Decision: the 9th Circuit opinion [see UPDATES]

The New Neo Posted on by

UPDATE 11:59

Reading this analysis of the 9th Circuit decision by Patterico at Red State, I’ve concluded that he’s saying that the ruling went the way it did mainly because the judges felt that the original EO included green card holders, thus depriving them of the due process to which they were entitled.

That certainly would have been a valid objection, if in fact they were excluded. As I wrote in this comment of mine at 8:54 PM today:

No legal resident is being barred from the country [under Trump’s EO], as long as the EO doesn’t refer to legal residents (and it was clarified that it did not; the confusion about green card holders was one of my original criticisms of the EO).

I have been assuming that the later clarification by the administration that green card holders were not subject to the EO had done away with that objection. But the court didn’t seem to see it that way, and decided that the government could change its mind again and apply it to green card holders, and that that was not an acceptable situation.

As I wrote on February 4th:

I’ve said before that Trump and his advisors should have ironed out a lot of things and clarified them before releasing his immigration executive order. Sloppiness is wrong on two scores: it leads to bad outcomes for many people, and it opens the administration up to valid criticism. It forces officials to play catch-up, scrambling to correct misperceptions and revising the order as originally written. A little bit of this is to be expected; nobody’s perfect. But there’s been an unacceptable and needless level of it this time.

For example, as I’ve written earlier, why not allow people already in transit on airplanes to arrive under the old rules? Why not make it crystal clear at the outset that it doesn’t affect green card holders? Both would not only have made the order more well-thought-out, but would have deprived Trump’s opponents of countless talking points and illustrations of hardship and outright stupidity.

There was no pressing imminent danger that dictated a rush that led to so much sloppiness that we are now in this pretty mess. However, that doesn’t mean that a court challenge wouldn’t have been mounted anyway, no matter how careful the Trump administration had been. I believe the EO would have been challenged even if every “i” had been dotted and every “t” crossed. And the 9th Circuit probably would have ruled against Trump. But why make the opposition’s task easier for them?

Could this now be remedied somewhat by rescinding the original EO and releasing a different one, now that Sessions is on board? I don’t know enough about this area of law to say. Any takers on that question?

But I doubt it would matter at this point. A whole herd of cats are out of the bag and running loose all over the place, howling and screeching.

UPDATE 8:00 PM Andrew McCarthy has tweeted:

Truly outrageous ruling. Judicial oligarchy over political branches on nat’l security; even ILLEGAL aliens have rts against exclusion.

The word “outrageous” keeps coming up.

And here, at least, I seem to have found an answer to one of my questions, and it appears (at least at the moment) that the case will go back to the lower court for a fuller determination:

A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that a Seattle federal judge’s earlier restraining order on the new policy should remain in effect while the judge further examines its legality.

The three judges, two Democratic appointees and a Republican appointee, unanimously said the administration had not shown an urgent need to have the order go into effect immediately.

UPDATE 7:30 PM

Well, that’ll teach me to write so quickly. I was basing my original post (below) on a report that had only a couple of sentences describing the actual ruling by the 9th Circuit. It seems, though, that the ruling was a lot more complex than that impression. Legal Insurrection has a post that describes it in much greater detail.

I’ve changed the title of the post to better reflect the ruling.

It looks pretty bad for the Trump side, even though it still appears to have the effect of throwing the full decision on the merits back to the lower courts, and then it will probably go to SCOTUS. At least, that’s my current understanding.

From William Jacobson at Legal Insurrection:

The long and the short of the 9th Circuit opinion is quite outrageous. It extends constitutional due process protections even to people who have not yet even applied for a visa, and it substitutes the court’s judgment as to reasonableness of security measures for that of the executive branch and President.

The 9th Circuit failed to distinguish between people even the government concedes have some due process rights and as to whom it would not apply the Executive Order (e.g., permanent residents, those lawfully in the U.S. on a visa) and strangers abroad who may not even have applied for a visa.

Read the entire LI post, and tune in for further elaborations on the theme. I’ll wait a bit till things become clearer. I’d like to determine whether the court has actually ruled on the requirement for due process, or whether the judges are just saying that in order for them to have thrown out the TRO issued by the lower court, the government attorneys would have had to have demonstrated definitively that due process was followed. It seems to me (again, on a very very quick skimming of the language of the court) that one of the problems, for example, was that people who do have such due process rights (green card holders) were not distinguished as such in the EO.

I await further clarification on all of this.

[Original post follows.]

I’m doing this very quickly, based on a rapid skimming of initial reports, but here’s the situation as I currently understand it.

It seems that the 9th Circuit has punted, just as Andrew McCarthy had suggested they might. My post on the subject earlier today began this way:

So, how will the 9th Circuit rule on the TRO against Trump’s EO?

Or will there even be a ruling by that court at this time? Andrew McCarthy explains why there shouldn’t be (at least for now), and why the matter should be punted back to Seattle federal district judge James Robart for a fuller proceeding in that court.

That seems to have been exactly what the court did, although the article I just linked to reads (in its present form, anyway) as though the court had definitively ruled against Trump rather than merely ruling not to change things at the moment and to wait for the legal process to play out in the lower courts.

The punt has the effect, of course, of keeping the ban in place because it is a refusal to overrule the lower court (the 9th is an appeals court). But try and find that out by reading the CNN article I just linked to, which so far is mostly a criticism of Trump’s EO (“Trump issued the travel ban on January 27, causing chaos, confusion and protests at international airports as the legal status of people in transition was suddenly thrown into question”).

Jeffrey Toobin is quoted as having this to say on the 9th’s ruling:

“The Trump administration has lost dramatically and completely, and they’re going to have to decide what to do next,” said Jeffery Toobin, a CNN political analyst, on “The Situation Room.” “This decision will have a lot more public credibility because it is unanimous, and I think it complicates the Trump administration’s attempt, if they choose to make it, to disparage this decision as a political act.”

Now, I’m not a big ole legal analyst like Jeffrey Toobin. But Andrew McCarthy is, and not only did he predict this move, but he explained it, and it certainly isn’t described as a dramatic loss (although plenty of commentators such as Toobin will indeed characterize it that way). And it’s absolutely not “complete.” It was unanimous, yes; but even I probably would have ruled the same way at this point (having read the McCarthy article), had I been a member of the court. Nor does the ruling tell us what the lower court (or courts, because the issue is coming up in several venues) will do, or when the Supreme Court is likely to hear the case and whether it will be a panel of 8 or 9.

In fact, I could spin this as a Trump victory—comparatively speaking—because I was expecting the 9th to issue a decision on the merits, 2-1 against him.

However, since I’m not much of a spinner, I’ll say that it’s not a victory. A victory would have been what was never in the cards, a decision by the court to end the TRO. Now, instead, Trump is faced with a host of difficult decisions about when to try to take the case to SCOTUS—quickly (and risk the 4-4 decision, which would not reverse the lower court nor would it resolve differences among different courts), or later (and have the restraining order stand until then).

One thing of which we can be fairly sure is that the GOP will try to expedite the Gorsuch hearing and approval, and the Democrats will do their level best to prevent or at least delay his seating on the Court.

My hat is off to Andrew McCarthy, though (as it so often is).

Predicting a ruling from the 9th Circuit on Trump’s EO

The New Neo Posted on by

So, how will the 9th Circuit rule on the TRO against Trump’s EO?

Or will there even be a ruling by that court at this time? Andrew McCarthy explains why there shouldn’t be (at least for now), and why the matter should be punted back to Seattle federal district judge James Robart for a fuller proceeding in that court.

But as far as I can see, most people think the 9th will be issuing a decision fairly soon. And I don’t think it takes a master prognosticator to say that it’s highly likely that the ruling will go against Trump’s order—and that this could have been predicted even before the case was heard, strictly on the basis of the political makeup of the 9th Circuit. The three federal judges who make up the 9th Circuit are Judge William C. Canby Jr, appointed by Carter, Judge Michelle T. Friedland, appointed by Barack Obama, and Judge Richard R. Clifton, appointed by George W. Bush. That indicates to me that the decision is most likely to go at least 2-1 against Trump.

I had some difficulty discovering how Judge Clifton—the Bush appointee—had ruled in the court’s earlier refusal to immediately lift Robart’s original TRO. Then I learned why the information had been so hard to locate:

…[O]nly Canby and Friedland were listed as joining in the initial order denying a so-called administrative stay of Robart’s ruling while the appeals court mulls the issue. It was not immediately clear why Clifton was not mentioned in the order, but 9th Circuit procedures allow some motions to be decided by the first two judges who receive the request, if they agree. A 9th Circuit spokesman did not immediately respond to a request early Sunday for comment on Clifton’s absence from the order.

So my guess is that, once it was clear how the other two judges would be voting, there was no need for Clifton to weigh in officially, and so he didn’t. Therefore we still don’t know much about his leanings. But it really doesn’t matter, because (as already indicated) I would bet an enormous amount of money that Canby and Friedland will be ruling against Trump. I would add that this would be true even if the DOJ attorney had done a bang-up job in presenting the Trump case, which he apparently did not.

I say he did a poor job based on the reaction of just about every commentator I’ve read on the subject, left or right. I haven’t listened to his argument or read a transcript myself, but the unanimity of the criticism indicates to me that he probably did in fact do a bad job.

If so, why? There are several possibilities. One can be found here. Apparently, Flentje was a last-minute replacement:

Just hours before mounting the biggest defense of the young Trump administration, the Justice Department swapped lawyers.

The U.S. said the two top lawyers representing the U.S. would not take part in Tuesday’s hearing, because of their past relationship with one of the world’s biggest law firms, Jones Day. Instead, August Flentje, a longtime Justice Department lawyer, will argue the administration’s case.

The lawyers who stepped aside worked until recently at Jones Day, which filed a brief on Monday opposing the administration’s order to bar U.S. entry to people traveling from seven majority-Muslim countries. The executive branch doesn’t have “unreviewable authority” to suspend the admission of a class of aliens, Jones Day argued in a brief on behalf of several constitutional scholars.

That sounds like a nightmare scenario to me, the lawyer’s version of the student anxiety dream or the actor’s forgetting lines and having to go on stage.

What’s more, there’s this:

It’s standard practice for lawyers who join a new administration to distance themselves from any matter that involves their law firms. What’s rare is that an administration would need its solicitor general and Justice Department to defend a signature action just weeks into its first term, when affiliations with previous employers are so fresh.

So another factor here is the speed with which the lawsuit occurred. The Trump administration is only two and a half weeks old and this issue is already being heard in the courts. That’s at least in part because Trump himself acted with such speed in issuing his EO. Whether you see Trump’s extreme speed as having been necessary or not, it seems to have affected the legal defense in a court challenge that could have and should have been predicted by the administration.

Then there’s the question of whether Flentje really believed in his case, in the political sense. It’s not all that unusual for lawyers to be placed in the position of advocating for things in which they don’t believe. That’s actually one of the reasons lawyers are detested by a lot of people, and seen as hypocrites for hire (or whores, if you want to get nastier about it). I don’t agree with that characterization; I think this aspect of lawyering is an inevitable part of our adversarial legal system, and I see no way around it and do not blame lawyers for it. A good lawyer can transcend it if he/she wants to, but that lawyer has to want to.

I have no idea whether this was a factor for Flentje; after all, his last-minute substitution might fully account for his shaky performance and there’s no need to invoke lack of zeal as well. But it’s possible. Here are some details of Flentje’s history:

August Flentje, an Ivy League lawyer and son of a professor, is from a family with members who have protested the ban, and he’s been involved in controversial cases before, such as the government’s previous defense of traditional marriage…

According to Bloomberg, Flentje has worked as a lawyer for the Department of Justice for 19 years.

He was involved for the DOJ in defending the federal Defense of Marriage Act. A group called the Pacific Justice Institute included his name, though, on a list, alleging that Justice Department attorneys were working to sabotage the government case or were not defending its side vigorously enough.

His name appears on government filings in the gay marriage litigation.

According to Law 360, he argued for the government in a case in which “the U.S. Department of Defense”¦urged the D.C. Circuit to uphold a federal judge’s decision to keep classified a document purportedly related to the release of five Guantanamo Bay detainees in exchange for accused deserter U.S. Army Sgt. Bowe Bergdahl, saying the document sought by a conservative group is covered by the deliberative process privilege.”

So—as one might expect from a lawyer who obtained his DOJ job during the Clinton administration, and stayed on through Bush’s and Obama’s two terms each—Flentje has defended the government on both sides of the fence. His dad has this to say about him (make of it what you will):

Flentje’s father told the Wichita Eagle newspaper that Flentke [sic] would put personal beliefs aside to argue the immigration ban case.

“He’s a civil servant, and I think he’s been very careful,” his father told the local newspaper. “We have family members protesting what’s going on, but he plays it pretty close and I think has a deep sense of duty, representing to the best of his ability the president within the law and the Constitution.”

That sounds like a hypothetical to me: Flentje would put his personal beliefs aside (if they conflict) rather than that he will put his personal beliefs aside (because they do conflict). We don’t know much about what his personal beliefs might actually be, and I doubt he’ll be telling us.

Has anyone…

The New Neo Posted on by

…on the left used the term “failure theater”* to describe what the Democrats in Congress are doing these days? That is, empty histrionics that are getting them nowhere so far in terms of stopping the approval of Trump’s cabinet?

Is failure theater of this sort satisfying enough for their base? After all, the idea is that it rallies the troops.

* In case you’re unfamiliar with the term “failure theater,” it’s what was said over and over and over on the right to criticize and belittle the efforts of the GOP in Congress to stop Obama’s and/or the left’s policies, back when the left was in control of the presidency (and also, for much of the time, all or part of Congress).

About those seven countries and 9/11

The New Neo Posted on by

[NOTE: Last night I wrote a draft for a new post about the 9th Circuit hearing concerning the TRO against Trump’s immigration EO. When I was finished, though, I found that it was enormous and contained enough material for about twenty separate posts on twenty separate related topics.

Well, I’m not going to be writing them today. And to top it all off, I’m extra-busy this afternoon. So I’m just going to dash off this one about one of those related topics, and it won’t be as thorough as I’d like it to be. I might add a few more of them this evening, depending on how inspired and energetic I’m feeling.]

One of the many issues raised by critics of Trump’s immigration EO is that it deals with seven countries, but those countries have not historically been the vectors of terrorism in the US. “Why not Saudi Arabia?” they cry. “After all, that was the country of origin of most of the 9/11 hijackers.”

True, but irrelevant. No one is claiming that the seven countries have been the origins of all or most of the terrorist attacks that have ever occurred in this country. Nor is that a necessary claim to make in order to consider the focus of the EO to be valid. 9/11 happened over fifteen years ago, and events—and the probable sources of present-day Islamicist terrorism, and probably future terrorism as well—have changed somewhat.

The seven countries were not chosen by President Trump. They were designated by President Obama and adopted by Trump, and no one (or very few people) raised an eyebrow at Obama’s choices at the time. And of course, those people who criticize Trump by pointing out that quite a few recent terrorists have been citizens are also mentioning something that isn’t particularly relevant, because our control over citizens is far less (we can’t deport a citizen we suspect of being a terrorist, for example). And the fact that some citizens are becoming terrorists does not mean that newcomers can’t be (or become) terrorists as well.

Trump’s EO is not just aimed at arrivals from the seven countries, either, it’s aimed at certain current legal residents who have recently visited any of the seven countries (which are places for terrorist training and ISIS connections), and those holding dual European citizenship as well as citizenship from one of those countries. In other words, the EO is designed to make sure that a dual French-Somalian citizen cannot come here for the moment; under Trump’s temporary EO he/she would be stopped for 90 days until new vetting rules are devised. At least, that’s my present understanding.

Those who advance the “include Saudi Arabia” argument are doing so for the most part with the knowledge that this isn’t going to happen, for practical reasons. Saudi Arabia is a country with which we have a completely different diplomatic and in particular economic relationship than we do with, say, Somalia. Now, you might think a Saudi ban would be a good idea, and perhaps Trump’s final vetting system will include a different type of vetting than at present for Saudis as well (I don’t know what the current vetting entails, or if it is inadequate). But, realistically speaking, Trump chose the 7 countries because they already had been designated by Obama and because our ties with them were not especially friendly.

However, there is one thing that is relevant about 9/11 and the Trump EO: the hijackers came here legally on visas:

All of them entered the country legally on a temporary visa, mostly tourist visas with entry permits for six months. Although four of them attended flight school in the United States, only one is known to have entered on an appropriate visa for such study, and one entered on an F-1 student visa. Besides the four pilots, all but one of the terrorists entered the United States only once and had been in the country for only three to five months before the attacks.

The four pilots had been in the United States for extended periods, although none was a legal permanent resident. Some had received more than one temporary visa, most of which were currently valid on September 11, but at least three of them had fallen out of status and were, therefore, in the United States illegally.

The terrorists had obtained U.S. identification that was used for boarding flights in the form of Florida, Virginia, California and New Jersey driver’s licenses/ID cards. One of the terrorists, Mohamed Atta, was detained in Florida for driving without a license, but subsequently obtained one. Thirteen of the terrorists had Florida driver’s licenses or ID cards, seven had Virginia driver’s licenses, at least two had California licenses and two had New Jersey driver’s licenses. According to the March 28, 2002 Pittsburgh Post-Gazette, Robert Thibadeau, director of Carnegie Mellon’s Internet Security laboratory, says that “the 19 terrorists on Sept. 11 were holding 63 state driver’s licenses for identification.”

(I’ve written a previous post about the visa issue and 9/11.)

We are indeed fortunate that there has not been any large-scale attack here subsequent to the 9/11 horrors. There are many theories as to why, but in this country most of the terrorists lately have been of the supposedly “lone wolf” type—and some of those arrested have indeed been from the seven countries (see this and this). It is also important and relevant to note that the seven countries feature in the history of many recent Islamicist terrorist attacks in Europe, and that although patterns there are somewhat different from here, they are not so very different than we can or should ignore that fact.

More from Astaire and Rogers

The New Neo Posted on by

Fred Astaire and Ginger Rogers generated more human happiness than many do-gooders.

In the comments to the YouTube videos of their dance routines, you can find many people (some of them, I assume, young people) lamenting the death of this type of entertainment, class, style, grace, and romance:

Astaire and Rogers created their own world, their own atmosphere. Although it reflected something of the atmosphere of their times, it was a fantasy version of it. Their charm, their humor, their lightness, the poshness of their art-deco sets and Ginger’s sexy yet elegant gowns, the way they made it absolutely normal to break into song and dance as the best and most natural expression of themselves—no one else did it, and I doubt anyone else ever will. One of the most subtle and effective things that Astaire and Rogers did was to sing in a way that didn’t attempt to make their voices technically perfect (that would have been a futile endeavor, anyway) but only to be faithful to the words and tunes they were expressing. Note, also, the believable way each of them listened and reacted while the other was singing. You see Ginger doing it here, but sometimes it was the other way around.

Betsy DeVos confirmed

The New Neo Posted on by

Pence casts the tie-breaking vote:

Senate minority leader Chuck Schumer voiced his displeasure with the vote moments after she was confirmed, tweeting, “Today @VP Mike Pence did something no one else has ever done: cast the tie breaking vote on his own cabinet nominee.”

And of course, no Democrat would ever ever have done so if he or she had been in Pence’s shoes.