Trump's loss at the 9th Circuit begins the end of his mindless bluster against democracy...
[Editor's Note: Donald Trump's silly (all caps) "SEE YOU IN COURT!" may be some kind of mindless mantra from the golden domed guy presently holding the office of President of the United States. But as the facts of the President's executive orders and the reality of his ignorance of how the United States works become more and more clear, it's even possible that Donald Trump and his immigration ban have seen their last day in court. Trump has to decide on an appeal, which can be for a further review at the Ninth Circuit or to the U.S. Supreme Court. The U.S. Supreme Court, it must be noted, does not hear most cases that ask to be before it (as we learned when we tried to appeal Schmidt v. Board of Education to the Supreme Court a decade ago) and the other routes to get his way on his illegal immigration ban may now have been firmly blocked. We will be publishing a couple of articles about the stunning defeat suffered by Donald Trump at the U.S. Circuit Court of Appeals for the Ninth Circuit over the next couple of days. Most of these articles will be from other publications, as we do not need to reinvent the wheel here when others are doing such a fine job. Accuracy will become more important in the months ahead as the Trump administration careens towards impeachment of its President on numerous grounds, some of which have already been discussed even in the corporate media. George N. Schmidt, Editor, Substance].
Trump Tried to Intimidate the Judges Over His Ban, and He Failed, Garrett Epps, February 10, 2017, The Atlantic
Presidents have thought before that they could roll those wimpy-looking nerds with their gavels and robes. It usually doesn’t work out all that well. “Make this one out of cast-iron,” the late Judge John Butzner said to me one day in chambers. “There are going to be a lot of weasels sniffing around it.”
I was Butzner’s clerk. He was assigning me to draft an opinion in a case on an abstruse point of federal law. No court had ever decided this particular question—and a lot of money was riding on the answer. Some judges on the Fourth Circuit would object to the result his panel had reached. Once Butzner’s opinion was published, they might try to persuade the other judges to rehear the case “en banc”— meaning on a bench including all members of the Circuit.
It was a high-stress assignment, even though he gave me all the time I needed.
Imagine the atmosphere in chambers this week as three Ninth Circuit judges and their clerks worked frantically to produce an opinion in Washington v. Trump — the case testing the constitutionality of President Trump’s executive order banning refugees from around the world, and all visitors from seven predominantly Muslim countries.
They had 48 hours. And they could hear sniffing at the door.
The opinion is written with remarkable care. Even though it is strictly preliminary, one of the criteria the court applies at this stage is called “likelihood of success on the merits.” In other words, if the court thought the government would win on the underlying issues, it would have reinstated the travel ban.
It didn’t. And the panel didn’t seem impressed with the government’s case on the merits. The members—Judges William C. Canby, Richard Clifton, and Michelle Friedland—include two Democratic appointees and one Republican. But they were unanimous and firm. The Administration could have suffered a greater setback at this stage, but it’s hard to see how.
Some federal courts experts had speculated that the panel might dodge the underlying issue of the travel ban. They could have done that by dismissing the government’s emergency motion for a stay as untimely. It is hornbook law that a “temporary restraining order,” like the one issued by District Judge James L. Robart in this case, is not subject to appeal. That rule applies unless the TRO is in substance actually a “preliminary injunction”—meaning a longer-lasting order freezing the situation in place. If the panel had dismissed the appeal on those grounds, it would have sent the case back to the federal District Court, leaving Judge Robart out on a limb by himself.
Instead, the panel found that the TRO, because it was going to last longer than 14 days, really was a preliminary injunction. Thus they could hear the government’s appeal.
Then the bench slapping began.
The opinion mows down the government’s argument down one by one. I am not sure it ignores a single claim the administration made — and the panel not only disagreed with each of them, it showed polite disdain for most.
The panel begins with the government’s claim that the executive order is “unreviewable.” The President’s statutory discretion to exclude “any class of aliens” is absolute, the government said. That claim “runs contrary to the fundamental structure of our constitutional democracy,” the panel responded. Courts often defer to the executive in national security and immigration matters, but “neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in these arenas for compliance with the Constitution.”
The court then cited numerous cases supporting that principle — pointedly including even the notorious Japanese Internment cases of World War II and the equally disreputable Chinese Exclusion cases of the 1800s. It concluded (in a deadpan quote from an earlier case) that executive judgments “do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.”
After the order was announced, the government backtracked on its scope. It did not apply to lawful permanent residents who have been living in the U.S. but were temporarily abroad, the White House counsel’s office announced. (Originally the Department of Homeland Security had said it did.) The court refused to consider this new interpretation, because, “in light of the government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by the White House ... will persist past the immediate stage of these proceedings.”
It’s a politer way of saying what Justice Sonia Sotomayor once said to a lawyer during oral argument: “Nothing you say or read to me am I going to believe.”
Next came the issue of whether the order complies with the Fifth Amendment’s Due Process Clause. The government argued that most non-citizens covered by the order have no due process rights to enter or remain in the country. The court kicked that one to the curb. Aliens in the U.S. — even undocumented ones — “continue to have potential claims regarding possible due process rights. So do temporary visa holders who might want to travel abroad.” As for those who are applying for visas but have not come here, the government’s treatment of them may implicate “a relationship with a U.S. resident or an institution that might have rights of its own to assert.” That’s an ominous sign for the government; once the due process rights are tethered to a person or institution already in the U.S., they will be harder to dislodge.
Then the court turned to the heart of the constitutional claim — that the order “was intended to disfavor Muslims,” thus violating the equal protection principle of the Fifth Amendment. After oral argument, some thought that at least Judge Clifton might buy the argument that the EO is not a “Muslim ban.” That’s because it doesn’t use the term “Muslim,” and the full visa ban applies only to seven countries. Though those countries are predominantly Muslim, there are a lot of Muslims in the world it doesn’t cover.
Countering that, of course, are the dozens of proud statements by candidate Trump and his surrogates that he was planning “a total and complete shutdown of Muslims entering the United States” and even that the current EO was a carefully disguised way of doing exactly that. At oral argument, August Flenje, the government lawyer, dismissed these quotes as “some newspaper articles.” Judge Clifton responded angrily, “"Do you deny the statements that then-candidate Trump and his political adviser, Mr. Giuliani — do you deny those statements were made?"
“No,” Flentje said.
In its opinion, the panel said, “It is well established that evidence of [discriminatory] purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection claims.”
Presidents have thought before that they could roll those wimpy-looking nerds with their gavels and robes. It usually doesn’t work out all that well.
The statements, as Judge Bradley of Law & Order might say, are in. Though the court did not decide the equal protection issue, consideration of that wording may make the government’s case much harder.
Finally, the panel told the government that it had failed to produce “any evidence” of “an urgent need for the executive order to be immediately reinstated.” The government argued that Trump may have secret information he has not shared; okay, the court responded, show us. “Courts regularly receive classified information under seal and maintain its confidentiality.”
The panel did throw the government one bone: “Aspects of the public interest favor both sides.” National security is important, it said. But, it added pointedly, so is “the free flow of travel, ... avoiding separation of families, and ... freedom from discrimination.” The government hadn’t shown evidence to tilt the scales its way.
The government could now ask the full Ninth Circuit to vacate the panel ruling and rehear the case in front of a larger panel; or it could run to the Supreme Court and ask it to reinstate the travel ban.
That’s where cast-iron comes into it. The opinion is well crafted, measured in tone, and grounded in case law. A judge on the fence might hesitate to brush it aside.
That’s especially true because the President has made life hell for his lawyers. He attacked Judge Robart as a “so called judge.” He attacked the panel, even before the decision, as “so political.” He warned that he will blame “the court system” if “something happens” while his order is stayed.
At 8:15 Friday morning, he tweeted that the decision is “disgraceful.”
This is the man whose lawyers will now ask judges, and Supreme Court Justices, for absolute “deference” to his judgment. I don’t know about the Ninth Circuit, but I don’t see five Justices on the current Supreme Court who’d want to save Trump’s bacon after he has explicitly threatened the entire judicial branch.
In the normal course, the case will now go back to the district court for briefing and a full hearing. Briefs are to be complete on Friday, February 17. Oral argument will surely follow almost at once. Cleared of the atmospherics, the case is close. I think that Washington should win; but at least one judge, Nathaniel Gorton of the District of Massachusetts, has written a full opinion suggesting the order is valid.
It seems most likely that the government’s current plight stems from mere stupidity—from a bull-headed President who rushed through a clumsy order without vetting by the agencies involved and without a senior staff in place at the Justice Department. But Trump’s conduct has been so extraordinary—so seemingly calculated to alienate any judge who is on the fence—that Harvard executive-power guru Jack Goldsmith has suggestedthat Trump wants to lose the case, in order to set up a confrontation with the courts.
Presidents have thought before that they could roll those wimpy-looking nerds with their gavels and robes. It usually doesn’t work out all that well.
WASHINGTON POST REPORT...
The 9th Circuit deals a blow to the imperial — and incompetent — president
By Jennifer Rubin February 9 at 10:07 PM White House says it's 'reviewing all options' after federal appeals court ruling Play Video1:57
A federal appeals court upheld a lower court ruling suspending President Trump’s controversial immigration order barring refugees and citizens from seven Muslim-majority countries from entering the U.S. The White House said on Feb. 10 that it is "reviewing all options," including possibly going to the Supreme Court. (Peter Stevenson, Victoria Walker/The Washington Post)
The Post reports:
A federal appeals court panel has maintained the freeze on President Trump’s controversial immigration order, meaning previously barred refugees and citizens from seven Muslim-majority countries can continue entering the United States.
In a unanimous, 29-page opinion, three judges with the U.S. Court of Appeals for the 9th Circuit flatly rejected the government’s argument that the suspension of the order should be lifted immediately for national security reasons and forcefully asserted their ability to serve as a check on the president’s power.
The opinion tells us much about the hubris and sheer incompetence of the new administration as the court rebuked it at every turn, pointing to errors in law and lawyering.
The administration made the argument that the case was not even reviewable, despite ample precedent from the George W. Bush years. In its most memorable line of the opinion, the judges held, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” The court pointed out that even in the immigration and national security realms the political branches are subject to judicial review. Given the president’s recent public hectoring and threats to hold the court responsible for any terrorist attacks if it upheld the lower court’s order, the court had every reason to eviscerate the claim of what amounts to executive supremacy. (One wonders if the president’s noxious attack on the judiciary also encouraged the three-judge panel to make the ruling unanimous.)
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Karen Shore holds up a sign outside of the 9th U.S. Circuit Court of Appeals in San Francisco on Feb. 7. (Jeff Chiu/Associated Press)
The executive order — drafted, we are told, during the campaign — was so sweeping and egregiously dismissive of constitutional niceties that the court made easy work of it. The most fatal flaw was the inclusion of green-card holders, which the Department of Homeland Security apparently warned the White House not to include. This gave the court a significant group of people with due process rights who would be subject to presidential whim without any procedural recourse. Both green-card holders here in the United States and those seeking to come back into the country were affected.
The White House realized after the executive order was issued that green-card holders were a problem, but then made a stupid legal error. Rather than issue a new order, the White House counsel issued “guidance” to say the order was not intended to affect green-card holders. The court scoffed, “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.” The government lawyers failed to show that the modification was even binding. Along with green-card holders, the court found those with visas also are entitled to due process.
While the court chose not to rule directly on First Amendment grounds, it did dismiss the argument this was not a Muslim ban. The court found that “the States have offered evidence of numerous statements by the President about his intent to implement a ‘Muslim ban.'” On this, Trump dug his own legal grave.
In then weighing the “irreparable injury” that might be done by staying the ban, the court observed that the administration provided “no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” In biting criticism, the court found, “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.” This too was a complete failure of lawyering. Not a single affidavit or other showing attesting to the imminent harm to American national security was produced. In fairness to the executive branch’s lawyers, though, maybe there simply is not any.
The White House seemed to believe that issuing an executive order was no different than putting out a campaign white paper. The court, to its credit, reminded the administration that presidents have ample, but not unlimited, power. Constitutional restraints still apply to the president, even on national security.
A more rational president who actually believed national security was at risk would heed the court’s directions, issue a narrower ban that would pass muster and roll that out with proper coordination. But Trump must “win” and can never accept error — even if his aides deserve some of the blame. He’ll persist, he says, to the Supreme Court (or perhaps first to an en banc review). If he truly believes that we are in peril, it is he who is endangering the country by choosing to leave the country with no travel ban whatsoever. And of course, with regard to real risks — radicalized Americans, lone wolves, etc. — the president is doing nothing, thereby leaving the country no safer than it was under his predecessor.
This is a humiliating defeat for the White House, revealing just how amateurish the president and his advisers are. The frightful part is that if they cannot handle a simple executive order, what makes anyone think they can handle far more difficult challenges?