Category: Constitutional Law

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.

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Congress, Constitutional Law, Politics, Society

Federal Judge Grants Preliminary Injunction of Executive Order In Virginia

donald_trump_president-elect_portrait_croppedIt 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.

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Constitutional Law, Courts, Politics, Religion

Lessons from State of Washington v. Trump

By Mike Appleton, Weekend Contributor

“A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event, our government was designed to have such restrictions.”

-Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 613 (1952)

The decision of the Ninth Circuit Court of Appeals earlier this week upholding the temporary restraining order against enforcement of Executive Order 13769 produced immediate outrage in the Trump Administration. The President himself characterized the ruling as “disgraceful” and claimed that any subsequent act of terror on our shores would be laid squarely at the feet of the judiciary. Mr. Trump has been variously advised to take the matter to the Supreme Court or ignore the lower court orders entirely. In my view, the wisest option is to return to the drawing board, an idea that is apparently also under consideration.

The anger over the Ninth Circuit’s ruling is misplaced. It is neither warranted by the decision itself nor by the perceived threat to presidential power. The court did not rule on the merits of the plaintiffs’ claims and its continuation of the TRO until completion of an evidentiary hearing in the trial court is not fairly predictive of the final outcome. Moreover, the Administration has not advanced any substantive argument, either in court filings or in public statements, to support the notion that temporarily maintaining current immigration policy creates serious security risks. Indeed, we are still waiting for an explanation of what the phrase “extreme vetting” even means.

Instead of railing against the decision and engaging in personal attacks against judges, the President would be well-advised to read the opinion carefully. It contains several useful lessons for the future of his presidency.

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Bizarre, Constitutional Law, Politics, Religion, Society

Woman Flogged In Indonesia For Being Present

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We have yet another example of the brutality of Islamic Sharia law from Indonesia where a woman was savagely flogged publicly for spending time with a man who was not her husband, including an allegation of sex outside of marriage.  The flogging occurred in Banda Aceh on the Island of Sumatra.

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Bizarre, Constitutional Law, Society

Trump Tweet On Nordstrom Dumping Ivanka Line Falls Under Inherent Parental Powers

1202996429_8991-3Another tweet by Donald Trump  has caused a ruckus back in Washington (I am in Guam for a speech).  Trump took after Nordstrom for dropping the Ivanka brand. While the store cited poor sales, Trump tweeted “My daughter Ivanka has been treated so unfairly by @Nordstrom. She is a great person — always pushing me to do the right thing! Terrible!” Shares for the store chain dropped in value following the tweet and media began calling to ask for the legality of such criticism by the president. The answer is that it is perfectly legal . . . just ask Harry Truman.  While the scope of executive privilege is broad, it is not nearly as broad and plenary as that of inherent parental authority.  When it comes to a president and his daughter, history has shown that this is one power exercised by all fathers that is accorded sweeping deference and little judicial review.

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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.”

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Constitutional Law, Courts, Politics, Society

Ninth Circuit Schedules Oral Argument On The Trump Immigration Order

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1 The government filed its reply on February 6th and followed earlier arguments in favor of an appellate stay of the lower court order of Senior District Court Judge James Robart.  As discussed earlier, 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.

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Congress, Constitutional Law, Justice, Lawyering, Politics, Uncategorized

Ninth Circuit Briefing Completed Today For Ruling On Trump Appeal

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1 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.

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Congress, Constitutional Law, Courts, Politics, Supreme Court

Ninth Circuit Rejects Motion For Immediate Reinstatement Of Executive Order But Schedules Expedited Argument For Monday

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1 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.

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Constitutional Law, Criminal law, Science

Pacemaker Data Used To Charge Alleged Arsonist

By Darren Smith, Weekend Contributor

placemaker-implant-heartWe have now another novel example concerning the use of seemingly private data being used against criminal defendants and potentially in the future other members of the public.

A Middletown, Ohio homeowner is accused in the arson of his own home, reportedly causing four hundred thousand dollars in damage and the loss of a personal pet. Arson investigators became suspicious about the cause of the fire from inconsistent statements made along with finding multiple origins of the fire. Police retrieved the recording of the 9-1-1 call the defendant made reporting the conflagration. During this he made mention of having an “artificial heart.” But what probably seemed ordinary for the defendant led to a trove of information used as incriminating data.

His pacemaker telemetry data became a source of incriminating evidence.

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Constitutional Law, Courts, International, Society

Judges In Seattle and Boston Reach Opposing Opinions On Trump Executive Order

washington-westernmassdcThe controversy over the Trump immigration executive order has already produced sharply conflicting orders from courts in Washington state and Massachusetts. A judge in Seattle has issued a temporary restraining order nationwide over the executive order while a judge in Boston declined to do so. Such divergent results are not uncommon in such controversies. However, as I have previously explained, I believe that the law favors the Administration despite good-faith arguments advanced by the challengers. Moreover, even if courts strike down a portion of the executive order, it is likely that other portions will be upheld on review. While I have been very critical of the order (and how it was rolled out), I still believe that the weight of binding authority on these trial courts favors President Trump.  We should get an answer sooner than expected: the Administration has decided to ask for an emergency order from the Ninth Circuit to block the Seattle court.  In the meantime, the airlines have been told to start to allow people on planes to the United States and the Justice Department is apparently not filing the emergency motion tonight. That means that people will start to arrive before the Justice Department files.  It could look a bit curious that the Administration is claiming a national security danger in these entries but would wait to file the emergency motion.

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Academia, Bizarre, Constitutional Law, Free Speech, Society

Protesters Torch Free Speech At Berkeley In Latest Example of Mob Rule On America’s College Campuses

milo_yiannopoulos_journalist_broadcaster_and_entrepreneur-1441_8961808556_croppedSeal_of_University_of_California,_Berkeley.svgWe recently discussed the courageous stand of the University of Chicago in favor of free speech (a position followed by schools like Purdue). Free speech is being rapidly diminished on our campuses as an ever-widening scope of speech has been declared hate speech or part of the ill-defined “microaggression.” Now Berkeley has shown the world exactly what this intolerance looks like as protesters attacked people, burned property, and rioted to stop other people from hearing the views of a conservative speaker. As on so many campuses, they succeeded. The speech by Milo Yiannopoulos was cancelled. A triumph of anti-speech protesters. Berkeley now must face a defining moment. The only appropriate response for the school is to immediately reschedule the speaker and stand in defiance of those who want to deny the right to speak (and to hear and associate) to others. Moreover, it is liberals who should be on the forefront in denouncing these protests and the effort to stop this event. Otherwise, it can follow the lead of schools like DePaul and cast aside free speech in yielding to the mob.

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Columns, Congress, Constitutional Law, Politics, Society, Supreme Court

HOW TO [REALLY] CHANGE THE SUPREME COURT: THREE REFORMS THAT COULD MAKE FOR A BIGGER AND BETTER COURT

Supreme Court

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.

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Columns, Congress, Constitutional Law, Courts, Media, Politics, Supreme Court

GAME CHANGER: THE GORSUCH NOMINATION GOES TO CAPITOL HILL

ap17024739756097donald_trump_president-elect_portrait_croppedBelow 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.

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Congress, Constitutional Law, Courts, Justice, Media, Politics, Religion, Supreme Court

TRUMP NOMINATES NEIL GORSUCH FOR THE UNITED STATES SUPREME COURT

ap17024739756097President 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.

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