Constitutional Law, Courts, Politics

Trump Says Administration Will Issue New Immigration Order Next Week

donald_trump_president-elect_portrait_cropped200px-US-CourtOfAppeals-9thCircuit-Seal.svgPresident Trump said today that  he will sign a new immigration executive order next week and that he  would appeal the 9th Circuit Court’s ruling against his travel ban.  He further called the Ninth Circuit a court “in chaos” and “turmoil.”  I do not see the chaos or the turmoil on the Ninth Circuit, which is the largest circuit in the country.  One can certainly disagree with the decision on the executive order, but the panel decision was a good-faith decision of three judges who unanimously ruled against the order on the effort to stay the lower court’s temporary restraining order (TRO). Update: there appears another disconnect between the White House and the DOJ. In today’s filing the DOJ requested that the Nunth Circuit vacate the prior order because the new order will rescind and replace the old order.


President Trump stated that “That circuit is in chaos… that circuit is in turmoil.” There is a move to divide the Ninth Circuit, which has been long discussed. Under one plan, the new Ninth Circuit would be largely California — something unique in the nation where circuits cover multiple states.  Under the Senate proposal, Oregon, Hawaii, Guam, and the Northern Marianas would join California.  That means that the circuit would be composed almost exclusively of judges from one state.  Indeed, California alone produces as many or more appeals than the entire Fifth Circuit (the second largest circuit).

It is important to acknowledge that the Administration, while prevailing in Boston, suffered a second defeat in Virginia recently.  Virginia is part of the Fourth Circuit.
President Trump insisted that the Executive Order or its rollout were not a problem and that the Administration is a “finely tuned machine.”  He insisted that the problem is a “bad court.”  I obviously do not agree on the drafting or the rollout.  Moreover, while I disagree with basis for the opinion, I do not attribute the result to the Ninth Circuit being an outlier among the circuits.
The dual track approach on the appeal makes sense.  The original executive order was poorly drafted, poorly executed, and poorly defended.  The Administration would greatly improve the order by taking obvious steps like an express exemption for green card holders. This is not to say that the law does not favor the Administration. In my view, it does.  I thought that the Ninth Circuit opinion was quite weak and impressionistic.
The Administration could effectively moot aspects of the earlier appeal while continuing to appeal other aspects.

169 thoughts on “Trump Says Administration Will Issue New Immigration Order Next Week”

    1. Nom De Plume I guess. Dyslectic keyboard? Whoops?

      and back to the topic. How would you divide up the 9th? No one but California wants it and half of California doesn’t want it.

    1. This for Prof Turlow
      .
      Having traveled the distances would you divide Ninth into
      1. Guam, Samoa, Alaska, Hawaii b. California Oregon and Washington, and then Idaho Montana, Nevada Arizona.

      2. or do the same for a. . with .b. Oregon, Washington, Idaho, Montana and c. California, Arizona, Nevada

      3. a. the same with oregon, washington, arizona,nevada and California with the eastern most states moved to existing circuits.

      Besides Oregon and Washington would any of the others willingly go with Californa?

      2. Michael Aarethun – California can have the Ninth Circuit and the rest of the West will create a new circuit.

      1. Traitors to their citizenship and the Constitution shame, disgrace & curse their families

      2. Michael, do learn a wider vocabulary, please. Surely after you study a dictionary of cuss words you could be ever so much more entertaining…

        1. So let’s revert to Daveyspeak. It’s a uuuuh duhh like really man wow – or something? Note the California punctuation.

  4. When will Melinia file for divorce? The odds of a bigger settlement from the “sloth” who can do breath without lying are greater.

    1. How many names do they issue the same person in the Socialist Collectives? Seig Me No Heils Comrades we don’t serve the Party anymore.

      Go back to Sorosville whee you belong for sure you have no business in the USA

    2. The cost to keep Melania in her gilded tower is more than the annual Arts and Humanities endowments.

      1. Which A doesn’t exist anymore and high time and B. The needed renovations and technical whatever is being paid for so all that’s left is stupid comments from stupid people. Life, Liberty, and the Pursuit of Happeness does not mean handed to everyone on a platter. in equal amounts, But then you have to read the citizens handboook to discover that. .

        1. Why Davey your delicate main line dilletante is showing. Just trying to converse on your level out of common politeness if nothing else. .I thought all you radical reasoners used such to make a point when – you had no point to make.

  6. Just got to watch the whole three segments. I never saw a President do an open question meeting like that before. and if the press doesn’t get it it’s not Trump that makes them untrustworthy it’s the media showing the media is untrustworthy.

    1. Trump constantly lies. He said he was for American workers yet his sons have applied to the Dept.of Labor to get special permission to hire foreign workers at their winery.

  7. It was announced this evening that the Trump administration plans to formally rescind the executive order and issue a new one. That means that there will no longer be a case or controversy for the courts to consider and the litigation will end. Of course, this is what I have repeatedly recommended. I assume someone was finally able to convince the President to look beyond the injury to his ego.

    I am pleased and humbled by the President’s recognition, albeit belated, of the wisdom of my position, and trust that he will more carefully take heed of my views prior to his future policy determinations. 😀

    1. Without knowing what will be in the new executive order, I’m not sure that the litigation will end.
      I think it depends on the content, and how eager a plantiff might be to challenge the new EO before a district ( or other) judge.

      1. tnash – doesn’t make any difference what the EO says, the ACLU will go judge shopping again. They will try to get it over turned. You noticed that they did not pick any judges from the heartland. They picked judges from the East Coast and the Left Coast.

        This will end up in the Supreme Court, regardless.

        1. Paul Schulte,
          -from Reuters, 02-16-2017
          “Litigants from around the country say they will examine any new executive order carefully for constitutional issues, and will pursue legal action if necessary”.
          We’ll see what happens, but I agree that a legal challenge to a new EO is likely.

    2. Anyone with a lick of sense that god gave to a donkey would have understood this from the affirmative decision of the circuit court.

    3. Mike does this mean you are ok with a temporary suspension of travel from the 7 countries of concern of non citizen aliens whilst the admin decides on better vetting protocol? Or do you mean something else entirely?

      1. Completely perfectly fine and satisfied. Here’s why? The whole exercise was to clean up the mess and the fastest way to get the most response was using those few people from those partiucular nations. Most of hte were inconvenienced very little. Less that the hired protestors who stood outside in the cold or at the carouself stood a good chance of being arrested.

        In the end the courts made some well needed calls and the problem of ‘how do you vet in a nation which has zero records.

        Now the new version is being readied long before the ban on the old version expires this one will be taken to the court in similar fashion. I don’t know how many are being inconvenienced by the court’s 90 day ruling but doesn’t look it’s affected the entire program or it’s mission.

        All of the delays if any are not the court’s responsibility.

        How many phases? In what order? Don’t know, don’t care.

        I travel by bus and it doesn’t affect me in the slightest.

        Of more importance are the side by side issues which looks like will be moved up in equal steps. It’s a muti part problem and that’s usually the best way to clean up the mess.

        A nice side bonus was Shumer and the Snow Flakes being marginalized. Rumor was they were quitting and going home – or something.

          1. Notice I accepted it as I’m known for dyslectic keyboards no matter how careful But the answer is His name is M I K E and mine is M I C H A E L. To many Mike’s that’s why I changed to long version

  8. The Steak-Salesman is a man-baby who talks about the media and the election because that’s all he knows — which isn’t much.

    Tired platitudes just like the campaign. All he wants is to be on camera, or to tweet so it intrudes into O’Reilly’s show.

    Trump is the biggest snowflake of them all.

  9. Do I care? Enough to correct the spelling but not enough to decipher the frijoles.

  10. Hey suckers!

    You’re sending a bunch of secret service agents (at least a dozen) for an all expenses paid vacay this weekend to Dubai – to a golf resort!

    Two guesses as to who will be joining them there.

    Let me know when we have some winners here.

    1. Mickey Mouse? Rebuild the left convention? Do I are? With that build up I’ll eschew Patty Murray and her smelly tennis shoes and get on back to reality. Fairy Tail Land is soooooo boooooring. Something like watching a Socialist fart All smell no substance.

  11. My question is do people think that the temporary travel ban will be effective, i.e. allow for the development of a better vetting process and ultimately protect the country more? I have heard from some sources that it is not necessary, that we have had relatively good counterintelligence since 9/11 but perhaps the increased influx of people from countries without good paper trails makes this more difficult. It is hard for people to get past all the rhetoric and rationally ask the question, “Will this do what it is intended to do and if so, can it be written in away to not overly inconvenience citizens?” I get the feeling that even if it could be shown that it would be successful, the courts and the protesters would still fight it. I’d like to find a way to have a conversation about that that is not heated.

    1. kathy,
      The President already answered your question – yes he believes it will do what it is intended to do and he is re-writing it not only to not inconvenience citizens, but also to not inconvenience the 9th circuit. But the rub comes in your next thought – sadly, yes indeed the 9th will reject even that – why? -simply because of politics. As for current vetting, well …..
      lack of data: https://www.youtube.com/watch?v=H-1ovgAwHFo
      fraud: https://www.youtube.com/watch?v=6rC-qX6Q5m8

    1. Now the dimwit thinks saying it twice makes it real? No you have to do it three times according to Radical Reasoning .Does look like Harry Reid though or maybe Mengele or mmmmm Jimmy Carter or Tammy Faye Bakker?

  13. What makes you think that isn’t part of the overall plan. First use it then lampoon it so it will never be brought back in the same form no maltter who or what is in that office. Make a mockery of a caricature of doing exactly what the dunce cap that went before etc etc were doing.

    Seems to be working…. look how playing stupid gets even more stupid until some……just today…..suddenly woke up and said. HEY we’re getting blamed for this.

    About time.

        1. Donald Trump’s pick to replace Michael Flynn turned him down and reportedly called the job offer a “shit sandwich.”

          1. What is apparent is your ability to sort fact from fiction is greatly impaired. Try laying out facts and not frijoles and you will find there are not enough of the former to make up for the latter. Not to mention your fiction skills are seriously illiterated.

    2. God only knows what Kucinich did in a past life to be brought so low as to be subjected to an interview by Maria Bartiromo (who once worked MSNBC along with Chucky the Todd) . She couldn’t even spell the verb, to investigate, never mind conjugate it. Kucinich’s comments almost burnt out her circuits.

    3. Autumn, You have the appreciate the irony of the formerly Commie loving Dems now becoming the Tail Gunner Joe party. Mind boggling.

      2. Does anyone out in flyover land real know if Kremlingate will become bigger than Watergate?

      3. Nick, I am totally loving it!! Dims are so desperate right now they can’t see straight and YESSS the Russians are to blame. Quite hilarious. Glad I am an independent.yet I fear as as the Dark Stake amps towards war.

    5. You mean the war mongers better known as the Democrats or was that related to the Russians? Fits the first guess for sure.

  15. 8 USC sec. 1182(f) is overbroad and gives the President too much power without having to articulate just what conduct by individuals “would be detrimental to interests of the United States.”

    To arge that his actions under 1182(f) are not judicially reviewable for their constitutionality seems a bit far-fetched to me. If the statute is reviewable, which it is, his actions pursuant to the statute are reviewable, too. I hope that whatever the result with these executive orders that at least this issue is addressed.

    8 USC sec. 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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

    1. “Every nation has the right to refuse to admit a foreigner into the country… What it owes to itself, the care of its own safety, gives it this right; and, in virtue of its natural liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner.”

      Emmerich de Vattel, The Law of Nations (1758).

      Although the Constitution contains no direct mandate relating to immigration matters, the Supreme Court has long recognized that the political branches of the federal government have plenary authority to establish and implement substantive and procedural rules governing the admission of aliens to this country.

      It is worth emphasizing that while the Court could have implied the power to regulate immigration from constitutional grants of legislative powers such as the right to declare war, to approve treaties, to regulate foreign commerce, to establish a uniform rule of naturalization, and to enact all necessary and proper laws, the Court instead declared that “the control of immigration [is] an implied power arising out of national sovereignty and existing without regard to any constitutional grant.”

      Congress may exercise its implied powers in the immigration field through its legislative powers, while the Executive has two sources of authority in this area: (1) power delegated by Congress through statutes such as the INA and (2) its inherent power, arising out of the Executive’s plenary authority over foreign relations.
      United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950).

      The courts have instead tended to view the President’s inherent powers as a justification for permitting Congress to make remarkably broad delegations of its authority in the immigration field. As Justice Minton explained in Knauff, “[n]ormally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power” without raising delegation concerns.

    2. Steve how bout this:
      “Whenever the 9th circuit 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, they may by proclamation, and for such period as they 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 they may deem to be appropriate.”

      How’s that for “Judicial Review”?

      1. The quote just turned the 9th Circuit into the President. We’ve got to damn much of this Fourth Branch crap as it is. Instead let the Judicial Branch start running the Judiciary like it is supposed to do and stay out of legislation and the executive portion. Same with the rules writing. That belongs to the congress. Better we take those functions that don’t belong all shoved haphazardly into the executive branch and eject them and send them home where they belong and if their homie don’t want them send them home for real.

  16. I watched the Trump news conference this afternoon and he did a great job of dealing with the questions. Some press dorks stand up and make long statements and utter four questions related to differing topics. Trump was good at cutting to the chase. He was correct in his strong criticisms of the press. I watched CNN last night and Trump was right on about their confusion.

    Wolff Blitzer is one who needs to step out of his ego.

    The media is good at bringing out the trash but not taking out the trash.

    1. Watch little by little they try to get friendlier as he continues along with his agenda. I noticed Acosta wasn’t so tough this go around. The President also signed a bill for the miners and I do believe I saw a Dem there thanking him. Things have a way of changing.

      1. He appeared so insane that the press was a bit taken back today. Trump signed a bill letting the coal companies pollute the streams.

        1. Of course you do and each time I hear Pelosi, Waters and Schumer I think I’m watching a commercial for Aricept.

          1. And the last group of complaints was he hadn’t opened them up fast enough. Sounds like a dog and pony show of propagandist wannabes. Just ignore them they really aren’t worth the bother.

      2. Probably a great many are tired of being goats for the left wing extremists. Some choices loom. Have another party leadership election without or without the approval of Shumer and Pelosillyni. The other is the still building move towards bolting the party to the IDC Independent Democrats Council and make a coalition with the Constitutional Republic Faction. I am so surprised the African American Demcrats haven’t already taken over DNC or the Latino Americans. Here i thought they were being polticially serious. oh well. They have had a few weeks and have done nothing but cave to the extremists again. I guess the Massa habit is hard to break.

        1. The Dems are a lost party and continue to spiral downward. They better look closely at themselves instead of blaming everything and everyone for their losses. (Ret) Harry Reed, Pelosis, Ellis, Waters, Schumer Hillary Clington this is the face of the Dems and it’s not pretty. Clinton was a terrible candidate and they were so arrogant they couldn’t believe they would lose as if everyone loved 8 years of Obama. Obamacare has failed, well when a wingnut says “we have to pass it before we know what’s in it” that’s why it failed. I wonder how many of you lib lawyers here tell your clients”just sign the contract we’ll worry about what’s in it and what will happen later”? Give me your name so I can tell all my family and friends to avoid you for legal advice.

          No Americans don’t like illegal immigration, no Americans don’t like the dangers of unvetted visitors to our country, no Americans don’t like criminals destroying our cities.

          Wake up Dems abandon your direction and start to embrace the things Americans want. As for investigating Gen Flynn go for it but make sure you investigate and locate the leakers, charge them, prosecute them and jail them.

          1. Cheetos face, Pence, Ryan and McConnell are the cool white guys and the face of the republican party.

      3. Bill that is good for the miners? What? Miners don’t need clean water (?) cuz that little bill allows for the dumping of mining sludge into streams. Does that sound like a good idea to you?

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