending on the class — immigrant visa holders, LPRs, refugees, etc. — each likely has a different level of due process afforded to them given their specific circumstances. That subject should have been tackled by the panel decision, and it was not.
shipwreckedcrew (8aced3) — 2/12/2017 @ 4:56 pmhow many continuing ed creds is that comment worth
happyfeet (28a91b) — 2/12/2017 @ 4:57 pmIt would make a very good exammquestion in con law, that 2as the striking thing about the Robart decision, it was very weak tea.
narciso (d1f714) — 2/12/2017 @ 5:14 pmshipwreckedcrew, indeed, and the line of cases in immigration law regarding counsel is fairly well established. It was among the many reasons that the other district courts’ various orders in this fiasco, e.g., the orders to CBP at airports, were so much contrary to case law.
SPQR (a3a747) — 2/12/2017 @ 5:32 pmThe problem is a priority, they don’t have a right to be admitted, now perhaps if we are talking political asylum claims which deserve strict scrutiny, and one has to consider a certain trenchant irony in posing students from Arabic speaking countries, as the preeminent condition.
narciso (d1f714) — 2/12/2017 @ 5:47 pmI think it is good to remember that if the Trump DOJ had won the ninth circuit appeal and the TRO was overturned they might have been in a weaker position because the plaintiff (Washington State) would certainly have had cause for an automatic appeal to SCOTUS. Since the Trump Justice Dept “lost” in the 9th, it seems to me they are actually in greater control because they may have several better options now, and they also have control the timing. They are in effect winning by losing. (As long as there is no terror attack in the meantime.)
By losing in the ninth circuit the President holds the leverage for next steps which could include outlining very specific principles and protocols of extreme vetting in the countries of origin. And, per Priebus:
elissa (b5c426) — 2/12/2017 @ 6:13 pmhe’s basically letting the berobed codswallops make asses of themselves
please to explain how he tries to make america safe from obama’s frenzied muslim refugee terror slaughter and ends up looking like the bad guy
i don’t see it happening
happyfeet (28a91b) — 2/12/2017 @ 6:19 pm