Ninth Circuit Schedules Oral Argument On The Trump Immigration Order

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1 The government filed its reply on February 6th and followed earlier arguments in favor of an appellate stay of the lower court order of Senior District Court Judge James Robart.  As discussed earlier, a temporary restraining order is very difficult to reverse on an interlocutory appeal.  Normally, appellate courts will wait for a final decision and opinion from the lower court before agreeing to review the controversy.  Of course, nothing is “normal” about this controversy in terms of procedure or policy.

The oral argument is scheduled for 3 pm and can be seen at this link: oral argument  It is an admirable move by the Ninth Circuit. I have been a long critic of the bar on cameras before the Supreme Court and appellate courts.  The public should be able to watch these historic arguments without fighting for the small number of seats in the courtroom.

The reply by the Justice Department leads with a direct reminder that, while it lost before Judge Robart in Seattle, it prevailed before the Boston federal district court:

The Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees. Relying on his express statutory authority to suspend entry of any class of aliens to protect the national interest, the President has directed a temporary suspension of entries through the refugee program and from countries that have a previously identified link to an increased risk of terrorist activity, see 8 U.S.C. § 1187(a)(12). The purpose of that temporary suspension is to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks. As a different district court recently concluded, that objective provides a “facially legitimate and bona fide” justification that satisfies any constitutional scrutiny that applies. Louhghalam v. Trump, Civ. Action No. 17-10154-NMG, Order 18-19 (D. Mass. Feb. 3, 2017); see id. at 10-11, 15-16.

The oral argument will be particularly interesting in light of the hearing before Robart.  At the hearing, Robart pressed the Administration on the basis for President Trump’s finding of national security dangers associated with these seven countries.  Most judges are reluctant to substitute their judgment on such issues for a sitting president.  After all, regardless of the criticism of excluding countries like Saudi Arabia, a president receives highly classified briefings on national security risks.  Moreover, these countries are identified as having poor records and reviews for immigrants — problems that may not be as acute for countries like Saudi Arabia.

After the hearing, the Ninth Circuit could rule fairly quickly if it were so inclined.  The losing could then ask for a full en banc review by the Ninth Circuit or proceed directly to the Supreme Court.  Justice Anthony Kennedy would hear any emergency motions.



84 thoughts on “Ninth Circuit Schedules Oral Argument On The Trump Immigration Order”

  1. Is a response necessary. You have pigeonholed every class of voters that may or may not be democrats.

    The impeachment issues are the use of Private Emails, Private Cellphones to continue to conduct business for the Trump brand a well as ethics violations.

    You are aware KA Conway is being considered for censorship for the Ethnics Violations for promoting Ivankas products?

    1. “”The impeachment issues are the use of Private Emails, Private Cellphones to continue to conduct business for the Trump brand a well as ethics violations.” Like I said, ” Some people hate Trump and Republicans so much they would do anything, including do damage to this country, to stop him.” What a waste of time.

  2. Oh my, the Ninth Circuit was unanimous in its decision to Stay the Stay.

    I wonder what nasty Tweets will Citizens have to suffer from the Liar in Chief?

    I heard on the Hill that the House is gathering evidence to introduce for an impeachment hearing.

    1. LOL ………….Impeachment? Really? And the grounds? Some people hate Trump and Republicans so much they would do anything, including do damage to this country, to stop him. Democrats are become the party of small minds and even smaller hearts.

      1. You know Nancy, I am not making the NEWS, just saying what I heard.

        To infer I am a Democratic Person is nice to hear. I am a devoted INDEPENDENT.

        Now, I know which stump you grind.

        1. Interesting. You can’t (or won’t) say what the grounds of impeachment might be but chose to repeat the rumor (or whatever you call it). Those are not the words I expect to hear from an independent thinker. Then, again, you did not specify what type of independent you were..

          BTW, I was not inferring anything about your political party. I was referring to the thinking of the uber left of the Democratic Party (and I should have specified uber left and not Democrats. That is not at all fair to the many moderate Democrats who wish to work together to retake our countries from the bonds of uber left thinking and regulations.) I have no idea what you think other than you seem to hate Trump.

          And don’t be so certain about which stump I grind – not that it is important in the scheme of things.

        2. You know Nancy, I am not making the NEWS, just saying what I heard.

          To infer I am a Democratic Person is nice to hear. I am a devoted INDEPENDENT.

          Now, I know which stump you grindI
          And I am merely replying as to the “news” you select. Methinks you may complain too much.. But, then again, a devoted INDEPENDENT does not have to declare allegiance to anyone or anything. ‘Tis a safe position.

          1. Nancy – just because someone is an independent does not mean they do not primarily vote Republican or Democrat.

  3. Two branches of government have spoken here. Congress and the President. Congress gave this President and future Presidents the power to issue the Executive Order. Here is a portion of the statutes:

    8 USC §1182:

    “(f) Suspension of entry or imposition of restrictions by President
    “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

    1. That may be all well and good, Jack, but as Steve has encapsulated above, that law is rendered moot by the 9th Circus’s conclusion that “We don care about no damn laws; we hatez Trump 2.”

  4. This could be so simple for Trump. Rescind the EO, rewrite it and leave Muslim out. Ban the citizens without a legal right to be here, such as Green Card Holders, students etc. Ban the others based upon geographical location not Muslim, which is a religious aspect. And don’t say you favor Christians from the country, the you have Larsen and Lemon to deal with. Keep your mouth shut.

      1. Good poiht and conveniently the deniers fail to face up to a religious that is also a government system. Can’t deal with some places with taking in the whole picture. An example is looking at California as Sate government without realizing it has a failed education system and it’s hard to run a government without first being able to elect good leaders. but to get good leadership you need good educators.

        If there is a candidate for being taken over…bankruptcy is one good reason…taken over and run by and appointed by the Judicial Branch perhaps California certainly heads the list. Cleaning up your debt would mean federal funds and the State land becomes federal lands or private lands all belonging to the USA. I’ll say it again….

        Secede….sure…pack your bags and catch a flight. But you don’t own most of the land. It’s either federal or state and stands as collateral for your debts. Same with large chunks of your counties and cities. As far as funding to take water from the rest of the country for a desert area that already sucks up 500 gallons per individual per day? Suck sand.

        88 billion for a failed school system? Not a chance. Bail out money? Hey if you are seceding you just gave up voting privileges. Maybe Pelosillyni can…..nah. She’s out of there if you want any help. Price you pay for playing stupid and playijg with the left wing regressive extremists.


  5. It sounds to me like the government is getting killed on the “Standing” argument. But “standing” arguments are pretty much just whether or not a court wishes to hear a case, or throw it out. Because a court can always find an “injury” if it so wishes. Or not.

    Squeeky Fromm
    Girl Reporter

      1. The State of Washington: Yeah, like your Honor, our injury is that if Abdul doesn’t get to come here from Libya, then he can’t pay tuition to our colleges! And we need the money!

        The U.S: Uh your honor, Abdul is broke! He is a refugee! How can he even pay tuition!

        The State of Washington: But Your Honor, Abdul will be getting Welfare from the State, and he can pay tuition out of that!

        Squeeky Fromm
        Girl Reporter

  6. I listened for just 12 minutes into the 9th Circus’s questions (specifically from Canby, Clifton, and Friedland), and I can easily see where they’re headed. “Until we see a mass murder of sufficient magnitude committed by a person coming into the U.S. from one of the 7 nations named, we rule that the U.S. must let everybody in.”

    1. I had a similar reaction. It reminded me of the voter fraud talk – No need to check IDs until you prove there are people voting who ‘t be. What seemed to be lost on the judges was this was a temporary stoppage of people from those countries and NOT a BAN. What are the vetting procedures and can they be improved?

      Some questions asked leave the public wondering: What did Trump talk during the campaign have to do with the order?? I was not impressed with either the judges or the lawyers..

  7. “After all, regardless of the criticism of excluding countries like Saudi Arabia, a president receives highly classified briefings on national security risks. Moreover, these countries are identified as having poor records and reviews for immigrants — problems that may not be as acute for countries like Saudi Arabia.”

    This is another important point that needs to be hammered home during oral arguments. Other countries have produced terrorists but we have fairly close diplomatic ties with them and have good cooperation with them when it comes to checking into a visa applicant’s background. There are very good reasons why those seven countries were designated by the Obama administration as being of special concern that even a blind judge should be able to see. Starting with the fact that there are only three countries on the DoS’s list of state sponsors of terrorism. All three; Syria, Iran, and Sudan, are on the list.

    I have asked the Trump haters to explain why we should let anyone into this country from a state sponsor of terrorism. The situation is compounded by the fact that we don’t even have diplomatic relations with Iran and we have no diplomatic presence in Syria. We have an embassy in Khartoum but the leaders of that country are sanctioned by the USGs and consequently we can’t trust them or the records to vet anyone. The only indirect response I’ve seen is inchoate hate.

    While we have diplomatic relations with the Yemenis and the Somalis, both countries don’t don’t even control the entirety of their own capitol cities. We have an embassy in Sana’a but it must be a fortress. The embassy warns Americans to stay away from the country because armed groups that freely roam the city’s streets have a habit of kidnapping Americans. John Kerry was the first SecState to visit Somalia since 1991 when we shuttered the embassy. The President and Foreign Minister of the Federal Government of Somalia held a ceremony during which they handed him a deed to land to build a new embassy. It’s hard to see how such a construction project can take place any time soon since the ceremony had to be conducted at the Mogadishu airport in a building reinforced from attack with sand bags.

    It appears that the Libyans do control their capitol, but little else. The situation is somewhat better in Iraq, but the embassy advises that Americans who don’t heed the warning not to come at all further at least avoid traveling near Daesh controlled areas and any borders, since terrorists from other countries as well as Iranian forces cross the borders and operate well inside Iraq at will.

    If liberals are upset by Trump’s actions they also have plenty to be angry at Obama for as well. Iraq wouldn’neven be on this list if he had listened to the Pentagon and his own ambassador to Iraq and maintained a US military presence. But he put politics before sound foreign policy and national security and precipitously and prematurely withdrew those forces leading to predictable disaster.

    His administration also came up with the list of seven countries that Trump is using. It would have been only six had Obama not acted stupidly in Iraq, but those other six belongs on any President’s list. We either can’t trust them it comes to vetting applicants, or it’s impossible to vet applicants. If the US ever decides to move forward on building a new embassy in Somalia given the prevailing conditions the USG couldn’t even vet local hires as laborers for ties to al Shabab. How are we supposed to vet anyone who wants to travel to the US.

  8. Steve, when you said–“To uphold the lower court’s ruling the 9th has to sink to the level of issuing an opinion written in crayon saying “We don care about no damn laws we hatez Trump 2,”–I almost choked on my afternoon tea with laughter, conjuring up a picture of judges in robes in a playpen doing exactly that!

    1. Ralph Adamo – don’t put it past the Ninth Circuit to do something in crayon.

    2. I’m glad you got a laugh out of it. It’s better to laugh then despair. Unfortunately I accurately described the situation we’re in.

  9. Also talk about the fact that Judge Robart was talking out of his @$$ when he confidently asserted that no one from those seven countries had been arrested for terror-related charges since 9/11.

    “The Associated Press has chosen to dive in headlong to the fact-checking end of the pool, churning out a piece daily that exposes fake news…

    Surprisingly, President Trump came out on top in an AP fact-check Monday, which found that Judge James Robart’s claim that no foreign nationals from the seven majority-Muslim nations named in Trump’s executive order had been arrested since 9/11 was incorrect, and that the president therefore had “no support” for his travel ban…”

    There’s also a link at the site to the Washington Examiner’s Byron York who independently confirmed that Judge Robart is a nitwit.

    ” Last summer, [the Justice Department provided] the Senate Judiciary Subcommittee on Immigration and the National Interest … with a list of 580 people who were convicted — not just arrested, but tried and convicted — of terror-related offenses between Sept. 11, 2001 and Dec. 31, 2014.

    The subcommittee investigated further and found that at least 380 of the 580 were foreign-born and that an additional 129 were of unknown origin. Of the 380, there were representatives — at least 60 — from all of the countries on the Trump executive order list. And with 129 unknowns, there might be more, as well…”

    As Professor Turley points out, most judges are reluctant to substitute their judgement for the President’s on issues of national security. Most judges recognize the fact that they don’t have all the information and don’t want to make fools of themselves by pretending that they do. Judge is Robart apparently not like most judges, and has just confirmed the wisdom of the majority of his colleagues. As the old saying goes, it is better to keep your mouth shut and be thought a fool then to speak and remove all doubt.

    It’s hard to see how the 9th, liberal and activist as they are, can sustain this TRO. It’s been destroyed on every level. Robart got the Constitution wrong, he has the statutes wrong, and he was wrong on the facts.

    To uphold the lower court’s ruling the 9th has to sink to the level of issuing an opinion written in crayon saying “We don care about no damn laws we hatez Trump 2 , LOL!

    And unfortunately we know there are at least four SCOTUS Justices who’d be just fine with that.

  10. What a load of bull our courts are! Who put the courts in charge of national security policy? What makes these incompetent legal prevaricators in robes fit to determine whether the President should be forced to admit terrorists into the U.S.?

    Yes, there can sometimes need to be some checks and balances to prevent abuses of the system, but this is NOT one of them. It is merely judicial grandstanding in an attempt to usurp the President’s executive powers to protect American lives.

    At least in the NFL, they have highly competent “judges” (that they call “referees”) to ensure fair play. And when they are called to make some decisions to ensure fairness, they do so quickly and with competence and professionalism because they know what they’re talking about–unlike the robed prevaricators clogging our courts. Can you imagine what would happen if the anti-Trump judge Robart were to make a determination on this magnificent catch by the Patriots’ Julian Edelman? Of course, he’d rule that Edelman never had possession because the Patriots were in too tight with President Trump. Then, we’d have to wait for some equally prevaricating and incompetent judges on the circuit court who know nothing about football (just as they know nothing about the laws governing national security) making a ruling on Edelman’s historic catch.

    1. Ralph –

      “Readers share my amazement that there are large numbers of people so stupid as to think that a ban on Muslim immigrants is far worse than murdering Muslims in seven countries for fifteen years. Bush and Obama conducted genocide against Muslims over the course of four presidential terms, and no protesters sought their impeachment for what are most certainly war crimes and crimes against humanity. But Trump’s perfectly legal immigration action is alleged to be grounds for impeachment!” — Dr. Paul Craig Roberts

  11. Talk about the federal statute which provides the President all the authority he needed to enact this Executive Order.

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