A little Cloward-Piven action from Mexico?

The New Neo Posted on by

Remember Cloward-Piven?:

The Cloward”“Piven strategy is a political strategy outlined in 1966 by American sociologists and political activists Richard Cloward and Frances Fox Piven…

The two [sociologists Cloward and Piven] stated that many Americans who were eligible for welfare were not receiving benefits, and that a welfare enrollment drive would strain local budgets, precipitating a crisis at the state and local levels that would be a wake-up call for the federal government…

Michael Reisch and Janice Andrews wrote that Cloward and Piven “proposed to create a crisis in the current welfare system ”“ by exploiting the gap between welfare law and practice ”“ that would ultimately bring about its collapse and replace it with a system of guaranteed annual income. They hoped to accomplish this end by informing the poor of their rights to welfare assistance, encouraging them to apply for benefits and, in effect, overloading an already overburdened bureaucracy.”

The term has come to mean something more general: precipitating a crisis in order to force a certain solution desired by the people doing the forcing. But in its original incarnation it was an example of Alinsky’s Rule number 4: “Make the enemy live up to its own book of rules.” Only it wasn’t just the conventional “enemy”—the right—because in the case of Cloward and Piven they were hoping to make the Democrats live up to the rules.

It’s a situation in which a group of activists exploits the protections and benefits offered by a government in order to overwhelm that system of protections by sheer numbers and the weight of defending all the claims for more benefits. Cloward and Piven were counting on this process to shame (or frighten) the powers that be into giving even more benefits. Where the money would come from was not their problem.

Now Jose de Cordoba at the WSJ describes a possible Cloward-Piven strategy (although he does not use that term) on the part of Mexico towards the US’s treatment of the illegal immigrants here [emphasis mine]:

All but one of about 50 undocumented [sic] Mexican migrants at a meeting Saturday indicated they would rather risk detention and long court battles in the U.S. than return to Mexico voluntarily.

The majority of migrants at the meeting in Phoenix, which included Mexican officials, signaled in a show of hands that they were ready to fight deportation in U.S. courts.

“Even if that means detention for weeks?” asked former foreign minister Jorge Castaneda.

“Even if it takes months,” shouted one woman. “Even if it takes years,” another yelled. “We are here to fight.”

Mr. Castaneda and others want Mexico’s government to endorse a tough and perhaps risky strategy to battle an expected increase in deportations of their undocumented compatriots in the U.S. by underwriting the migrants’ legal struggle in the U.S. court system. By overwhelming already heavily burdened immigration courts, Mr. Castaneda hopes the legal system would break down, bringing deportations to a halt.

Pure Cloward-Piven.

Mexico’s government hasn’t endorsed the strategy, but President Enrique Peé±a Nieto recently budgeted about $50 million to the country’s 50 consulates to help pay the costs of defending migrants who are in the U.S. illegally and facing deportation.

Just about all of the articles I’ve read about the current roundup imply (or even state) that it’s an increase in the action against illegal immigrants as a result of Trump’s presidency. But guess what? Mexico says that isn’t true [emphasis mine]:

Mexico’s Foreign Minister Luis Videgaray said on Monday there has not been a rise yet in the number of deportations of Mexicans from the United States under President Donald Trump, but that consulates were receiving more worried phone calls.

Videgaray said in a television interview that the number of deported Mexicans was following the same trends as last year, and was even slightly lower.

He said Mexican consulates in the United States have received at least three times as many daily phone calls from worried citizens there as before news of possible ramped-up deportations under Trump.

“It’s grown exponentially,” said Videgaray, adding that people were calling with questions, complaints and worries about the process rather than because of the number of raids.

So congratulations, MSM! You have been successful in your goal of frightening people half to death about Trump. No doubt you will continue on your mission.

The uses of language in the war against Trump and the right

The New Neo Posted on by

The right geek is very, very tired. And it’s only been three weeks so far:

I was alive and politically aware during the post 9/11 W. Bush administration, and back then, I saw my fair share of leftwing nonsense. I vividly remember, for example, a young lady shrieking hysterically at me on a Boston street because I had the audacity to question the motives of an ANSWER-driven protest against the war in Afghanistan. Afghanistan, mind you. Not the legitimately controversial war in Iraq. Believe me, Bush Derangement Syndrome was a real phenomenon and a toxic one. All the same, it doesn’t hold a candle to what is happening now.

True. For me, the most tiring thing of all is scanning the news each day and seeing the coverage—wall-to-wall hysteria, designed to drum up even more hysteria. In recent years I’ve grown to distrust the MSM more and more, but it has reached the point where I discount virtually everything I read, which is not a good point to reach.

And one of the things of which I’m sickest (but perhaps I’m repeating myself here) is the constant use of the phrase “undocumented workers.” It’s a brilliant coinage, though, and I seem to recall that it’s been in use for well over a decade. I’m not sure when it began, but its two words encapsulate an astounding amount of thought-shaping in one succinct little package. “Undocumented” indicates a mere misplacement of papers, or perhaps even a sort of modesty about an accomplishment. And “workers” is absolutely a compliment: they are here to work, not to slough off or rip off or do a single bad thing—even when we’re talking about felons, as we were in a recent ICE raid. They are doing the work Americans won’t do!

That doesn’t mean that a great many illegal immigrants (some on the right prefer the even harsher word “aliens,” which is technically correct) are not here to work. Many, many are indeed here to work. So what? They are still not “undocumented,” they are here illegally.

Now, what you might want to do about that (or them) is another story, and reasonable people may differ. But that has nothing to do with the fact that they came here illegally and that other immigrants have patiently waited in line (and are still waiting) to get their documents to be allowed to come here legally.

Another euphemizing word of which I am very tired—one used by both left and right, because it is now a standard term—is “sanctuary city.” But take a look at the meaning and history of the word “sanctuary” and you can see from whence it came:

Sanctuary is a word derived from the Latin sanctuarium, which is like most words ending in -arium, a container for keeping something in””in this case holy things or perhaps holy people, sancta or sancti. The meaning was extended to places of holiness or safety. A religious sanctuary may be a sacred place (such as a church, temple, synagogue or mosque), or a consecrated area of a church or temple around its tabernacle or altar…

The area around the altar came to be called the “sanctuary”, and that terminology does not apply to Christian churches alone: King Solomon’s temple, built in about 950 BC, had a sanctuary (“Holy of Holies”) where the Ark of the Covenant was, and the term applies to the corresponding part of any house of worship. In most modern synagogues, the main room for prayer is known as the sanctuary, to contrast it with smaller rooms dedicated to various other services and functions.

The term evolved to mean the shelter offered for several hundred years by churches and other houses of worship to the accused. The word has deep and positive spiritual connotations; here is my very first exposure to it as a tiny tyke who had to ask what it meant because I didn’t know:

About three decades ago the term came to be applied to those who protected from deportation people here illegally from Latin America. This was the context:

Sanctuary of refugees from Central American civil wars was a movement in the 1980s. Part of a broader anti-war movement positioned against U.S. foreign policy in Central America, by 1987, 440 cities in the United States had been declared “sanctuary cities” open to migrants from these civil wars in Central America.

These sites included university campuses and cities.

It still does include those sites, although most of the illegal immigrants are not refugees from those civil wars; they are economic refugees.

Fashion at the Grammys, 2017

The New Neo Posted on by

We call it “fashion.” But at this point it seems to have morphed into a competition to see who can come up with an outfit that is either strangest and most extreme, or most revealing. Preferably both at the same time, actually. But “strangest” seems to be more important.

Here’s an example of what you can do with some items you have around the house, if you’re creative enough. Get a handy roll of electrical tape, and pull on a pair of leggings. Voila!

Guy next to her originally had Napolean’s haircut. But he let it grow for a few months and hasn’t gone back for a trim.

This next was a popular lampshade look in Victorian times:

I know that this next one has something to do with outer space. And maybe cartoons. And I also know it’s unflattering in cut, color, and material. What’s up with all this deep lavender? And the ruffled epaulettes?:

Now, if you crossed an Oscar statuette with a stegosaurus I think you might get what Beyonce’s sister Solange wore:

I did not recognize this person, although she’s actually one of the few celebrities at the Grammys who is familiar to me. Katy Perry now has lost her signature dark-hair-blue-eyes look, and seems to have gotten a bit thinner, too. She’s turned into a sort of more-slender, dark-rooted, kohl-eyed, space-age, blank-staring Catherine Deneuve wannabe (on top) and one of these gizmos on the bottom:

This outfit of Lady Gaga’s seems to illustrate a nightmare more than anything—you know, the one where you’ve gone out in public missing an important item of clothing. I am not sure how this stays put (or even if it does stay put). But I am quite sure the sunglasses add a necessary touch:

This next one is rather nice. It’s almost very nice. It’s not strange, and it’s not revealing, and Adele is probably hard to dress although she always looks well-turned-out. The problem is the hue. Now, someone with her coloring can wear green much better than a lot of other people. But no one can wear this shade of green well. No one. It is an especially unfortunate shade of olive:

Speaking of green—and we were speaking of it—this is a whole nother ballgame in terms of green. But it’s still unfortunate. Celine Dion looks like a cast member who left the Wizard of Oz set and has been wandering around for decades, during which strategic parts of her dress were ripped out or worn away:

There were many many more—some even more astounding than the ones I’ve showed you. But I’ll close with what may have been the boldest look of all, from Joy Villa. She came on looking like she was in some sort of religious pageant:

Then she dramatically whipped off her white robe to reveal…

…this dress:

Now, that’s daring. Villa got a lot of attention for it on Twitter, both positive and negative. Here’s an explanation from the designer, who is a naturalized US citizen from the Philippines. When I first saw the dress, I assumed it was an ironic statement. It wasn’t.

Why the 9th Circuit’s decision on the TRO is dangerous

The New Neo Posted on by

I think that this may be the best article I’ve read on the subject. It’s behind the WSJ paywall, but I got to it by using this link helpfully provided by RealClearPolitics.

Here’s an important summary quote at the end, but I suggest you read the whole thing to see the reasoning that leads up to that conclusion:

The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.

February

The New Neo Posted on by

In my life, I’ve had some problems with February. Perhaps you have, too.

It’s a short month, but it can be cold and gloomy. Its only holiday is Valentine’s Day, which can be a mixed bag.

As a freshman in college, my boyfriend had some sort of breakdown in February and had to precipitously leave school. I got ten minutes notice on that, and said a quick goodbye to him on the street, in the snow. I was also ill at the time, having had an allergic reaction to an antibiotic, and ended up having to drop out of school myself for the rest of the term. When I got home, my brother had just had major back surgery and was doing very poorly. It got so bad that he ended up in a hospital for a long course of inpatient physical therapy.

Two years later, in February of my junior year, my next boyfriend was inducted into the army—on Valentine’s Day, I might add—and ended up in Vietnam (story here). He was wounded in combat the next February.

And then, many years later, my marriage (to the next boyfriend, the one I was married to for three decades) broke up—in February.

There’s more, but I’ll spare you. Suffice to say I become rather wary when February rolls around.

Which makes me think of this 1996 song by Dar Williams:

Lyrics can be found here.

Trump may or may not issue a new EO on immigration

The New Neo Posted on by

Or perhaps a new series of EOs:

“On background: to clarify, we could take the TRO to Supreme Court,” the statement read, referring to the lower court’s temporary restraining order against Trump’s travel ban. “We are reviewing all our options in the court system and confident we will prevail on the merits of the case. Additionally, we are actively pursuing other executive orders that will keep our country safe from terrorism.”

Trump himself, meanwhile, said aboard Air Force One that he has “a lot of other options” other than a Supreme Court appeal, “including just filing a brand new order.” He would not confirm whether that was his plan.

“It could very well be. I’d like to surprise you,” he said.

Indeed, he does.

But my hunch is that a new EO is in the works. There wouldn’t be much reason to appeal the TRO, for the simple reason that such an appeal would almost certainly end in a tie in the Supreme Court at this point. There’s no rush, because Trump can simply issue a new, more carefully thought out and finely-tuned EO that is more in line with the restrictions mentioned by the 9th Circuit (such as making the green card exemption explicit).

Here’s an interesting observation:

Trump said Friday he felt “totally confident” that there would be “tremendous security for the people of the United States.” He offered the assurance despite also claiming he had learned alarming new information about threats facing the nation.

“I’ve learned tremendous things that you could only learn, frankly, if you were in a certain position, namely president, and there are tremendous threats to our country,” Trump said. “We will not allow that to happen. I can tell you that right now. We will not allow that to happen.”

Trump critics would no doubt say that he’s fear-mongering. But I recall that, long before Trump ever began to campaign for the presidency in June of 2015 (seems a long time ago, doesn’t it?), I had read many observations about how sobering it must be to be elected president and suddenly become privy to all the classified information about security threats. Trump is no different in this regard.

The federal appeals court system is the left’s not-so-secret weapon

The New Neo Posted on by

The left’s Gramscian march has allowed it to conquer several institutions in recent decades: education, media, religion, and entertainment. But at the same time, it has become more clear lately that (except for the charismatic Obama) the left has been losing at the ballot box, both on the national and state level.

At the moment, the majority of state legislatures and governors are in GOP hands. Both houses of Congress are as well, and of course the presidency. The Supreme Court is more or less equally split, and it will probably continue to be so once Gorsuch is seated (which I’m assuming will happen). But depending on the ability of the rest of the judges to hang in there, Trump may get a chance to tip SCOTUS into the camp of the right.

And then there’s the federal appeals court system, which is quite a different story:

When Obama entered the Oval Office, liberal judges controlled just one of the 13 circuits of the U.S. Court of Appeals. Fifty-five successful presidential nominations later, liberal majorities now control nine of those appeals benches, or 70 percent.

Outside of legal circles the transformation of the influential federal appeals courts has gone largely unnoticed, though.

That was written last September. We’re certainly noticing now, aren’t we? The decision of the 9th Circuit (which is a federal appeals court) is very high profile. The 9th has long been liberal, however; it’s not just Obama’s appointments that have tipped the 9th into that “liberal” category. But it used to be in the minority in that respect, and now liberal federal appeals courts are very much the majority.

It’s not just the appeals courts, either; the district courts were affected as well:

“The Supreme Court grabs the spotlight, but it hears fewer than 100 cases a year,” Texas Supreme Court Justice Don Willett said, “while the 13 federal courts of appeals handle about 35,000.”

More than one-third of the 179 judges on federal appeals courts owe their seat to Obama, Willett told The Daily Signal. “That’s a legacy with a capital L.”

Obama also has left his mark on the U.S. District Courts, which are the lower federal courts, successfully appointing 268 judges””seven more than President George W. Bush.

The article goes on to add:

While Republican opposition to Obama’s Supreme Court nominee, Merrick Garland, has remained consistent in the Senate, the strategy for appeals court nominees has fluctuated. Liberals describe it as aggressive, but conservatives belittle it as reserved.

There’s a decent case to be made for both interpretations.

It’s worth reading the entire thing.

The federal court system is the left’s insurance policy. If it does not control the other branches of government—and it does not at the moment—it does control the remaining branch that can (and will, as we have seen) overrule the others. And the left is very aggressive at using that potent tool. I can easily envision a situation in which lawsuits are brought in many states on a matter such as the recent challenge to the Trump EO. As you have seen, if you get the right (that is, left) court, it is possible to stop a nationwide policy of the type that courts traditionally have not gone near.

At some later point such rulings can be appealed to SCOTUS, of course. But what if one more liberal justice had been on SCOTUS? That almost happened, when Justice Scalia died during the waning days of the Obama administration. SCOTUS would then have become predominantly liberal, as well. The fear of that prospect—a liberal SCOTUS—was one of the motives that propelled a great many voters on the right who detested Trump to vote for him anyway.

The raids on illegal immigrants: when Trump does it, it’s news

The New Neo Posted on by

There has been a sweeping series of raids on what the WaPo and the left insist on calling “undocumented immigrants” (implying they should be thought of merely as valid immigrants who somehow carelessly misplaced their papers):

U.S. immigration authorities arrested hundreds of undocumented immigrants in at least a half-dozen states this week in a series of raids that marked the first large-scale enforcement of President Trump’s Jan. 25 order to crack down on the estimated 11 million immigrants living here illegally.

Officials said the raids targeted known criminals, but they also netted some immigrants without criminal records, an apparent departure from similar enforcement waves during the Obama administration. Last month, Trump substantially broadened the scope of who the Department of Homeland Security can target to include those with minor offenses or no convictions at all.

Trump has pledged to deport as many as 3 million undocumented immigrants with criminal records.

So, this involves hundreds. The vast majority are criminals. A smaller number (unspecified) are guilty of “minor” offenses (also unspecified) or “no convictions” (no explanation of how many fall into that last category).

We are no doubt supposed to be alarmed and outraged over this. I wonder how many people really are.

More:

Gillian Christensen, a spokeswoman for the Department of Homeland Security, which oversees Immigration and Customs Enforcement (ICE), said they were part of “routine” immigration enforcement actions.

Christensen said the raids, which began Monday and ended Friday at noon, found undocumented immigrants from a dozen Latin American countries. “We’re talking about people who are threats to public safety or a threat to the integrity of the immigration system,” she said, noting that the majority of those detained were serious criminals, including some who were convicted of murder and domestic violence.

The article continues:

That undocumented immigrants with no criminal records were arrested and could potentially be deported sent a shock wave through immigrant communities nationwide amid concerns that the U.S. government could start going after law-abiding people.

“This is clearly the first wave of attacks under the Trump administration, and we know this isn’t going to be the only one,” Cristina Jimenez, executive director of United We Dream, an immigrant youth organization, said Friday during a conference call with immigration advocates.

Note the language. The first paragraph in that quote is the WaPo’s, which characterizes illegal immigrants without criminal records as “law-abiding people.” And yet illegal immigration can hardly be described as abiding by the law, can it? Then in the second paragraph we have an immigration activist characterizing these lawful sweeps—whether the targets are criminal or non-criminal illegal aliens—as “attacks.”

See how that language thing goes? They are undocumented, law-abiding people attacked by our government under Trump.

Here’s more:

David Marin, ICE’s field director in the Los Angeles area, said in a conference call with reporters Friday that 75 percent of the approximately 160 people detained in the operation this week had felony convictions; the rest had misdemeanors or were in the United States illegally…

“Dangerous criminals who should be deported are being released into our communities,” Marin said.

To me, that last sentence seems to be describing the true outrage.

So, let’s see what seems to have occurred: in Los Angeles, one of the centers for illegal immigrants in this country, the raid involved 160 people, 120 of whom are convicted felons. That’s not a particularly large number, considering the size of the population of illegal immigrants in Los Angeles: about 1 person in 10. The remaining 40 people detained in this raid had misdemeanor convictions or were here illegally, but we don’t know how many were in each of those categories, what their misdemeanors were, and whether they will in fact be deported. And the WaPo isn’t telling.

Here are some of the differences between crackdowns under Obama and this one:

A government aide familiar with the raids said it is possible that the predominantly daytime operations ”” a departure from the Obama administration’s night raids ”” meant to “send a message to the community that the Trump deportation force is in effect.”

Frank Sharry, executive director of America’s Voice, an immigrant advocacy group, said that the wave of detentions harks back to the George W. Bush administration, when workplace raids to sweep up all undocumented workers were common.

So, this is actually less draconian than what happened under Bush? The article goes on to add that for Obama’s first term anyway, raids were “more aggressive” than for any previous president. These facts occur way way down in the story, of course. That’s also where we read the following:

A DHS official confirmed that while immigration agents were targeting criminals, given the broader range defined by Trump’s executive order, they also were sweeping up noncriminals in the vicinity who were found to be lacking documentation. It was unclear how many of the people detained would have been excluded under Obama’s policy.

Let me add that it’s unclear how many of the detained people fall into the non-criminal category in the first place. And let me translate that last sentence of the quote: It’s even possible that Obama might have done the same thing, but we’re not saying.

Federal immigration officials, as well as activists, said that the majority of those detained were adult men, and that no children were taken into custody.

The illegal immigrant community is reported as being panicked, and I have little doubt that is true. Why shouldn’t they be? Trump was elected on the promise of cracking down more on them, and people are learning that he intends to keep a lot of his promises. The activists are trying to stir up the panic, of course—that’s what they do.

Research on low carb diets

The New Neo Posted on by

The gist of recent research seems to be that a diet is a diet is a diet, whether low carb or low cal.

My take has long been that if you like low carb—if you find it a pleasant way of eating, feel good on it, and lose the weight you want—then by all means, great. I’ve written several posts explaining that my experience on such diets has consistently been the opposite. I find them tremendously unpleasant, feel physically bad while adhering to them, and to top it all off I don’t even lose weight.

Different strokes for different folks.

The incredible journey

The New Neo Posted on by

Here’s an astounding story that I initially thought might be a hoax, it was so improbable. But I decided it was indeed true:

A Canadian man who has been missing for five years has been found more than 6,500 miles away in the Amazon jungle.

Anton Pilipa trekked across two continents, walking mostly barefoot with just the clothes on his back, after he disappeared from his Vancouver home in 2012.

His family spent years desperately searching for the former humanitarian worker, who suffers from suspected schizophrenia, and had almost given up hope when they got a call out of the blue.

Please read the whole thing.

He did this without any passport or ID, by the way. How this man survived is beyond me. He seems to have had a fair amount of help along the way, from strangers who sensed he needed it.

I also wonder—after learning that his destination was the National Library of Buenos Aires in Argentina—whether he’s a big Borges fan. His story almost seems like something out of Borges.

More reflections on the 9th Circuit’s decision on Trump’s EO

The New Neo Posted on by

Yesterday’s news about the 9th Circuit’s decision in the Trump EO case is the sort of thing that takes a moment to sink in. But it seems stunning that even the notoriously liberal 9th Circuit could have upheld certain aspects of it, such as the finding of standing of these states to sue and/or of a possible right of citizens of other countries to due process regarding their desire to enter this country. These matters transcend the particulars of this case and would, if affirmed, establish precedents that would open the floodgates to lawsuit after lawsuit by almost any conceivable plaintiff, and a president hamstrung in carrying out immigration policy even under clear Congressional authority.

In other words, this is a big big deal, and one of the difficulties of writing about it and thinking about it is how revolutionary it is and the enormous number of issues involved that are of vital importance.

One thing we can safely say is that Jeff Sessions has his work cut out for him. Too bad he wasn’t on board when the administration decided to address the topic of immigration by releasing this EO. But what’s done is done, and now it’s important to remedy the situation.

There are many many articles to read that summarize the major elements and what’s at stake here. For starters, I suggest you take a close look at David French at National Review. French’s piece is entitled “The Ninth Circuit Just Issued a Dangerous Ruling against Donald Trump’s Immigration Order,” and here’s an excerpt:

…[T]he court ruled that the states of Washington and Minnesota had standing to assert legal claims against the Trump administration ”” mainly on behalf of their state universities and the scholars and students impacted by the order…

Applied more generally, this ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants ”” merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. While the standing ruling might be more credible if applied to individual immigrants whose exclusion from the country causes specific and identifiable harm to the state, here the court used the possibility of specific harm to confer general standing on states to act on behalf of immigrants as a class. This is extraordinary…

…[T]he court …dramatically extended ”˜potential’ due-process rights beyond green-card holders to citizens from jihadist and jihadist-torn countries seeking to enter the nation for the first time. After an extended discussion of the due-process rights of permanent legal residents of the United States (an unobjectionable and just proposition), the court specifically declined to limit the injunction to green-card holders ”” or even to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” Instead (and incredibly) it said this:

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel,408 U.S. 753, 762-65 (1972).

The court is going to stop enforcement of a temporary pause in entry from jihadist and jihadist-torn countries (while in a state of war against jihadist terrorists) because there are “potential claims” regarding “possible due process rights” even of illegal aliens? That’s not deference. Moreover, if you actually follow the cited legal authorities, you’ll see that none of them are on-point with this case, and all of them deal with highly-specific, individual legal claims. Yet the court used this “authority” to grant sufficient due-process rights to potential immigrants to halt enforcement of a wartime executive order motivated by the desire to protect America from the rising threat of jihadist terror. Astonishing.

…[T]he court [also] cracked open Pandora’s Box ”” noting that it will likely consider Trump’s campaign statements in determining whether the executive order violated the Establishment Clause… Never mind that the order plainly isn’t a Muslim ban, and never mind that [Trump’s] campaign statements weren’t made about the order in question. The mere fact that at one point he stated a desire to ban all Muslims may be used to cut through the “considerable deference” the court owes the president. While there is precedent for considering lawmaker motivations in the Establishment Clause context, the consideration of sweeping campaign statements (about a different kind of measure entirely) push that precedent to the breaking point.

French then goes on to add still another outrage perpetrated by the court when it wrote: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”

It is bizarre, to say the least, that the government failed to “point” to such evidence, which is readily available and can be fully documented by anyone with the capacity to mount a Google search. But (as French also points out), such proof is not necessary. The president’s power to decide whether such a risk exists is protective, not ex post facto and not subject to court review.

David French could never be mistaken for a Trump fan. But he recognizes the multifaceted danger this decision represents, not so much in terms of its immediate effect in stopping the EO for a while but in terms of what the court is saying about the law and its own power as a court. If SCOTUS ends up affirming the legal principles this court has decided to invent, it is hard to think of a limiting factor on court power. That is one reason to be very very careful about when to take any appeal to the Supreme Court.

I said it is hard to think of a limiting factor on court power, if SCOTUS ends up agreeing with these 9th Circuit lines of reasoning. But I can think of two possible limits, one for each non-judicial branch of government. The first is a president’s ability to appoint federal judges, and Trump will get to do some of that. The second is Congress’s power to control the size and function of circuit courts such as the 9th:

Republican Sens. Jeff Flake and John McCain of Arizona introduced legislation last month to carve six states out of the San Francisco-based court circuit and create a brand new 12th Circuit.

They argue that the 9th is too big, too liberal and too slow resolving cases. If they succeed, only California, Oregon, Hawaii and two island districts would remain in the 9th’s judicial fiefdom…

The court has a reputation as one of the most liberal in the country, in large part because of its makeup. Eighteen of the court’s 25 active judges have been appointed by Democrats.

The other branches of government are not entirely powerless in this fight.

[NOTE: See also this.]

Next stop—SCOTUS?

The New Neo Posted on by

From John Hinderaker at Powerline on what might come next in the EO battle:

…[T]he administration might go straight to the Supreme Court. But bear in mind that all the 9th Circuit has done is to deny a motion for an emergency stay, based on “the limited evidence put forward by both parties at this very preliminary stage.” I think the administration could pretty easily tweak Trump’s order to meet the relatively minor objections the plaintiffs have put forward, and create a record in the trial court that would make it difficult for even the 9th Circuit (this is known as “judge shopping” by the plaintiffs, by the way) to stand in the way. In the meantime, let’s confirm Justice Gorsuch, just in case the Democrats try to execute a judicial coup.

From Paul Mirengoff, also at Powerline:

I would like to see the administration take this case directly to the Supreme Court. The law so clearly favors the administration that a win isn’t out of the question.

In any event, let’s have the Supreme Court speak. If it doesn’t overturn the Ninth Circuit, it can share responsibility in the event of a terrorist act the travel ban might have prevented.

Regardless of whether the injunction against the administration is lifted, the case is headed back to the courtroom of the strange judge in Washington State for a decision on the merits. That decision can be appealed. By the time this appeal makes its way to the Supreme Court, perhaps Judge Gorsuch will be on that bench, thus improving the administration’s chances of success.

Would a loss in the Supreme Court on a appeal now hurt the administration’s chances later? I don’t think so. A 4-4 ruling would have no impact later. And if the administration loses 5-3 because it can’t get Kennedy’s vote, it probably will lose 5-4 later.

So my initial take is that the administration should take this to the Supreme Court straight away.

The reason the government could have two chances at judicial review by SCOTUS (if the Court decides to hear them) is that we’re talking about two separate cases. The first would be a SCOTUS review of the TRO and the affirmation of the TRO by the 9th Circuit, and the second would be an appeal of Robart’s decision on the merits in a proceeding which will now most likely be going forward but has not yet done so. Trump could lose the first appeal and win the second, if Gorsuch is on the Supreme Court by the time that appeal arrives there.

[ADDENDUM: William Jacobson of Legal Insurrection disagrees with those who would advise President Trump to rewrite the executive order:

The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.

This legal dispute no longer is just about the Executive Order. Democrats have made clear that they will fight in court over almost everything the Trump administration does. The 9th Circuit has opened the door to this tactic on an issue that goes to the core of presidential authority.

If the Courts are to designate themselves the functional directors of the Department of Homeland Security, then such mandate must come from the Supreme Court, not the 9th Circuit.

But sometimes timing is of the essence. Rewriting the EO would merely clarify some things the administration has said it intended anyway—such as, for example, that green card holders will not be affected. It could be framed to the public as being a clearer and more explicit statement of what Trump intended anyway rather than a bow to the 9th Circuit (I’m not sure how widely that would be believed, of course). If the case goes to the Supreme Court at the moment, the best result I see possible is a 4-4 tie, which has the effect of letting the 9th Circuit decision stand. So it would be counterproductive as well as unnecessary at this point. Wait for a decision on the merits and appeal that to the full Court once Gorsuch has been seated.

It has also been pointed out in several articles I’ve read that nothing in this 9th Circuit decision stops the administration’s proposed vetting study and any resultant fine-tuning of the vetting procedure from going ahead, even without the several-months’ moratorium on immigration envisioned by the EO.]