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Livestream: 9th Circuit Oral Argument on Trump Immigration Executive Order

Livestream: 9th Circuit Oral Argument on Trump Immigration Executive Order

Will Court keep current temporary injunction against EO in place, or grant a stay?

The 9th Circuit Court of Appeals hears oral argument on the government’s Emergency Motion for a Stay pending appeal from the District Court Temporary Restraining Order halting Trump’s Immigration Executive Order now is fully briefed.

My view on the TRO is here, Absurd Fed Ct TRO halts enforcement of entire Executive Order on visas, refugees.

Yesterday the government filed its Reply to the Opposition filed by the State of Washington late Sunday night.

As discussed earlier, the opponents of the EO are attempting to have the judiciary substitute its judgment as to security needs, even though admission of aliens to the U.S. is within the exclusive purview of the President.

The oral argument is scheduled to start at 3 p.m. Pacific time. Each side has 30 minutes. Unfortunately I will not be able to listen to it in real time as I have a meeting. I’ll try to add some commentary to this post later in the evening after I have a chance to listen to the audio.

In a media advisory, the Court indicated not to expect a decision today,  but sometime this week.

[Live Stream over, here is audio recording]


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Thank you very much for providing the livestream links.

ScottTheEngineer | February 7, 2017 at 5:59 pm

That’s 6pm in American time. I did the math for you. 🙂

Don’t people always cry for the government to prevent this or that disaster, including terror attacks?

Since when do we have to wait until a terror attack comes from said countries to actually change security policy? Seems very reactive, not proactive to me.

    Milhouse in reply to healthguyfsu. | February 7, 2017 at 6:28 pm

    There have already been at least 60, and possibly dozens more, terrorists from those countries convicted in the US since 2001.

      FarFromIt in reply to Milhouse. | February 7, 2017 at 7:26 pm

      I have seen that information posted in at least a few places online. You would think that the DOJ, knowing that that was one of the WA state claims, that no one from those countries have committed terrorist attacks, the DOJ atty would have at least some of that info at his fingertips. He didn’t. I was not impressed with the DOJ atty arguing the case. It almost seemed as though he wanted to see the case drag along with WA state.

        heyjoojoo in reply to FarFromIt. | February 7, 2017 at 7:47 pm

        I agree. Seemed like both side spent quite a bit of time on Giuliani’s comments about the EO being a ‘Muslim ban’. That was interesting to me.

          CloseTheFed in reply to heyjoojoo. | February 7, 2017 at 10:27 pm

          Re: HeyJooJoo,

          When I heard Guiliana say that, I wanted to strangle him. Or something equally effective at shutting him up and obtaining revenge for his stupidity. He gave the left a weapon, and the left is too juvenile to give weapons.

And if I have to hear about 9/11 one more time….that happened in 2001. Bin Laden was involved and yet he was killed in Pakistan.

Do they not understand that many of these nations lack the sovereignty of the US?

    Do you REALLY believe that Osama Bin Laden was killed in Pakistan or anywhere else?

    You might have noticed that when Saadam and his two horrors of sons were killed/captured there were pictures – many of them – along with videotaped identifications by a number of people who knew them, DNA results and much more. And it was shown all over the world.

    Did you never find it odd that not a single photograph of dead Bin Laden was ever taken? That the body was whisked out to a naval vessel by helicopter and immediately “buried at sea” with no witnesses? That the only DNA test claimed to have been performed was done in a moving helicopter in the dark? (Having done DNA testing myself, I can assure that that is a crock. Among other things, you need completely sanitary conditions – something that cannot be achieved in a moving helicopter under battlefield conditions.)

    Last, but not least, for the first time in their existence the Seal Team that supposedly carried out the raid was publicly identified. Not long after that Seal Team was killed.

    No pictures, no body, no valid DNA (that DNA wouldn’t be allowed in any court of law), no burial site, no witnesses to the event . . . sounds like a perfect crock of bovine scat to me.

      healthguyfsu in reply to Granny. | February 7, 2017 at 8:42 pm

      You realize that Saddam had a trial right? That was a very different set of circumstances.

      CloseTheFed in reply to Granny. | February 7, 2017 at 10:30 pm

      Re: Granny:
      I have wondered what the deal was, and have no doubt that since Obama is a muzzie or muzzie sympathizer, things don’t add up, but what actually are the facts, that I have no insight into.

      Gremlin1974 in reply to Granny. | February 8, 2017 at 4:13 am

      I know I sound like a conspiracy theory nut when I say this but I think they got a double in Pakistan. I think Bin Laden was killed years before in a missile strike. The report of his death showed up in the news for just 24 hours then disappeared. I think the report of his death was covered up because we still needed a boogy man.

apropos of inexplicable judicial rulings, here’s a doozy from a 4th Circuit panel. Long-standing federal law requires employers to make reasonable accommodation for employees’ religious needs, and nobody could argue that an accommodation which had been made without question for 26 years can have become unreasonable in the 27th year without anything having changed, and with no notice to the employee. If this isn’t illegal discrimination in employment then what is?

I don’t know who is arguing for Trump but he isn’t very good. These judges are throwing in precedents that have nothing to do with federal law and national security. This is only secondarily about immigration and primarily about national security. This moron is talking about an individual case about immigration denial.

i’m sure the local DOJ office there in Frisco sent the least qualified candidate to plead their case… it’s called sabotage.

Mr Sessions has his w*rk cut out cleaning house.

    Awing1 in reply to redc1c4. | February 7, 2017 at 7:33 pm

    Your certainty notwithstanding, the attorneys were both from Main Justice in DC, August Flentje is special counsel to the Assistant Attorney General, and Edwin Kneedler is Deputy Solicitor General.

I await you expert analysis on the hearing Prof/Atty Jacobson.

This is a joke. They’ve already decided how they’re ruling and this is just a BS show for the cameras.

On the plus side, since Ginsberg should be REQUIRED to recuse herself from any case involving Trump due to her public idiocy, this should be a slam dunk reversal for the Supreme Court.

    CloseTheFed in reply to Olinser. | February 7, 2017 at 10:36 pm

    To Olinser:
    With regard to Ginsburg recusing herself: that bitch wouldn’t recuse herself if she had signed the Petitioners’/Appellees’ briefs!

    Fact is, and we all know it intuitively if not explicitly,that the left is a snowball on a hill, and in each new wave of activity, they take a step further outside of American norms. Really, they have no love of American norms, politically, legally, whatever, except to the extent that if they are in power, they have control. They love the control when they have it; the rest of the time, they have no use for anything American.

    They love controlling America, but they don’t love America or have fealty to its customs or traditions, of any sort.

welcome to the 9th – we carry the burden of it here out west. “reversal” is its middle name. hope it doesn’t arrive at SCOTUS before Gorsuch does.

The DOJ switched lawyers at the last minute and threw Flentje out there to sink or swim in front of a hostile court in San Francisco.

They’re dredging the Bay right now.

    Awing1 in reply to Rabel. | February 7, 2017 at 9:03 pm

    Who at DOJ do you think “switched lawyers”?

    Acting Assistant Attorney General Chad Readler and Acting Solicitor General Noel Francisco, the two attorneys who were slated to argue the case, are both the highest individuals in their posts, and are both Trump appointees. In fact, Chad Readler was the Trump campaign’s lawyer. Both decided to recuse themselves because of a conflict, after their several partners at their former employer (they both worked for Jones Day up until their appointments) joined an amicus brief. Both selected their replacements.

    So, who exactly are you blaming? Names, please.

      CloseTheFed in reply to Awing1. | February 7, 2017 at 10:40 pm

      Re: Awing1:

      OMG, if that’s all it takes for Trump’s appointees to be kneecapped in duty, then we screwed! His Lord Zuckerberg has enough money to hire all the lawyers in Hawaii, and in Seattle, for his peccadillos (sp?).

      Trump needs to tell them they are not to recuse themselves unless a motion is made, and frankly, the petitioner needs to find new lawyers, not the government!!!!

        Your comment makes aboslutely no sense, do you have even a basic understanding of federal civil appellate practice?

        The conflict wasn’t caused by anyone being “hired”, so I’m not sure what you’re trying to argue by stating:

        “OMG, if that’s all it takes for Trump’s appointees to be kneecapped in duty, then we screwed! His Lord Zuckerberg has enough money to hire all the lawyers in Hawaii, and in Seattle, for his peccadillos (sp?).”

        In addition, Trump cannot tell them how to handle their ethical conflicts, that would be wildly inappropriate, so I don’t know why you think:

        “Trump needs to tell them they are not to recuse themselves unless a motion is made”

        Finally, while “petitioner” in the federal system is typically reserved for someone making an appeal to the Supreme Court (since taking up the case is voluntary on the part of that court), to the extent it would apply to someone appealing a district court decision to a circuit court, the appellant, here the government, would be the petitioner. And that petitioner (i.e. the government) did find new lawyers, which would only make sense, since appellee/respondent replacing their attorney’s would hardly do anything to cure a conflict between appellant/petitioner’s counsel and an amicus filing in their individual capacity. So this comment of yours really makes absolutely no sense:

        “frankly, the petitioner needs to find new lawyers, not the government!!!!”


      Rabel in reply to Awing1. | February 7, 2017 at 11:44 pm

      A simple statement of fact. The DOJ switched lawyers.

        Awing1 in reply to Rabel. | February 7, 2017 at 11:50 pm

        A simple question, who at DOJ do you think “switched lawyers”?

        If you were not intending to assign blame, why did you make this “simple statement of fact”?

What next, the courts have to be notified of an act of war? Is the president supposed to contact the courts and the ACLU before taking action? I do not see how the state of WA has standing just because some of its citizens/visa holders, were inconvenienced by a temporary travel ban.

    CloseTheFed in reply to inspectorudy. | February 7, 2017 at 10:43 pm

    To Inspector Rudy:

    Washington State doesn’t have standing, but this is another example of what I meant earlier,that with each successive wave, the left moves another step out of American norms. Myself, I’ve always believed standing to be an exercise of Kantian epistemology, predominantly faulty, successfully used to make citizens incapable of remedying wrongs done to them, nonetheless a foundation of American law. But to the left, so what, if it doesn’t meet their mood of the moment!


    I think it is your inspiration that made me think of declaring war… just as a vehicle to the objective of barring immigration from these Countries.
    Previously, they had a chance, if they passed vetting.
    In the instance of a declaration of war, I would think that they would be completely without standing.

    They don’t have standing.
    But let’s not let the facts get in the way…

They were absolutely hostile, and kept trying to go off into the weeds…
How can you sit there and take that level of abuse?
I certainly would have been more forceful, and dismissive of the diversions.

Maybe there is another way.If Trump simply declared war on the 7 countries, would that not preclude immigration?
He doesn’t have to have a war… just a declaration….

    I realize y’all probably haven’t read the Constitution, so allow me to reproduce a portion of it for you, from Article I Section 8 in relevant part:

    “The Congress shall have Power To

    Lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

    To borrow Money on the credit of the United States;

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

    To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

    To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

    To establish Post Offices and post Roads;

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    To constitute Tribunals inferior to the supreme Court;

    To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”

    Notice, these are powers of Congress, not the President.

      ronk in reply to Awing1. | February 8, 2017 at 12:31 am

      seemed to miss immigration in that list.

        Awing1 in reply to ronk. | February 8, 2017 at 12:40 am

        Right, because the claim of the other commenter is that the president can declare war.

          That was measured. I like that response.
          What would be the classification of the Obama actions in Libya? ( And elsewhere )
          Of course, generally, and I am positive you follow the logic.

          Awing1 in reply to Awing1. | February 8, 2017 at 1:43 am

          I would assume the logic is either “Obama’s military actions in Libya and related regions were war-like actions, and thus, effectively, the President can declare war” or “Obama’s military actions in Libya and related regions were war-like actions, and thus, effectively, Obama violated the Constitution”.

          I’ll start off by noting that a “war-like action” is not the same as a “declaration of war”. In the context of this conversation, I do not believe a court could criticize the actions of the president in restricting border crossings of nationals of a country Congress has declared war against. This is a very narrow issue, one not even broached by *Korematsu*, which I do disagree with.

          Broadly, I do not agree that the Constitution supports the ability of the president to unilaterally use force against another sovereign nation without a declaration of war by Congress in any but the most extreme and immediate of circumstances threatening our own sovereignity. Alas, since long before I was born, such a power has been read into the Constitution. I opposed it under Bush, and I opposed it under Obama, but it is what it is.

          Nonetheless, it has never been the case, since the enactment of the INA in 1952, that immigrant visas to the United States have been declared invalid purely on the basis of nationality, regardless of the state of military conflict between our nation and another. We have not had a formal declaration of war during that period either, which is why I feel comfortable agreeing that, in the presence of a formal declaration of war, our border entry rules can be restricted beyond the traditionally prescribed rules of Congress. But the absence of such a declaration, along with the absence of such a response on the border front historically, makes me hesitant to agree that the issue is so clear-cut.

          The order is the kind of response you would expect from a declared war, only there is no declared war. We didn’t see this kind of border control as a result of any of our past threats, at least that I am aware of. From the Korean war to 9/11 and all the way up to just prior to Trump’s order, I’ve yet to see an example of us banning entry of those with immigrant visas purely on the basis of nationality a single time. From a legal perspective, I think it’s an undecided issue (and thus I don’t think the TRO should have been issued by the Federal Court in Washington), but from a policy standpoint, it seems insane. Trump has instituted the kind of action you’d expect from a declared war, when we’re nowhere close to the threat of a declared war.

      Gremlin1974 in reply to Awing1. | February 8, 2017 at 4:17 am

      I still write every year requesting a Letter of Marque, one of these days I will get one!

      ” Trump has instituted the kind of action you’d expect from a declared war, when we’re nowhere close to the threat of a declared war.”

      This is about the most asinine and ridiculous statement I have ever heard. Blocking possible threats from foreign powers is nowhere near a declaration of war.

        If blocking immigrant visa holders on the basis of nationality is not an extreme action, why is it that in the past 50 years, despite facing significantly larger conflicts than we do today, we have never done it?

          Gremlin1974 in reply to Awing1. | February 8, 2017 at 3:13 pm

          It has been done before most recently by President Obama who blocked refugees and immigration from Iraq for 6 months, actually a longer time than Trumps EO which was only for 4 months.

          FDR blocked German, Italians, and Japanese during WWII.

          Federal Law 1182 (f) specifically says; “(f) Suspension of entry or imposition of restrictions by President:
          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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.”

          As far as it being extreme in a non-state of declared war, I would say to look at the actual “Refugees”. You would expect most of them to be women and children, expect that anywhere between 50% up to 90% of them are fighting aged men, depending on who’s numbers you believe. Just the fact that such a number can be in doubt shows that the process is flawed.

          Look at Europe and the marked increase in crimes like rape, not just of adults but of children. In area’s where these “refugees” have been settled crime has risen markedly.

          Before you throw the argument out that we haven’t seen the same thing here. That is because they have been settled in area’s that are controlled by liberals who will not even attempt to look for these crimes and who will turn a blind eye to them if they are discovered. Also, we have not yet seen the levels of refuges that Europe has, thank God.

          Btw, most of these “Refugees” adhere to a quasi-religious doctrine that teaches plainly that you and I should be killed because we don’t believe the way that they do. It also by the way teaches that the so called “sins” of the religion are excusable if committed against an Infidel (i.e. you and I) so not even their religious strictures apply to anyone but themselves.

          Oh and before you ask, yes I have read the Quran and the Book of Sune, I have also taken University level courses in Comparative Religion and Theology, in fact I have enough that when I finish my Nursing Degree I will be able to claim a Minor in Theology/Religion. Also, many of those classes were taught by an apostate muslim who became a Deist Christian.

          This is nothing but liberal leftist showboating to try and stall an agenda they don’t like because they can’t believe that they lost and that the entire world doesn’t agree with them.

          All of that aside I can justify the orders with one simple analogy. Put aside that the countries were identified by the Obama Administration as threats not the Trump administration.

          Unless you are willfully ignorant or mentally deficient there is no way to argue that Islamic Terrorism is not a clear and present danger to the safety and security of United State’s Citizens. No one is saying never allow people from these countries in ever again, the whole “Muslim Ban” claim is complete and total BS fabricated by the left.

          The fact of the matter is that with the level of immigration from these countries with the almost complete lack of vetting done thanks to the obama administration it is more than reasonable to presume that some of these people represent a threat, even if it is just a trickle of the whole. So now the analogy.

          Do you try to plug the leaks in a dam or just wait for it to rupture then start taking action?

          This was nothing more than that, plugging leaks and even then it didn’t plug nearly enough.

          Awing1 in reply to Awing1. | February 8, 2017 at 7:14 pm


          Obama absolutely did not ban Iraqis with immigrant visas from entering the United States for any period, much less for six months. You’re simply flat wrong about that. You’re probably thinking about when the Iraqi refugee program came to a near halt as a result of a review of that program’s vetting procedures. That certainly slowed down *issuing* immigrant visas to Iraqis *under that program*, but it did absolutely nothing to affect Iraqis with issued immigrant visas, it didn’t even affect issuing immigrant or nonimmigrant visas to Iraqis under other programs.

          I have no idea whether or not FDR did, but if he did, that proves my point that it’s the kind of response we’ve only ever seen in our modern history during a declared war against the nation whose nationals are affected. Thank you for proving my point.

          Gremlin1974 in reply to Awing1. | February 9, 2017 at 12:48 am

          Oh so basically what you are saying is that yes Obama did restrict immigration from Iraq, thanks for proving my point. The “but, but, they are the same but still different” argument is nothing but semantic BS.

          As usual you ignore the larger argument but nothing I don’t expect from those impervious to facts.

The outcome of this was predetermined. That is why the left chose this area of the country to file this BS. Because the 9th Circus is a forgone conclusion.

Aside from uniform rules of naturalization, what in the Constitution give the federal government the power to regulate immigration? Or more specifically, visitation?

I ask this because there are people writing about this who say the federal government has no such authority.

    Hawk_TX in reply to Petrushka. | February 8, 2017 at 10:36 am

    Article I

    Section 4.

    The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion;…..

    Ragspierre in reply to Petrushka. | February 8, 2017 at 10:47 am

    Near as I can tell, it sort of “growed that way” like Topsy.

    During the late 1800s there was an active growth of government power by the central government. One area was a series of cases dealing with immigration, which was a source of bitter conflict in the US. You can find many political cartoons reflecting darkest racism and religious bigotry regarding various immigrant populations.

    The Federal courts sort of “filled in” the whole issue of immigration over a period of about 40 years. IIRC.

We must be at war with Cuba given Barry banned Cuban refugees from entering America just three short weeks ago. Remember that…when all the lefty liberals got all outrageously outragety over that one? Good times my friend…good times indeed!