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Good Friday Morning! As I’m sitting down to write this piece a bit of breaking news is hitting: The 9th Circuit Court of Appeals has ruled against the Federal Government in its request to issue a Temporary Restraining Order against a lower district judge’s stay on Trump’s immigration Executive Order. That’s a mouthful to say, and I’ll unpack it more in the first section. But the end result is this: A stay remains up against Trump’s immigration executive order which bars the order from being enforced. This stay was issued by a federal district court judge in the state of Washington (this is the “so-called” judge Trump attacked).
I’m covering the 9th Circuit’s decision in considerable depth. I’ll also cover the dust-up over Trump’s comments on the district court judge. In the must read links section, I’ve highlighted several pieces which delve into topics like Jackie Robinson’s political activism in the Republican Party, a notable new biography out on Barack Obama by Johnathan Chait, and how ISIS is controlling and supporting “lone wolf attackers.”
Trump loses motion to reinstate his Executive Order while judicial arguments take place
The first step is to understand what the 9th Circuit was hearing arguments about at this level. We are not arguing about the merits of Trump’s executive order. This is all highly preliminary over technicalities and, at basic level, whether or not the executive order can be enforced while the courts sort everything out. Since I realize I have many non-legal readers, I’m going to go through a simplified background of this case.
What happened is a federal district level judge issued a nationwide stay against Trump’s order in the state of Washington. The state of Washington sued the federal government over the executive order (EO), alleged several ways in which the EO harmed them, and requested a Temporary Restraining Order (TRO) be put in place against the government from enforcing the EO while litigation took place. The district judge listened to the arguments, issued a short opinion, and granted the TRO. With the nationwide stay in place, the order could not be enforced by Federal agencies.
The Government appealed the district judge’s ruling and requested from the 9th Circuit Court of Appeals an emergency stay of the district court’s TRO. The government wanted the Executive Order to be enforced while the EO is litigated and appealed below. The 9th Circuit rejected the government’s request for that emergency stay and is allowing the district level EO to continue in a 3-0 decision. In a nutshell, that is all that has been decided. Nothing procedurally has been decided, nor has anything been ruled on regarding the merits of the case (the facts and Constitutional arguments).
Ultimately, I still think the executive order is constitutional and the courts shouldn’t be ruling on this particular case. The issuance of a TRO or not, and the law surrounding it, is a different legal argument than whether or not the EO is legal on its face. The real problem, as I pointed out last week, is that the order was poorly implemented and poorly drafted. Had the White House given this order 3-7 days to be drafted and implemented correctly, they’d likely have won this case fast. But as it is, the Trump admin has taken the longest and hardest road at implementing this EO.
Thoughts on the 9th Circuits opinion
You can read the 27 page opinion here. I have a few thoughts working through the opinion that I’ll break out here.
The 9th is wrong in that it has reviewability
One of the arguments the government made was that the courts lacked jurisdiction and power to review this case. The Feds argued that because the the statutory power Trump relies upon in the EO grants him wide powers to stop any admission for any reason. As I explained last week, this is because the Executive branch and Congress have plenary power over the courts. The 9th Circuit engages in some clever word play (I’ve deleted citations for readability):
The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence. Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.
The 9th Circuit is trying to be clever here and sidestep what the government is really arguing. The quoted section the court uses of the Government’s argument is a paraphrase of the power Congress gave to the President in suspending. Specifically, this is the grant of power from 8 USC 1182(f) I discussed last week:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The reason the Government argued that the President had unreviewable power here is because Congress granted unreviewable power. It’s not some novel idea the DOJ is arguing here. It’s that the President has free reign to stop any alien, for any reason, from entering. The 9th Circuit then goes on to describe how important judicial review is and how good a judicial check is on the other branches. All of which I agree with. But the 9th Circuit pretends that the government is argument that courts have no review power overall, not in the limited area of this statute. They purposely broaden the government’s argument to a position it did not argue to grandstand about judicial power being important. You can see this where the 9th completely misconstrues the EO:
The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President’s promulgation of sweeping immigration policy. Such exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard; as cases like Zadvydas and Chadha make clear, courts can and do review constitutional challenges to the substance and implementation of immigration policy.
The 9th is completely wrong here. The case is precisely about an specifically enumerate congressional policy as applied to the particular facts of the case. The EO explicitly states it is relying on 8 USC 1182(f) in granting the President the power to deny entry. The DOJ attorney EXPLICITLY argued this point. The Government explicitly cites the precedent of the Obama administration using this VERY power in denying entry to certain travelers. In other words, this is not “sweeping immigration policy.” It’s enforcement of CURRENT law.
The 9th never presents any argument on how this is sweeping policy. The 9th Circuit never touches how this statute itself is wrong or an overbroad grant of power from Congress. The 9th sets up a straw-man argument, that the government is saying the courts have no review power at all, and then beats that straw-man senseless. CATO attorney Ilya Shapiro had a similar view:
This is a dog’s breakfast of a ruling on a dog’s lunch of an executive order. Somehow the Ninth Circuit judges manage to write 29 pages without discussing the heart of the matter: whether the Immigration and Naturalization Act, specifically section 1182, give the president the power to do what he did. Nebulous discussions of due process may be nice (or not) but they’re superfluous if the president went beyond his statutory authority. But apparently the court didn’t care about that.
Instead, the 9th Circuit wrote a bunch of dicta and ignored the law and issues.
The problem of using extra-judicial statements
You’ll recall last week I mentioned that Green Card holders were originally included in the EO, but later taken out of the EO. The Government argued that they had fixed this problem when the White House counsel issued a statement clarifying how the EO worked and was to be implemented. That statement removed green card holders from the EO. And, generally, fixed many of the constitutional claims of the plaintiffs. The 9th completely tossed that statement aside:
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.
Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. 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.
This is a strange argument to me. They’re completely disregarding a statement directly from the White House and making the leap that the White House counsel could somehow be speaking independently of the Executive (that’s a wild leap). And while the Court dismisses potential authoritative claims from the White House counsel, they openly use non-authoritative media reports as evidence later in the opinion:
In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.
The court then proceeds to cite a number of cases to support the proposition to rely on media reports. The Court argues in one breath that they can’t use an official White House statement as dispositive proof, while doing EXACTLY the opposite in the next breath. They’re holding the White House to “Muslim ban” off-the-cuff statements, a phrase which never appears in the EO, and completely disregard official statements from the White House counsel.
In the end, this is the problem of using extra-judicial statements in court opinions/decisions. The late Justice Antonin Scalia was a fierce critic of such evidence. His major target was the use of legislative history in court cases. You could switch out media reports here and legislative history to understand this critique:
“…Our cases have said that legislative history is irrelevant when the statutory text is clear. The footnote advises conscientious attorneys that this is not true, and that they must spend time and their clients’ treasure combing the annals of legislative history in all cases: To buttress their case where the statutory text is unambiguously in their favor; and to attack an unambiguous text that is against them. If legislative history is relevant to confirm that a clear text means what it says, it is presumably relevant to show that an apparently clear text does not mean what it seems to say. Even for those who believe in the legal fiction that committee reports reflect congressional intent, footnote 3 is a bridge too far.”
Scalia’s point is that if a statute is clear on its face, then legislative history is useless. And even if the statute is unclear, the courts should never use legislative history to get towards “intent.” The same is true of Trump’s EO. The media statements made by Trump, Giuliani, surrogates, and others are useless. Is the EO unclear on its face? That is the question. If you read it, you find out it’s not unclear at all. It grants special exemptions to minority religions in the 7 countries that are targeted. And contrary to popular belief, that’s not just Muslims. There are minority Muslim sects that are included in that type of wording.
What the 9th Circuit and plaintiffs are implying is that we can divine the purpose of the EO from these media clips. Even if the EO doesn’t fulfill that purpose, we can divine the real purpose from those extra-judicial statements. And because the purpose of the EO may be bad, that means the entire EO is unconstitutional. Which is flat wrong. If Congress intends to write a tax increase, but writes a tax cut instead, it is not the court’s job or authority to re-define the law into a tax increase. That is legislation. Even if Trump intended to write a Muslim ban, but in the process failed to create a Muslim ban, his purpose doesn’t change the EO. The plaintiffs can’t prove the EO is discriminatory on its face, so they and the courts are relying on extra-judicial statements. This is dangerous, wrong, and beyond the authority of the judicial branch.
Attorney Eugene Kontorovich, writing in the legal blog Volokh Conspiracy in the Washington Post, takes this a step further and points out there is no precedence for the 9th Circuit’s ruling:
There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive. The 9th Circuit fairly disingenuously cites several Supreme Court cases that show “that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” But the cases it mentions do nothing more than look at legislative history — the formal process of adopting the relevant measure. That itself goes too far for textualists, but it provides absolutely no support for looking before the start of the formal deliberations on the measure to the political process of electing its proponents.
Indeed, a brief examination of cases suggests the idea has been too wild to suggest. For example, the 10th Circuit has rejected the use of a district attorney’s campaign statements against certain viewpoints to show that a prosecution he commenced a few days after office was “bad faith or harassment.” As the court explained, even looking at such statements would “chill debate during campaign[s].” If campaign statements can be policed, the court concluded, it would in short undermine democracy: “the political process for selecting prosecutors should reflect the public’s judgment as to the proper enforcement of the criminal laws.” Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995).
The problem of proving national security
One of the last points made by the 9th Circuit is that the Government failed to prove there was a harm or threat from delaying the the order. The 9th said it was still awaiting any evidence that there is a distinct harm in delaying the EO. The problem with this is that its a lot like proving a negative. You’re proving there is a threat despite the lack of any recent visible attacks. The logical problem here is that the 9th fails to take into account the purpose of the EO, and the Obama era rules it relies on. In footnote 7, there is a brief discussion of this point:
Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.
I can’t tell if the DOJ poorly argued this point, or the judges were just purposely being obtuse. The reason for the original designations of the 7 countries by the Obama administration was the rise of ISIS in Syria and Iraq. When those two countries saw cities and large swaths of territories overrun by ISIS, then President Obama preemptively singled out Syria and Iraq for visa and entry restrictions. There was no proof of any direct threat, but it was a preemptive measure to give authorities more tools to track and stop terrorists from ever entering the United States.
Trump expanded this order and effectively froze all those countries entry privileges temporarily while he and Congress redrew security regulations. In a nutshell, that’s what is happening here. The expectation at the end of the temporary freeze is that new laws will be in place or new security measures at the agencies.
So in effect, what the 9th Circuit is arguing is this: because one security feature in your home alarm system has never caught anyone, it’s fine if we shut off while for further inspection. They miss the point of the policy. It’s not an active deterrence for terrorists. It’s a defensive tool. It’s meant to stop attacks from happening in the first place and make it harder for terrorists to reach American shores.
Now, could the tool be better drafted, worded, implemented, and targeted? Absolutely. But that doesn’t mean it is an unconstitutional tool. I happen to think it’s poor policy. But that does’t make it unconstitutional.
Wrapping this section up: The 9th Circuit’s opinion was so bad and paltry that it looks like a pre-determined decision desperately searching for an argument to support it. And given that this is the 9th Circuit, I’m tempted to believe just that. I’ve only highlighted the sections that immediately stuck out to me (and that I have time to write about tonight). There are other sections that have problems in them. For instance, the section on standing, specifically harm, is remarkably thin. And the 9th Circuit pretends that the state of Washington is being massively harmed.
While I don’t believe this changes the ultimate constitutionality of the decision, it is a shame to see such bad judicial reasoning. The reasoning is so bad, that on some level it does need to be reviewed by the Supreme Court and overturned. The precedents the 9th Circuit is setting here are incredibly dangerous for the legal system and democracy.
Trump’s attacks on the judiciary are bad, but put them in historical context
Sticking with the judicial theme. The other major dust-up this week has been Trump’s attack on the federal district judge discussed in the above section. Trump referred to him as a “so-called” judge. This comment unleashed a torrent of think-pieces on why this was bad for the judicial branch.
On a fundamental level, those pieces are right. The President of the United States should not openly attack judges for exercising judicial review. Even when the case goes wrong. But on another level, these think pieces and hot takes are incredibly ignorant of history.
An attack on par with Trump was President Obama’s full scale attack on the Supreme Court in a State of the Union speech. With the Court sitting front and center, Obama blasted the Supreme Court’s decision in Citizens United. Obama’s attacks were deemed “personal” by the NYTimes. That instance was just one of several instances where Obama drew the Supreme Court into open political conflict. Usually, Presidents will attack the Supreme Court decisions, not the Justices themselves. Obama and Trump have shifted that dynamic.
But if Obama and Trump are bad, the absolute worst attack on the judiciary came from Franklin Delano Roosevelt. While implementing his massive government plans via the New Deal, FDR’s agencies kept running into the Supreme Court. The Court, rightly in my mind, kept pointing out that the New Deal legislation was not Constitutional. FDR decided to go to war against the Supreme Court. He and his advisors put together a court packing plan. FDR’s plan sought to remove every opposition judge on the bench and replace those judges with his own picks. He also sought to completely reshape the lower courts by appointing his picks everywhere.
FDR’s complete war on the bench threatened to undermine an independent judiciary. In the end, his court-packing scheme failed. But, it only failed because the Court stopped ruling against FDR. So while Obama and Trump needle the judicial branch with slights and tweets, always remember that FDR triggered an actual Constitutional Crisis in 1937 when he went to war against the Supreme Court. It places all the hysteria of Trump in proper context.
Under Armour, Donald Trump, and Steph Curry
It’s rare I see sports, business, and political news reports clash into one story. But that’s what happened here. To set the scene, Under Armour CEO Kevin Plank went on CNBC to give an interview on a variety of subjects. For those who don’t watch CNBC, they do a lot of these types of interviews with company heads, bankers, and investment firm heads. Plank spoke about his company and, important for this story, spoke about his experience on Donald Trump’s manufacturing council. The CNBC anchors asked Plank about his opinion on Trump. He answered:
I think he’s highly passionate. To have such a pro-business President is something that is a real asset for the country. People can really grab that opportunity. He loves to build I don’t think there’s any surprises here. When you look at the president he wants to build things. He wants to build things he wants to make bold decisions and be really decisive. I’m a big fan of people that operate in the world of publish and iterate versus think, think, think, think, think. So there’s a lot that I respect there.
For a CNBC interview, these are pretty generic comments. I’d expect something like this from just about any CEO dealing with Trump. I’d have barely paid attention to them if Steph Curry and ESPN hadn’t decided to make these comments subject number one for the day.
ESPN sports journalists decided to put heat on Curry for the “pro-Trump comments.” And Curry decided to show he was responding by releasing statements condemning Trump and that he was calling Plank. Curry wanted to “make sure where everyone stood on the issue.” Clay Travis over at Outkick the Coverage covered this story pretty well on his site.
If there ever was proof of media bias, it’s a story like this one. Where ESPN decides take make Curry the main subject of the day because of his statements on Trump. Plank’s statements aren’t controversial. His use of the word “asset” is benign. Plank was a part of a manufacturing council with Trump. So of course Plank was playing nice with Trump. Plank’s company employs thousands of people in the manufacturing sector.
Like a number of CEO’s, Plank has undoubtedly seen what happens to companies than run afoul of Trump. Unlike Curry, Plank has to answer to his employees, his shareholders, and his bottom line. If Trump hammers Under Armour for some reason, it will hurt stock prices and expansion plans. Trump’s tax and regulations plans, along with his focus on manufacturing jobs undoubtedly will help Under Armour. All of this taken together should explain why Plank was friendly with Trump and giving a generic corporate answer in the interview.
But leave it to ESPN to drive a narrative.
Links for your radar
Jackie Robinson: Militant Black Republican – Leah Wright Rigueur
You may know the story of Jackie Robinson the baseball star who broke the color barrier in Major League Baseball. You may not know the story of Jackie Robinson the political activist:
“On a Saturday evening in February of 1966, over a thousand mostly white Republican men and women crowded into a Cleveland hotel banquet hall, eager to hear Jackie Robinson’s opening keynote for the annual Ohio Republican Conference. The baseball icon-turned-political activist did not disappoint. “I am not what is known as a good Republican,” Robinson declared upon taking the stage. “I am certainly not a safe Republican. I am weary of the black man going hat in hand, shoulders hunched and knee pads worn, to ‘Uncle Tom’ to the enemies of our progress.”
Colorblind America: The Malignant Fallacy – Chidike Okeem
It is a profoundly depressing myth in America that the only way race relations can be improved is by pretending that race does not exist. Race does exist and matter, but who is convincingly articulating the conservative side of the story on important racial issues on the national stage? Furthermore, who is shattering the intellectual manacles that liberals have locked on the minds of minorities with their sophistical bromides?
(Answer: Nobody, because conservatives are too preoccupied with politically correct pleas for colorblindness and pugilistically engaging the boogeyman of hyphenated Americanism.)
Minorities know that race matters, but all they know is that it matters in all the apocryphal ways Cornel West is paid to tell them it does. If conservatives do not stop this head-in-the-sand approach on the topic of race and start articulating the important places where it does matter — while dismantling left-wing, race-baiting shibboleths where race does not matter (i.e., in economics) — liberals will be the perennial winners in the war of words whenever the topic is broached.
More of the Kremlin’s critics are ending up dead – The New York Times
Political murders, particularly those accomplished with poisons, are nothing new in Russia, going back five centuries. Nor are they particularly subtle. While typically not traceable to any individuals and plausibly denied by government officials, poisonings leave little doubt of the state’s involvement — which may be precisely the point.
“Outside of popular culture, there are no highly skilled hit men for hire,” Mark Galeotti, a professor at New York University and an authority on the Russian security services, said in an interview. “If it’s a skilled job, that means it’s a state asset.”
Bush, unlike Obama, felt duty bound to hold his tongue – Real Clear Politics
“After the interview was over and the tape recorder was turned off, we chatted for a few more minutes. It was then I asked Bush what he thought of Obama’s performance in office, hoping for a candid answer. I remember him saying two things in response (and I’m paraphrasing now because the recorder was turned off). The first reply, delivered with that classic George W. Bush half-smile and twinkle in his eye, was that being president was “a lot tougher than it looks.” Even in private, that’s as close he would get to criticizing President Obama.
But it was the second thing he said that struck me more. Bush said “the job is hard enough” without having your predecessor out in public mucking things up.
It was then I realized that to former President Bush, staying out of the limelight was more than just a courtesy. He believed it was his patriotic duty to not be an impediment or distraction to his duly elected successor – no matter how much he might disagree on a policy proposal or action taken by the president or his administration.”
Jonathan Chait’s Mythical President – National Review
For all its hubris in hailing Obama as the champion, Chait’s book is an acknowledgment of the disappointment among his fellow leftists at the end of eight years in the White House. The second-longest chapter in this book, after his defense of Obamacare, is titled “The Inevitability of Disappointment.” It offers a litany of depressed comments from leaders of the American Left, from Rachel Maddow to Thomas Frank to, yes, even Mr. Hope himself, Shepard Fairey. The question within this corner of the American Left is not whether Obama’s presidency was a failure, but why: Was it because he was more poetry than prose, more focused on oratory than substance? Was it because he was a victim of partisan forces beyond his control? Or was it because his hopes for change were too grand for a country that is still fundamentally scorched by racist and bigoted history? Chait finds such musings odd if not absurd. “The yawning chasm between the scale of Obama’s achievements and the mood of his supporters presents one of the mysteries of the era,” he writes, wondering whether the Left could even comprehend a successful presidency: “Would Democrats recognize one if they saw it?”
Not ‘Lone Wolves’ After All: How ISIS Guides World’s Terror Plots From Afar – The New York Times
As officials around the world have faced a confusing barrage of attacks dedicated to the Islamic State, cases like Mr. Yazdani’s offer troubling examples of what counterterrorism experts are calling enabled or remote-controlled attacks: violence conceived and guided by operatives in areas controlled by the Islamic State whose only connection to the would-be attacker is the internet.
In the most basic enabled attacks, Islamic State handlers acted as confidants and coaches, coaxing recruits to embrace violence. In the Hyderabad plot, among the most involved found so far, the terrorist group reached deep into a country with strict gun laws to arrange for pistols and ammunition to be left in a bag swinging from the branches of a tree.
National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.
Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.
Story to tell your friends
I’d like to thank a Vox writer for bringing this story to my attention. It’s now one of my favorites:
A popular Internet joke claims that Senator William B. Spong of Virginia and Senator Hiram Fong of Hawaii sponsored a bill recommending the mass ringing of church bells to welcome the arrival in Hong Kong of the U.S. Table Tennis Team after its tour of Communist China. The bill failed to pass, cheating the Senate out of passing the Spong-Fong Hong Kong Ping Pong Ding Dong Bell Bill.
In fact, Senator Spong never sponsored such a bill, but he did have some fun with the press soon after arriving in Washington, D.C. As described in an article by his cousin, the Rt. Rev. John Shelby Spong, Senator Spong “was invited with the other freshman senators to address the National Press Club. Fearful that someone on radio or television would call him Senator Sponge, he used his brief five-minute introductory speech to that body to secure proper name identification. His first act as a senator, he announced in his southern drawl, would be to introduce a bill to protect the rights of songwriters in Hong Kong. He would be joined in this effort by the senior senator of Louisiana, Russell Long, and the Senior Senator from Hawaii, Hiram Fong, and together they would present the Long Fong Spong Hong Kong Song Bill. His name was never mispronounced by members of the media.”
Thanks for reading!