Constitutional Law, Courts, Politics, Society

Ninth Circuit Deliberates Appeal Over Trump Executive Order

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I previously discussed my surprise over the clumsy performance of the Justice Department in defending the Trump executive order on immigration.  Those concerns were magnified after the oral argument before the Ninth Circuit that was made available on YouTube.  The performance by August Flentje, special counsel to the assistant U.S. attorney general, was surprisingly lackluster and seemingly ill-prepared.  The shaky start that I described earlier seems now to be seismic as the Justice Department stumbles toward a ruling that can come as early as today.  As Flentje observed during his uninspired argument “I’m not sure I’m convincing the court.”

The questions by the panel seemed to largely favor the challengers though that can be a reflection of the highly favorable standard for the review of a temporary restraining order.  Nevertheless, Judge Richard Clifton, a George W. Bush appointee, expressed skepticism over the reference to this order as a “Muslim ban.”  He noted that the moratorium on entry from the seven targeted nations affected only 15% of the world’s Muslim population: “I have trouble understanding where we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected.”

Nevertheless, as predicted, the  baffling statement of former New York City Mayor Rudy Giuliani that Trump wanted a “Muslim ban” were used by challengers.  Giuliani seriously undermined the order with his interview and is being credited by challengers as one of their greatest assets.  I do not believe that Giuliani’s ill-conceived comment should given much weight by the court but it was raised during the argument.

William Canby, a Carter appointee, and Judge Michelle Friedland, an Obama appointee, seemed to hammer the Administration harder with their questions — questions that the Administration failed to effectively answer despite their great predictability.  Friedland particularly pressed the Administration on its basis for picking these seven countries: a line of inquiry that many judges would view problematic if the court is viewed as second guessing such national security determinations.

Once again, I hope that Congress took note of the roughly 137,000 people who listened to the argument live and the many more listened on various television channels, — another example of why the public should be allowed to watch arguments remotely before appellate courts, including the United States Supreme Court.

If the questions are a reflection of the direction of the panel, it would seem most likely that the panel will refuse to overturn Judge Robart and likely send the case back for a final determination and opinion.  The Justice Department would then go to the Supreme Court but Gorsuch may not be on the Court when the petition comes before it.  That would leave the current eight-member Court unless the confirmation is moved forward with dispatch.

273 thoughts on “Ninth Circuit Deliberates Appeal Over Trump Executive Order”

  1. Pat Buchanan: ‘A clipping of the court’s wings is long overdue’ Published: 4 hours ago

    Indeed, one of the mightiest forces that has birthed the new populism that imperils the establishment is that unelected justices like Warren and Brennan, and their progeny on the bench, have remade our country without the consent of the governed – and with never having been smacked down by Congress or the president.

    http://www.wnd.com/2017/02/trump-must-break-judicial-power/

  2. I’m thinking this temporary victory for the Democrats is just that, and it’s the only victory they will ever have. Best thing that can be done is expedite Gorsuch and get him on the court ASAP…the final say on this may have to wait until that happens. It feel it’s nearly certain to pass a full Supreme Court because there still has not been any ruling on constitutionality.

    The timing and unfortunate comment from Giuliani may have nuked this temporarily…but it’s not dead for sure.

    From here forward it will be solid victories for Trump with no speed bumps…I think the lesson was learned.

    1. I wouldn’t even view it as a victory as it was a set up deal to get stuff to and through the courts with the purpose of court rulings on the Obama hodge podge.

      Once again the tweetmeister has led the media and the left around by the scnozz. Under the old system it would be a conversation on slow news day and maybe in the congressional hoppers two years from now.

      1. As expected the 9th up held the stay and then waffled the case IS going to the Supreme Court whether the 9th and whomever likes it or not.”

        What speed!!!! When did you get such fast same day or two service in any court?

        Makes a different when you are the President and it only takes one violent incident to make the other side look stupid and culpable.

        That dig aside ….arf arf arf…the purpose of cleaning up the immigration policy is being served and the left can eat twinkies and hi ho at the moon.

        What we do know other than “See you in court!” signaling that filing is probably ready to land on the Clerk of the Supreme Courts desk early tomorrow morning is listed below. All depends on the Court and the scheduling is strictly Chief Justice office last I looked.

        So they could do the usual thing, uphold, deny, send it back to redo correctly with the ban lifted due to national security and ‘ding dong’ no one cares what you think.

        “It is possible the case will next be reviewed by the Supreme Court, although Trump’s nominee for its vacant seat, Judge Neil Gorsuch, is unlikely to be in place by the time it would reach the court. It is also possible that if it goes to the high court, by that time the temporary restrictions would have expired.”

        1. That last paragraph was quote marked as a quote but i didn’t say from whom. AP I think was the genesis.

    2. Jack, thanks for posting the link. Not that this is what SCOTUS will do, but it doesn’t seem like the three panelists thought it was a political question and nonjusticiable. What say ye?.

      1. Steve, Those “so-called” judges closed their eyes to over 200 years of clear precedent. Aliens, not currently residing, or having ever been admitted to! the United States have no right to entry, until now.

        1. They aren’t stupid like some. Somewhere along the line they realized they had stepped on it big time and took the easy way out. So the suspension not ban was held in it’s temporary not permanent mode and the way to the Supreme Court was cleared …..big ole jet airliner style.

        2. Jack, you may be right. We’ll see, but the panel was solely ruling on the motion for emergency stay, and it thought there was less than substantial likelihood of success as to the government’s defense of the harm the EO has caused to Washington and Minnesota for persons connected to those states who travel to one of the seven countries or returning from one of those countries.

          The panel did state that circumstantial evidence of the EO’s intent which violates the Establishment Clause is not only weighed but was part of its decision.

          Per curiam. I thought it’d be a 2-1 outcome.

          It’s a fascinating case in terms of correcting a President that shoots from the hip. Not even Dubya did that.

      1. Wasn’t included in the programming for the day. Ask tomorrow it will be different

    2. It gets better. Congress is deciding how to split uip the 9th.

      front runner choices are California, OR, WA , AK HI and Guam remain the rest become a new circuit court system same basket fewer nutz.

      possibilites are AK, HI, Guam and California separate with OR WA with Arizona, Nevada, Idaho and Montana

      next is moving NV and Arizona east to the next district and Idaho Montana east to the next district

      Finally California separate as the nutty ninth, Oregon with NV and Arizona, Washington with Idaho and Montana.

      However it turns out it’s a bonus on top of the cleaning ujp the immigrations system .

      I used this space as it is otherwise empty.

        1. Balmy nights warm days blue skies and winds to die for when it comes to sailing!

          Sure glad they found out we’ve got a decade or so of this ahead of us…. I might have had to buy a second air conditioner!

    2. Excellent link. I actually had already read it last night, then shared it with a number of friends because it was so profound. It merits a Squeeky cartoon!

  7. Here’s one of the places I draw the line and disagree with civil asset forfeiture especially when it’s sooooo easy under the Patriot Act to make an arrest without probable cause much less proof of having commited a crime. President Trump? I like the job you are doing but that went over the line drawn by the Constitution.

    BUT IF the assets were seized and put in bond pending an actual trial and conviction that would be one thing. IF a Judge has ruled there was sufficient probable cause.

    But not just to enrich the pockets of some local police yahoos out for bonus money.

    This does not affect my overall view since the laws I refer to were put in place and or enhanced by the left wing fascist party.

    Even so no need to follow their treacherous traitorous socialist roader path.

    1. Now I’ll explain how it can be used ….legally.

      It’s rather simple and those familiar with the Patriot Act will grasp the concept immediately.

      Declare drug trafficking an act of terrorism.

      The charge only requires ‘suspicion of’

      Not only no proof nor warrants etc are required but in the case of citizens there are no civil rights. (This also applies to the the 100 mile area inside the coastline or withing the borders.

      Since no trials as such no attorneys no rights cards etc are involved.

      In cases of those found trafficking or under suspicion AND also found to be undocumented or illegal aliens DHS would take over relieving the local authorities of that cost.

      I could find no requirement of notification or any sort of habeas corpus. The criminal would just disappear.

      No records kept beyond however DHS wished to handle it. They would decide guilt or innocence, punishment etc

      And of course forfeiture would be drastically simplified. If the family or an attorney or a reporter got too inquistive then ‘accessory to suspicion of supporting terrorism could be used.

      All of this was put into place during BUSH II’s first adminstration. Extended and broadened in his second administration and again during both of Obama’s administrations. Obama added the ‘supporting terrorism’ provision.

      No one least of all the Congress that passed that law (senate vote 85-15) or the citizens who tacitly approved by re-electing both Bush and Obama complained.

      So all that’s needed is a definition that adds drug trafficking (without describing that phrase) to the Patriot Act and best of all adding that part would not need to be made public knowledge.

      NOW do you feel safer? Dumb Asses?

    2. Just to make sure you didn’t miss this …..

      It gets better. Congress is deciding how to split uip the 9th.

      front runner choices are California, OR, WA , AK HI and Guam remain the rest become a new circuit court system same basket fewer nutz.

      possibilites are AK, HI, Guam and California separate with OR WA with Arizona, Nevada, Idaho and Montana

      next is moving NV and Arizona east to the next district and Idaho Montana east to the next district

      Finally California separate as the nutty ninth, Oregon with NV and Arizona, Washington with Idaho and Montana.

      However it turns out it’s a bonus on top of the cleaning ujp the immigrations system .

  9. President Donald Trump’s escalating attacks on the judicial branch drew denunciation Wednesday from his Supreme Court nominee, Neil Gorsuch, who told lawmakers that the attacks were “demoralizing” and “disheartening” to the independence of the federal court’

  10. If you think of Islam and understand that being a Muslim means a Geopolitical-Religion rather than homage to a particular country. Then you understand the relationship of there religion.

  11. Bad form to publicly criticize other attorney’s performance at oral argument. We have all had bad days. And Mr. Flentje likely got this dumped on him at the last minute in an already disorganized DOJ, in a case that is moving at lightning speed and didn’t afford him much time to prepare.

    1. I still think he was sand bagging in order to get the thing moving up and out of one level and into another. Full court press and take no prisoners.

      GRIN

      1. It is highly unlikely any lawyer would risk their reputation to “sandbag.” If he did, he deserves an Oscar.

    2. It’s become a third rail issue. No one wants to be responsible when the next incident occurs except the President and he’s temporarily barredf from being respnsible so to speak. How would you like to be living in the WH now with your wife and kid in a NY mega building? If Melania is staying there she’s got more brass than most!

  14. “In my view, the Baker factors reflect three distinct justifications for withholding judgment on the merits of a dispute. When a case would require a court to decide an issue whose resolution is textually committed to a coordinate political department, as envisioned by Baker’s first factor, abstention is warranted because the court lacks authority to resolve that issue. See, e.g., Nixon v. United States, 506 U.S. 224, 229, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (holding nonjusticiable the Senate’s impeachment procedures in light of Article I’s commitment to the Senate of the “`sole Power to try all Impeachments'”); see also Marbury v. Madison, 1 Cranch 137, 165-166, 2 L.Ed. 60 (1803) (“By the constitution of the United States, the president 1432*1432 is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience”). In such cases, the Constitution itself requires that another branch resolve the question presented.”

    Separate Opinion submitted by Associate Justices Sotomayor and Breyer in Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 – Supreme Court 2012

    As you can see, even the liberal justices consider Executive discretion to be barred from cognizance of the courts.

  15. BACKGROUND OF POLITICAL QUESTION DOCTRINE

    An analysis of the political question doctrine should first recognize that the judiciary clause of the Constitution gives no explicit support to the theory that federal courts may properly decline to hear cases or decide particular issues merely because they involve political questions. The relevant provision contained in Art. III, Sec. 2 is that the judicial power shall extend to cases and controversies. No mention is made that certain disputes otherwise subject to the judicial power should not be adjudicated.

    However, the political question doctrine was recognized before the enactment of the Constitution and frequently by the Supreme Court in the period shortly after the adoption of the Constitution.[4]

    In the landmark case of Marbury v. Madison, 1 Cranch (5 U.S.) 137, 165-166, 2 L.Ed. 60 (1803), deciding whether the refusal of the Secretary of State to deliver commissions appointing justices of the peace was reviewable by the federal courts, Chief Justice Marshall stated that the question whether the legality of an act of the head of a department be examinable must depend on the nature of that act. He continued that if some acts be examinable, and others not, there must be some rule to guide the court in the exercise of its jurisdiction; that there may be difficulty in applying the rule in particular cases; but there cannot be much difficulty in laying down the rule. He then added:

    “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

    “In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.” Id. at 165-166.

    Thus, Marbury may be considered the genesis of the political question doctrine in the federal courts.

    1. Jack, the President’s authority to act has its limitations under the Constitution. Right?

      Appointment of officers has a check by Senate confirmation and the power of and limits to appointment are expressed in Article II. No such express limitations are involved in an Executive Order other than in the Constitution and statute, and there’s no way to remedy what may be executive overreach other than in the Judiciary.

      In Marbury, where the plaintiff sued in the Supreme Court based on Section 13 of the Judiciary Act of 1789 (http://legisworks.org/sal/1/stats/STATUTE-1-Pg73.pdf), the Court struck down that statute for unconstitutional overreach which would have otherwise allowed Adams’ appointment of Marbury. Why? Because Section 13 expanded the types of cases to be heard by direct petition (like the petition for a writ of mandamus from Mr. Marbury) to the Supreme Court beyond the Court’s original jurisdiction under Article III, which Marshall wrote couldn’t be done.

      The effect was that the Court gave Jefferson the right to appoint his officers under Article II, but in doing so the Court asserted judicial review of the constitutionality of all acts from all three branches (other than political questions).

      Who won in Marbury v. Madison? The Federalists won, taking control of the Judiciary in the midst of a Jeffersonian congressional majority and President Jefferson.

      Sure, Marbury speaks to political questions being beyond the Court’s review. The nuclear option the Senate is contemplating is a political question. The President’s ability to appoint officers in his discretion is a political question. Marbury admits the latter. But this isn’t a political question. It’s whether or not the President exceeded his authority by violating the First Amendment’s Establishment Clause, Fifth Amendment due process and equal protection, and the Immigration and Naturalization Act. We have a case and we have a controversy, and that’s a matter for judicial review.

      I assume you’re a libertarian, but you’re arguing not only Federalist doctrine of centralized power but the notion of radical, plenary, Executive authority to go beyond the limitations of legislation and judicial review.

      1. The limits on this question were discussed, considered and in certain areas a President was given broad latitude with no limits as I suppose the pragmatic exigency of the moment thing to do. Funny ha ha part is that’s not being used against the people who put that ruling in place.

        That part was covered when President Trump read the entire passage

        i remarked on it to myself when reading at the wide, broad, deep and high limits – essentially none.

        Screwed themselves again.

      2. Steve, Sorry, I must have missed this. You should review Mandel (1972), cited by the Govt in their brief. It was a first amendment consideration too.

    1. Apparently Squeek all they did was uphold the stay and let it be bumped to SCOTUS. Like the Seattle Judge ‘no scrotes.’

  17. I have argued before many appellate panels over the course of my career. Here are a few things I have learned:

    1. The best preparation for oral argument is complete mastery of the record; memorizing a prepared argument with the expectation of being able to present it without interruption is foolish.

    2. Questions from the panel are not predictable. Some judges will have questions concerning points in the briefs. Some will request clarification of the record. And some will have policy questions. Occasionally, a judge will ask a question for the sole purpose of being cantankerous.

    3. Admitting one’s inability to answer a particular question is always preferable to dodging or faking. The loss of one’s credibility can irreparably damage the prospects for a successful outcome.

    4. It is seldom possible to predict how a court will rule based on what transpires at oral argument. All of us love to speculate, of course, but oral argument is an art rather than a science and how it is received is usually anyone’s guess.

    I have no idea how the court will rule in this case. It might toss the case in its entirety for lack of standing or permit the TRO to stand pending an evidentiary hearing. It might affirm the TRO as to portions of the executive order and reverse it as to the balance. Whatever the ruling, it will be made in anticipation of further review.

    2. Mike A:

      All sage advice, as usual, but I think the following five rules help, too:

      1. Know the facts
      2. Completely know the facts
      3. When you think you completely know the facts, read the facts again.
      4. After you’ve read the facts, write down the facts.
      5. Review the cases with an eye to fitting them into your facts.

      The argument goes to the person who best knows all the facts –even the seemingly unimportant ones (hint: there aren’t any). You should know them better than the person who lived them.

      1. Very true, particularly since a judge may be interested in a fact which you might think irrelevant to any of the issues on appeal.

  18. I watched it live while assessing it for the virtual network I serve as Editor, The Daily Outsider–you’re too kind to the Special Counsel for Justice–It was just embarrassing–and what is even more embarrassing is how the President noted that the order was beautifully written. What was disturbing was the assertion that the President’s actions on what he deems National Security Grounds are basically “non-reviewable”–if that does not raise concerns by Justices Alito, Thomas & the Chief Justice–I’m not sure what will. I would also note that the Judges were equally tough on the Washington Solicitor General–but he held his own….

    1. “[T]he President’s actions on what he deems National Security Grounds are basically “non-reviewable . . .” was something I’d never heard before yesterday, and notice how the purported ethics gurus on this list are silent about counsel asserting such a position.

      Great point.

      1. Steve, One of the last things members of the legal community are willing to do is recognize that a court lacks the authority over anything, even when the Supreme Court has made it clear. Mississippi v. Johnson is about as on point as it gets, yet no one (including the DoJ) has the balls (or integrity) to acknowledge it.

          1. I suggest reading Mississippi v Johnson (1867) and Marbury v Madison (1803). Mississippi is supported by Marbury. Both defend the Separation of Powers Doctrine and Mississippi recognizes that the only check on the Executive’s discretionary power is at the voting booth, not in the courts.

            1. I don’t think this has anything to do with any aspect of Marbury v. Madison other than its support of judicial review of legislation and the Executive’s inability to usurp constitutional law as interpreted by the Supreme Court. I’ll read the other one and respond.

              1. Steve, You might not think it has anything to do with it, but Associate Justices Sotomayor and Breyer, in 2012, found it to have meaning when it comes to barring judicial review.

                “In my view, the Baker factors reflect three distinct justifications for withholding judgment on the merits of a dispute. When a case would require a court to decide an issue whose resolution is textually committed to a coordinate political department, as envisioned by Baker’s first factor, abstention is warranted because the court lacks authority to resolve that issue. See, e.g., Nixon v. United States, 506 U.S. 224, 229, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (holding nonjusticiable the Senate’s impeachment procedures in light of Article I’s commitment to the Senate of the “`sole Power to try all Impeachments'”); see also Marbury v. Madison, 1 Cranch 137, 165-166, 2 L.Ed. 60 (1803) (“By the constitution of the United States, the president 1432*1432 is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience”). In such cases, the Constitution itself requires that another branch resolve the question presented.”

            2. You’ve made very good points Jack. It would appear the only avenue of opposition to this administration, at least for the next two years will be achieved through the courts. I expect a flood of lawsuits to be filed in courts selected for their activist judges. This particular case appears to be so poorly handled from the administrations initial implementation through the briefings yesterday that perhaps there is a more strategic goal in mind. Flentje’s performance reflected an individual completely unprepared to argue this case. His selection could not have been by accident. Losing to the 9th circuit court would hardly be a surprise and neither would this case ending up on the SCOTUS docket.

              1. I think the poor handling at implementation is due to it being the only way to not show our cards. Let’s say this gets implemented at a slower pace; Do those wishing us harm just speed up their travel in order to avoid an upcoming ban?

                I thought Flentje’s performance was poor too. What I couldn’t understand is why he didn’t rely more on the political question doctrine.

            3. Jack: “Mississippi recognizes that the only check on the Executive’s discretionary power is at the voting booth, not in the courts.”

              If you like dictators every four years (if he doesn’t just assume lifetime tenure as we see elsewhere), have at it, but judicial review seems to be at least a better although not perfect alternative.

              1. Steve, We are far from having a dictatorship. The Constitution limits the authority of the Executive, the same as it limits the authority of the other branches. I understand that you want the court to be able to decide everything. Thankfully, from the beginning, the Court has disagreed with you. – You also left out impeachment. How many dictatorships are subject to impeachment?

                I can see that you are whining, but have provided nothing (persuasive or otherwise) to overcome the binding precedent of the Court. – I guess you have yet to acknowledge Mississippi as binding precedent. Do you?

                  1. Jack, can you let me know how the political question doctrine gets around the following precedent cited in the response to the motion for emergency stay?

                    “Defendants cite Kleindienst v. Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 135 S. Ct. 2128 (2015), for the proposition that so long as the President gives a facially legitimate reason for excluding an alien, the courts will not look behind that reason. But those cases dealt with the President’s power to exclude “an unadmitted and nonresident alien,” i.e., someone who had no legal right to be here. Mandel, 408 U.S. at 762; Din, 135 S. Ct. at 2131. This case, by contrast, involves longtime residents who are here and have
                    constitutional rights. Moreover, Justice Kennedy’s controlling opinion in Din held that courts should look behind the stated motives for exclusion even as to a nonresident alien if the plaintiff “plausibly alleged with sufficient particularity” “an affirmative showing of bad faith.” Id. at 2141. See also Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016) (same). Here, the State has plausibly alleged with sufficient particularity that the President acted in bad faith in an effort to target Muslims. ECF 18 ¶¶ 42-61. Thus, courts have both the right and the duty to examine Defendants’ true motives. ”

                    I’ve run through both pleadings (but not the reply), and admittedly I like the government’s substantive arguments better on the merits, but I also think the government gets this motion denied, that standing won’t be an issue, and at least part of the Executive Order will be found unenforceable based on the above.

                    1. As a run-of-the-mill citizen, this is what I don’t understand: why do we have a constitution that sets limits on each of the 3 branches if we are to ignore the limits. Here we have a President who acted within his authority but is being challenged on his “intent”. In my feebleness to understand a lot of the legal arguments being made I get the sense that the constitution is no longer the supreme law of the land but rather the utility of the action that carries the most weight. Would this EO have been challenged if Trump never asked Giuliani to look into what could be done to ban Muslims? Would this EO have been challenged had Trump merely reissued the same ban that Obama issued?

                      The rule of law and the limits imposed on each branch must be the measure of proper governance. If a law exists that provides unconstitutional authority then isn’t there a process to follow to repeal the law? Is this what is playing out right now? I don’t see it and what I do see is a challenge by the Left to use the courts to strip this President of his constitutional powers.

                    2. Olly, when there’s a constitutional dispute and the Supreme Court is forced to make a determination, policy issues have to be considered in that determination. Don’t you think?

                    3. Steve, Those whom are already in this country are not affected by the order unless they choose to leave and want to reenter. While hear, they have constitutional rights. As soon as they leave, those rights are not extended to them. As they are not citizens, we have no duty to come to their individual aid.

                      As I have stated before, application of the EO to lawful permanent residents would present a problem that the courts can address. In those cases, I would think a treaty would be in place. However, when it comes to aliens, especially those not currently in the U.S.A, they have no right to enter.

                      As far as the “bad faith” argument goes, that’s pretty easy to overcome. Trump’s kneejerk reaction on the campaign trail was tempered by legal consultation. It is not in “bad faith” to restrict access from countries that even the prior Administration found to be an increased risk for terrorism.

                      IMHO, the Respondents should be held in contempt for even suggesting the Justice Kennedy “held that courts should look behind the stated motives for exclusion even as to a nonresident alien if the plaintiff ‘plausibly alleged with sufficient particularity’ ‘an affirmative showing of bad faith.'” – The opinion merely notes that none such was alleged. It barely reaches the level of dicta let alone holding. – It’s as if the Respondent notice that Din did not allege bad faith, so we’re going to an that changes everything. Guess what, you better be able to prove it, and the fact that the order doesn’t affect 46 other majority Muslim countries in the least is a pretty good indication that they can’t.

                    4. Jack, thanks for the CRS Report. I appreciate that. Very informative.

                      “Guess what, you better be able to prove it, and the fact that the order doesn’t affect 46 other majority Muslim countries in the least is a pretty good indication that they can’t.”

                      What’s the standard of proof on the merits of this claim? And is an inference given weight?

                    5. “when there’s a constitutional dispute and the Supreme Court is forced to make a determination, policy issues have to be considered in that determination. Don’t you think?”

                      No Steve, I don’t agree. Our system of checks and balances provide the Legislative branch the means to stop the Executive branch over those policy issues. We’ve seen this play out with every administration and every Congress. The ACA is a perfect example of how those checks should work. It made it all the way to the Supreme Court and it was the Court that failed by exercising legislative authority and they amended the law as a tax so they could then provide the ruling. They did the same thing with the exchanges. They are not there to do the legislatures job, they are there to rule on the constitutionality of the law. Even if 435 members of Congress agreed on a horribly crafted law that is wildly unconstitutional and the President signed that law, if it is challenged by 1 person with standing, then that person should prevail.

                      The courts are the minorities last line of defense for the security of rights. If we end up with courts that base their decisions on their opinions of policy rather than on the constitutionality of the act, then we can no longer consider ourselves a constitutional republic. We’d be at best a utilitarian democracy praying for a benevolent dictator.

                    6. Olly – I thought Obamacare was unConstitutional, but Roberts found an argument and twisted it to make a 5-4 decision.

                    7. Obamacare is unconstitutional. The tax IS a penalty, contrary to what Justice Roberts thought. Precedent aside, how is it NOT a penalty to anyone with his or her feet on the concrete?

                    8. Olly: So, back to your statement regarding policy considerations in constitutional law. The President issues an Executive Order banning travel from seven countries. An American citizen is studying in one of those countries and has what one would consider a procedural due process right to a hearing prior to infringing on his liberty interest to travel in and out of the country. The Executive Order now prevents him from doing so.

                      Are you saying that the President can issue the order and without any factual basis restrict a US citizen from re-entry? This a policy consideration for the Judiciary in the determination of a constitutional dispute.

                      Another thought: Do you like your freedom to travel from state to state? Without a policy consideration by the Supreme Court – which affirmed the right to interstate travel – any state could bar citizens from other states from entry.

                2. If you give the President plenary authority without judicial review, how do you throw him out of office by impeachment and conviction after he issues an Executive Order that there will be no impeachment and trial of the President?

                  1. Steve, Did you forget that we have a written Constitution? Do you think the Court has the authority to review an impeachment?

                    At some point you must acknowledge that the Constitution separates powers, and that not all checks and balances go to the courts.

                    I didn’t make up the Political Question Doctrine, and it has been around since the beginning of the republic.

                    Who gets to remove bone-headed judges from office?

                  2. He you go, Steve. Please take the time to read this from the Congressional Research Service.

                    https://fas.org/sgp/crs/misc/R43834.pdf

                    You really are having trouble with the Political Question Doctrine. Was that prior to Trump, or are you having trouble with the election results?

                    1. Steve, I’m not sure about the standard of proof. So, let’s set the bar extremely low with “more probably true than not true”. – Can anyone satisfy that allegation when 46 other countries that have majority Muslim populations are not included in the ban. – I don’t think so.

            4. I have to agree from the viewpoint of the fully informed jury movement. I’ve aways held that tried by a jury of peers put the jury in charge with the judge as a sort of coach or referee. In one court case we in the jury were told by the judge anytning we didn’t understand sufficiently would be explained in full. We asked the Judge refused. He lied.

              At the end of 22 counts we turned down count one a RICO charge reasoning if the prosecution had failed to prove their case in the other counts we could not trust them on the first one. The rest were invidual counts and the defense had quoted from the law a section that muddied the waters.enough we asked for a class of instruction. Bingo. nineteen counts went down.then another and only the last count was up held.

              We were polled and my response was abstain on two through 21. judgte ruled it wasn’t allowed so I answered not guilty on all counts. That leading by example go the others going as we had discussed this earlier. in deliberations.

              Judge tried to order a verdict and my response was “Your Honor I have already cast my directed ballot in this matter. To change it would be a felony. No one else opted to support the Judge.

              Voting is by ballot, in the case of military service by one’s feet EXCEPT when it ‘s involuntry under pain of jail or fine or both, when a juror decides the law itself is unacceptable and by not buying when the product or service is sub standard.

              The defense attorney later stated he was ready to take us all on pro bono.

              I dont’ know about in the courts but in one court the jury

              That Judge was not re -elected. The Ass’t DA never made it to DA.

              Justice was served.

              The JURY is the Judge and the Judge is reponsibile for keep us fully informed. and on the right path.

      2. Noiteice the dates and times?????

        1, February 8, 2017 at 10:15 pm

        Here’s one of the places I draw the line and disagree with civil asset forfeiture especially when it’s sooooo easy under the Patriot Act to make an arrest without probable cause much less proof of having commited a crime. President Trump? I like the job you are doing but that went over the line drawn by the Constitution.

        BUT IF the assets were seized and put in bond pending an actual trial and conviction that would be one thing. IF a Judge has ruled there was sufficient probable cause.

        But not just to enrich the pockets of some local police yahoos out for bonus money.

        This does not affect my overall view since the laws I refer to were put in place and or enhanced by the left wing fascist party.

        Even so no need to follow their treacherous traitorous socialist roader path.
        Reply

        Michael Aarethun
        1, February 8, 2017 at 10:58 pm

        Now I’ll explain how it can be used ….legally.

        It’s rather simple and those familiar with the Patriot Act will grasp the concept immediately.

        Declare drug trafficking an act of terrorism.

        The charge only requires ‘suspicion of’

        Not only no proof nor warrants etc are required but in the case of citizens there are no civil rights. (This also applies to the the 100 mile area inside the coastline or withing the borders.

        Since no trials as such no attorneys no rights cards etc are involved.

        In cases of those found trafficking or under suspicion AND also found to be undocumented or illegal aliens DHS would take over relieving the local authorities of that cost.

        I could find no requirement of notification or any sort of habeas corpus. The criminal would just disappear.

        No records kept beyond however DHS wished to handle it. They would decide guilt or innocence, punishment etc

        And of course forfeiture would be drastically simplified. If the family or an attorney or a reporter got too inquistive then ‘accessory to suspicion of supporting terrorism could be used.

        All of this was put into place during BUSH II’s first adminstration. Extended and broadened in his second administration and again during both of Obama’s administrations. Obama added the ‘supporting terrorism’ provision.

        No one least of all the Congress that passed that law (senate vote 85-15) or the citizens who tacitly approved by re-electing both Bush and Obama complained.

        So all that’s needed is a definition that adds drug trafficking (without describing that phrase) to the Patriot Act and best of all adding that part would not need to be made public knowledge.

        NOW do you feel safer? Dumb Asses?

      3. Appreciate the comments–this should be of profound concern to all Justices (including those in the originalist camp)..although some have questioned even Marbury vs. Madison as well….

  19. I found the entire argument dissappointing. More of a policy debate than a legal one. Friedland asked all sorts of legally irrelevant policy questions that seemed to be playing to the listening audience rather applying the law in a disinterested manner (and sure enough, she was trending on twitter after).

    If this is how judges behave when their arguments are broadcasted, I think it’s a good argument against the practice.

    1. So then you’re saying that the President can do whatever he wants–right? Last time I checked, there was still a separation powers and the constitution was not rescinded–yes the President has latitude–but this is not Turkey–and I respectfully reject your take on it because I listened to the entire argument and as I noted, I think the judges were on top of their briefs–and the Justice Dept. Lawyer was a total embarrassment…..

      1. Of course I don’t think the President can do whatever he wants.

        But with respect to immigration, the Supreme Court has squarely held “an alien seeking admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia. Moreover, the Immigration Act of 1952 expressly grants the President authority suspend entry of any class of aliens he finds to be detrimental to the interest of the United States.

        Judge Friedland peppering the DOJ with questions about whether he thinks it makes sense for the administration to pick these seven countries is legally irrelevant babble that seems more calculated to getting her name in the media than in getting the case decided correctly under the law. The Supreme Court and Congress both agree that that call goes to the President.

      2. Mike, “Separation of Powers” means exactly that…they are separate powers. I think what you really wanted to support your position would be “checks and balances”. However, in this case, another doctrine is applicable. That is “The Political Question Doctrine” which bars the courts from deciding political questions.

        This isn’t something new. It came up in the early years. Here’s what the Court had to say;

        “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

        In such cases, their acts are his acts; and ­. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. . . .”

        1. The courts have been clear on this issue, not the least of which, no one on the left argued with the decision in NASSER AL-AULAQI v. Obama:

          “Stark, and perplexing, questions readily come to mind, including the following: How is it
          that judicial approval is required when the United States decides to target a U.S. citizen overseas
          for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when
          the United States decides to target a U.S. citizen overseas for death?

          An examination of the specific areas in which courts have invoked the political question
          doctrine reveals that national security, military matters and foreign relations are “‘quintessential
          sources of political questions.'” See El-Shifa, 607 F.3d at 841 (quoting Bancoult v. McNamara,
          445 F.3d 427, 433 (D.C. Cir. 2006)); see also Haig v. Agee, 453 U.S. 280, 292 (1981)
          (explaining that “[m]atters intimately related to foreign policy and national security are rarely
          proper subjects for judicial intervention”).

          As the D.C. Circuit recently explained, cases involving national security and foreign relations “raise issues that ‘frequently turn on standards that defy judicial application’ or ‘involve the exercise of a discretion demonstrably committed to the executive or legislature.'” El-Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211).

          Unlike the political branches, the Judiciary has “no covert agents, no intelligence sources, and no policy advisors.” See Schneider, 412 F.3d at 196. Courts are thus institutionally ill-equipped “to assess
          the nature of battlefield decisions,” DaCosta v. Laird, 471 F.2d 1146, 1155 (2d Cir. 1973), or to
          “define the standard for the government’s use of covert operations in conjunction with political
          turmoil in another country,” Schneider, 412 F.3d at 197.”

          from:
          https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2010cv1469-31

          Noted, that these issues are very complex given past court decision, but the level of precedent is clear on the limitations of the judicial branch to enter into areas reserved to the executive in the past.

          1. There was nothing in the panel’s order that spoke to non-justiciable issues in foreign affairs because the lawsuit was clear in its breadth as to the harm involved. That harm was solely to Washington’s and Minnesota’s interests.

            I think the preliminary injunction hearing is where the paring away of the complete denial here will begin.

          2. If it has gotten that complex that swamp needs draining. Lawyers for a start should be banned from public office as they have a vested interest which usually requires recusing and of course they have a horrible record of accomplishing anything but bureaucratic gobbledegook.

        2. Whatever happens, it will land probably int he Supreme Court..as the Adminstration has stated–am glad to see they are apparently abiding by the court order in the meantime…it underscores the strength in the system–which I hope all agree…..

      3. The Daily Outsider is a Likud Platform, interesting that you would ever even remotely consider yourself in a position to comment on any action’s legality or due process.

        1. FDR and company got rid of separation of powers starting with Woodrow Wilson in 1913. He also got the income tax amend ment through. FDR expanded that by installing the fourth branch of government where one office could legislate, administrate, inspect, arrest, try and jail with impunity. To the point when President Trump fired one of his employees the world of the left thought it horrible.

          Same thing just happened again .That crap works when you have a pussy in the White House like Carter or Obama or an outright supporter of that system such as Obama and Clinton. Our outsider didn’t even slow up to see if such a stupid idea was real or not.

          Separation of powers? What’s that? were you born in the 1800’s

          Why do you think we went counter revolution last November.?

        3. Thank you for writing–please educate us by noting what you mean by the “Likud Platform” so that I can help “clarify” any concerns. Cheers.

  20. We all know that we call the attorney who graduated at the bottom of his law class “Your Honor”

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