Trump’s EO and the law, revisited
In her hearing before the Senate, Sally Yates changed her tune from some of her previous statements on her reasons for not defending Trump’s immigration EO.
In other related news, the legal reasoning several judges used to invalidate Trump’s immigration EOs—that his campaign statements were extremely relevant and indicated his supposedly discriminatory intent in issuing the orders as president—leads inevitably to preposterous conclusions such as these:
ACLU lawyer Omar Jadwat, arguing today before the Fourth Circuit Court of Appeals, told the court that President Trump’s travel order “could be constitutional” if it had been written by Hillary Clinton…
The last part of the audio is rather funny. Jadwat, asked whether the order on its face is valid, says No. Why? “I don’t think so, Your Honor, because the order is completely unprecedented.” To which one of the Fourth Circuit judges replies, with astonishment that seems mostly genuine: “So the first order on anything is invalid?”
In his post, John Hinderaker calls that kind of legal argument “lawless nonsense.” But such lawless nonsense follows directly from the judicial decisions handed down against Trump’s EO. As the rulings were issued it became clear—because of the liberal judges’ reliance on Trump’s supposed thoughtcrime, as evidenced in some of his campaign statements—that no subsequent EO of Trump’s on immigration that involved any majority Muslim country would ever be held constitutional by these judges, no matter how carefully and fairly drafted. Trump had committed the original sin during the campaign, and all the perfumes of Arabia cannot sweeten that little hand.
Trump’s “thought crimes” or perhaps “hate-speech crimes” are the crux of the legal matter. And I thought (naively) that such judicial ruminations outside the black letter of law could not possibly fit within the realm of normal jurisprudence.
But I heard Judge Napolitano, a couple hours ago, state that the Supreme Court HAS allowed judges to look at the entirety of previous statements made by executives when judging their current proclamations and actions. (Insert favorite expression of exasperation &/or despair here.)
TommyJay:
Executive statements, yes. Campaign statements, I’m pretty sure “no.”
I read that one of the Senators asked Yates when she became a member of the Supreme Court based on her opinion that the EO was unconstitutional.
I remember pundits talking about the expiration dates of any statement made by Obama. And, Obama was allowed to “evolve” on issues.
Apparently, for a Republican leader, there is no expiration date on acts, words, promises, etc. Any change, based on time or better information, is still called a flip-flop.
An “off the cuff” suggestion; any lawyer who within one year loses 3 times is immediately disbarred as having themselves made the case for their incompetence. This alone will discourage becoming a lawyer, while also reducing the number of lawyers.
Any federal judge whose rulings are overturned 3 times within a year by a higher court on appeal must be removed from office having also demonstrated their incompetence.
Each year they start with a clean slate. 3 strikes and you’re out…
This will weed out the incompetents over time and might eventually ensure that SCOTUS nominees are drawn from a pool with a high percentage of constitutionalists.
I listened to the Fourth Circuit hearing on C-Span yesterday. Many of the judges were not buying the convoluted reasoning of the ACLU lawyer. ‘Twas music to my ears. But who knows how they will rule. If they uphold the EO, it will surprise me. (Yes, I’m that cynical about our courts.)
Lawyers that repeatedly loose cases probably loose clients? Do they become politicians or employees of the government; regulators, staffers to congress critters, employees of stat and federal legal aid services?
Pass a law to regulate the legal profession and restrict it’s access to the rice bowl? Good luck with that.
The Other Chuck:
That comment regarding Geoffrey’s three strikes for lawyers was from OM. The “Leave a Reply” field had your name for some reason. Sorry. I hope it was not a return engagement of the comment gremlin.
OM,
We have to start somewhere. Where do you suggest?
Geoffrey Britain Says:
May 9th, 2017 at 4:22 pm
Three strikes and you’re out is the rule for “criminals” – why not for “judges” — and maybe extend to politicians: lose 3 elections on any given level and you are ineligible to stand again for that office.
Geoffrey:
Article V, Convention of States. Try the Liberty Amendments by Marc Levin, for serious thoughts on where to begin.
A reasonably sane suggestion: shouldn’t we at least find out what level of immigration is acceptable before fighting over how it is to be done?
http://blog.dilbert.com/post/160447583616/wheres-my-immigration-prediction-model
“My provocative thought for today is that the pro-immigration people and the anti-immigration people are actually on the same side and don’t know it because no one has made an immigration prediction model. For this claim, I will exclude the extremes on both sides, so subtract out the true open-border globalist on the left and the pure racists on the right. We’ll focus on the sensible middle that wants some degree of immigration while maintaining the good parts of the existing culture. But how does either side decide how much is the right amount of Muslim immigration, and how much is too much? Where’s my immigration prediction model?”