We previously discussed the controversy over a painting by a constituent of Democratic Rep. William Lacy Clay that depicted police as pigs in Ferguson, Missouri. As we discussed, the House had a right to remove the art and eventually did precisely that. However, before that decision from the House, Rep. Duncan Hunter (R., Cal.) took down the painting. Clay called for criminal charges. When the painting was rehung, another Republican member removed it. At the time, Rep. Cedric Richmond (D-La.), chairman of the Congressional Black Caucus, said “We may just have to kick somebody’s ass and stop them. Then the architect stepped in and barred the hanging of the picture. Now Clay has announced that he will file a lawsuit challenging the actions of the House of Representatives. It is hard to see a strong legal basis for such a challenge. The odds heavily favor the House of Representatives in the action.
Word on the street is that the Trump Administration is prepared to issue a new executive order on immigration. While I have maintained that the law favors President Trump on this issue and I have been critical of the decision by the Ninth Circuit, I have also maintained that the original executive order was poorly written, poorly executed, and poorly defended. A second executive order could reset the litigation and cut away a key (and in my view questionable) component of the Ninth Circuit opinion in expressly exempting green card holders. The new order reportedly does precisely what many of us have suggested while keeping the majority of the prior order. By retaining the same countries and imposing the same conditions, the new order would protect the Administration politically from allegations that the President has backtracked. It would also leave the core basis for challenges on the merits of such travel limitations. I will be speaking on Capitol Hill on Tuesday about the President’s executive order authority at the US Capitol Visitors Center at noon.
It appears that the problem with the Internet in Palau resulted in the deletion of the original post on the decision in Virginia. I did not want to delete any discussion so I am keeping this post. I am in Guam now with better Internet access. Virginia federal district court Judge Leonie Brinkema granted a preliminary injunction which requires a higher showing for the challengers. In that sense, this is an obvious victory but it could also be an opportunity for the Trump Administration. I believe that the Brinkema decision might be the better option for the Administration to appeal given its focus on religious discrimination and its reliance on campaign statements and the bizarre statements of Rudy Giuliani.
The United States Court of Appeals for the Ninth Circuit will have a completed record for its review of the lower court’s stay of the Trump immigration executive order this afternoon. While much has been made of the court declined to issue an immediate stay of the lower court under the earlier emergency motion, the decision was very predictable. The Court instead ordered for an expedited response from the states of Washington and Minnesota. That argument is complete today. What remains is a relatively rare procedural process in seeking to review a temporary restraining order (TRO) before the issuance of a written opinion, let alone a permanent injunction.
The United States Court of Appeals for the Ninth Circuit has declined a demand for an immediate reinstatement of the Executive Order on immigration but has scheduled expedited arguments and filings in the case for Monday. The decision is not surprising in such a case. Courts need to hear from the other side in the dispute, particularly when the Washington Attorney General prevailed in the trial court. Moreover, 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. With a major executive order stayed, the Ninth Circuit is clearly moving with dispatch but deliberation. The Justice Department team was not helped by President Trump’s tweets casting aspersations on Judge James Robart of Federal District Court in Seattle as a “so called judge.” Such comments undermine the credibility of the claims. It is less compelling to demand respect for the executive branch if you are viewed as denigrating the judicial branch. While there is ample reason to question the ruling of Judge Robart, but he is a respected judge who made a good-faith decision on a tough legal question. He is not a “so-called judge” but a real judge and has the Senate confirmation to prove it. Having said that, media playing up the “rejection” by the Ninth Circuit are not being entirely accurate. The Ninth Circuit wants more argument and has not reached the merits. There is still question whether it will reach the merits on a TRO appeal. I still believe that President Trump has the advantage legally and we could see this order stayed. The question is when and how since this remains a temporary restraining order without a written opinion from Judge Robart.
I recently published a column in the Los Angeles Times on reforming the Supreme Court with three fundamental changes that could be accomplished without a constitutional amendment. Below is a longer version of that column on the three reforms and their implications.
Below is my column in The Hill newspaper on the nomination of Tenth Circuit Neil Gorsuch. If President Trump sought to change the subject from immigration, I doubt this will do it. However, as I discuss in the column, if he sought to quiet restless Republicans over a truly dreadful performance of the Administration in the first week, the nomination should do so. He is a jurist with impeccable credentials and will be very impressive in the upcoming hearings. He is, to put it simply, a game changer.