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Trump’s First Big Defeat In Court

This afternoon, a three-judge panel of the Ninth Circuit Court of Appeals handed the twenty-day-old Trump Administration its first high-profile defeat in court. You can read the whole opinion if you wish, and this post is intended to walk you through it.

By way of background, the State of Washington, soon joined by the State of Minnesota, challenged Executive Order No. 13769, which is titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” This order was issued on January 27, 2017, and in it, President Trump instructed a variety of branches of the government, most particularly the Customs and Immigration Service, to not permit the entry of aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days and suspends the U.S. Refugee Admissions Program for 120 days, and indefinitely suspends the admission of refugees from Syria. Exceptions can be granted, on a case-by-case basis, when either the Secretary of State or the Secretary of Homeland Security determines that either admission is in the national interest or that the person seeking admission is “a religious minority in his country of nationality facing religious persecution.”

A total of four District Courts (these are trial courts, remember) around the country enjoined various portions of Order 13769 on a temporary restraining order (TRO) basis, but the attention quickly coalesced around the case filed by Washington because the order there enjoined the operative sections of the order (discussed above) completely. The Federal Government sought to stay enforcement of the District Court’s TRO, and the States attempted to claim that a temporary restraining order is not normally an appealable order. No dice, said the Ninth, this is actually much more like a preliminary injunction because of the scope of the order and the amount of briefing that’s already been done, so we’re going to examine it on its legal merits.

Next, the Government said that Washington and Minnesota lacked standing to challenge Order 13769. Standing is determined by determining if there is a “case or controversy” for the Court to decide, meaning whether the plaintiff has a sufficient “personal stake in the outcome of the controversy” to qualify as an injured party, which in turn requires the plaintiff to articulate an interest in the dispute, some way of tracing an injury to that interest to an action of the defendant, and to describe a remedy that the Court has power to grant which would relieve that injury. Given that the Constitution gives exclusively to Congress the power to create, and exclusively to the President the power to enforce, an “uniform rule of immigration and naturalization,” what injury could the States articulate? The Ninth Circuit accepted the States’ claim that the order caused harm to the states’ public universities:

Specifically, the States allege that the teaching and research missions of their universities are harmed by the Order’s effect on their faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their familie sabroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.

So because the students and scholars themselves cannot step into court to articulate these interests, in part because they are barred from entry into the country and in part because the individualized interests of the students and scholars are inchoate and only really tangible when aggregated into a university setting, the Ninth Circuit granted the States “third-party standing” as in other cases when the interests of third parties are “inextricably bound up” with interests of the actual litigant. The panel cited to vendors who, on behalf of their potential customers, resist restrictions on their trade (Craig v. Boren 429 U.S. 190, 195 (1976)) and doctors who have articulated interests of their potential patients (Griswold v. Connecticut, 381 U.S. 479 (1965)). The most interesting case they cited here was Singleton v. Wulff 428 U.S. 106, 118, in which a male doctor was granted third-party standing on behalf of his female patients’ rights to seek abortions.

From there, the panel dealt with the Government’s claim that Order 13769 is not judicially reviewable, because no power to participate in immigration decisions is allocated to the judiciary in the Constitution. Apparently, no caselaw precedent was cited by the Government in support of that proposition, although plenty of caselaw suggesting the contrary was offered by the States. The high degree of judicial deference historically given to political decisions about immigration has limits, and “is subject to important constitutional limitations,” Zadvydas v. Davis 533 U.S. 678, 695 (2001) and the judiciary and and should determine “whether Congress has chosen a constitutionally permissible means of implementing [its immigration] power” INS v. Chadha, 462 U.S. 919, 940-941 (1983). The panel cites well-known precedent (Ex parte Quirin 317 U.S. 1, 19 (1942), Ex parte Milligan 71 U.S. 2, 120-121 (1866)) to stake out reminders that the Government must respect the Constitution even in times of war. So the Ninth Circuit indicates that it is properly reviewing the Constitutionality of Order 13769.

At this point, having determined that it can review the order, there is the mandatory recital of the standard under which the review will occur. Four issues are to be considered: first, whether the Government could demonstrate a strong likelihood of success on the legal merits of the dispute; second, whether the Government would be irreparably injured if the stay is denied; third, whether the stay would substantially harm the States; and fourth, where the public interest lies. At each of these stages, the panel indicates, the Government’s case fails.

The Government lacks the ability to succeed first on the basis of due process. Aliens seeking admission to the United States have no apparent ability to petition for review of their case, nor were they given any prior notice of the ban upon their entry. Indeed, Order 13769 appears to contravene procedures Congress put in place for the issuance of asylum and refugee status, and thus implicated statutorily-created liberty interests as well as the Constitutionally-protected interest in the right to travel. The procedural due process rights relating to entry apply to all “people,” not just citizens, and even the legality of their presence in the United States is irrelevant to the issue of whether due process is required. Zadvydas v. Davis 533 U.S. 678, 693 (2001). But pointedly in the opinion, the rights of lawful permanent residents (aka, people who hold “Green cards”) are mentioned with respect to their rights to re-enter the United States after traveling abroad.

Further, the panel found that Order 13769 engages in religious discrimination, in violation of the Establishment Clause. The Establishment Clause is violated when a law “officially prefer[s] [one religious denomination] over another,” Larson v. Valente 456 U.S. 228, 244 (1982).1 Further, the Equal Protection Clause prohibits the Government from discriminating against individuals based upon religion. De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir. 1978).2 At this point, the panel considered public statements made by then-Candidate Trump about implementing a “Muslim ban,” and statements by the President’s advisors about how to legally restrict Muslims from entering the United States. The panel does not state that this evidence is dispositive of the issue of intent, only that it raises “serious allegations” as to the intent behind Order 13769.

From there, the panel moves on to the Government’s insistence that combating terrorism is an objective of paramount importance to national security. This is not disputed. However, the panel states that “[t]he Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” Instead, the effect of the Order will be immediate upon the state universities, whereas there was no showing that national security would be immediately harmed if Order 13769 was held in abeyance until after it can be fully and completely litigated on its merits in the due course of time. The Government pointed to prior acts of Congress and the Obama Administration imposing greater security screening of visa applicants from the seven implicated nations, but the panel noted that this is not the same thing as a ban on entry. When the Government simply speculates that there is an immediate risk, the panel states in essence, that’s not a good enough reason for a ban like this.

On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.

And thus, the Government’s motion for an emergency stay on the District Court’s TRO was denied, and pending either an emergency review by the Supreme Court or a subsequent review on a regular briefing schedule, the Government is enjoined from implementing Order 13769.

President Trump’s response came, predictably, on his personal Twitter account, and in the argot with which so many Americans have now become familiar:

I presume this means that President Trump will instruct the Justice Department to seek immediate review of this decision by the Supreme Court of the United States. Which, currently, has eight members. Should the Supreme Court grant review and a 4-4 vote result, this will affirm the decision under review.

  1. Pleasingly to me, the panel goes on to quote the ‘endorsement test’ articulated in Santa Fe Independent School District v. Doe 530 U.S. 290, 310 (2000). I’d thought the ‘endorsement test’ was a dead letter after Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014). []
  2. Notice that here, the panel did not find Supreme Court precedent to which it could cite. []

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Pseudonymous. Practices Law. Lives in Southern California. Editor-in-Chief of Ordinary Times. Homebrewer. Atheist. No Partisan Preference. Likes: respectful and intelligent dialogue, good wine, and puppies. Dislikes: mass-produced barley pop, magical thinking, and insincere people. Follow him on Twitter at @burtlikko, and on Flipboard at Burt Likko.

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222 thoughts on “Trump’s First Big Defeat In Court

  1. I had predicted that the Court would affirm the injunction, but narrow it along the lines the administration suggested. This line in the opinion indicates to me why not: “even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.” To a certain extent, the Court accepted the administration’s claim that the court’s lacked core competency to make national security policy — the administration must rewrite it and probably should.

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  2. Did the 9th circuit just cite a constitutionally protected right to freedom of movement? In the right hands, that seems to lay the groundwork for finding many border control efforts to be unconstitutional.

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    • My understanding of the right to travel has been as one of the “privileges and immunities” protected by the Fourteenth Amendment and that it is limited in scope to travel across state boundaries, not travel into the United States. But I haven’t dug into a lot of the research here, just raced through the 9th Circuit opinion to present a digest of it for the community here.

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    • My read of the ruling says that you could only say that if you make a tortured case that saying if you’ve already been granted freedom of movement through the border, the government has to obey due process to take it away. That’s far more a rule of law proposition than a freedom of movement proposition. Its not saying you have the right to something, its saying that you have the right to not be subject to high-handed conduct in taking away a legal privilidge.

      If you have something from the ruling that suggests otherwise, I’d be curious to see it, because like Burt I haven’t read it so closely to be sure I haven’t missed anything.

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    • Murali: In short, no. The court focused its analysis on those who already had received the statutory right to travel to the US, by receiving a visa, and the likely unconstitutionality of the revocation of that right, because the revocation process lacked due process.

      A core and long-standing aspect of the Due Process clause is that once the government gives you something, they can’t take it away arbitrarily. The right becomes vested. (This is a gross oversimplification, but applicable here.)

      So this is a Due Process case, not a right-to-travel / freedom of movement case.

      As to those who lack visas, the court refused to re-write the EO to uphold only those aspects which might be lawful. That’s the job of the POTUS.

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      • The court focused its analysis on those who already had received the statutory right to travel to the US, by receiving a visa, and the likely unconstitutionality of the revocation of that right, because the revocation process lacked due process.

        Not only lacked due process, but was deliberately done in a really harm-causing way, too.

        1) People probably don’t have any right to visit this country.

        2) People who have been granted a visa *might* be able to have it revoked without cause. Maybe. That is, in theory, what is under considering.

        3) But…people who have been granted a visa almost certainly have a right to *not* harmed by being stranded in airports and sent back out of the country after following every possible rule the government made.

        And doing #3 probably is going to impact how the court feel about #2, too.

        Even if the ability to do something isn’t a *right*, hell, even if the permission grant can be removed without a court hearing, the government saying that person can do it and then *maliciously* changing the rules and harming people *who had planned on that grant* is not going to look good in court.

        I wonder if *how long this was planned* is going to come up? When did Trump decide he was going to sign this? At some point in all this, *the US government was issuing visas it knew it was not going to allow people in on*. (Well, the State Department was issuing things Trump knew people wouldn’t be able to get in on, but duh, legally they don’t get to pretend to be two different entities.)

        Hell, considering the chaos of the rollout, I bet some visas got issued *after it went into effect*.

        Somewhere in my head the word ‘estoppel’ is floating around.

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        • Fun story: US citizen (with sadly foreign sounding name) detained by CBP at the airport until he unlocked his phone. (Which, btw, they’re legally not required to do).

          What makes this interesting is that he works for JPL, was coming from South America (and had never been to any of the travel ban countries), and his phone was JPL property.

          NASA is very unhappy that his phone with sensitive data he’s bound to protect was looked at by CBP, and they’re really unhappy that the PIN was extorted out of him.

          I have two teammates who are green card holders (one Chinese, one Indian). Both are putting off travel now. They’ve both held green cards for over 20 years.

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          • As I keep trying to explain to people: The Border Patrol do not know how to do vetting.

            It is, literally, not their job. They are not, as far am I am aware, in charge of who is allowed to enter or not enter the US in any manner at all.

            If you have a visa, or a green card, or the proper refugee papers, they *have* to let you. If you don’t, they *cannot* let you in. There is no choice. They are damn ticket-takers. (Of course, it has to be *your* permission, aka, you have to be the guy in the visa.)

            Now, they are *law enforcement*, and if you are breaking the law, like trying to bring things illegally into the country, they can arrest you. Or if you *have* entered the country but did not have permission, they can arrest you.

            But if they do not arrest you, and have permission, they simply do not have the power to refuse you entry. If you have validly issued permission to enter the country, they can either let you in, or they can arrest you. They cannot stop you from entering the country.

            They *pretend* they have that power, but They. Do. Not. Sadly, they also pretend they don’t have to allow people access to lawyers or anything, and that they can detain them forever.(1)

            Well, until Trump decided to ‘expand’ their powers in a way in a way he does not even understand was not their power to start with. Or, technically, he barred some people, and then gave the BP the power to override that.

            The Border Patrol were already, arguably, the law enforcement agency that was most drunk on abuse of power, because the courts have idiotically given them the power to search without a warrant.

            This is bad enough, but they seem to think they can *detain* people who do not help with that until they do, which is…a power I’m completely unaware of existing under US law. (A *court* can demand that people comply with a warrant, but, tada, these searches are warrantless…and even the courts are not allowed to demand passwords.)

            This has the fingerprints of Bannon all over it, because he lives in a universe where the Border Patrol are the heroes, heroically stopping people from entering this country, and he didn’t bother to realize that they stop and detain people entering *illegally*, and have nothing to do with what people are allowed to enter *legally* except to check they have a permission, permission that is issued *over in the State Department*.

            1) If anything good is going to come out of this entire thing, I suspect it’s going to be the courts deciding that the Border Patrol *has to act like other law enforcement* when detaining people. They can only do it a certain amount of time without filing charges, they have to provide facilities and normal prisoner holding cells, they have to provide a lawyer when people ask for one, and stop questioning them, etc, etc.

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            • Individual CBP agents actually have a great deal of discretionary authority on who gets to enter the country. Now I’ve never had an issue with this, so I’m not an expert on how far their authority goes, and on what, if any appeals process is in place, but they can (legally) ruin a trip or a life if they think you have violated an immigration law. Here’s their authorization statute.

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              • Individual CBP agents actually have a great deal of discretionary authority on who gets to enter the country. Now I’ve never had an issue with this, so I’m not an expert on how far their authority goes, and on what, if any appeals process is in place, but they can (legally) ruin a trip or a life if they think you have violated an immigration law. Here’s their authorization statute.

                Oh, they have a lot of power…to search, to interrogate, to arrest. No power to undo or block a visa.

                But here is the hypothetical power:

                (b) Any officer or employee of the Service designated by the Attorney General, whether individually or as one of a class, shall have power and authority to administer oaths and to take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States, or concerning any matter which is material or relevant to the enforcement of this Act and the administration of the Service;

                The problem is, that only grants the power that all law enforcement has: To take and consider evidence.

                For *court*. To actually *stop someone from entering* and return them to their originating or home country, requires a judge’s ruling.

                Actually, I just checked this, and have discovered I was, sorta, wrong. But wrong in that I’m actually right, because there actually are *two* explicit reasons that an immigration officer can remove someone from the country without a court hearing. (Which, by implications, means they *doesn’t have any other* reasons.) Because here’s the part about those immigration officers:

                8 U.S. Code § 1225 (b)(1)(A)(i)
                If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.

                1182(a)(6)(C) is…misrepresentation. Aka, they can make sure you didn’t lie when getting a visa,and that you are really you. This requires ‘fraud or willfully misrepresenting a material fact’ on your part.
                1182(a)(7) is…documentation requirements. Aka, they remove you if you somehow showed up *without* a visa or anything allowing entrance. (oops?) So, like I said…ticket takers.

                Here are a few things that, while you can be barred from the country due to them, immigration officers *cannot* decide to remove you for, and have to collect evidence and got to an immigration judge:

                Being a terrorist: 1182(a)(3)(B)
                Being a convicted serial killer who has escaped prison: 1182(a)(2)
                Literally being a Nazi and culpable in the Holocaust: 1182(a)(3)(E)
                Carrying a horrifically contagious disease and not being immunized: 1182(a)(1)

                None of those people are supposed to be able to enter the US, but *even if you admit them to the Border Patrol*, they cannot forbid you from entering..they can arrest you, and then they have to go get a *judge* to stop you from entering.

                Of course, I bet that the Border Patrol is trying to squeeze a lot more through 1182(a)(6)(C) than the statue intends. Misrepresentation of a material fact or fraud is supposed to be things like asserting your name is something besides what it is, or claiming two people are married that are not.

                They are almost certainly not supposed to have, by themselves, the right to conclude you lied when you checked ‘No’ next to ‘Are you a member of a terrorist organization’ on the visa application, and throw you out of the country for that ‘lie’ without you seeing a judge. (If they were intended to have that power, they would explicitly been granted the power to remove people for violating 1182(a)(3)(B)!)

                But I bet they like to *pretend* they have that power without having to get a judge to agree. I bet they’ve even gotten away with it a few times.

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                • But wrong in that I’m actually right

                  Surprise, Surprise . . .

                  In all seriousness, I’ll cop to being wrong about whether they can refuse you entry for all inadmissible categories. I will say that being able to deny entry on the one hand, and being able to arrest, search, detain, and put someone in an expedited removal proceeding with no appeal are not that far away from one another.

                  Finally, it may be that the misrepresentation denial is the exception that swallows the rule. It could easily be used for anyone that failed to mention any criminal arrest or charge, or failure to mention any other reason which may cause someone to be inadmissible (such as intent to return for a visitor visa). Also, it looks like for the grounds you listed, ie. terrorism, and support for Nazi’s, there is a special procedure where the officer or judge orders them removed, then it is reviewed by the AG.

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                  • Finally, it may be that the misrepresentation denial is the exception that swallows the rule.

                    Frankly, the ability to just detain you, for what appears to be an unlimited amount of time (Unless there’s some court ruling I don’t know about), without access to a lawyer, and give you the option of ‘choosing’ to leave the country…is probably the exception that swallows the rule.

                    I don’t know if they even *need* to make ‘misrepresentation’ claims to ‘kick people out’! They can just detain them forever without a lawyer, it seems like. They apparently got some people to sign away their green cards that way.

                    Of course, you actually *are* supposed to have access to a lawyer. They are law enforcement, you have a right to speak to a lawyer when talking to them, end of story.

                    However, the government does not have to provide one, and won’t. And I’m not sure it has to let you contact one, and there really isn’t a fifth amendment right not to testify (Because you’re not charged with a crime) so it appears they can keep questioning you *even if* you want a lawyer.

                    And as we’ve recently discovered, they won’t even allow access to pro bono lawyers that show up without specific instructions…repeated several times. So the *theoretical* access to a lawyer has proven to be, well, a total lie.

                    Like I said, the Border Patrol are already the law enforcement agency that is most in need of having the courts down on them, hard.

                    They are *completely out of control* for a *law enforcement* agency, because, unlike most law enforcement, almost nothing they do has to go through a court or gets reviewed by a court. (Despite the fact we actually *have* courts for this.) We let them do searches without warrants, we let them detain people with no real justification without lawyers, we block access to lawyers, etc, etc.

                    It’s like they’re the police in 1900 or something. An entire century of controls on law enforcement behavior just completely passed them by. Warrants for searches? Warrants for arrest? Probable cause to detain people? People being informed of their rights? Lawyers? Actual detainment facilities with beds and toilets?

                    NOPE! It’s the border, apparently law enforcement can do whatever it wants!

                    Letting the Border Patrol have *actual* discretionary power was insane…they already act like they have a whole bunch of discretionary power they are not supposed to have, *and* they abuse the power they do have!

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  3. Since Bro. Burt has launched this new thread, I’ll repeat here some of the excerpts from the opinion I posted elsewhere:

    First excerpt, re the court’s refusal to rewrite the EO per DOJ’s request:

    At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.

    Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative
    and binding, will persist past the immediate stage of these proceedings.

    Comment- that last sentence there is a doozy. The White House can’t be trusted to stick with the opinion of its own counsel?

    Second excerpt, re the merits of the gov’ts argument.

    The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.

    Comment: Court to DOJ – are you really re-litigating Marbury v Madison?

    Third notable excerpt, re scandalous behavior by the DOJ:

    The Government cites Mandel for the proposition that “‘when the Executive exercises’ immigration authority ‘on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.’” The government omits portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority.

    Comment: If this opinion were directed to anyone but the DOJ, the lawyer on the brief would already be fired and the law firm would be reporting the ruling to its malpractice carrier. Zealous advocacy is one thing, but mis-citing cases and thereby attempting to mislead the court is a serious offense.

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    • In a (weak) defense of the DOJ, this was a brief written with thirty-six hours’ notice. So some research corners may have been cut.

      Nevertheless, you do have an obligation to read your cited cases for comprehension, not just cut and paste the passages that you like out of context.

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      • But it reads like the DOJ was trying to lose. On the one hand, they took the position that the court had no power whatsoever over the EO. And on the other, they asserted that the court had the power to re-write the EO to excise the illegal bits.

        I’ve heard of taking positions in the alternative, but that’s just extraordinary.

        Also, I just don’t buy the lack of time argument. This brief, in various alternative forms, should have been started the day that the EO went out the door. The DOJ senior staff had to be ready for this blizzard of litigation. If they chose not to be, well, that just supports my belief that something very strange is going on at the highest levels of institutional power in DC.

        Coupling this bizarre litigation strategy with the amazing number of high-level leaks that (if true) are just poisonous to POTUS, it really seems as if there is a concerted effort to cripple the POTUS. The leaked story about the phone call with Putin about the START treaty is going to be read by every enemy and ally this country has, and Tillerson is going to be fielding a lot of calls wanting to know if the US can still be trusted.

        (omfg, is Kim right? Have the Powers-That-Be figured out that the POTUS is too crazy to threaten, so they levied their threats against the White House staff?)

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        • Second the impression that “something strange is going on” But when I think that, another voice in my head (I contain multitudes) says, “Be careful, that’s probably just your own wishful thinking”

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          • Koz is in a better position than I to evaluate the impacts of the leaking on POTUS partisans. But even as a committed opponent, I am truly shocked about the seriousness of the leaking.

            KDrum keeps a pretty good running report of the major leaks. Checking over there, I see leaks about:

            — phone call with Putin – unfamiliar with START
            — meeting with Senators – doesn’t understand 2013 immigration bill efforts. Spicer needed to clarify POTUS remarks
            — meeting with airline execs — railing wildly about air traffic control
            — 3am call with Flynn — about dollar exchange rates
            — the entire NYTimes article from Feb 5 re “stumbles”
            — AP reporting that the POTUS wanted to know about Polish incursions into Belarus
            — all the leaking about the immigration EO and “chaos” at the White House
            — leaks about the Yemen raid and that the way to get POTUS approval was to say that Obama refused to authorize it
            — stories about the phone calls with the leaders of Mexico and Australia

            now, the POTUS is certainly not helping his reputation (with the press and the rest of his enemies) with his tweets, but I find the level of disloyalty to the POTUS to be just unprecedented. Unless the press is flat lying about the leaks they’ve been receiving (which seems unlikely) the POTUS’s closest allies are telling stories that make him out to be a narcissistic thin-skinned ignorant uneducable bully.

            This is how things are starting out? Are they trying to make Red Dawn (the original) come true (re the America Stands Alone bit)? We may be the biggest single economy, but there’s only 300 million of us and 7.2 billion of everyone else. I don’t know about you, but I like having allies.

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            • I’ve had the same weird feeling about these leaks. I have read that the White House is short staffed and assumed that the people would be die-hard Trumpkins, but it’s possible that they’re just taking on anyone who will do the work and getting a lot of loose lips that way. Another possibility is that the press *always* has this much embarrassing info on the White House but they ordinarily just keep it quiet to ingratiate themselves with POTUS (for example, a lot of the “embarrassing” stuff in the NYT piece like working in the dark or not finding the right rooms was described as growing pains by Obama White House people after the election but never published). But yeah, weird..

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              • Is it possible that the White House Communications Agency is the source of the leaks? They’re usually hard-core military, but during the Obama years who knows how their staffing was changed. It’s current commander is Colonel Cleophus Thomas, and perhaps someone should have a chat with him.

                Partial disclosure: I used to chat with a WHCA E7 all the time. She was constantly flown between DC and Crawford.

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              • trizz,
                Some of this reads like “hey, he’s stupid, let’s show him being stupid” … and some of it reads like “can you BELIEVE this worked?”

                It took O’Neil months before he quit, but he was a Cabinet Member. And he did have stories to tell, oh, boy did he.

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                • The main thing that worries me is that I remember the pre-election pieces about how Trump team is in disarray and many of them proved outright false. There were tons of anonymous sources saying key campaign people are on suicide watch, Trump can’t be coaxed into going to do rallies anymore, the web team is just one guy in a basement somewhere, etc. etc. And then the post-mortem made it clear that they were basically running a pretty ordinary GOP campaign, expecting to lose but rigorously focusing on their key states.

                  So it’s entirely compatible with the way Trump/Bannon run things to have a bunch of chaff out there making it look like they are in disarray. That makes sense during a campaign. It makes a lot less sense when you’re governing and facing some pretty serious court setbacks. But it’s still worth having some skepticism about anonymous stories.

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                  • trizz,
                    They were saying that Trump wouldn’t campaign?
                    Hahaha
                    When hillary spent half of October Not Campaigning, and yes they quantified that after the election.
                    Hahaha.

                    Your point is well taken on anonymous sources — but I’m not willing to believe that Trump is willingly leaking chaff. I’m willing to believe that a good deal of this is people honestly bewildered, confused, and “oh, my god, do you Believe This Shit?”

                    I’m a hell of a lot more willing to believe that this EO is “just a pissing contest for fuck’s sake” than Trump is willingly making himself and his team look incompetent. Trump has an ego, and if it’s not quite as big as Newt Gingrich’s, it’s pretty close.

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            • Francis,
              Essentially, they put a less competent Newt Gingrich in the white house.
              (Everyone upon everyone hated working for gingrich, he was that much of a colossal asshole. Except my friend, who worked for gingrich merely to troll him by being righter than Newt)

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        • Francis,
          Trump is beholden to the Powers that Be. He’s just not terribly competent at doing what he says (you should have heard him apologizing to them for being more popular than Hillary in October or so…).

          My friend who’s worked for nearly everyone in washington (including Gingrich and Gore) gives Trump 50/50 on lasting the full term.

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        • 3am call with Flynn — about dollar exchange rates

          That is something I had the strangest thing of experiencing disbelief twice.

          First, I read it and think to myself: ‘I can’t believe I’m reading this…for a guy who wants to upend all our trade stuff he should probably already know’.

          Then, suddenly, everything shifted: ‘Wait, how the *hell* do I know about the contents of a 3am phone call the president made to his national security adviser? Who…who the hell leaked this? What? How?! What is going on?’

          Who even was in the room for that? Who is leaking this?!

          I mean, it can’t be Trump, right? And it can’t be Flynn…I mean, it could here, but it probably couldn’t be in *other* leaks, like the Belarus one.

          Are we…in the the Stranger Than Fiction universe? Did, like, the press somehow locate the *narrator*?

          meeting with airline execs — railing wildly about air traffic control

          I have somehow completely missed this story, and I was about to google it, but, at this point…who the hell cares anymore? Trump is a rambling lunatic. Him deciding to rant about things is not new…although who knew he had opinions about air traffic control? Is he for or against it? Does he think it should be outsourced to Mexico? Does he think it *shouldn’t* be outsourced to Mexico? Too many Muslims in it? Are air traffic control crime rates highest in 45 years? Does he think other countries have too much air traffic control and we need to catch up? Does he think they should get the death penalty for going on strike in the 80s?

          I think, maybe, I’ll just leave myself the uncertainty. I’ll just imagine my *own* ideas about what uninformed opinions Trump has about air traffic control.

          AP reporting that the POTUS wanted to know about Polish incursions into Belarus

          I wish the media would stop glossing over that one. As people have pointed out, there’s literally only two possible sources of that: Trump either is reading Russian propoganda, or someone is handing him Russian propoganda *cough*Flynn*cough* and claiming it is true.

          I mean, he’s repeated Russian propoganda before, but there was always the possiblity he got it from Twitter. But that’s…not really on Twitter. (Because, uh, it’s a little too easily disprovable.)

          the POTUS’s closest allies are telling stories that make him out to be a narcissistic thin-skinned ignorant uneducable bully.

          Yeah, I am having trouble even *conceiving* of what is going on. A few random options:

          1) Kim is right about everything. And the *NSA* is leaking.
          3) Pence is trying for a coup, and has embedded people in Trump’s staff.
          4) Bannon keeps muttering under his breath about getting the nuclear launch codes and having to destroy China, and other staffers are attempting to save the world.
          5) Trump is actually so much worse than we can comprehend that these leaks are intended to distract from that and cover up *other things*. That 3am call? Never happened. At 3am, Trump was roaming the streets of DC, and killed and ate a hobo. The memorable phone call is an intended alibi.
          6) Time travelers actually missed the cutoff to stop him from becoming president, so are posing as senior staffers in calls to the press, and are not ‘leaking’, they’re just reading from a book that contains a day-by-day dissection of the Trump presidency and how utterly it failed. (This is a testable hypothesis…at some point, the timeline will diverge, and the Trump administration will start finding the papers reporting on things they *planned* to do, but did not actually do due to public outcry about previous things.)

          The theories get weirder from there.

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          • Nah. Trump’s always encouraged a backstabbing operation between underlings.

            So you’ve got Bannon’s folks, Pence’s folks, Priebus’ folks, Spicer’s folks, and then Trump’s folks. Plus Paul Ryan’s folks.

            Then of all those folks, a good chunk are idealistic 20-something interns, and another good chunk are old Washington hands that haven’t been fired yet.

            So you’ve got people leaking to promote their boss (and they don’t care how it makes Trump look, because they’re trying to smear Bannon or Ryan). You’ve got people leaking because they’re disillusioned already and have no loyalty to anyone. You’ve got people leaking as a cry for help….

            What you’ve got is a White House that’s in a zillion little camps, all at each other’s throats over access to the random number generator that is the President. Who encourages this stuff. The place is chaotic and clearly demoralizing. So between backstabbing internal moves and whistleblowing attempts and just general “Eff this place”, you’ve got a lot of leaks.

            Then there’s the departments and the civil servants.

            Don’t get me wrong. I suspect the Flynn stuff is coming out of NSA or CIA, for instance.

            But from the leaks, it’s coming from everywhere. There are leaks that have to be coming from low-level WH staffers, leaks that have to be coming from high-level IC areas……

            It’s not going to get better. It’s going to get worse. Leaks beget leaks.

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            • all at each other’s throats over access to the random number generator that is the President. Who encourages this stuff.

              Good point. The one distinction I’d make is that Trump doesn’t encourage this type of self-interested cynicism as a matter principle, but rather only instrumentally to serve his own narrowly self-serving ends. But at that point, the genie is waaay outa the bottle.

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      • You never practiced immigration law, did you? Being a good immigration lawyer often involves stretching context a lot. “A federally backed mortgage is a benefit for the bank and not the individual who received the mortgage” is a particular favorite argument of mine that I used successfully when a client was going to be denied LPR status for potentially saying she was a citizen to get a mortgage.

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  4. I wonder how much of this decision is colored by the fact that Trump & his people are openly impugning the character & integrity of judges (something Trump seems to have a habit of doing, even before the election)?

    Also, excellent post, thank you Bro. Burt!

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    • If anything, they tried to give the (fed) govt as much of the benefit of the doubt as they could, almost coming out and saying ‘cmon throw us a frickin bone, guyz’ when it came to stuff like, for instance, the reviewabilty claim.

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    • This isn’t the black woman judge from Chicago under GWB, who wrote an openly inflammatory rebuke of the government’s position on (I think) torture. She had said, “fuckit, if they’re gonna come after me anyhow, I’ma gonna give them something to come after me for.”

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  5. Thanks for the excellent summary Mr. Likko. I’m confused about your claim that “Further, the panel found that Order 13769 engages in religious discrimination, in violation of the Establishment Clause.”, whereas my read was that the panel specifically chose to avoid ruling on religious discrimination grounds because the Due Process ground were sufficient:

    The States’ claims raise serious allegations and present
    significant constitutional questions. In light of the sensitive
    interests involved, the pace of the current emergency
    proceedings, and our conclusion that the Government has
    not met its burden of showing likelihood of success on
    appeal on its arguments with respect to the due process
    claim, we reserve consideration of these claims until the
    merits of this appeal have been fully briefed

    Separately, How much does this decision bind the White House in writing new EOs? I assume they cannot just issue a duplicate of the same order (or they could and a court would immediately strike it down and … hold them in contempt?), but how sufficiently do they have to address the issues laid out of by the court in a follow-up EO?

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    • A normal White House would respectfully disagree with the court’s ruling and moot the litigation by issuing new EOs that had the same substantive effect but complied with the constitution. (It wouldn’t be that hard to do.) To save face the DOJ would insist on litigating the first EO fully, but in a year or so when the case was finally dismissed as moot no one would pay attention.

      This group? Who knows. I could honestly see the POTUS telling his AG to defy the Ninth Circuit. Then things get exciting.

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      • Gotcha. I wonder if stating that the religious liberty claims are serious allegations but not explicitly ruling on them (as opposed to just not discussing them at all) was intended as a shot at what the *next* EO can and cannot look like.

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        • No, I think that the Court was trying to get a defensible opinion issued as soon as humanly possible. They found one clear ground on which to rule against the govt and stopped there. They simply indicated that the religious issue was a serious issue that would require thoughtful analysis if the case ever comes back to them.

          If the Sup Ct takes the case, as a practical matter everyone’s going to argue all of the issues with the expectation that the Court will give clear direction to the district court what to do. So I don’t think that the 9th circuit panel was reserving any issue to decide later to try to jam up the Sup Ct review process or to send obscure signals to the govt.

          However, given the procedural posture of the case, the Supreme Court could, hypothetically, decide the due process issue in favor of the government and direct the 9th circuit to consider the remaining issues. When you get emergency reviews of temporary orders followed by emergency cert petitions to the Supreme Court, the usual order of appellate review has pretty much collapsed and the Sup Ct has a great deal of freedom to decide what to do next.

          (note: I am not an appellate specialist.)

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          • It’s a confirmation of the stay, right, not a decision? I think the court here was wise to avoid any of the knottier issues (like whether Trump’s statements turn this into a religious ban or not) that really should be fully litigated.

            Especially since they don’t have to — on due process along, there is a solid case to issue a stay, because the due process problems are about as blatant as possible.

            So saying “Yes this falls under the Court’s review, due process wise this is just unacceptable and frankly you guys are moving around so much we don’t trust you to somehow make it acceptable in the interim — it’s not like this is law, it’s just Executive direction — the religious issue is definitely something to look at, yeah we’re not going to let this take effect until someone’s had a good, long, hard look at it” strikes me as pretty solid.

            If I had to put money on it, I’d bet against SCOTUS reviewing the stay. Unless the DoJ has some secret facts it decided to not waste on the appeals court, there’s no reason to. (And if you want to go pure partisan politics, it’s not like the GOP in general is very keen on this order).

            I’d imagine the full on court case will be pretty interesting, but again — unless the DoJ comes up with some better stuff or secret facts — also pretty short.

            Starting off with “You guys can’t review this!” is not really the sign of a strong case. That’s either desperation or table pounding.

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            • Starting off with ‘you guys can’t review this’ is fine – the States also made an argument that ‘you guys can’t review this’, where ‘this’ is any temporary restraining order, an argument the appeals court rejected.

              Starting and *ending* with ‘you guys can’t review this’ is what the court said was ridiculous about the federal government’s case.

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      • I could honestly see the POTUS telling his AG to defy the Ninth Circuit. Then things get exciting.

        There is already precedent for that.
        Lincoln lost his only case before Taney, but as POTUS, it didn’t matter what Taney had to say.

        I think the interesting part comes when the military becomes involved, that “against all enemies, foreign and domestic” thing.
        Again, there is strong precedent for the POTUS to command the U.S. armed forces in operations within the borders of the United States.

        From there, the question becomes one of the willingness of the boots on the ground to comply with direct orders.
        As the judiciary might properly be defined as “That branch of government which delights in pissing in the face of the United States military,” and the overall strong conservative bent of military personnel, the ingrained axiom that “Rights are won by means of blood,” I just don’t see the military voluntarily restraining themselves when confronted with a direct order.

        Probably the best thing that could happen to this country.

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    • What’s interesting to me (in that it doesn’t seem to be widely understood) is that the EO isn’t quite entirely thrown out. There’s one substantive provision about refugees still in effect – a cap on the number for the rest of the FY, (50k) which may have been already met before Obama left last month.

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        • I’m pretty sure that if the EO had specifically articulated that excluded green card holders and delayed the effective date by some days for everyone in transit to clear, I don’t think there would be a stay/injunction at all – just a suit (brought by e.g. the ACLU, not the States) at the very earliest stages challenging the religious preferences and the thinness of due process procedures.

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  6. The court is wrong in thinking that there haven’t been terrorist attacks by nationals from the affected countries. A Chapel Hill car attack was by an Iranian. An attack in Little Rock was by a convert who’d spent over a year in Yemen. Two Yemeni’s with permanent resident status (they lived in Detroit) were arrested in the Netherlands for plotting terrorist attacks. And the number of attacks that law enforcement has prevented is much higher.

    But Trump’s power doesn’t require that people from the affected counties have a history of successful terrorist attacks in the US. He is empowered under law to temporarily ban travel here from one or more countries based on a perceived threat by people from those countries.

    More to the point, if he doesn’t have the power to stop hostile aliens from coming here, then the federal government has no power to stop hostile aliens from coming here (as he’s the one empowered by the legislature to stop such travel), and since states likewise have no power to restrict travel to the US, then no branch of our government is empowered to stop 10 million North Korean and Chinese PLA soldiers from coming here on vacation – even as their governments talk about wiping us off the map.

    And of course Obama’s last minute EO on Cuban refugees didn’t make a similar ripple – because reasons.

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    • Are you truly daft enough to think this about the power to stop hostile aliens from coming in. If so, please disabuse yourself of this notion forthwith. Nobody is impressed by that strawman you just beat up on.

      This turns on how the President still has to follow rule of law and due process when preventing aliens from entering the United States. Not do whatever he wants.

      Obama’s last minute EO didn’t blatantly and obviously have due process issues that first year law student could point out to you.

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      • Actually, the law granting him such authority is a blank check to do pretty much anything he wants, as long as it is done with a fixed expiration date and for the stated reason of safeguarding national security.

        They are aliens. Constitutionally he can just kill them under his war powers.

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          • But then we’d have to feed them and give them free college tuition. If we don’t let them in at all we incur no such costs.

            The point of the order is that the problem countries identified by the Obama administration either can’t or won’t provide us with reliable documentation, and existing screening procedures are inadequate to counter the threat from groups that are publicly stating that they are trying to insert terrorists into the refugee stream bound for the United States. Many of the ones already given visas went through this inadequate screening and vetting system and still might pose a risk.

            The government even retains the power to strip US citizenship from immigrants, and current law authorizes it to do so for communists under certain conditions. However, the government has no power to affect the citizenship of natural born citizens, as the government derives its very existence from such people.

            A more obscure question is whether the government has control over the arrival of denizens, since the states retain the power of denization, a power wholly separate and distinct from naturalization. Denization was exercised by the colonies under British rule and under the Articles of Confederation. It was not surrendered to the federal government in the Constitution, and is thus retained by the states under the 10th Amendment.

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        • Sure he can kill them with his war powers. He can’t kill them without issuing legal orders though. Its a pretty critical distinction though. The president has yuge discretion here, but is still required to use proper procedure.

          Also, there is a pretty crucial distinction here that has gone entirely over your head that what you do to aliens in general is distinct from what you can do to permanent residents or asylum seekers. They have rights under American law that the POTUS is compelled to respect.

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    • George Turner: The court is wrong in thinking that there haven’t been terrorist attacks by nationals from the affected countries

      The court didn’t say there were no terrorist attacks by nationals from the effected countries – the court said the Government provided no evidence to support that claim. And it’s not an appellate courts job to go looking for facts when the parties arguing cases don’t present all the facts they need to.

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        • The problem is that the states were able to pound the facts and the law. So now Trump is only able to pound the table.

          I do think there’s some traps (from liberal/progressive point for view – opportunities from the conservative/libertarian point of view) that this case may create. Foremost of which is an explicit 10th amendment claim that a Roberts – Alito – Thomas – Gorsuch – notorious RBG replacement SCOTUS bloc could use for 20 years to pare down federal government power *significantly*.

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          • Time to bust out the Zen.

            An old Zen story goes like this: An old Chinese farmer had a mare that broke through the fence and ran away. When his neighbors learned of it, they came to the farmer and said, “What bad luck this is. You don’t have a horse during planting season.” The farmer listened and then replied, “Bad luck, good luck. Who knows?”

            A few days later, the mare returned with two stallions. When the neighbors learned of it, they visited the farmer. “You are now a rich man. What good fortune this is,” they said. The farmer listened and again replied, “Good fortune, bad fortune. Who knows?”

            Later that day, the farmer’s only son was thrown from one of the stallions and broke his leg. When the neighbors heard about it, they came to the farmer. “It is planting season and now there is no one to help you,” they said. “This is truly bad luck.” The farmer listened, and once more he said, “Bad luck, good luck. Who knows?”

            The very next day, the emperor’s army rode into the town and conscripted the eldest son in every family. Only the farmer’s son with his broken leg remained behind. Soon the neighbors arrived. Tearfully, they said, “Yours is the only son who was not taken from his family and sent to war. What good fortune this is…”

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          • Well if my guess on tactics hold true, it was a really bad idea to expose the academic angle in this. I wouldn’t be surprised to see law created to disentangle academic from foreign student occupation on the grounds of national security.

            The left kind of exposed a important artery to a sharp instrument.

            Pretty much anything the left points at as justification could get disassembled in the following years.

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            • Well, it is a bit risky in the current political climate for a public university to admit that it takes in a lot of foreign students, but its not like it admits to giving them scholarships. And even so, it is still unlikely that the federal government could pressure states into pressuring state universities into admitting/hiring fewer foreigners.

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                • Lesson #1, don’t live by the fed.

                  The corollary to this, though, is the loss of a lot of research dollars in engineering and science. The federal government funds an amazing array of small research projects. I know about one example first hand — the US Navy funds lots of little projects (a prof overseeing one or two research assistants) in both pure and applied math. In some math sub-fields, it seems like a third of the published papers have the little note at the bottom of the first page that says, “This work supported in part by US Navy contract…”.

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                  • Michael,
                    At least that’s constant money. I knew a guy ran a whole code shop on the “maybe we’ll get paid when we’re done” system (he beat intel, so yeah, he is gonna get the bounty).

                    You wouldn’t believe what Darpa and the CIA do to funding… (Standard Procedure is 1 dollar in 4 goes to what the CIA wants… the rest is free to spend for the agency that’ll pretend to be sponsoring it)

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                    • Which is not a bad approach, particularly for research into algorithms, which was my field. Take signal processing for sonar as an example. A big defense contractor has problems with both producing sonar systems using current algorithms while funding people whose job is to make those algorithms obsolete. Whereas in academia, a prof and two grad students are highly motivated to show up everyone else working in the field. Not to mention that a graduate student is enormously cheaper than staff at a large defense contractor.

                      The algorithms may turn out to be useful in other fields as well — there’s a ton of little spin-out companies trying to do just that. My timing was a little wrong on that front. The Navy funded my time working on some math and code for nonlinear optimization that was the forerunner of Solver in Excel today. (Some years back I dug out my old notes and test problems — Solver has the same strengths and weaknesses my code did.)

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                      • It can actually be a very efficient funding approach when you have a problem but you don’t have a good feel for a solution yet. It’s akin to a DOE approach, sans a central design. Then, should you get a couple of solid hits, you can switch from DOE to optimization of those few until you get an answer.

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                    • My particular contract has, of late, gotten about 100k a year from a smaller NASA contract.

                      We make a tool that is available NASA wide and heavily used. This group has some specific needs that the tool doesn’t address. So they say “We have 100k, what can we get” and we spec them some options.

                      Upshot? Our tool has a subset of nifty new features that are useful to anyone doing that kind of work (and lots of our paying customers do) that’s paid for by a group that really needs that capability, but would have to spend a lot more developing it internally. (And there are no outside tools they can just purchase that can do the work to the specs they need).

                      Of course, we’re in the business of developing software that’s widely used, which means everyone figures someone else is paying for it. NASA’s been slowly working that problem for awhile.

                      (Contracts are pretty granular, and unlike the Station/Shuttle days, nobody has a big enough pool to cut lose 500k, say, for tool support and expansion. You might have a 5 million a year contract, but the money flow is so defined you’d be lucky if they had 50k for overhead. But if everyone is required to use software that needs 500k a year to update, expand, and meet increasing demands….collective action problem. Last I heard, they were considering a tiny ‘tax’ on contracts to support overhead costs like that — common tools development and such. Some companies use that to cover their overhead costs, and it seems to work out pretty well)

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    • Perhaps you should read the decision again.

      1) The appellate court ruled upon what had been briefed. The Government did not provide information about terrorist threats that required blocking admission of those who had already been authorized to be admitted to the country. The court cannot rule on 3rd party information such as yours which has not been introduced at the circuit court. Courts don’t work that way. If the State wants information to be considered by the appeals court, said information has to be introduced into the record at the circuit court level, which the State apparently did not do.

      2) The court ruled primarily on the question of due process for revocation of existing visas, not on whether the President has power to refuse to issue visas or to block entry by specific individuals identified as threats to public safety. The court ruled that it is not going to repeal the stay for just parts of the executive order that are incontrovertibly within the President’s power because that basically would be the court re-writing the executive order. If the President wants to rewrite the executive order to be compliant with the Constitution and revoke the previous executive order, he needs to do so, the court is not going to do so.

      In short, this was a narrow ruling on whether a stay or preliminary injunction should stay in place, not on the issues that you protest. You may have arguments to make, but the appeals court can only consider the evidence and arguments that have been entered into the record, it is not tasked with independently seeking out information or considering novel arguments that were not introduced by the State and indeed that would be judicial misconduct. It appears that the DoJ lawyer is unfamiliar with such basic rules of legal practice. Frankly, from listening to the actual broadcast, this DoJ lawyer appeared to be completely flummoxed on many occasions. He appeared unprepared and with no response other than hemming and hawing when judges asked him “where is that briefed?” i.e. where is that evidence entered into the record? Frankly, if that’s his usual level of competence, I wouldn’t hire him to write a will. He’d probably write a will with so many holes in it that my heirs would be squabbling over who gets what for the next twenty years after I die.

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    • And of course Obama’s last minute EO on Cuban refugees didn’t make a similar ripple – because reasons.

      Do you really believe that? This sounds like one of those things that people say, because it seems like a handy argument. But I find it hard to believe hat you think the only reason that people didn’t flip out about the reversal of the Cuba policy is because Obama and the o ly reason that people did flip out about the travel ban is because Trump.

      There are a any number of situations where that argument would fit, the Yemen raid for instance. But again, I find it hard to believe that you don’t recognize a significant difference between ending Wet Foot, Dry Foot and completely banning immigration from seven countries and putting a six-month hold on refugees from a country experiencing the worst humanitarian crisis in some time.

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      • Yes. The Wet Foot, Dry Foot ending left tens of thousands of Cubans stranded everywhere from South America to Mexico, having spent their life savings trying to get here and contribute to America and achieve the American dream. It was implemented because they have lived the socialist life and despise it. Those who reject socialism are “deplorable” and America already has a basket of them. It is purely a partisan political move to limit future Cubans who will vote Republican and swing Florida. The ending of the policy was to be permanent and forever.

        Trump’s travel ban limits the arrival of ISIS terrorists who are determined to shoot up American day care centers. It only applies to countries identified by the Obama Administration as sources of such terrorists that don’t cooperate with the US or can’t provide the necessary information to the US so that we can sift through and figure out who the threats are. The ban was limited to 90 days.

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        • I’m always happy to interact with folks who radically different outlooks than I do and who can challenge my own world view. But I’m also wary of not getting involved in pointless Internet arguments with unserious people.

          Statements like this point to which category you may belong:

          It is purely a partisan political move to limit future Cubans who will vote Republican and swing Florida…

          Trump’s travel ban limits the arrival of ISIS terrorists who are determined to shoot up American day care centers.

          That said, do you have any actual evidence of either of those claims? Honestly, you’re almost in Poe’s Law territory. You know, with all those radical Sunni Isis terrorists that Iran is sending over the shoot up daycare centers.

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          • Not only is the statement you quoted just ridiculous, but his assertion that Obama’s EO left Cubans in some legal limbo is laughable. They are now subject to the same admission and refugee/asylum procedures as people from every other country on earth.

            Getting rid of special treatment is not the same imposing additional restrictions.

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  7. In the main post, Burt said:

    Further, the panel found that Order 13769 engages in religious discrimination, in violation of the Establishment Clause. The Establishment Clause is violated when a law “officially prefer[s] [one religious denomination] over another,” Larson v. Valente 456 U.S. 228, 244 (1982).1 Further, the Equal Protection Clause prohibits the Government from discriminating against individuals based upon religion. De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir. 1978). 2 At this point, the panel considered public statements made by then-Candidate Trump about implementing a “Muslim ban,” and statements by the President’s advisors about how to legally restrict Muslims from entering the United States. The panel does not state that this evidence is dispositive of the issue of intent, only that it raises “serious allegations” as to the intent behind Order 13769.

    Emphasis mine.

    They’re not allowed to do that. In fact the 9th Circuit has held that the 9th Circuit isn’t allowed to do that.

    “statements by decisionmakers unrelated to the decisional process itself” do not prove a discriminatory motive. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1138 (9th Cir. 2004)

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    • The argument by the State of Washington was that these statements by Candidate Trump and Advisor Giuliani were related to the decision process itself and that they would provide evidence at trial to show that this was the case. The way it works, see, is that we have a *trial*, with *evidence*, to decide (amongst other things) whether these statements were related to the decision process itself. That trial currently has not taken place, and the government has entered no evidence or brief yet into the record that the statements were unrelated to the decision process.

      You are arguing trial strategy when this appellate decision was not a trial, it was simply determining whether a preliminary injunction or stay had cause to be upheld. Again, the appeals court can only rule upon evidence or arguments which have been entered into the record. Your position that these statements were unrelated to the decisional process itself has not yet been briefed, even, by the government, and thus cannot be considered by the appeals court.

      Really, this is the kind of conduct that annoys appeals courts. It’s kind of expected from pro se indigent appellants, but this is the Department of Justice that we’re talking about. They’re supposed to actually have lawyers on staff, not some guy hired off of Cellblock C for two packs of cigarettes. Professionals are supposed to have all their ducks in a row, and certainly aren’t supposed to file an appeal before they’ve entered sufficient evidence at the trial court level to justify an appeal. This just makes them look stupid.

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      • Regarding the Constitution, a candidate does not have a decision process. They have no recognized advisers. They are just ordinary citizens and are not obligated to faithfully execute the laws until they are sworn in.

        Further, a President’s powers are not subject to removal or revocation by courts simply based on what he said as a candidate, otherwise the powers of the office of the President would be fatally compromised for an entire term of office. If he cannot execute the office, he can be removed under law. The court has badly overstepped its bounds.

        Further, the court’s decision means that the citizens are not free to elect a candidate who appeals to them if his appeal is based on something the court finds objectionable. That means our democracy itself is a sham.

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        • Again, if you are going to make this argument at the appellate level, you have to actually submit the argument and evidence supporting it at the trial court level. You don’t seem to get the point. The appellate court was not trying the case. They were deciding whether there was sufficient evidence to uphold the stay *based upon the evidence that had already been submitted to the trial court*. If it was not submitted to the trial court — and your argument was not — then it’s not evidence, it’s just nattering on a blog.

          Really, courts aren’t blogs. They just don’t work that way. It was the government attorney’s job to have all his ducks in a row and all his evidence briefed and submitted before filing the appeal. The appellate court is under no obligation to independently seek out arguments and evidence which are not on record, and indeed it would be judicial misconduct to do so.

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          • But they weren’t allowed to consider Trump’s campaign statements, per their own prior rulings on what is admissible, and yet they went ahead and did consider those in reaching their decision. They screwed up.

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    • They’re not allowed to do that. In fact the 9th Circuit has held that the 9th Circuit isn’t allowed to do that.

      “statements by decisionmakers unrelated to the decisional process itself” do not prove a discriminatory motive. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1138 (9th Cir. 2004)

      That’s an interesting theory, that the idea that a policymaker announcing his intention for what he wants his policy to accomplish is somehow not related to the decisional process of drafting that very policy.

      Logically untenable, but interesting.

      “I want to eat pizza for dinner tonight. So I’m going to call the pizza place and have them deliver me a pizza” is a statement of my intention. When I thereafter call the pizza place and instruct them to deliver me a pizza, is that action unrelated to my previous statement? Is that action unrelated to my decision to eat pizza?

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      • I don’t really mean to defend George, Burt, but I had thought that the courts usually don’t admit, for example, statements made in Congress about laws when it came to the courts’ analysis of said laws. I may be mistaken, of course, but it doesn’t strike me as so logically untenable and “interesting” as you suggest it is.

        That said, I want to say that I think the EO is crap, and I’m glad that the 9th circuit is not removing the stay on the ban.

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            • Using legislative history is also perfectly fine to resolve ambiguity’s, unless you are from the Scalia originalist school (in which case you can use an old dictionary that they would have used to define words, but not their statement on what the law actually meant).

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              • So…..you disagree with Don Zeko’s distinction?

                ETA: what I mean is, if legislative history is also literally used to resolve a law’s apparent ambiguities, then why distinguish between ambiguity and intent? I’m also a little confused at how much weight we should give extra-textual statements when determining consent OR resolving ambiguities. (I know the “how much” question isn’t really the issue in this subthread so much as the “whether” question….but I think “how much” is legitimate to ask.)

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                • No, I agree with Don’s statement, just adding that for a number of judges using legislative history is acceptable to resolve an ambiguous statute.

                  I get where your coming from, but I think of them as separate steps in analyzing a statute. I’ve always understood ambiguity to be referring to whether the plain text is clear or ambiguous when applied to a given set of facts. If the law is clear, then that’s the end of the matter regardless of what legislative intent may have been. We only start caring about what it was legislators intended to do if the plain language of the statute is ambiguous on application to a given set of facts. I may also be misinterpreting you statement about distinguishing between ambiguity and intent.

                  On the ‘how much’ question, I don’t any judges are quick to use history, or even really use it as a dispositive factor very often. It’s more additional evidence to support an interpretation.

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    • Continuing with the spirit of mis-citing I see. The actual quote in used McGinnest v GTE was cited from another case and read “Indeed, in the absence of additional evidence, ‘statements by nondecisionmakers, nor statements by decisionmakers unrelated to the decisional process itself, [cannot alone] suffice to satisfy the plaintiff’s burden in this regard.’ Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).”

      You’ll note the “in the absence of additional evidence” led to the bracketed text in the quote reading “[cannot alone]”. I’ll note that you mysteriously omitted both of those parts. An oversight perhaps, although i suspect its more what you get when someone wholly unqualified gets to citing legal precedents. You can also note that the decision makers in that case were the defendant’s accused of making an improper hiring decision, and not the authors of a piece or legislation under review. But otherwise, yeah, exactly what you said.

      As you;ve shown, one can try to take that precedent where you attempted to take it. You’d be laughed at by a first year law school student though.

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  8. Pingback: The stay stays | Badtux the Snarky Penguin

  9. Getting us back on track here, the relevant law is 8 U.S. Code § 1182(f) – Inadmissible aliens

    (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.

    1. The President found that the entry of a class of aliens would be detrimental to the interests of the United States (they want to blow us up).

    2. He proclaimed that for 90 days, which he deemed necessary, he was suspending the entry of a class of aliens, those from 7 countries identified as problems by the Obama Administration, until we can sort out who’s coming.

    We have granted him the power to do that.

    If he wanted, he could ban the entry of cat-owning aliens named Bob who were Catholic, one eyed, and gay, or aliens who threatened Ivanka on Facebook. Other civil rights laws don’t apply or the law would include lots of legal references about authority and “in accordance with”, and those other laws would include references to alien entry into the United States. Neither type of reference exists. The President has been given broad latitude to pick and choose based on whatever criterion he identifies, including a those with a complexion resembling a Cheeto. If Cheeto people are causing a problem, the President can refuse them entry for a period of time, such as when the sun runs out of hydrogen and swells into a red dwarf. However, he cannot bind billions of future presidents to his executive order.

    The Ninth Circuit was off in La La Land, getting in touch with their feelings.

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    • Sorry, that should read “red giant”. Red Dwarf is a British sci-fi show.

      But the point remains. Trump has the power to ban the entry of any alien, or any group of aliens, if he deems their arrival detrimental to US interests. If you read the relevant law, linked above, we already ban the entry of all kinds of people for all kinds of reasons – hundreds of reasons. People don’t have a right to just hop on a plane and move here.

      Of course there’s the small and undecided question of whether any of that law can be applied to an official denizen. We’ve always had denizens. We still make millions of denizens in fact if not in law, but nobody realizes what we’re legally doing when we do it.

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    • George, the U.S. Code does not supercede the Constitution. The arguments made at the 9th Circuit — and, I might add, at a dozen other courts in the United States in five different circuits, all of whom ruled that the executive order was likely illegal and several of which issued a stay for one or more parts of the executive order — were arguments that the executive order as written violated the Constitution via violating due process rights provided for by the Constitution.

      I do not know whether you lack reading skills or simply are being obtuse, but these decisions are widely available (see links above) and easily read. They are not in Urdu. They’re in plain legal language that is easily read by anybody who has a modicum of experience in reading court decisions. There is no “there” there to your argument that a section of the U.S. code can supercede the Constitution. That simply is not true. It doesn’t work that way. Really. Bigly.

      Really, if you have no idea how law actually works, best to remain silent and be thought stupid, than open your mouth and prove it. Multiple people have tried to explain to you how law works, and you continue to insist that it works like a blog post where you can just splat anything out there and voila you’ve proven your case. No. A blog is a blog, and law is law. They are two different things, and your insistence that law works like a blog post is getting tedious. Law has a process. This process has a purpose. This purpose is to try to get consistent results from a given set of facts independent of the court hearing the case. This process does not allow for personal feelings to be used as the basis of a decision, nor blog articles, nor independent research on the part of judges, nor snippets of U.S. code out of context of precedent and evidence. Your continued insistence that law works like Judge Judy is ridiculous. Judge Judy is an entertainment show. That’s not how law works. Really.

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      • I missed the part of the Constitution that grants any rights to aliens. It doesn’t apply to aliens because we have no authority over them other than as aliens who are guests in our country under restrictive terms.

        Under common law, there are allied aliens, neutral aliens, and enemy aliens. We can seize all property belonging to enemy aliens. We can round them up and put them in camps. Democrats were all for this in WW-II. The only serious opposition came from Republicans, especially the governor of Colorado.

        You seem to assume that all prior US law contradicts the Constitution because it does not supersede it. It does not. By your argument, 8 USC 1182 must be struck down. Go for it.

        All the current controversy does is put the courts in disrepute. They are not ruling on the law, as is their role; they are ruling on their feelings that Trump=Hitler. They are no longer worthy of an ounce of respect. They are Hillary clowns in robes who deserve nothing but contempt. They put the interests of ISIS above those of the United States, and above US law, and the American public is not going to tolerate that for very long.

        We elect a President and grant that President that authority to protect us from foreign threats. If our government fails to do that, we retain the right to alter or abolish it. You do not want to wake the abolitionists, but you are trying.

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        • No part of the Bill of Rights nor 14th Amendment mentions citizens at all. There’s already a multitude of Supreme Court rulings that the rights guaranteed in the Constitution apply to all persons under the jurisdiction of the United States, not just citizens. That is, if someone is on U.S. soil with a U.S. visa applying for entry (and yes, when you are standing in an airport in the international terminal, you are on U.S. soil for jurisdictional purposes, i.e. if you committed a crime there you would be arrested by U.S. police and convicted in a U.S. court), they have the same rights as anybody else who is standing in that terminal regardless of citizenship. The U.S. government is still not allowed to discriminate on the basis of religion (see 1st Amendment), and is still not allowed to punish them without due process (see 14th Amendment).

          Note that the Constitution says that the courts, not you, not the President, are granted the judicial power, i.e., the right to judge whether something is in compliance with the Constitution or not. You make bald assertions about what the Constitution says or doesn’t say but it is precedent and the Constitution that guides judges when determining Constitutionality, not your blog postings. Again, this is not Judge Judy. Hand waving arguments don’t fly in a court of law.

          Where did you get your law degree anyhow? Liberty University?

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        • The U.S. Code is not “prior law” as compared to the Constitution. The U.S. Code is subordinate to the Constitution. See Article IV:

          This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

          A section of the U.S. Code which is contradicted by an amendment to the Constitution adopted after that statute was passed by Congress is “superceded” and thus an operating nullity. For instance, the Fugitive Slave Act has been superceded by the 13th Amendment.

          Here, the INA was passed after the 14th Amendment. The executive order, purporting to interpret and apply the INA, was issued after both of those other, superior laws. The executive order is vested with the force of law, but to the extent that one law contradicts another, the higher tier of law prevails. The Constitution is the highest tier of law there is.

          What the Ninth Circuit is doing is not relying on its “feelings.” The opinion is an exercise of logic, comparing the effect and intent of the executive order against the restrictions of the Constitution. While there is no guarantee that the opinion will withstand further review, even a cursory reading of the opinion itself (made in good faith) will reveal a high level of intellectual rigor within.

          Judges can and often do disagree about how to interpret and apply the law, particularly the generalized statements of the Constitution as compared to specific nuts and bolts of policy enforcement as are found in the executive order. Judges can and do often disagree as to what effect results from differing techniques of Constitutional analysis. We are free to point to one judge or another and find that judge’s approach to the law superior or inferior. A logical disagreement, however, is not the same thing as “acting on emotion” and to discredit opinions whose results you find distasteful as emotional rather than logically inferior lays a foundation for similar attacks at a later date against opinions you do like, which ultimately erodes the respect for the judiciary and the rule of law which is the very foundation of our polity.

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          • The problem with the Ninth Circuit essentially ignoring the legislation is that this administration has raised a plausible national security concern, and since Truman attempted to seize the steel mills, Courts have analyzed these types of cases through the framework of Justice Jackson’s concurring opinion in Youngstown. Under that opinion, it is very important if the claim of executive power is authorized by Congress. This was the framework used in the Gitmo detainee cases and I expect that any complete treatment of the legal issues in the future will give prominent consideration of the statute in evaluating the Constitutional issues.

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            • Everybody though, (even the “w00t! 3-0!” people – esp those people) is kinda overstating the implications of this decision. All it is, at the core, is a denial of stay of an injunction. The ‘real’ case, with ‘real’ arguments hasn’t even started yet.

              (right? no federal district court anywhere in the country has actually issued a ruling on the EO other than TROs/preliminary injunctions on parts of its implementation, correct?)

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              • If there’s been a ruling on the merits, I haven’t seen it. I was wondering if we might get a lot of litigation on discovery, since Washington seems to be leaning fairly heavily on an argument that the EO, while facially neutral, was passed with the intent to favor one religious group over another. I can’t imagine Trump is going to want to turn over much information about the behind-the-scenes stuff that lead to the EO.

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                • iirc, as far as we can tell, the EO was entirely drafted in the West Wing over the course of 2 or 3 days, less than a full week into a new Presidential administration, with a team that do most of their communicating face to face instead of via memo/email.

                  So there’s likely not much of a paper trail.

                  (I think the only sort of ‘working paper’ that’s been publicized was the OLC(?) (White House Counsel?) memo from one day before the EO was signed saying ‘looks good to me’.

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              • Yeah, I’m not sure why folks aren’t getting this. The court just said, basically, that there is a legitimate question regarding the EO. That question will be litigated, and because the effects of a TRO upon the government would be (based upon the (lack of) evidence provided to the court) minor, while the effects upon persons with a right to due process would be significant if the TRO was stayed, the TRO holds until after the trial.

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                • Oscar Gordon:
                  Yeah, I’m not sure why folks aren’t getting this.The court just said, basically, that there is a legitimate question regarding the EO.That question will be litigated, and because the effects of a TRO upon the government would be (based upon the (lack of) evidence provided to the court) minor, while the effects upon persons with a right to due process would be significant if the TRO was stayed, the TRO holds until after the trial.

                  Judging from the great source of knowledge and wisdom known as my Facebook feed, I can’t tell if people don’t get it or just don’t care to get it so long as they use it to stick it to the other side. I’ve seen quite a few “you lost…get over it” statuses.

                  It’s just the typical Team Red vs. Team Blue bullshit aka the non-lifters version of Broscience.

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              • Kolohe:
                Everybody though, (even the “w00t! 3-0!” people – esp those people) is kinda overstating the implications of this decision.All it is, at the core, is a denial of stay of an injunction. The ‘real’ case, with ‘real’ arguments hasn’t even started yet.

                (right?no federal district court anywhere in the country has actually issued a ruling on the EO other than TROs/preliminary injunctions on parts of its implementation, correct?)

                That’s exactly how I read it.

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              • Yes, this is not a decision on the merits, but the Court wrote it to make it appear that it was on the merits. This is an appeal of an emergency stay which is typically granted on the basis of allegations made by the petitioner, not evidence. They usually are only going to last a few days until a hearing with evidence can be held to decide whether a preliminary injunction should issue. These are generally not appealable because there is nothing to review given that everything the petitioner has filed in support of the stay will be assumed to be true.

                The Court of Appeals rejected the nonappealability argument partly because the stay was overbroad in not having a deadline, and treated the appeal as one from a preliminary injunction and then preceded to castigate the government for not having evidence in the record that one would expect for a preliminary injunction.

                Granted, the administration gave the Court of Appeals this rope by appealing the emergency stay, and the Court of Appeals took the opportunity to right a brief opinion on the merits. Taneyesque.

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            • The Ninth Circuit (and the three other courts that issued preliminary stays) ruled on what was in evidence. There was no plausible national security concern in the evidence that was in the record. I listened to the hearing. The government lawyer was hammered repeatedly when he tried to bring up the national security issue, “where is that in the record?” Stays generally are not appealable other than on narrow grounds that the plaintiff’s constitutional arguments (in this case) do not justify a stay. Clearly if the government is going to instead appeal based upon the notion that there is a plausible national security concern that would justify rescinding the valid visas of *all* persons from those countries, not just members of organizations (such as ISIS) or individuals who pose national security concerns, they have to actually enter evidence in that respect into the record. Appeals courts can’t just rule based on whim, they can only rule on what’s in the record.

              All in all, just a total cock-up. I think at trial the government has a good case to get much of the executive order reinstated as legal, but that’s not what this hearing was about, and attempting to get an appeals court to rule upon something based upon information that is not in the record is not going to happen. That’s not how it works. It just isn’t.

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      • Yes, I think this is the key point; one that I think conservatives (broadly speaking) should internalize.

        Egging on Trump (as if he needs it) doubling down on incompetence and turning unforced errors into war between the branches of government is positively the worst way to attempt to change long standing policy (in areas where you/we think it needs changing).

        If I can play from the right for a moment; if you want to accidentally have the court suddenly discover a Right to Free Universal Movement in the penumbra of the constitution, then doubling down on ill-conceived and poorly executed Executive Orders is a way to have that happen. The judicial branch of our regime abhors arbitrariness… don’t be arbitrary.

        This was a known risk with Trump (disqualifying risk in my opinion), but if you want to either a) Make some actual changes of direction or (more likely) b) escape this administration with the ideas intact and not discredited through incompetence… then insist that the Executive branch put competence in the fore.

        Bookmark this, rinse/repeat for next 4-years.

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          • Yeah… that’s a no-brainer. A little bit humiliating, usually accompanied by a “You’re fired” moment for some underling that did exactly what he was asked to do… but presidents/premieres/heads-of-state have been doing that for ages to save a little bit of face.

            Here, though, I can’t really fault the democratic party for egging him on; that’s playing to his weakness and I expect him to take the bait. On the other hand, not leaving your opposition a way out can backfire… the best generals manage their opponents retreats until surrender is the only option. Fights to the death are rolls of the dice.

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          • If they’d been sane, they’d have run it by OLC (I’ve yet to see it confirmed they did), DoJ, DHS, and any other stakeholders before executing it.

            All of this would have been caught and modified on review and, as you noted, they’d have gotten pretty much exactly what they wanted without much risk of challenge.

            Last I heard, the new story floating around is Trump wasn’t “fully briefed” on what he signed and that Bannon wrote it. Which is pretty much exactly what you’d expect a thin-skinned CEO to say about a flopped roll-out. “This was Bannon’s baby, and he screwed the pooch. I signed off on it assuming he was competent. We’ll put into place processes to oversee his future work, because we can’t trust him until he shapes up!”

            “The buck stops there, on Bannon’s desk.”

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    • (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.

      , this is something I’d like your opinion on:

      Everyone seems to be reading that as if ‘any class’ can mean ‘nationality’, and there’s a conflict between this law and the ones that says you can’t use nationality. ‘This law says you can’t ban by nationality, but this other law says you can!’.

      I think this reading is…completely wrong, actually.

      Immigration law is full of talks about ‘classes’ and ‘classifications’.

      ‘Class’, under immigration law, actually means things like green card holders or people with travel visas or people with H-1B visas. Example:

      8 U.S. Code § 1101 (a) (15) The term “immigrant” means every alien except an alien who is within one of the following classes of nonimmigrant aliens—

      Or, alternately, it can be how people are barred from the US for various reasons. Example:

      8 U.S. Code § 1182 (a) Classes of aliens ineligible for visas or admission…

      All those things are ‘classes’ or how people are ‘classified’. There is a lot of talk about ‘classes’ of people, all over the place in immigration law. (Sadly, there is no formal definition of what ‘class’ means.)

      However, the US government is forbidden from using nationality as a determining factor, which sounds a lot like it is forbidden from *classifying* people based on nationality, that nationality *cannot be a class*. Additionally, there is not a single reference to nationality *being* a class, or anything even slightly like that. (Because we deliberately removed it.)

      So my contention is that law, 8 U.S. Code § 1182(f), when it uses the term ‘any class’ means ‘any class existing *within immigration law*’, not ‘any class the president happens to invent that day’.

      And nationality is not (And is indeed *explicitly forbidden* from being) a ‘class’ that exists under immigration law.

      And thus that part of the law is not saying what everyone seems to think it says, and doesn’t not give any specific permission to ban by nationality.

      Granted, a nationality-based ban could, in theory, work under the second part, the ‘impose on the entry of aliens any restrictions he may deem to be appropriate’, but *that part* of the law seems clearly subject to nationality neutrality law, once you realize the other part of the law isn’t explicitly overriding the nationality neutrality law.

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      • Or to put it another way:

        If a state law gave the governor the ability to arbitrarily suspend ‘any class’ of driver’s licenses, would we assume that meant he could suspect the licenses of everyone under 20, just by him calling *those people* a ‘class’?

        Or would we assume that meant *actual classes of driver’s licenses as defined under the law*? Class A, class B, etc.

        Well, immigration law has all sorts of classes of people, also. Real, legally defined classes that it calls classes. Granted, it doesn’t ever bother to specific explain what classes *are*, but it’s pretty clear about ‘classifying’ stuff into ‘classes’.

        The president has the right to suspend entry from any one of those. (Presumably, one of the classes that are allowed entry. He does not need to suspend the entry of classes that cannot enter, obviously.)

        And it may seem ‘obvious’ that nationality *seems like* ‘a class’ under immigration law, and I think that’s how everyone has decided to *read* that law… herp-derp, ‘one of the classes he can use must be nationality’…

        …but *literally the opposite* is true. It not only is not a class, it legally *cannot be* a class, very specifically. A whole law exists about that.

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        • Class: a set or category of things having some property or attribute in common and differentiated from others by kind, type, or quality.

          When they use the word “class”, they probably mean “class”, based on whatever Venn diagram that happens to be useful.

          Under common law there is a big legal difference between an alien and an enemy alien. If nationality couldn’t come into play then how would you differentiate between them?

          Further, 8 USC 1182 lists all the ways the Director of Homeland Security can stop the immigration of people from particular nations, based on nationality. For example, people from nations whose people cause more overstays and other problems can be banned from Guam at his discretion.

          Nationality also comes into play regarding reciprocity and other aspects of immigration.

          And if you conclude that the President can’t legally ban the entry of enemy aliens, you are reading something very wrong. We have a lot of Italian-Americans and a lot of German-Americans. They didn’t arrive here during WW-II, except perhaps as POWs going to POW camps.

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          • When they use the word “class”, they probably mean “class”, based on whatever Venn diagram that happens to be useful.

            Yes, because that’s how the law often works. The law often says you can do whatever things happen to be useful.

            Or, alternately, the law *defines things you can do*. That actually seems more likely.

            Psssst…words do not always mean what you think they mean under the law.

            Under common law there is a big legal difference between an alien and an enemy alien. If nationality couldn’t come into play then how would you differentiate between them?

            For example, ‘common law’ does not mean what you apparently think it does.

            And considering you are *literally citing the code* that defines almost all reasons people can be barred from getting an immigrant visa, perhaps you would trouble yourself with reading to find the part that bars people from countries that the US is at war with, which is…

            Oh, that’s right. *There isn’t one*.

            Someone from an enemy nation would, instead, probably be barred under 8 U.S. Code § 1182 (a) (3) (A), which allows the US to withhold an immigrant visa if the government believes they going ‘to violate any law of the United States relating to espionage or sabotage’.

            There is not a single mention of any nation in there. Of course, it seems likely that, in the event of a war, we would probably scrutinize people *from* the country we’re at war with more thoroughly, but there is no ban.

            And there is no such thing as an ‘enemy alien’ under *immigration law*. There is some law from 100 years ago that supposedly give the power to remove people from this country when we’re in a declared war, which a) we are not, and b) is almost certainly dead letter because it contains no due process, and the courts, since that law was passed, have said that everyone who is on American soil has due process, citizen or not.

            Further, 8 USC 1182 lists all the ways the Director of Homeland Security can stop the immigration of people from particular nations, based on nationality. For example, people from nations whose people cause more overstays and other problems can be banned from Guam at his discretion.

            Wrong.

            There are *travel visa waiver* programs for people from specific countries, and there is also a specific travel visa waiver program for several US territories independent of that. (I didn’t actually know that second thing until right now.) That law allows the director to add and remove countries from the *visa waiver* list.

            People coming from those countries can get in without a visa. People not from those countries need a visa.

            No one can be *barred* from anything under those laws.

            Of course, we are talking about *nonimmigrant* visas here, which can be based on nationality(Just ask the countries in NAFTA.), so you picked a silly example.

            It’s *immigrant* visas that cannot be based on nationality.

            And if you conclude that the President can’t legally ban the entry of enemy aliens, you are reading something very wrong. We have a lot of Italian-Americans and a lot of German-Americans. They didn’t arrive here during WW-II, except perhaps as POWs going to POW camps.

            You…have no idea what anyone is talking about, do you?

            There is a specific law barring the consideration of nationality in issuing immigrant visas. Here it is:
            8 U.S. Code § 1152 (a) (1) (b) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

            (And to keep people from wandering down the garden path of checking those exceptions out, those listed exceptions are all all *positive* exceptions that allow *priority* for things, not anything that would allow blocking based on nationality.)

            This law was created in 1965, when we overhauled our immigration system to *deliberately and completely remove all references to specific nations*, and barred ourselves from using country of origin in *any way* in issuing immigration visas. (Well, in any negative way.)

            I suggest you do not know about this, because you are, weirdly, referencing immigration practices in WWII, which have no relationship to how immigration law works *now*.

            Note this law only applies to *immigrant* visas. (Of course, his order impacted those. It impacted everything.)

            Nonimmigrant visas (Travel, student, employee, etc) are entirely different rules, and in fact there is *already* a list of countries that we will not give them out to people from. It’s called the ‘state sponsor of international terrorism’ list. (Oddly, only three countries on Trump’s list are on it.)

            And the fact there is a way for the executive to block nations from a country from getting a travel visa does not mean what Trump did is legal WRT travel visas.

            In fact, that possibly makes it *more* illegal. There is a process to stop travel visas, he could have put more countries on that list…and instead he chose to block people with legal visas from entering the country. If the executive is told ‘This is how you do something’, and does it some other way…uh, no.

            And those three of the nations on that list *already had to get an exception from the Secretary of State* to get a visa, which makes it completely idiotic that he then blocked people with visas from entering. There’s a reason that everyone you hear about from Iran who got blocked is an exceptional human being in some humanity or scientific project…those were the only Iranians getting travel visas to start with, because they were all *personally* cleared by the Sec of State!

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  10. I’ve seen people elsewhere point to the Immigration and Nationality Act of 1965 as the reason why the ban will ultimately prove unconstitutional. Yet, from what I’ve seen, none of the court cases thus far have not made this argument.

    Am I misunderstanding the 1965 law?
    If not, is there a reason this argument hasn’t been made yet?
    Can the argument be made later on in this case or will a new case need to be introduced with this as the argument from the get go?
    If this argument is not made, can the courts still use it to rule the order unconstitutional (if, indeed, the order is unconstitutional because of this law)?

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    • I’m no immigration specialist, but let me get you a little straightened out.

      The 9th circuit agreed with the States that the Executive Order deprived certain categories of aliens of due process. The categories of aliens wrongfully affected include lawful permanent residents and non-immigrant visa holders.

      Now, let’s unpack what I just wrote. The court did not invent those categories of aliens; those categories arise pursuant to statute. The statute which creates those categories is the statute you referred to, as substantially amended thereafter. In addition to creating categories of alienship, the statute also gave different categories different legal rights (like the right to re-enter the United States).

      So, there is a statute. This statute creates categories of alienship (e.g., lawful permanent resident) and certain rights (e.g. right to re-enter after travel abroad) associated with different categories. These categories and the associated rights exist under and pursuant to the US Constitution, including the Due Process clause. Past courts have already determined that certain categories of aliens receive some quantum of constitutional protection, include due process protection, before the rights associated with that category can be stripped away. Thus, when the EO attempted to strip certain aliens (lawful permanent resident) of certain rights (right to re-enter) without notice and a hearing, the 9th circuit found that the EO was violating the Due Process clause of the Constitution.

      Note the relationship between statutory law, constitutional law and executive action: when the EO tried to strip certain statutory rights given to a category of alien, the court found that the Due Process Clause barred the President of stripping those rights from those aliens without first giving the aliens a hearing.

      As to filing a new case, it is possible that the States lack the standing to raise the argument that certain aspects of the EO are unconstitutional as applied to a particular category of persons, because no one within the state falls within the category of being harmed by that particular section of the EO. So it is possible that other parties may want to join the lawsuit, to assert that additional categories of persons, not already represented by the States, have interests that are unconstitutionally affected by the EO, and thus the EO should be struck down as to them as well. The process behind that would be that the new plaintiffs would indeed file a new case, and then seek to have the new case joined to the existing case.

      In general TROs are briefed on a very expedited basis and the parties are not constrained from raising new arguments later. There are general rules of practice that prohibit you from asking the court to reconsider a ruling if you could have raised an argument and failed to do so. But that wouldn’t apply here.

      Did that help at all?

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    • No, there’s no motion pending.

      One judge made a request to the rest of the 9th circuit judges for a vote to hear the case en banc. Whenever a judge takes an action without a motion pending, that action is referred as being taken sua sponte. Under the rules of the court, once a judge makes a en banc call sua sponte, the parties are then invited to brief the issue.

      In some circuits an en banc hearing is held before all the appellate judges of the circuit but in the 9th, the en banc court consists of the Chief Judge and ten non-recused judges who are randomly drawn.

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    • Above, on Feb 9, I wrote: A normal White House would respectfully disagree with the court’s ruling and moot the litigation by issuing new EOs that had the same substantive effect but complied with the constitution. (It wouldn’t be that hard to do.)

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      • Sure, for some folks. But the question is this: can Trump rise to the challenge to achieve his (putative) goals rather than resorting to blustering his way to not being punished for trying to advance them? This ain’t the Steak (or water, or tie, or hotel) market we’re talking about here, as much as his supporters would like to think they’re the same.

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        • Thing is, George, you’re not accomplishing anything other than being annoying because what’s relevant is the facts on record, precedent (especially constitutional precedents if we’re making a constitutional arguments), statutory law, and the Federal courts’ current rules of practice, not some nattering by a law professor working for a right-wing doctrinal institute who hasn’t practiced law in decades and practiced an entirely different field of law, not immigration law. Same deal with dragging in some random blog post somewhere as evidence of something or another (I’m not sure what). No. Blog posts comprised of second-hand hearsay and grand wavings of hands aren’t how the rules of evidence work. They just aren’t. Other than in limited cases like, say, the assertion that a blog post libeled someone. Even there, the contents of the blog post are entered into the record as evidence, they aren’t just referenced out of thin air somewhere while accompanied by lots of hand waving. Perry Mason and Matlock were *fiction*. That’s not how law works, outside maybe a county magistrate’s court in Bumfuck, Montana, or Judge Judy’s courtroom. (Which is actually a binding arbitration procedure, BTW, and has absolutely nothing to do with a court of law).

          Really, I try to keep an open mind, and people in these threads have brought up a lot of different things to consider about how the course of the case might go, some of which have the government getting most (or maybe even all) of what they asked for. Sadly, George, none of that useful information has been contributed by you. All you’ve contributed is partisan silliness and noise uninformed by any knowledge of rules of evidence, court procedure, or even the nature of the proceeding that this blog post was about. You’ve been attempting to try the case in the context of a TRO appeal hearing. No. That’s not how it works. The trial court (whose judge, remember, is a conservative George W. Bush appointee) tries the case, not the TRO appeals panel, which rules upon one very specific thing based upon the evidence entered into the record and briefs and oral arguments upon that record. The trial is still months in the future and all the arguments you’ve dragged in from random corners of the Internet will have their chance to be heard there, if the government in fact does not withdraw the executive order and instead insists upon a trial upon its constitutional merits. Your insistence that an appeals panel conducting a TRO hearing should be hearing and considering all your arguments of fact is heard, and dismissed.

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          • What matters is that the state of Washington didn’t have standing.

            What matters is that the court ignored the text of 8 USC 1182(f), under which Trump issued the EO.

            What matters is that the text of 8 USC 1182 says the President can block the entry of all aliens or any class of aliens if “in his judgment”, it is warranted to protect the interests of the US. Not in the court’s judgment, in the President’s judgment.

            What matters is that the court ignored Judge Jackson in Youngstown, by which Trump, in acting with Congressional approval, has the greatest power. It also matters that his ruling is foreign policy, an area in which the courts are particularly incompetent to rule. It also matters that it is an issue of war, with enemies of the United States murdering US citizens and proclaiming that they’re infiltrating their agents into the United States through the refugee streams.

            But what really matters is that although Trump’s order does refer to nationality, it passes the test of reasonableness and compelling government interest. It would survive strict scrutiny. If, given Youngstown and other rulings, Trump doesn’t have the power to temporarily block the entry of potential enemy combatants, then the US government doesn’t have the power to block the entry of enemy combatants. That is so unacceptable that it would refer the court back to the Declaration of Independence and its assertions about our right to alter or abolish our present system of government and find new guards for our security. The justices will not go there.

            Trump will reissue his EO on Monday and the ball starts again.

            And in some areas of immigration law I am quite well versed. During the campaign I constantly cited dozens and dozens of Supreme Court decision on citizenship and immigration, from Sailor’s Snug Harbor, Wong Kim Ark, Dred Scott, New York State rulings, British rulings, and the commentaries of Blackstone, Kent, and Tucker. During the campaign I wrote about 200 pages of legal commentary on immigration law. At one website I frequent a British immigration lawyer who absolutely despises me did not utter a peep about my arguments because I was right on all points. We were all arguing immigration law (actually I was arguing against everyone else) and an immigration lawyer wouldn’t argue against me in those threads, just threads on any other topic.

            More disclosure: I live with a retired criminal trial lawyer who’s been both an assistant DA in his early years and a PD in his later years, along with a lot of state jobs sprinkled in between, such as being the attorney who was in charge of defending the pot of money in our workman’s comp system, enforcing our environmental laws, defending people for Legal Services. Yes, he did handle murder trials.

            We talk almost all day long about case law and procedure. In fact we met because we love to discuss the law. I’ve been trying to egg him on into stirring up some trouble with my research on the states’ right of denization, which would be like nuking the site from orbit. Tucker (1803) says the right exists, citing Transylvania college’s first law professor. He might be wrong but it’s never been brought up since.

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            • Oh, this *is* funny. The linked post jumps off from a tweet in which Trump mistakenly thinks this article supports him. (As we’re abut to see, it very much doesn’t). Why did Trump think this? Apparently, because he’d seen the article incorrectly described on Morning Joe, and (this will shock all of us, I’m sure) didn’t bother to read it.

              The article does mention 8 USC 1182(f) as something that will be brought up if the EO is ever discussed on its merits, but ends

              Eventually, the court has to confront the clash between a broad delegation of power to the President—a delegation which gives him a lot of authority to do a lot of not-nice stuff to refugees and visa holders—in a context in which judges normally defer to the president, and the incompetent malevolence with which this order was promulgated.

              I suppose it’s a simple decision for those don’t mind incompetence and actively favor malevolence.

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            • There you go again, attempting to try the case in a blog post. That’s not how it works. Really, that’s not how it works. First of all, the judges determine standing, not you, not some guy on a blog somewhere, based upon the facts and case law (precedent) presented to the court. There is a process for appealing their determination. All of this depends upon the evidence presented to the court, not upon whatever hand waving you dragged out of a blog post somewhere. In this particular case, it was trivial to find 9th Circuit precedent establishing standing for a state suing the Federal Government on behalf of entities managed by the state, e.g. Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011). Four different judges, one Republican-appointed trial judge and a three-judge Appeals panel, examined the precedent and agreed that it covered this situation, possibly one reason why everybody has piled onto the State of Washington’s action (i.e., existing 9th Circuit precedent establishing standing in very similar cases). Until 9th Circuit precedent is overturned either by the en banc 9th Circuit or by the Supreme Court, your handwaving and urgent exertions on a blog that the State of Washington lacks standing are hereby dismissed.

              So, I see that you believe talking with a retired attorney who tried state cases is exactly the same as knowing how cases are tried in a federal court. Uhm, no. There are fundamental differences between the two. The Federal system is far more formalized than most states’ judicial systems. Furthermore, if you don’t understand the basic principles involved, you have no hope of actual comprehension. A good example: I once had a job where I implemented software to map and control a directional drilling probe for drilling oil wells. I can absolutely guarantee you that unless you have sufficient mathematical and algorithmic background you would have no hope of actually implementing similar software yourself no matter how many hours I spent explaining the details of three dimensional computations using multiple magnetic and gravitic sensors combined with a spline length counter. You would simply lack the background information to even comprehend that you don’t comprehend. Unless you have sufficient linear algebra, it would all be just magic to you. Much like law appears to be to you. You think you understand what is going on, but really, all you seem to be engaging in is magical thinking based on a lack of understanding of the fundamental underlying principles of what actually happens in real court proceedings.

              So it goes.

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              • This just in: Judges are often wrong about the law. That’s why appeals courts exist, and that’s why we have a Supreme Court, and that’s why the Supreme Court will overturn lower court rulings. It will even revisit its own prior opinions and say they were wrong.

                That’s also why I was able to link articles from various law professors who patiently explained why the 9th Circuit was wrong in this case.

                Just because states have standing in some cases doesn’t mean Washington state has standing in this case. Although some citizens of Washington state were indirectly affected by Trump’s EO, none were directly harmed by it. Aside from the existing green card and visa holders, the only people harmed are aliens who don’t have a Constitutional right to enter the United States.

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                • Although some citizens of Washington state were indirectly affected by Trump’s EO, none were directly harmed by it.

                  Except, of course, the Washington citizens that are trying to bring in spouses or children or elderly parents. Or who have them here, but now the people cannot safely leave without the risk that the country is going to randomly bar them re-enter *despite* the fact they have a visa or a green card.

                  Or companies that have hired barred people who are currently outside the country, or, for that matter, currently inside the country but now cannot leave. (So much for sending them to that Canadian conference, or a British sales call.)

                  Or, as Washington state pointed out, *colleges* in Washington state (Aka, the state *itself*) have some current students stranded outside the nation. Which means the state is *directly harmed* as it will have to refund their tuition. That’s about as direct a harm as a state can get…if anyone else did it, it would be tortious interference.

                  But, hey, you feel free to pretend that barring people from the country cannot ‘directly harm’ citizens. It’s not like any citizen might not have pre-existing relationships and agreements and contracts with people from other countries that required those other people to be able to enter and leave the US at will. (Which they have already gotten explicit permission from the US government to do, and it just randomly yanked.) I mean, that’s just crazy talk.

                  Aside from the existing green card and visa holders, the only people harmed are aliens who don’t have a Constitutional right to enter the United States.

                  ‘Aside from all the people clearly do who have standing, no one has standing.’

                  Like I’ve said several times, all the people trying to defend this order keep pretending that Trump issued an EO that solely say we are blocking refugees, and making nonimmigrant visas harder to get.

                  No…that’s really just the EO everyone on the right defending this *wishes* he had issues. That would actually somewhat defensible in court, or at least result in an obscure debate as to whether the government can prioritize religion in refugee admittance. (And the ‘increased vetting on travel visas’ is…not even up for debate. Of course he can do that. How travel vetting works is pretty much entirely up to the State Department to begin with!)

                  But…that’s not actually the EO he issued. Hell, the EO he issued isn’t even the EO he seems to *think* he issued, but that’s a story for another time.

                  People defending Trump can’t just rewrite reality and pretend he issued a different EO than he did, an EO containing only the parts that *might* be justifiable in court. That’s not what he issued, that’s not what the government tried to do, and that’s not what’s in court.

                  And, no, even if he *backed off* those things that can’t be justified, those things are still getting their day in court. Because green card holders, for example, have a *right* to definitively know they can reenter the country if they leave, and that the Trump administration won’t just decide to start enforcing this EO, or reissue another EO barring them, while they’re not here.

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                  • DavidTC: Or, as Washington state pointed out, *colleges* in Washington state (Aka, the state *itself*) have some current students stranded outside the nation. Which means the state is *directly harmed* as it will have to refund their tuition. That’s about as direct a harm as a state can get…if anyone else did it, it would be tortious interference.

                    I’m not so sure that liberals want to go down the path of negating federal regulations because they impair business dealings – and allowing individual states to champion these claims.

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                    • Um, nobody is breaking new ground here. As I understand it, they’re using fairly established precedents for determining standing.

                      There are no novel arguments here, nor any novel powers. (Not on the State’s side of the argument. The DoJ and the EO tried on a few for fun)

                      So there is no questionable “path to go down” for liberals, because the paths taken were established roads with plenty of traffic.

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                    • Federal regulations that have that sort of impact have rule-making processes where input can be given, and are announced well in advance of when they take effect. Often the rules are in the works for *years*, and no one can claim they didn’t know about them. Additionally, rules often grandfather existing things.

                      If the Trump administration had said that educational visas from these countries *were no longer* going to be issued for semesters going ahead, Washington colleges would be on much weaker ground in their suit.

                      And, uh, perhaps more the point…states actually *have* sued because Federal regulations have impacted contracts they have with private businesses. And the states were held to have standing.

                      We were talking *standing* here, not ‘should this automatically win in court’…and the *standing* is pretty damn clear.

                      Of course, just because they have standing, doesn’t mean they will win. These suits usually do not go well because the Federal government can prove the regulations it made are authorized by some specific law, and it follow the rulemaking process to make the regulations.

                      So, uh, good luck to the Trump administration in demonstrating that?

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