Media is reporting that President Donald Trump will issue a new executive order on immigration this week but, according to a source this morning, not today. The order is expected to correct glaring problems in the first order. I have said previously that the original order was poorly drafted, poorly executed, and poorly defended. The Administration will have to significantly improve the lawyering behind any new executive order. Indeed, the law still favors the Administration and the disastrous rollout of the first order was the result of astonishingly casual and frankly sloppy work. As I have previously stated, good lawyering does not often materially alter the outcome of litigation but bad lawyering does. This is one such case. With case law favoring the Administration, the improvisational character of the first order created a target rich environment for courts.
Category: Congress
I recently discussed the ethics complaint filed against Presidential Advisor Kellyanne Conway by 15 ethics law professors. For full disclosure, Conway is one of my former students at George Washington University Law School (she graduated in 1995). I criticized the complaint as highly political with little foundation. The only aspect of the complaint that was not frivolous was the allegation that Conway violated the federal rule against endorsing commercial products in light of her comments about Ivanka’s line of clothing and jewelry. As I stated, Conway did violate the rule though I viewed the violation as part of a tongue-in-cheek retort to the controversy. It still warranted a formal reprimand in my view but not an ethics charge or more serious action. The White House appears to have reached essentially the same conclusion though there is no indication of a formal reprimand as opposed to a public confirmation that Conway has been “counseled” and will not commit such a violation again.
Continue reading “White House: Kellyanne Conway Acted “Without Nefarious Motive””
The recent arrest of Ever Valles, 19, for murder has rekindled the debate over sanctuary cities and the proposed crackdown by the Trump Administration. We have previously discussed the status of sanctuary cities. I have maintained that these cities are in a poor legal position to oppose the federal programs and that they would face the loss of badly needed federal funding. The case of Valles will reinforce moves in Congress to clamp down on cities like Denver, which have responded that their police would have no legal basis to hold illegal immigrants for federal officials under the Constitution. The conflict presents an interesting series of issues about the basis for detainers and the legal status of immigration warrants under the Fourth Amendment. There is certainly no barrier in cooperating through notice to ICE and coordinating transfers. The question is whether there are barriers to holding someone for the requested 48 hours under these detention requests.
A new CBS poll shows considerable opposition to the Trump Administration’s approach to immigration. The poll confirms that immigration is the top issue in the minds of voters. However, it also shows 60 percent of voters support the right of illegal immigrants being allowed to stay and achieve citizenship. Some 58 percent oppose the building of the wall.
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.
Continue reading “Executive Redux: Administration Set To Issue New Order On Immigration”
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.
Continue reading “Federal Judge Grants Preliminary Injunction of Executive Order In Virginia”
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.
Continue reading “Ninth Circuit Briefing Completed Today For Ruling On Trump Appeal”
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.
Continue reading “GAME CHANGER: THE GORSUCH NOMINATION GOES TO CAPITOL HILL”
I have the pleasure today of speaking at the keynote before the CATO conference in Naples Florida being held a the Ritz-Carlton. Apropos of the current debate over the Trump executive order on refugees, the speech will address the scope of, and limits on, executive power. The speech will start at 11 a.m.
Continue reading “Turley To Speak As Keynote At Cato Conference”
President Donald Trump has made his choice for the Supreme Court and it is Tenth Circuit Judge Neil Gorsuch, 49. With the selection, President Trump would be submitting a jurist with unassailable credentials and proven intellect. He is also someone with a proven conservative record, though there are a few blind spots for those who want a nominee vaccinated against what conservatives view as the David Souter virus — a creeping condition where a conservative gravitates to the left of the Court with time. Last night, The Hill newspaper ran my column on Gorsuch and his unquestioned qualifications.
Continue reading “TRUMP NOMINATES NEIL GORSUCH FOR THE UNITED STATES SUPREME COURT”
President Donald Trump fired acting Attorney General Sally Yates Monday night for “refusing to enforce a legal order designed to protect the citizens of the United States.” As I stated on “Morning Joe” this morning, Trump clearly has the right to fire Yates. Indeed, Yates’ action (and rationale) contradicts long-standing Justice Department policies on such issues. Despite my personal opposition to this executive order, I believe that Yates was mistaken to take this action and that it does not serve the interests of justice to obstruct efforts to have this matter fully litigated before a court for independent review.
Continue reading “Trump Fires Acting Attorney General Over Refusal To Defend Executive Order”
I previously discussed how President Donald Trump has the advantage in a constitutional challenge of this executive order suspending entry for refugees and imposing special limitations on seven stated countries. As I have noted, this does not mean that there are not legitimate questions raised, particularly over the express preference to be given “religious minorities” under the order. However, the case laws heavily supports a president’s plenary power over such border controls. There remains however a question over whether the law could be constitutional under a president’s inherent authority but still unlawful under statutory authority. Most of that argument centers on the Immigration and Nationality Act of 1965, which bars discrimination based on nationality or place of origin. There are clearly compelling arguments on both sides of this question, but once again I believe that critics may be overstating the 1965 law as making the executive order facially invalid. As I have repeatedly stated since this executive order was signed, I believe it was a terrible mistake, poorly executed, and inimical to our values as a nation. However, legal analysis by a court should not be influenced by such personal viewpoints. The question is solely whether the president is barred statutorily from taking this action.
Continue reading “Is The Trump Executive Order on Refugees Unlawful?”