Ninth Circuit

[ginger]

Obviously, I'm not a lawyer so it's difficult for me to wrap my head around the decisions made by this court. What part of "ISIS CLAIMS RESPONSIBILITY FOR..." DON'T THEY COMPREHEND? As in, ISIS recently claimed responsibility for the Ohio State University attack that resulted in 9 on campus injured victims perpetrated by a Somali?

I could give other examples and it's my understanding that it's the governments job to prevent these things from happening before people, especially students are murdered. I don't understand why this, or any other court isn't giving the president more than a little latitude regarding National Security and preemptive measures.

 

Time and again we hear from Muslims that ISIS/ISIL pervert their religion. Former President Obama went out of his way to try to refuse to recognize this organization as a state or a religion. If the lawyers for Washington State argue that it is President Trumps intention to keep out muslims, doesn't that mean they are "respecting an establishment of religion"?

I'm sorry I don't really get the whole establishment clause thing yet... I'm trying but it's a lot of material/ to cover and I'm on mandatory overtime.

Back to bed...have a good weekend everyone.

 

establishment used as a verb or a noun ?

[M_Sable]

Well, Ginger, this is a very difficult subject.

 

The perpetrator was one bad apple in a bunch of barrels. We have had more devestating attacks perpetrated by white power morons.

 

The 9-11 attackers did not come from the countries in the travel ban.

 

Our refugee vetting process is rigorous... given more money it could be even more so.

 

An Executive Order, poorly implemented, does not help.

 

There are NO easy solutions to this problem.

 

The intelligence community has been hit hard by sequestration, and have to do more with less.

 

Maybe we should spend more on junkets for dumb-ass Congressmen and security for Trump Tower.

[ginger]

It's not difficult for me. I don't have time to read Lemon v Kurtzman in its entirety. I saw the short definition and I still think the Ninth is out of line. But I'm not a lawyer...and now I can't recall if all of the elements in Lemon have to be met or "any" of the elements. I'll have read...on my day off.

[PeteMoss]

It's not difficult for me. I don't have time to read Lemon v Kurtzman in its entirety. I saw the short definition and I still think the Ninth is out of line. But I'm not a lawyer...and now I can't recall if all of the elements in Lemon have to be met or "any" of the elements. I'll have read...on my day off.

You don't have to be a lawyer to read and understand legal issues.

Many lawyers don't understand. In every lawsuit, half the lawyers win and half of them lose.

[19April1775]

It is very clear cut. The judiciary branch has NO constitutional authority on national security issues. Immigration falls under national security and that falls under the executive branch. I truly was puzzled why Trump even listened to them at first but then I started thinking he is setting them up. For what I don't know. We'll just have to watch.

[Property & Casualty]

The perpetrator was one bad apple in a bunch of barrels. We have had more devestating attacks perpetrated by white power morons.

 

The 9-11 attackers did not come from the countries in the travel ban.

 

To be correct; there was one attack, not attacks (plural) as you claim. McVeigh could also be said to be "one bad apple in a bunch of barrels". The real issue here is, how many bad apples are there per barrel. Despite your efforts to claim otherwise; the odds of a white heterosexual Christian male committing a terrorist act are quite small when compared to the statistical record of terror acts actually committed. Muslim males are by far the champions in this category. The left will tell us to brand all Caucasian males as bad because of one incident, and in the same breath tell us not to condemn all Muzzies because their extensive history of terrorist acts. After the Orlando nightclub murders, I'd conclude that the homosexual democrats are a far bigger threat to be concerned with.

[Bingoloid]

It is very clear cut. The judiciary branch has NO constitutional authority on national security issues. Immigration falls under national security and that falls under the executive branch.

 

That's altogether false. The Supreme Court sided with Texas against the President on immigration policy just last year. Moreover, when the White House ignored the preliminary rulings and tried to proceed with their policies anyway while awaiting the Supreme Court, the Department of Justice tried to play it off as an honest mistake, the court responded by ordering that Department of Justice lawyers attend five years of mandatory ethics classes.

 

http://blogs.wsj.com/law/2016/05/19/furious-federal-judge-orders-justice-department-lawyers-to-undergo-ethics-training/

 

The idea that this is not subject to judicial review was a Hail Mary argument from lawyers forced to go to court knowing they were already doomed on arrival. Although a national security issue would entitle them to some additional deference, there is no blank check for national security policy, either, and not all immigration is a national security issue on its face. When the Department of Justice tried to make this argument, the appeals court asked them to explain their rationale for viewing this as a national security emergency that couldn't wait until the case went to trial.

 

The Department of Justice tried to argue that there might be classified information that only the President knows which would constitute a secret emergency, and the court observed that if that's true, that the usual practice would be to provide this information to the court under seal to demonstrate that it exists. Confronted with this, the Department of Justice offered no information, which is a pretty strong indication that no such information exists and that they knew this going in. The appeals court's opinion specifically acknowledges their position that the policy is unreviewable, that there is no legal basis for this argument, and then spends several pages restating the tremendous body of law explicitly contradicting this view.

 

However, none of this means that the states will win. The issue at hand was whether or not the restraining order was out of line. It wasn't, not because the states are clearly right, but because some of the issues are a genuine toss-up. There's still room for it to go either way, and I doubt it's going to turn on the establishment clause question.

[ginger]

Thanks for posting Bing...I'm reading Hanens opinion right now....first footnote (see I learned that on TV, always read the footnotes ), just a summary...two weeks prior to rendering opinion a Brownsville college student had been kidnapped at gunpoint and forced to transport a HUMAN TRAFFICKER and his VICTIM who just crossed the Rio Grande. Back to reading...and yes I'm going back to Lemon but I like to read the opinions myself and I can't seem to find anything but summaries.

BTW Hanen retracted that ethics punishment which was a one hour per year for 5 years ethics continuing education class. He did not name the lawyers who perpetrated the fraud upon his court which some believe he should have charged them with contempt. So, they had no punishment at all. "GEE,EVERYBODY KNOWS YOU SHOULDN'T LIE, ESPECIALLY IN COURT." Hanen quoted Miracle on 34th street!

[Bingoloid]

So, they had no punishment at all. "GEE,EVERYBODY KNOWS YOU SHOULDN'T LIE, ESPECIALLY IN COURT." Hanen quoted Miracle on 34th street!

Yeah, I think it was three hours a year or something, but it was mainly symbolic to publicly humiliate Obama's DoJ - which it did, since it made every major news publication that they'd gotten blasted for jerking the court around.

 

...and from what I've read, yes, the procedure for continued defiance might well be having federal marshals arrest the employees involved for contempt, a truly grand shitstorm that both branches would probably prefer to avoid, regardless of the President's opinions.

[ginger]

Thank you again for directing me toward Hanen! I'm only up to page 32 but this encompasses every issue up for debate in a detailed manner. Everything from equal protection...the states just don't have equal protection, they can't protect themselves at all, to the priorities of this president as well as the former and really, the executive power should stand. Unlike the President, the courts do not have the ear of the depts of homeland security and ICE and INS...etc or their budgets or the amount of manpower available, and to wit, President Trump who, went out of his way to personally connect with victims..The Ninth is clearly acting outside the scope of their knowledge and the executive powers should stand by virtue, not because of any classified material the president may or may not have privy to, but rather, the scope of the information is so vast. The PRIORITIZING belongs to President Trump.

 

I know that's a run on sentence...sorry!

[ginger]

^^And I still think every government official who e mailed Hillary Clinton should be arrested. Every elected official who did or said NOTHING about that situation should be impeached.

[19April1775]

 

That's altogether false. The Supreme Court sided with Texas against the President on immigration policy just last year. Moreover, when the White House ignored the preliminary rulings and tried to proceed with their policies anyway while awaiting the Supreme Court, the Department of Justice tried to play it off as an honest mistake, the court responded by ordering that Department of Justice lawyers attend five years of mandatory ethics classes.

 

http://blogs.wsj.com/law/2016/05/19/furious-federal-judge-orders-justice-department-lawyers-to-undergo-ethics-training/

 

The idea that this is not subject to judicial review was a Hail Mary argument from lawyers forced to go to court knowing they were already doomed on arrival. Although a national security issue would entitle them to some additional deference, there is no blank check for national security policy, either, and not all immigration is a national security issue on its face. When the Department of Justice tried to make this argument, the appeals court asked them to explain their rationale for viewing this as a national security emergency that couldn't wait until the case went to trial.

 

The Department of Justice tried to argue that there might be classified information that only the President knows which would constitute a secret emergency, and the court observed that if that's true, that the usual practice would be to provide this information to the court under seal to demonstrate that it exists. Confronted with this, the Department of Justice offered no information, which is a pretty strong indication that no such information exists and that they knew this going in. The appeals court's opinion specifically acknowledges their position that the policy is unreviewable, that there is no legal basis for this argument, and then spends several pages restating the tremendous body of law explicitly contradicting this view.

 

However, none of this means that the states will win. The issue at hand was whether or not the restraining order was out of line. It wasn't, not because the states are clearly right, but because some of the issues are a genuine toss-up. There's still room for it to go either way, and I doubt it's going to turn on the establishment clause question.

I respectfully disagree. What you speak of is decade upon decade of incrementalism by the judicial branch in an attempt to gain power. Successful they have been. Legal, no. This is a perfect example of the swamp that needs to be drained. The judicial branch was never intended by our founding fathers to be so powerful. Leftist activism and lazy citizens got us here. Truthfully, if the legislative branch had the balls, we all know they don't, they and the executive branch could abolish the 9th circuit or any other circuit it wanted to and there is nothing the judicial branch could do to stop it. The judicial branch is truly not all that powerful constitutionally. The people are responsible for it running a muck in our day, not the law.

[ginger]

Also interesting, answers the timing question...the concept of Abdication. If President Trump didn't act it could be seen as abdication. That brings up the City of Binghamton "Welcoming" resolution. I'm wondering about the legal standing of that.

 

ie How would that affect local, state or federal law enforcement? Ambiguities?

[GTO]

9th Circuit ignored the actual law and legislated from the bench. It is not really even disputable.

[Bingoloid]

Everything from equal protection...the states just don't have equal protection, they can't protect themselves at all, to the priorities of this president as well as the former and really, the executive power should stand. Unlike the President, the courts do not have the ear of the depts of homeland security and ICE and INS...etc or their budgets or the amount of manpower available, and to wit, President Trump who, went out of his way to personally connect with victims..The Ninth is clearly acting outside the scope of their knowledge and the executive powers should stand by virtue, not because of any classified material the president may or may not have privy to, but rather, the scope of the information is so vast. The PRIORITIZING belongs to President Trump.

 

It does, but while the President can make decisions in that arena, the scope of the options available to him are limited by the legislation granting him that power and by the Constitution. One major purpose of the hearing was to determine whether or not there was some urgent situation (it was, after all, an emergency hearing) that would do some significant harm if Trump wasn't allowed to proceed immediately. As they noted, the President shares secret information with the courts routinely as needed: ICE and DHS may have the ear of the President, but the President, seeking the stay, had the ear of the courts and was given a chance to say whatever they thought needed to be said.

 

Why, exactly, is this an emergency? Why, exactly, did you drag us all onto this conference call? Show us. Right now. You came prepared for court today?

 

Actually listening to the oral arguments as the judges get more frustrated at their time being wasted and the Department of Justice lawyers flailing, complete with long pauses while they frantically shuffle through papers and stall for time but still come up with vague, Trumpian answers "...there's lots of cases...it's well-established...", is instructive. It's like listening to a truck stuck in the mud where the driver just hasn't quite admitted that he's stuck yet and keeps switching gears and hitting the gas, but nothing is happening.

 

I respectfully disagree. What you speak of is decade upon decade of incrementalism by the judicial branch in an attempt to gain power. Successful they have been. Legal, no. This is a perfect example of the swamp that needs to be drained. The judicial branch was never intended by our founding fathers to be so powerful. Leftist activism and lazy citizens got us here. Truthfully, if the legislative branch had the balls, we all know they don't, they and the executive branch could abolish the 9th circuit or any other circuit it wanted to and there is nothing the judicial branch could do to stop it. The judicial branch is truly not all that powerful constitutionally. The people are responsible for it running a muck in our day, not the law.

 

Since the Supreme Court has frequently held that immigration policy is reviewable and this has been going on for over a century, and since states run by conservatives have been turning to the courts for the same relief from liberal immigration policy, too, it would appear that this is a fringe interpretation that cannot be reconciled with the way things work. We can argue about how many angels the Framers might have believed could dance on the period at the end of the Postal Clause until we're all dead, but then there's an actual body of actual constitutional law that is controlling in the actual situation. At a certain point, "decade upon decade" is just "reality".

 

There is not some viable faction out there seeking to overturn Marbury v. Madison, and it certainly isn't going to happen here. You've got the same chance of successfully making that argument as you do getting out of paying your income tax with legal advice you got from Sovereign Citizen brochures.

 

9th Circuit ignored the actual law and legislated from the bench. It is not really even disputable.

 

Since the 9th Circuit didn't rule on the executive order at all, it really is. Nobody has declared Trump's order unlawful, only that the temporary restraining order stands because the questions raised in the suit are reasonable enough to justify freezing the situation in place until it's heard out.

 

Apparently, temporary restraining orders are ordinarily not appealable at all. (After all, it's going to go to trial and be resolved at that time anyway.) They seem to have given the Department of Justice a very fair-minded opportunity to make their case. The Department of Justice just didn't have what they needed to make it work. (Sad!)

[GTO]

http://www.foxnews.com/opinion/2017/02/09/ninth-circuit-gets-it-wrong.html

 

Granted, this is a conservative, but he is a bigger legal mind (I would assume anyway) than any of us. Surely a bigger mind than me at any rate.

[Bingoloid]

http://www.foxnews.com/opinion/2017/02/09/ninth-circuit-gets-it-wrong.html

 

Granted, this is a conservative, but he is a bigger legal mind (I would assume anyway) than any of us. Surely a bigger mind than me at any rate.

 

A couple of things that jump out at me:

 

- "Neither the judge in Washington State nor the court has offered anything approaching a detailed discussion of 8 U.SC. §1182 (f), the law which specifically gives the president authority to suspend the entry of any aliens into the U.S. if he believes their entry would be 'detrimental to the interests of the United States.' Unless this statutory provision is unconstitutional, the president has acted completely within the law."

 

Huh? Challenges to a statute are certainly a thing that happens, but the reason nobody is engaging in a detailed debate over the provision is because nobody is claiming that it is unconstitutional. It does not follow that all possible exercises of a facially valid statute are also constitutional. The author can't possibly believe that all statutes which could conceivably be perverted to violate the constitution must be struck down in their entirety and that all constitutional statutes must therefore explicitly name all possible unconstitutional interpretations and forbid them. Putting aside how silly that would be, it's manifestly not how things work.

 

- "The Ninth Circuit also claims that there is no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.'"

 

They didn't say "there is no evidence", they said "the Government has pointed to no evidence". It's up to the parties to the lawsuit to do their own homework and submit whatever evidence they wish the court to consider, and I'm sure the author realizes that he is misrepresenting the opinion. (The author goes on to point to a tally of individuals convicted of terror-related offenses, without acknowledging that this is hardly the same thing as perpetrating a terrorist attack. Offering evidence of how successful we are at catching terrorists before they kill anyone would not help an argument that there's some unforeseen situation that must be treated as an emergency.)

 

- "While it can certainly be argued that permanent resident aliens may have certain due process rights before their residency status can be cancelled, the White House has already said the order does not apply to permanent residents."

 

This, too, is clearly addressed in the opinion. ("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...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.") Basically, why would they take some rando at his word that the President doesn't intend to enforce his own order as written? Given this, the author is all but conceding that there are, in fact, due process issues that can "certainly be argued", which would tend to support the court's decision. Whoops.

 

What strikes me is that Trump's surrogates seem to be expending a lot of energy to ignore how poorly prepared this was. This, to my mind, is part of the larger effort to deny the criticisms that Trump's ego got in his way and that this order was rushed through without proper vetting. Had it been, there would have likely been some minor revisions that would have avoided many of the legal challenges, and the Department of Justice would have already done this research and had their arguments in order before it was ever signed. The rollout of this was so badly executed that some commentators asked if they were intentionally trying to have it struck down.

 

https://lawfareblog.com/does-trump-want-lose-eo-battle-court-or-donald-mcgahn-simply-ineffectual-or-worse

I do get the sense that there are valid arguments on both sides. However, that's exactly why the restraining order was upheld. In truth, had they clearly excluded existing visas from the outset and avoided bringing religion into it, the order would likely be in effect today. It's in keeping with Trump's reputation that he would try to do something that won't work, that people are warning him won't work, then look at his team and say "I JUST DID IT. FIGURE OUT HOW TO MAKE IT WORK." It's not an enviable position for his lawyers.

[ginger]

^ Bing...I brought up the timing and the manner in which it was rolled out when I mentioned Abdication. I guess states and courts and some operatives in various organizations have assumed discretionary powers regarding those with questionable legal status. Their argument is the federal government in collusion with President Obama"s DACA and then struck down DAPA orders gave them leave to act as...okay, we'll see if I get the term right ...parens patriae? President Trump acting right out of the box exerts his claim to that power IMMEDIATELY. I don't think the Ninth should be interfering with that action however it was implemented. He'll fix it, that's what he does...that's what most men do, THEY FIX THINGS!

Of course I'm not a lawyer so I may not be understanding any of this at all!

 

GTO, I saw your article, he was on FOX a couple of hours ago. I see he used the same example I thought of, Ohio State. I just read about the 2007 Fort Dix Plot to see if that applied.

[Bingoloid]

^ Bing...I brought up the timing and the manner in which it was rolled out when I mentioned Abdication. I guess states and courts and some operatives in various organizations have assumed discretionary powers regarding those with questionable legal status. Their argument is the federal government in collusion with President Obama"s DACA and then struck down DAPA orders gave them leave to act as...okay, we'll see if I get the term right ...parens patriae? President Trump acting right out of the box exerts his claim to that power IMMEDIATELY. I don't think the Ninth should be interfering with that action however it was implemented. He'll fix it, that's what he does...that's what most men do, THEY FIX THINGS!

 

A cynic would observe that some of the things Trump does are typical of negative stereotypes of women.

 

You got the term right. The states did try to make a parens patriae argument here, and the court *did* stay out of that issue after discussing the problems with it at length during oral arguments.

 

They even include a little footnote about parens patriae and basically say "we're not touching this, deal with it at trial". The states established standing here through another line of reasoning, regarding the states' direct harm when the policy interferes with the operation of their universities by preventing students and professors outside the country from entering the country to reach their campuses and preventing students and professors who are currently in the country from leaving to perform their duties, since they are likely to find themselves unable to come back.

 

Then comes a rather long exploration of precedent dating back to the 1800s that immigration policy is not exempt from due process requirements, which requires a "See Also" footnote. White House claims aside, they're probably not getting out of that.

 

So you've got an argument for standing ("this thing you're doing is hurting me"), and what even the author of the FOX News article above admits is a plausible due process argument ("this is why it's illegal") where the Department of Justice wasn't able to explain why the states don't have a fighting chance. That's enough to show that the restraining order was reasonable until it can go to trial, and that's all the court was there to do.

 

Time will tell what happens at trial.

[GTO]

I do sense that if he had not used the word "Muslim" when discussing travel ban (poor taste , not to mention offensive) and termed it "nations that sponsor terrorism" from the beginning (ie the campaign) this would have held up. The perception / reality of the religious overtone is what made this a no starter. Add that the left just flat out hates him and it will take the Supreme Court to allow this to roll... probably not worth the hassle frankly. Improve vetting, do it quick and be done with it. JMHO

[ginger]

Thanks Bing.. You know when I started this thread I thought the case would be going to the Supreme court and really, if it was any other court but the ninth I may not have sought such detailed information. I think I explained on another thread, one day I was looking for something, I don't recall what and their HOME WEB PAGE suddenly appeared on my screen. The face page stated it was my default page and I should bookmark it. I didn't need to bookmark, I knew I'd remember that because it struck me as funny. lol...I still don't know what they mean by that, it still says it and I have checked back by there from time to time.

[M_Sable]

I do sense that if he had not used the word "Muslim" when discussing travel ban (poor taste , not to mention offensive) and termed it "nations that sponsor terrorism" from the beginning (ie the campaign) this would have held up. The perception / reality of the religious overtone is what made this a no starter. Add that the left just flat out hates him and it will take the Supreme Court to allow this to roll... probably not worth the hassle frankly. Improve vetting, do it quick and be done with it. JMHO

Improved vetting? Agreed. Although our vetting is very substantial, the intelligence community has been asking for more funding for that. Denied...under President Obama.

 

Now President Trump and Congress can put the money where their collective mouths are, rather than wasting so much on political polo.

 

A much better use of taxpayer dollars than building a dumb-ass wall.

[M_Sable]

Great discussion all! I just was checking in and have nowhere enough energy tonight to match that

[19April1775]

9th Circuit ignored the actual law and legislated from the bench. It is not really even disputable.

I could have made my point much easier if I just said what GTO said. The DOJ was actually asked to show how many terrorist attacks were committed here by the peoples of the 7 countries. WTF does that have to do with anything?

[ginger]

Language eliminated from the FBI counterterrorism analytic lexicon by the Obama administration include, "Muslim, Islam, Muslim brotherhood, Hamas and Sharia". The FBI stated they could not do anything with the Tsarnaev brothers because of this. Could President Trump please have a 90 day pause to get the field manuals back in order so we can have "EXTREME" VETTING again? Thanks.

 

note to President Trump: change to "extremist vetting"