About that Ninth Circuit ruling

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:
“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.”

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:

“More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.”

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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It wasn't a ruling on the merits of the EO, just that the injunction should remain until such time as the District Court conducts a trial and weighs the evidence.
 
At least Hogan has admitted to being a legal layman, so there's that.
 
It wasn't a ruling on the merits of the EO, just that the injunction should remain until such time as the District Court conducts a trial and weighs the evidence.

Yeah, okay, but you can't get around that a TOTAL ban has the effect of disparaging the merits that justify whatever part of the ban should have been left in place. And if there was any point at which deference to executive or Congressional plenary power should have been given it would seem to be to those parts rather than imposing a burden upon the government to demonstrate that "a stay is necessary to avoid irreparable injury."

In light of your valid point, I guess I would say THAT particular part of the Court's opinion is the most legally questionable.
 
That's what I said would happen in the other two threads.


Going to court is a waste of time because the Left is always going to run towards the ninth.

Sessions is in now. Rewrite the EO and then let them deal with him...
 
I have tons of court room experience.

After the state hired me in the mid 80s I worked at a large juvenile jail where the state authorized me to act as an attorney for the department of health and rehab services, which had jurisdiction fro juveniles, geezers, and retards. One night oer week I sat at the juvenile jail and adjudicated dispositions for kids cops brought to the jail. I met with a judge and an assistant prosecutor and represented the department. I was the plaintiff as well as the kids defense counsel. The state supreme court stopped non-lawyers from practicing law, but I spent the rest of my career creating legal documents and counseling lawyers, because I knew the law better than most lawyers and judges. In 20 years I lost one trial.

Judges and lawyers know the legal dance steps but many are ignorant of the law. Lawyers and judges make egregious legal errors. I've explained to many judges what authority they have to act when theyre ignorant for what to do. Often judges have no idea of their jurisdictions to act within.

Congress gave the President authority to police the border for any reason. Trump can stop ebola and yellow fever and criminals and fugitives and terrorists and armed forces, whatever comes along. The court has no prior restraint authority. The court can adjudicate someone in federal custody but cant intervene ahead of time. Because the President is the chief law enforcement officer. No court can give muslims or anyone immunity from searches and seizures. The law doesn't detail particulars, because any cause can be reason enough for the President to act. Like ebola or drug mules at the Bogata airport. The 9th Circuit cant win this battle.
 
Rationally what you do is pull the EO back and replace it with something that actual consultation with those who have worked with this gets you as far as you can get to your goal rather than just offering a campaign-base knee-jerk posturing of "I can do what I want."

But Trump isn't rational. The court ruling made quite clear that it was his own loud mouth, ignorance, arrogance, and failure to substantiate that there was a threat from this targeted countries that did the EO in.

The practical workaround is to stop granting visas to anyone not vetted to the level of your choice.
 
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.

So the present circumstance requires the President to acquiesce to the court the right to disregard his plenary powers and those of Congress while assuming the right to substitute the Court's national security, foreign policy, and immigration judgment, for those of the President and the Congress that are authorized by the Constitution? Sounds like another surrender of power by the courts.
 
I think it has to be admitted the actual substance or merits of the Order has not actually been argued. So the legality of the EO has not been adjudicated.
 
Why not go to Congress? Granted the process would take longer but when passed there could be no dispute.
 
DJT has twittered "SEE YOU IN COURT" so unless wiser heads change his mind he is taking option 2 .

Donald thinks because he has used the courts to bully his way through business for the last 40 odd years that it will work now. This is an entirely different venue and that type of "I'm never wrong, attack at any cost and I will win" will not work. He's going to have to slow down and adopt a bit of finesse otherwise he's going to get stymied at every turn. The only question is, will he adapt or quit first?
:confused:


Comshaw
 
I think it has to be admitted the actual substance or merits of the Order has not actually been argued. So the legality of the EO has not been adjudicated.

Nope, that's not admitted. I'll bet you haven't even read the finding. You so self-possessed with yourself as a judge. Tuning you out completely now.
 
It wasn't a ruling on the merits of the EO, just that the injunction should remain until such time as the District Court conducts a trial and weighs the evidence.

Trump cant screen people, so the effect is the same regardless of what its called.
 

Donald thinks because he has used the courts to bully his way through business for the last 40 odd years that it will work now. This is an entirely different venue and that type of "I'm never wrong, attack at any cost and I will win" will not work. He's going to have to slow down and adopt a bit of finesse otherwise he's going to get stymied at every turn. The only question is, will he adapt or quit first?
:confused:


Comshaw

Lemme remind you that Obama made the Marines remain in Africa 30 days after their work was done. Its what the law is for.

Your stupidty is breath-taking.
 
I think it has to be admitted the actual substance or merits of the Order has not actually been argued. So the legality of the EO has not been adjudicated.

It has been adjudicated a few times with SCOTUS.

Do yourr goddamned homework.
 

Donald thinks because he has used the courts to bully his way through business for the last 40 odd years that it will work now. This is an entirely different venue and that type of "I'm never wrong, attack at any cost and I will win" will not work. He's going to have to slow down and adopt a bit of finesse otherwise he's going to get stymied at every turn. The only question is, will he adapt or quit first?
:confused:


Comshaw

So with an actual law on the books giving the president complete discretion over immigration, he should not appeal? Let a Seattle judge determine who does and does not have the imagined "right" to enter?

I guess Republicans weren't smart enough to just run to some random Texas judge and get him to set aside DACA then, is that right?

Nobody went to court to tell the Democrat Harry S Truman he couldn't intern actual Americans because he, as commander-in-chief, deemed them to be a security risk.

There were lots of things they were actually extra-constitutional that the Obama Administration got himself involved with. I don't recall anybody saying that he ought to just sit down and shut up in round two of court challenges that everyone knew he was going to lose before scotus got around to telling him to sit down and shut up. Which they did, more times than for any other president in history.
 
Look for a new executive order.

That would certainly show that the executive branch is beginning to learn where the executive branch fits in the checks and balances order.

But I bet Trump will just undermine it with his tweets.
 
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