Colonel Hogan
Madness
- Joined
- Sep 16, 2005
- Posts
- 18,372
My own love and respect for the law manifested by an admittedly obsessive interest in dissecting it as precisely as my layman’s abilities allow has, more often than not, resulted in a form of legal “tunnel vision” that has unfortunately rendered me blind to certain realities on the law’s periphery that are far from inconsequential.
None more so than the truism that the quickest road to inadvertently encouraging “bad law” is to make a “bad argument” with respect to GOOD law.
Constitutional, statutory and case law precedent which President Trump believes and is, in fact, “on his side” is the “good law.”
And resisting the temptation to disproportionately belabor the “bad” or, more accurately, incomplete law articulated in the Ninth Circuit Court opinion, it must be admitted that the President’s controversial Executive Order is the BAD ARGUMENT for that perfectly sound body of immigration law that has traditionally been viewed as contingent upon a degree of Congressional and Presidential discretion that is as close to the classic definition of plenary as plenary can reasonably be understood.
But the ways in which the perfectly well-intentioned EO (and I mean “well-intentioned” most sincerely) undercut sound, established immigration law are exceeded only by the President’s exacerbating personal attacks on judges and a rather flimsy national security argument that his plenary authority SHOULD exempt him from having to make. But by yielding to the temptation of making it nonetheless (and making it so poorly), the President plays directly into the hands of his detractors.
This is what I’m gleaning from the media comments from various legal experts and, not coincidentally, from the Ninth Circuit opinion itself.
As an example, the government’s attorneys either actually asserting during oral argument (or failing to deny a presumption) before the Ninth Circuit that the aforementioned plenary power of the Congress as delegated to the President is judicially unreviewable created the wrong fight and, in so doing, effectively invited the court to depart from the deference to Congress and the President which even the Court acknowledged it owed.
Secondly, why did Trump’s White House counsel walk back the initial premise that the travel ban applied to green card holders and new visa applicants alike? Clearly because it could anticipate the very “due process rights” appropriately (arguably) identified by the Court.
But did not the administration moot that issue by acknowledging that the ban did NOT, therefore, apply to green card holders? Not according to the Court:
And therein lies perhaps the most bogus legal finding in the entire Court’s opinion. It is a blatant cop out and abdication of its own responsibility. Quite simply, the Court does not have to rely on the White House counsel’s contentions, interpretations, dubious binding authority or a persistence of a correct legal interpretation of the EO throughout the Executive Department chain of command.
IT COULD AND SHOULD HAVE SIMPLY DONE ITS JOB BY DECLARING WHERE THE EXECUTIVE ORDER WAS DEFICIENT AND COULD NOT APPLY AND WHERE AND TO WHOM IT WAS LEGALLY ENFOREABLE AND THUS DESERVED TO BE LEFT INTACT.
In a subsequent lengthy discourse of WHY it didn’t do that, the Court concluded:
Well, yes and no. Sounds like a cop out to me. But, again, this is the bad law you get by making the bad argument which the EO represents.
So, what to do now? Two options: the first, advocated by most legal experts aligned with President Trump’s interpretation of the law and, indeed, by the Ninth Circuit itself, is to shit can the EO and start over. Do it right the second time. Involve the Justice Department up front. Make sure you cover ALL your legal bases and leave no wiggle room for your opponents who you know damn well are going to come right back at you. And, for God’s sakes, take Steve-fucking-Bannon OUT of this process.
Second option: Admit no defeat. Bore full speed ahead with the current EO as is and hope that the Supreme Court saves your ass on appeal knowing that if you press for an expedited hearing prior to Judge Gorsuch being confirmed and end up with a 4 – 4 tie, the Ninth Circuit ruling prevails. And (hopefully) knowing that a swing vote Justice like Anthony Kennedy is probably going to require a far better legal argument than the one you’ve presented so far – regardless of where you think existing law compels him to go.
Choose wisely, grasshopper.
None more so than the truism that the quickest road to inadvertently encouraging “bad law” is to make a “bad argument” with respect to GOOD law.
Constitutional, statutory and case law precedent which President Trump believes and is, in fact, “on his side” is the “good law.”
And resisting the temptation to disproportionately belabor the “bad” or, more accurately, incomplete law articulated in the Ninth Circuit Court opinion, it must be admitted that the President’s controversial Executive Order is the BAD ARGUMENT for that perfectly sound body of immigration law that has traditionally been viewed as contingent upon a degree of Congressional and Presidential discretion that is as close to the classic definition of plenary as plenary can reasonably be understood.
But the ways in which the perfectly well-intentioned EO (and I mean “well-intentioned” most sincerely) undercut sound, established immigration law are exceeded only by the President’s exacerbating personal attacks on judges and a rather flimsy national security argument that his plenary authority SHOULD exempt him from having to make. But by yielding to the temptation of making it nonetheless (and making it so poorly), the President plays directly into the hands of his detractors.
This is what I’m gleaning from the media comments from various legal experts and, not coincidentally, from the Ninth Circuit opinion itself.
As an example, the government’s attorneys either actually asserting during oral argument (or failing to deny a presumption) before the Ninth Circuit that the aforementioned plenary power of the Congress as delegated to the President is judicially unreviewable created the wrong fight and, in so doing, effectively invited the court to depart from the deference to Congress and the President which even the Court acknowledged it owed.
Secondly, why did Trump’s White House counsel walk back the initial premise that the travel ban applied to green card holders and new visa applicants alike? Clearly because it could anticipate the very “due process rights” appropriately (arguably) identified by the Court.
But did not the administration moot that issue by acknowledging that the ban did NOT, therefore, apply to green card holders? Not according to the Court:
And therein lies perhaps the most bogus legal finding in the entire Court’s opinion. It is a blatant cop out and abdication of its own responsibility. Quite simply, the Court does not have to rely on the White House counsel’s contentions, interpretations, dubious binding authority or a persistence of a correct legal interpretation of the EO throughout the Executive Department chain of command.
IT COULD AND SHOULD HAVE SIMPLY DONE ITS JOB BY DECLARING WHERE THE EXECUTIVE ORDER WAS DEFICIENT AND COULD NOT APPLY AND WHERE AND TO WHOM IT WAS LEGALLY ENFOREABLE AND THUS DESERVED TO BE LEFT INTACT.
In a subsequent lengthy discourse of WHY it didn’t do that, the Court concluded:
Well, yes and no. Sounds like a cop out to me. But, again, this is the bad law you get by making the bad argument which the EO represents.
So, what to do now? Two options: the first, advocated by most legal experts aligned with President Trump’s interpretation of the law and, indeed, by the Ninth Circuit itself, is to shit can the EO and start over. Do it right the second time. Involve the Justice Department up front. Make sure you cover ALL your legal bases and leave no wiggle room for your opponents who you know damn well are going to come right back at you. And, for God’s sakes, take Steve-fucking-Bannon OUT of this process.
Second option: Admit no defeat. Bore full speed ahead with the current EO as is and hope that the Supreme Court saves your ass on appeal knowing that if you press for an expedited hearing prior to Judge Gorsuch being confirmed and end up with a 4 – 4 tie, the Ninth Circuit ruling prevails. And (hopefully) knowing that a swing vote Justice like Anthony Kennedy is probably going to require a far better legal argument than the one you’ve presented so far – regardless of where you think existing law compels him to go.
Choose wisely, grasshopper.
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