Despite a surprising lack of media attention, the Ninth Circuit saw a relatively rare filing of a dissent in the appeal of the first executive order. Critics of the order have celebrated the panel decision, though many of us (including opponents of the immigration order) criticized the opinion as poorly written and supported. Nevertheless, critics have said that four judges in that case ruled against the President. (That is not counting Judge Brinkema in Virginia). However, the count is now roughly even for the first appeal of the order. In a surprising move, five judges (including the highly respected former Chief Judge Alex Kozinski) filed a dissent to the motion for rehearing. The blistering dissent showed that a significant number of Ninth Circuit judges strongly disagreed with the decision of the panel. (Some judges may have not approved of the panel decision but did not see the need for a rehearing). As previously raised by experts, the strongly worded dissent belies the claim that the original executive order was legally unsustainable. To see this type of vociferous dissent in a withdrawn appeal is remarkable in itself but it also shows the depth of opposition to the panel’s decision among other judges.
Category: Constitutional Law
Last night, U.S. District Judge Derrick K. Watson issued a
temporary restraining order that prevents the second immigration order of President Donald Trump from going into effect on Thursday. The 43-page opinion is scathing and relies not only on the statements of President Trump but the recent statements of his chief aide Stephen Miller. While I respectfully disagree with Judge Watson and view his decision as contrary to the weight of existing case law, the opinion again shows the perils of presidents and their aides speaking publicly about litigation. Political facing saving comments can be case legal damaging comments. Yet, I still believe that Judge Watson relied too much on campaign statements and television interviews to overcome the facial neutrality of the language of the executive order.
Continue reading “Federal Judge In Hawaii Enjoins Second Executive Order”
It appears that if you are an authoritarian tyrant everyone looks like a Nazi when they oppose your will. Recently, Turkish President Recep Tayyip Erdogan denounced the German government for blocking rallies of Turkish nationals — saying that the decision is “no different to those of the Nazi period.: Erdogan has been widely denounced for his destruction of the secular traditions of Turkey and his attack on free speech and the free press. Erdogan somehow missed the global ridicule of his (of all people) objecting to the denial of free speech. Now, undeterred, Erdogan is denouncing the Netherlands as Nazis after the denied permission for a plane carrying Turkey’s foreign minister to land in the country ahead of a rally supporting his notorious expanded powers.
I have great respect for Harvard law professor Lawrence Tribe, who remains one of the iconic figures in constitutional law and someone with whom I have had exchanges for years on legal controversies affecting this country. While I was not surprised to see that we disagreed on a constitutional issue related to President Donald Trump, I was surprised to see that he took literally a comment that I made as a joke about impeachable tweets on Morning Joe recently. Tribe ironically responded in a series of tweets to the comment. The more serious problem is that I considered the suggestions of impeachment over Trump’s criticism of President Obama to be laughable. They clearly are not to Professor Tribe. It is something of a reversal of roles since both Tribe and I testified during the Clinton impeachment hearings where he suggested a narrower definition of the constitutional standard while I argued that Clinton could be impeached for an act of perjury.
Continue reading “Impeachable Tweets: A Response To Professor Tribe”
We just discussed the move in Hawaii to secure a new restraining order to cover the second Trump executive order. That was the most likely move that we previously discussed. The other option was to seek to extend the existing restraining order to cover the second executive order on the grounds that there was not a substantial change. That is the option that Washington state is taking. Today, Washington state Attorney General Bob Ferguson indicated that he will ask that Judge James Robart’s Feb. 3 ruling be extended on the grounds that the second Executive Order contains the same alleged violations as the first.
Continue reading “Washington State To Move To Extend Restraining Order To Second Executive Order”
The Trump Administration has issued a new executive order on immigration. As expected, the second order removes some of the most controversial provisions of the first order and tightens the language. Iraq has been dropped from the list of countries subject to the 90 day ban. However, there will be additional security of Iraqi nationals. That would leave Iran, Somalia, Sudan, Yemen, Syria and Libya. The permanent ban on entry of Syrians has been removed. There is still a limit on all refugees to 50,000 — a 50 percent cut. Current VISA holders and permanent residents are exempted. Notably, this travel ban will be implemented on March 16 and the order will be dated to run from the date of the original executive order (which was . Finally, the preferential treatment afforded to religious minorities has been removed.
The new order removes the edges from the rather casual drafting of the first order. As I previously noted, good lawyering rarely changes the outcome of litigation but bad lawyering can. The first order reflects remarkably bad lawyering — if indeed it was drafted primarily by lawyers. Of course, this still distinguishes between people based on their nationality — the core of the challenge of the earlier litigation. Thus, it is likely that this will face new challenges — or attempts to amend earlier complaints. The rollout with the Secretary of State, Homeland Security Security, and the Attorney General shows a significant change in the level of professionalism from the more improvisational effort of the original order. It was a surprisingly sharp learning curve but the A-Team appears to have shown up to defend this order. The new order is below.
Continue reading “TRUMP SIGNS NEW IMMIGRATION EXECUTIVE ORDER”
We have previously discussed the shocking rollback of free speech in France in the name of combating hate and intolerant speech. The latest fine was imposed on Jean-Marie Le Pen, the father of French conservative presidential candidate Marine Le Pen. His crime was calling Roma “smelly.” It was an offensive and prejudiced comment but the criminal prosecution of such insults demonstrates the slippery slope that France is now on — a slope that inevitably leaves to greater and greater speech control. This is the ninth time that Le Pen has been prosecuted for the crime of insulting other people or groups.
Continue reading “Father Of Conservative French Leader Ordered To Pay €5,000 For Offensive Speech”
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.
I recently discussed an ethics complaint by law professors against presidential aide Kellyanne Conway that I viewed as facially political in character and lacking a substantive foundation. (Of course, this was before the “Couchgate” scandal) My reaction to a new proposed first amendment lawsuit by news media is little better. Democratic U.S. Rep. Carolyn Maloney and first amendment advocated joined in condemning the Trump Administration’s exclusion of some new organizations from a White House press briefing. I share their view that the exclusion was wrong and, with the recent attacks on the media by President Trump, contradict our core values as a nation that values the freedom of the press. However, I do not see a credible constitutional claim brought under the threatened lawsuit.
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.
For many years, I have been writing about the threat of an international blasphemy standard and the continuing rollback on free speech in the West. For recent columns, click here and here and here. Now, Denmark has opened up its first blasphemy prosecution in 46 years. It is chilling evidence that the West is yielding to the pressure to curtail free speech in a crackdown on those who criticize or mock religion. In this case, a 42-year-old man protested what he viewed as the growing influence of Islam by setting a Quran on fire. The result is now a criminal charge for blasphemy as Denmark joins this worrisome trend.
Continue reading “Denmark Brings First Blasphemy Case In 46 Years”
Today the Supreme Court will hear Hernandez v. Mesa, a case with potentially significant impact on the current immigration debate. The case involves the shooting and killing of Sergio A. Hernandez Guereca, 15, at the border on June 7, 2010. The family argues that Hernandez was simply playing a game with his friends in running to touch the U.S. border fence when Border Patrol agent Jesus Mesa, Jr. shot and killed him. The agents insist that Hernandez was a known illegal alien smuggler with two prior arrests and was throwing rocks at the agents. Since the government prevailed below before the United States Court of Appeals for the Fifth Circuit, the Court will only consider the facts asserted by the family in determining if dismissal was appropriate. At issue will be the right of a foreign national to assert constitutional rights — an issue that could have bearing on the ongoing debate over the Trump immigration executive order.
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”
By Darren Smith, Weekend Contributor
What so far has proven to be a long ordeal for two men originally wanting only to be provided with a floral arrangement for this upcoming wedding, and also for florist Barronelle Stutzman who asserts her right to religious freedom by denying this service, has now come to another milestone in Washington.
A unanimous ruling by the Washington Supreme Court, the court denied Stutzman and her business, Arlene’s Flowers, INC’s assertions, ruling:
“…Discrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation.” and therefore held that “the conduct for which Stutzman was cited and fined in this case-refusing her commercially marketed wedding floral services to Ingersoll and Freed because theirs would be a same-sex wedding-constitutes sexual orientation discrimination under the WLAD.” (Washington Law Against Discrimination)
Continue reading “WA Supreme Court Rules Against Florist In Gay Marriage Discrimination Case”