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Hawaii TRO and 9th Circuit En Banc Denial effectively strip Trump of executive powers (Update – Maryland too)

Hawaii TRO and 9th Circuit En Banc Denial effectively strip Trump of executive powers (Update – Maryland too)

At this point, only the Supreme Court can restore presidential powers.

Two big developments on judicial usurpation of presidential immigration and national security powers.

The federal district court in Hawaii issued a TRO and the 9th Circuit denied en banc hearing of the first appeal. Both Orders are embedded in full at the bottom of this post.

The net result is that Trump has been stripped of his constitutional and statutory powers to protect the nation through control of who is permitted to enter the country.

I warned about this, and the danger of Trump not seeking Supreme Court review in the first case, President Trump must not back down on immigration Executive Order:

The decision of the 9th Circuit Court of Appeals to leave in place a broad Temporary Restraining Order freezing President Trump’s Executive Order on visas and refugees presents a serious threat to the constitutional and statutory authority of the presidency.

By leaving an overly broad TRO in effect that protects even persons who are abroad with no prior connection to the United States, and by refusing to narrow the TRO, the 9th Circuit effectively extended to such persons U.S. constitutional due process rights both to apply for a visa and in the visa process….

I have seen many analyses critical of the 9th Circuit ruling which urge the Trump administration to take a step back, to withdraw the current Executive Order and rewrite it to fit what is acceptable to the 9th Circuit. The Trump administration, according to some reports, is considering doing that.

That would be a grievous mistake.

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.

And now it’s playing out.

Trying to narrow and modify the 1st Executive Order has proven fruitless. The District Court in Hawaii issued a Temporary Restraining Order (full embed below)(pdf.) staying Trump’s 2nd Executive Order on immigration.

The short version of the decision is that Trump said bad things on the campaign trail, so anything he does that disproportionately affects Muslims seeking to enter the country must be motivated by religious bias. The district court wrote:

The Court turns to whether Plaintiffs sufficiently establish a likelihood of success on the merits of their Count I claim that the Executive Order violates the Establishment Clause of the First Amendment. Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.

Since foreign Islamic Jihadist threats are the prime visa and immigration threat to the nation, the president’s hands are tied by the judiciary on the issue. It doesn’t matter to the court that the six countries covered by the 2nd Executive Order have unique security risks because they have large Islamic Jihadist elements and non-functioning governments which cannot assist meaningfully in visa screening.

Prof. Josh Blackman reaches a similar conclusion:

“Although Judge Watkins rejected the notion that President Trump’s ‘past conduct must forever taint any effort by it to address the security concerns of the nation,’ it is hard to see how his anlysis would ever permit the executive branch to impost any immigration policy that has any effect on predominantly Muslim countries — no matter how small. The court’s analysis, which hinges on parsing statements by Trump and his surrogates on cable news, and determining whether the President repudiated his prior policies, is better suited for fact-checkers, not Article III courts.”

The 9th Circuit late today also issued an Order Denying En Banc Hearing (full embed below)(pdf.) of the appeal from the Washington State District Court retraining order. In a sense it’s moot, but it’s a preview of what the appeals court judges are likely to do on the Hawaii Order.

The Dissent by five judges, who want the full court to hear the case, is instructive and correct. Read the whole thing, it’s worth is. Here’s an excerpt:

BYBEE, Circuit Judge, with whom KOZINSKI, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of reconsideration en banc.

I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel’s opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.

The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).

This is not to say that presidential immigration policy concerning the entry of aliens at the border is immune from judicial review, only that our review is limited by Kleindienst v. Mandel, 408 U.S. 753 (1972)—and the panel held that limitation inapplicable. I dissent from our failure to correct the panel’s manifest error.

As discussed in prior posts, the power to control who enters the country is uniquely a presidential power. Not anymore, unless the Supreme Court acts to restore that power.

[This post has been modified after publication.]

UPDATE 3-16-2017: A Maryland federal court issued an injunction this morning (full embed at bottom of post)(pdf.):


Hawaii TRO Halting Trump 2nd Immigration Executive Order by Legal Insurrection on Scribd


9th Circuit Order Denying en Banc Hearing of Trump 1st Immigration Executive Order by Legal Insurrection on Scribd


Maryland TRO Halting Trump 2nd Immigration Executive Order by Legal Insurrection on Scribd


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Has the judiciary gone beyond its authority in this matter? If so, what can the president do about it?

    Walker Evans in reply to iconotastic. | March 15, 2017 at 11:51 pm

    The judiciary has in fact usurped the powers granted exclusively to the President by the Constitution. (See the Milhouse 10:36 post.) The judge in HI, as well as the 9th Circuit, have directly told a sitting President that they, not he, now have Presidential powers!

    President Trump should tell his people to begin enforcing his EO, and tell the courts to cease and desist presuming to have the powers delegated to his office. Simply stated: He’s right, and they’re dead wrong!

      heyjoojoo in reply to Walker Evans. | March 16, 2017 at 12:10 pm

      I just don’t get how we have had two separate instances now where these courts have demonstrated that they are in fact more powerful than the President. I did not know that the president had such little power. :/

        Milhouse in reply to heyjoojoo. | March 16, 2017 at 3:27 pm

        Where have you been? The judiciary has been doing this to successive presidents and congresses for decades if not centuries. Most of the time they’re right, but every once in a while they cross the line and nobody has the guts to stand up to them when they do. It’s about time a president defied them; it’d do them good to be told their boundaries.

          heyjoojoo in reply to Milhouse. | March 16, 2017 at 5:26 pm

          Well, we don’t generally hear of them putting a kibosh on a presidential order. Can you cite a few? That would be interesting.

          Milhouse in reply to Milhouse. | March 19, 2017 at 3:47 am

          Every timethey order the government not to do something, which is all the time, they’re doing that. You’re writing as if a “presidential order” is something special, as if it has some legal force. It’s just an order from an employer to his employees, exactly like what any employer does.

          But if you want a specific example, we all celebrated when a judge in Texas ordered 0bama to stop issuing his expanded 3-year DACA/DAPA “permits”. You had no problem with jurisdiction then, did you?

          The point here, however, is not that judges are giving orders to the federal government (which is the president). It’s that this court is well beyond its powers, and needs to be put in its place. The Supreme Court can’t fix this, because turning to it would mean acknowledging that this is a matter for the judiciary. Only Trump can fix it, by pushing back the boundary between the judicial and executive branches. For the good of the constitution he has to defy this illegal “order”.

Two words: Ultra vires. Trump tried to play nice and issue a narrow order, and it got him nowhere, so now it’s time to play rough. The HI judge is clearly ultra vires, and the purported restraining order is a nullity. Trump should announce that he is not going to bother appealing it because he doesn’t recognise its validity in the first place, and that all public servants are to implement his order as written or else resign.

    JohnC in reply to Milhouse. | March 16, 2017 at 2:25 am

    Those of us who voted for Trump did so as a last polite way of saying, “We have had enough of this nonsense and would like to see the rule of law enforced, please.” Now we have federal judges flicking Trump in the nose and saying, “Oh, yeah? What are you gonna do about it?” This may not end well.

      heyjoojoo in reply to JohnC. | March 16, 2017 at 12:14 pm

      it already hasn’t ended well. two different instances, the court has blocked the President. That’s a big deal and makes me think we have no recourse now. Ever. I knew once it happened with the first EO, it was gonna be bad precedent being set. What’s to keep the leftist judges from blocking anything the President does that we wanted him to do? Answer: nothing (or so it seems)

    I think the main reason we won’t see a move toward that (at least, not yet) is because of the pending Supreme Court nomination.

      snopercod in reply to JBourque. | March 16, 2017 at 7:57 am

      As I posted on the previous thread: “It’s time to confirm Gorsuch!”

        Tom Servo in reply to snopercod. | March 16, 2017 at 9:06 am

        And there are strong rumors that Kennedy may retire this summer, giving Trump a second pick by fall.

          artichoke in reply to Tom Servo. | March 16, 2017 at 11:39 am

          And this gives him Trump the judicial momentum to nominate rock-hard conservatives as the next, and the next. For national security we need to fix SCOTUS to ensure that such lawless judges are overturned.

          The travel ban is not too important. SCOTUS is. This whole thing could be useful, and what Dem senator is going to say that this Hawaii twirp is within his rights? Not enough to block future nominees.

    Ultra vires is a Latin phrase meaning “beyond the powers”. If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires (“within the powers”). If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed “valid” and those that are ultra vires “invalid”.

I said from the start it was a mistake to rewrite the order.

Liberals have zero interest in what the law actually says. They’ll just judge shop around until they get somebody stupid and biased enough to rule in their favor.

This will not end until the Supreme Court rules in his favor.

    heyjoojoo in reply to Olinser. | March 16, 2017 at 12:20 pm

    I agree. If the first one was already within the bounds of established law, then why would a court force Trump to rewrite it? Seems like we rolled over gave them more full for the fire. I’m disappointed that the courts have the ability to overpower our President. And that makes things hopeless.

… the power to control who enters the country is uniquely a presidential power. Not anymore, unless the Supreme Court acts to restore that power.

Which would still leave the question up to the courts. The SC rather than the 9th, but still a court.

This is not any sort of “separation of powers”; this is the Judiciary über alles. Which is, obviously, un-American and intolerable.

Trump left a wreath at Andrew Jackson’s grave a couple of days ago. Coincidence? Were I a court, I might suspect that he didn’t leave a wreath so much as deliver a message. There was no doubt about the locus of Executive power in 1835. Not even a legal demiurge like John Marshall was able to thwart Andrew Jackson in the execution of what he perceived to be his Presidential duty.

    Milhouse in reply to tom swift. | March 16, 2017 at 1:58 am

    Well, except for the minor detail that what Jackson was defying the court about was his insistence on committing what was a horrible crime even by the standards of his own day, and would get him put before a Nuremberg Tribunal now. This alone gets him on the list of worst presidents ever, despite all the good things he did otherwise.

      snopercod in reply to Milhouse. | March 16, 2017 at 8:05 am

      By all means, we should give the entire Country back to the Native Americans.

        Milhouse in reply to snopercod. | March 16, 2017 at 3:33 pm

        What we should do now is one question. Surely you agree that it was wrong to steal it from them, even by the standards of the day. Please explain the difference, if you think there is one, between the Trail of Tears and the hundreds of expulsions of the Jews over the course of the last millennium or so.

We have entered the realm of absurdity and farce. The powers granted by the U.S. Constitution (along with the strictures that it imposes) don’t matter, precedents don’t matter, long-established and (hitherto) uncontroversial and rudimentary exercises of Executive authority don’t matter; all that matters are the self-congratulatory views of self-aggrandizing, Left-leaning and capricious judges who are determined to conjure up new laws and “rights” in order to undermine a president with whom they disagree, politically.

This is simply contemptible conduct from jurisprudential, intellectual and equitable standpoints. It needs to be loudly and vociferously condemned.

Wish there were a law, whereby any lower-court judge found to have made an unconstitutional ruling by the Supreme Court, was required to tender their resignation. Absent that, I hope when the administration prevails at the Supreme Court, President Trump calls upon the justices who were overruled, to resign or be impeached.

    Milhouse in reply to MrE. | March 16, 2017 at 2:05 am

    That would be terrible. Judges are reversed by appeals courts all the time; should they all resign? What about legislators who pass unconstitutional laws, and presidents who sign them?

    The problem here is not that the judge is wrong on the law, it’s that he’s ultra vires, exceeding his powers, and the powers of the entire judicial branch. appealing it to the Supreme Court would effectively be acknowledging that it’s within the judiciary’s power to decide this, and it isn’t. The president should inform the Supreme Court, as a courtesy, that one of their subordinates has exceeded their branch’s powers, and that they should discuss the matter and do as they see fit, but that since he regards the order as void and a contempt of the president he will be ignoring it.

As I (a non-lawyer) read the decision, it seems that the judge in question is making a statement which could be paraphrased as “Trump is bigoted against Muslims, therefore *anything* he does by Executive Order that affects Muslims may be halted by a court forever, even if the order says nothing that could possibly be interpreted as a negative Muslim-only bias.”


    (darned preview button) By anything, I mean ‘in addition to immigration orders’ so if for example he were to order all hats to be removed when coming into the White House security checkpoint, that could then be suspended by a court, or if he were to restrict the hours of the White House mess and that interfered with Ramadan, etc…

As the President is clearly acting well within the scope of the law, as written by Congress, the court would have to rule that the law itself was unconstitutional. No court has done that. So, the President has to be assumed to have the authority for these actions, whether the court agrees with them or not. And, as the EO is temporary and self limiting, the argument that any state or person will suffer significant harm, or any harm, has not been proven to be likely. The courts, as noted by Milhouse, is acting beyond its powers and has no authority to dictate how the President may exercise powers granted to him by Congress and the constitution.

As the courts have chosen to ignore the Constitution, the law and legal precedent, the President is well within his Constitutional rights to ignore the order of the court, in regard to the implementation of the EO. If the court chooses to appeal to the SCOTUS, it is free to do so. However, if the SCOTUS does not render a majority decision, then nothing changes and the President can continue to ignore the lower court. And, as there is a demonstrable threat from improperly vetted immigrants from the areas named in the EU, this course of action could well be justified.

This, of course, would be a serious constitutional crisis and should only be used as a last resort. But, the President should seriously consider taking this position. To do otherwise would be to invite the subjugation of the Executive branch to the whim of the Judicial. What the President will decide to do should be interesting to watch.

    Milhouse in reply to Mac45. | March 16, 2017 at 2:13 am

    If the court chooses to appeal to the SCOTUS, it is free to do so. However, if the SCOTUS does not render a majority decision, then nothing changes and the President can continue to ignore the lower court. [..] This, of course, would be a serious constitutional crisis and should only be used as a last resort.

    I don’t think ignoring the lower court’s order would constitute a constitutional crisis. I think he should do it. If the Supreme Court ends up rendering a majority decision upholding the lower court the President can still ignore it, but that would be a serious constitutional crisis that should be avoided if possible. But the burden of avoidance is at least as much on the Supreme Court as on the President, so they should take it into account before ruling in a way that the President has already shown he might defy.

      Mac45 in reply to Milhouse. | March 16, 2017 at 12:20 pm

      If the President ignored the order of the court, without extreme factors requiring him to do so, rather than following the normal appellate route, would be dangerous, in the long term.

      We, the people, rely upon the courts to protect our rights, interests and liberties. And, we expect that their decisions be followed and the appeals process utilized. So, for any part of the government to simply refuse to follow a judicial order would set a dangerous precedent. Andrew Jackson’s quote regarding the SCOTUS decision in Worchester v Georgia carried no weight, as the SCOTUS had not issued an order upon the government or upon the President. He was therefor able to ignore the decision of the court without actually violating it. The current, and former TROs, however, clearly order the government to cease implementation of the provisions of the EO. Ignoring that could create a mild constitutional crisis, especially as there does not appear to be any overwhelming threat posed by delaying the implementation of the EO. Choosing the correct reaction to this is a delicate balancing act for the President.

        Milhouse in reply to Mac45. | March 16, 2017 at 3:37 pm

        My point is precisely that allowing the judiciary to grab more and more territory from the other branches is more dangerous in the long term, because they will never give it up, and we risk ending up like Israel, where the judiciary has pulled an outright coup and now runs the country.

        legalbeagle in reply to Mac45. | March 16, 2017 at 4:20 pm

        Barack Obama routinely defied court orders (Yucca Mountain comes to mind). The press made nothing of it.

        Suppose a District Court Judge ordered the President of the United States to turn over nuclear devices to ISIS? Should the President appeal to a higher courtor issue an Executive Action stating that the District Court order is Nugatory?

        iconotastic in reply to Mac45. | March 16, 2017 at 6:57 pm

        I do not think our Republic is based upon judicial supremacy.

        The judiciary has limited jurisdiction, for example, when the president wages war. Would the president honor an injunction forbidding killing non-citizens on foreign soil? No. Does the judiciary have any say over the internal workings of Congress? No. The same is true of immigration. Congress has sole power over immigration and granted that power in law to the President. No jurisdiction.

        At least that is my interpretation of both my understanding of the constitution and Milhouse’s educated comment.

        iowan2 in reply to Mac45. | March 16, 2017 at 10:46 pm

        Doesn’t the responsibility of the supposed ‘mild constitutional crises rest with the judiciary? Why would the President be blamed? He is just executing his assigned powers.

    artichoke in reply to Mac45. | March 16, 2017 at 8:06 am

    The courts did effectively rule the law unconstitutional, by citing constitutional grounds that (they said) led to a conclusion contradicting the law.

    It’s important to get this done right rather than fast, so that SCOTUS ends up with a ringing endorsement of the law, upholding it and stating that Executive authority may go beyond it.

      Mac45 in reply to artichoke. | March 16, 2017 at 11:56 am

      It is my reading that they did NOT declare the authorizing statute to be unconstitutional. They danced all around that issue and stated that the implementation of the law, in this particular instance, was not constitutional because it was based upon the religious make-up of the population directly affected. This is, of course, nonsense, as it was based upon the ability to vet applicants for admission from the named countries due to a general breakdown of the governmental structure there, coupled with the high level of radical Islamic violence ongoing there. And, the rulings completely ignore the fact that this EO is almost identical to a similar EO issued by Barack Obama, except that this one is effective for a shorter time period. That there was no challenge to the authority of Obama to issue a valid EO, on the same grounds and affecting the same groups, should have been addressed. That it wasn’t is a clear indication of political bias by the petitioners and the court.

      So, the authorizing legislation still remains constitutional.

      ThomasD in reply to artichoke. | March 16, 2017 at 5:16 pm

      Not seeing where they invalidated the law, in part or in toto.

One wuld think the Supreme Court would be unanimous in restoring Presidential preogatives, not just for today, but tomorrow.

    In better times, one could expect it.

    But today, leftist judges seem to have made it a mission to embarrass the president, ahead of anything else. A very dangerous situation we’re in.

    We need Gorsuch on the Court, and as many more conservatives as possible, ASAP.

    A Supreme Court review of this case should come back unanimously in support of the President. There is no middle ground on this. It’s black and white, clear as crystal. There is no way to vote against Trump without creating new Law out of thin air.
    Any Supreme Court justice who votes against Trump on this issue is basically removing their mask and saying, “F- the U.S. Constitution.”

There is always the President Andrew Jackson response:

“John Marshall has made his decision; now let him enforce it!”

If the case were heard by the SCOTUS tomorrow, I suspect that the ruling would be ( for political reasons ) 4-4. it would not be a precident in the long-term but in the sort term it would create a big mess.

Wait for a while and when it’s clear that the decision will be at least 5-4 I suspect that you will see at least a 7-2 decision supporting Trump ( and possibly even 9-0 ) with Ginspurg and Breyer not wanting to take a legally unsound stance when they will lose anyway.

Monday it begins.

PS: Please do not use Andrew jackson as an example. The action did get Jackson censured, and could have gotten him impeached. AFAIU the ruling still stands though it was not enforced.

How did the Hawaiian judge issue a 43 page decision after only receiving the case a few days ago? Social media is abuzz saying Obama met with this judge in Hawaii. Is this true?

Frankly, I think that President Trump should simply say that the injunction is unconstitutional, and ignore it. The court lacks jurisdiction.

cheif bighorn | March 16, 2017 at 1:09 am

So courts can overrule any order he gives simply because they don’t like him rather than for constitutional reasons. Our govt is a circus.

Maybe, Trump should take this case to the SCOTUS and not need to wait on Gorsuch appointments.
If this ‘judge’s reasoning was based on campaign statements by candidate DJT, then go to SCOTUS where it is only logical to require Ginsberg to recuse herself bc of her campaign statements she made about Trump. We win 4-3.

    Milhouse in reply to Ghostrider. | March 16, 2017 at 2:16 am

    There’s no such thing as “require Ginsberg to recuse herself”. The president can ask her to do so, but nobody can make her.

Eastwood Ravine | March 16, 2017 at 2:17 am

Trump should tell immigration officials to ignore this ruling, do their jobs, and if they refuse, then they are fired.

The judge went to Harvard with obama
Obama was in Hawaii yesterday

    UnCivilServant in reply to gonzotx. | March 16, 2017 at 6:22 am

    I’m afraid without some evidence that there was communication between the two recently, you have not met the burden of proof to show a link. The Ex-president being in the state his maternal family lived in is not enough to show he colluded with a judge in the same state.

    It is entirely possible that the Judge’s actions were his own anti-Trump bias at play.

Congress has the constitutional power to abolish both of those courts and put those judges out of a job. And if judges are outside their jurisdiction that’s exactly what Congress should do

    Bucky Barkingham in reply to sdharms. | March 16, 2017 at 7:47 am

    That would be the Congress controlled by Roll-Over Party leadership who want to see Trump fail because he is rocking their boat. Thanks to Senate foot dragging the TRO will be appealed to a 4-4 SCOTUS and may very well be upheld on a tie vote because Granny McConnell refuses to get Gorsuch’s nomination thru.

    Trump should use the April Senate recess to make recess appointments of Gorsuch and his remaining Cabinet nominees. Time to stop playing by the LibDem rules.

    artichoke in reply to sdharms. | March 16, 2017 at 8:33 am

    Best comment yet. Abolish the ninth circuit and at least the two district courts involved here, and start over.

There’s no doubt that Robart, the 9th Circuit and the Hawaii so-called District Judge have all stepped on proper Executive authority. The question is not whether Trump should put up with it.

The question is how to fix the problem. Our nation is in grave danger because of this. It appears that as a group, left leaning judges have decided that they will put “stopping Trump” above all else. And there’s only one spin of the wheel left. If these orders are appealed to SCOTUS, and SCOTUS were to vote to uphold them, then we would be truly screwed.

So Trump wants to give us the best chance by seating Gorsuch. If there were ever any doubt, Hawaii has just guaranteed that Gorsuch will be seated and that McConnell will not hesitate to “go nuclear” to do it. And maybe then Trump will ask around to get the lay of the land, to see if it’s guaranteed that SCOTUS will overturn the rulings. And if there is any doubt he will wait for another Justice to leave the court, appoint a solid replacement, and THEN appeal to that level.

In the mean time he’ll do what he can administratively. Don’t expect a lot of visa interviews to happen in those six countries.

    artichoke in reply to artichoke. | March 16, 2017 at 8:00 am

    Come to think of it, Trump should probably do a quick EO just abolishing the program that waived visa interviews. (A part of the EO that Hawaii just stoped.) That authority, just to stop the visa interviews everywhere, has not been challenged.

    I mean who knows, some asinine District Judge could decide even that has discriminatory intent and use that as an excuse to stop it too, but I think that’s unlikely.

      Arminius in reply to artichoke. | March 16, 2017 at 1:34 pm

      Actually there will be NO visa interviews in nearly all of those countries. We haven’t had an embassy in Somalia since the early ’90s. It’s been destroyed. Last year the Somali Federal Government handed Kerry a deed to land in Mogadishu, but considering they had to hold the ceremony in a sand-bagged building on the airport (the only site secure enough) it’ll be years before they can start construction. Right now you couldn’t pay a contractor enough to build a new embassy in that war zone. If any Somalis want visas they have to find their way to Kenya. We also shuttered our embassy in Syria. Then embassies in Tripoli, Libya and Sana’a Yemen have suspended visa services and are only providing emergency services for US citizens. And we don’t even have diplomatic relations with Iran.

      Only the embassy in Khartoum, Sudan offers visa services.

“I warned about this, and the danger of Trump not seeking Supreme Court review in the first case, President Trump must not back down on immigration Executive Order:”

I would agree with you, but for the fact of Ruth Ginsburg, Sonia Sotomayor, Elena Kagan, and Anthony Kennedy — all of whom are crazy enough to vote to allow the district court’s ruling to stand. That would result in a 4-4 tie on the SCOTUS, which would leave the district court’s clearly erroneous and blatantly unconstitutional order in place.

Trump needs to wait for Gorsuch to be confirmed and seated on the court, and the Republicans in congress need to get off their asses and get it done!

I’ll ask again. Why is a District Judge able to make a ruling that applies outside his district, indeed worldwide? He was appointed to make decisions within one district, not to be president or king or emperor.

If not for that, we wouldn’t be worrying about this.

    Milhouse in reply to artichoke. | March 16, 2017 at 10:59 am

    That’s nonsense. Where exactly do you think someone should go to get an injunction against the United States? Directly to the Supreme Court?! You were happy with the current arrangment when a judge in Texas was able to order the DACA/DAPA extension shut down, so why do you suddenly have a problem with it now? Sure, that judge was right and this one is wrong, but that’s a substantive difference, not a procedural one, and your argument is entirely procedural.

Ignore unlawful courts, get Gorsuch in place, then file appeals.

stevewhitemd | March 16, 2017 at 8:56 am

I suggest the following steps:

1 — get Gorsuch seated

2 — take the adverse rulings to the USSC; they certainly will be reversed (5-4 at least, 7-2 likely)

3 — House votes to impeach the Hawaii judge. I doubt the Senate concurs (2/3 majority required) but I’d make the Democrats vote. That serves as the warning shot to all the judges — substitute your own feelings (and/or that of your Soros-funded masters) and you can lose your judge-ship

Is it possible that Holder is moonlighting for Hawaii while on the books for California? This could be an ongoing pattern, he has many contacts still in the government that could be tipping him off and allowing him to get a head start on any paper work to stymie President Trump.

I have to believe that President Trump is also litigating this case in the court of public opinion, where Will of the People v. Democrats, Liberals, Progressive, et al, might not really be going so well for the other side.

Isn’t it a rule of thumb that when your enemy is committing suicide, either hand them the rope or get out of the way?

Trump is vulnerable here: if he defies the court’s restraining order and enforces his policy, the GOP will impeach him. This solves all of big government’s problems, with little to no downside. Yes, we can vote the Democrats back into power, but the GOP is happy to play that role.

This is a constitutional crisis; will the court continue to usurp the authority of the government as a whole and will the legislature concur with the courts?

Prof Jacobsen is wrong.

The Supreme Court isn’t the only authority that can restore the the power of the executive branch to the executive. The Military could use their guns and restore that authority and they probably should. America needs sovereignty more than it needs a Constitution with these referees.

The problem with the system of giving judges plenary powers is that judges only follow statutes and precedents based on a type of social shaming. But the anti-Trump shaming in the intellectual community that these judges also face is even stronger.

So screw laws, screw precedents, if it means screw Trump.

I hope President Trump laid the wreath at Jackson’s tomb for a reason. He is the one who said to judges “they have issued their order now let them enforce it.”

Several thangs…

1. it is by no means a given that taking the SECOND EO to the Supremes would result in a 4-4 tie. Remember that Barracula was bench-slapped by a unanimous SCOTUS several times.

2. a “Constitutional crisis” is a good thing; we need more of them in place of acquiescence.

3. T-rump could not be impeached over a simple refusal to obey a patently ultra vires ruling by any court, including the Supremes. Asserting a defensible position vis the powers of the branches is not a “high crime or misdemeanor”.

4. T-rump needs to STFU and stop undermining his competent lawyers…

4. Of course the second EO was a fecking watered down version of the first! That was the whole fecking point genius!

Trump should ignore the ruling and just enforce the ban for what ever number of days it was for and he can do that by refusing to let anyone travelling to America on any passport of an affected country or refuse anyone asylum from any of those countries at the point of entry OR at the point of departure where possible.

F*ck them! Foreign nationals DO NOT have the right to travel to what ever country they want to and that applies in this case two. The goat herder sitting in the High Atlas mountains has absolutely NO constitutional right to travel to America when he wants. End of story.


I wonder when this hits the SCOTUS, if DoJ will cite opposing news stories and instances of inaccurate stories. Also point out that those stories are all hearsay, and possibly even use the term “Fake News”.

Maybe liberals will even argue that Gorsuch should recuse himself. That would bring up arguments that Ruth Bussey should recuse herself from many of the rulings in the near future. Possibly even force her into retirement ( since she would recuse herself from so many cases ).

Trump could just emulate Lincoln (and a lesser Obama) and IGNORE the courts. The whole concept of checks and balances was founded on honoring boundaries. Deep State and Deep Judicial are trying the run (and ruin) the country. The Constitutional Crisis is Congress abrogating its duty and the Obama Executive before and Judicial abrogating their limits on power and control. “Legality” means nothing now.

Can’t the right in this country use the same tactics against the left? Find a conservative judge that beats back something dear to the left? Same with the sanctuary cities issue — have some of the more conservative states declare themselves sanctuaries against abortion. Then when the left goes crazy, tell them that if it is good for them to do it, it is good for conservatives as well.

But Islam’s universally recognized penalty of death for apostates from Islam is enough all by itself (IMO) to disqualify recognition of Islam as a protected religion under the First Amendment. We could and should reject legal recognition to any and all Islam-based organizations in America.

Posit this neutral law, applicable even to the Democratic Party: No organization shall be recognized as lawful if it has as one of its tenets that any member who once was a member leaves or is expelled shall be killed by any remaining member.

I would say we could and should reject entry of Muslims precisely because they are Muslim, who thus openly embrace the inherently evil/incompatible Islam. Let’s not avoid addressing the truth. If they want to address the “Muslim Ban” issue head on then let it be.

    The trouble with that idea is the First Amendment’s “establishment clause” — the one that says Congress (read: government in general) cannot establish an official state religion. The inverse of this — that government cannot prohibit a religion — is also a given.

    Such a law would almost certainly be overturned, and for good reason: Giving the government the authority to decide which religions are “legitimate” — and which aren’t — is a VERY dangerous bridge to cross.

      pdxnag in reply to Archer. | March 16, 2017 at 6:41 pm

      The patina of “religion” associated with what is called Islam does not mean it gets a blanket immunity from examination of its many evils. When the good folks at Al Azhar University come up with a reformed Islam we can always reexamine it, as modified. (And perhaps as spelled out in a Reliance of the Traveler 2.0, again with their full stamp of approval.)

      Your apparent support for the Islamic penalty of death for apostates, typically enforced by Imam-inspired Muslim mobs, is troubling. Can we not raise objection, even in a neutral fashion, to this one universally agreed upon feature of Islam? We have objected to polygamy, at least as a precondition to approval of statehood. Would it have been equally dangerous for a judge to say that imposing this single precondition should be disallowed under the First Amendment? The challenge is to repugnant features of a religion, here to denial of freedom to associate or not associate. Islam here is itself repugnant to the First Amendment.

Suppose that Trump says, “I think we are at war with Islam”, and then orders the Air Force to bomb Yemen. Under Watson’s rationale, could a District Court enjoin that exercise of the President’s war fighting power on the theory that it violates the Establishment Clause?

The only thing that struck me was the absence of any sort of balancing in Watson’s order between the Establishment Clause and Congress’s (delegated) plenary immigration powers. Let’s suppose that all the worst right wing caricatures of Islam were true: that it is an imperialistic, psychopathic death cult that requires its adherents to work for the destruction of the secular/Christian west, but that its adherents are also instructed to lie about their intentions, and pose as moderates, so as to infiltrate the west. Are you telling me that Congress couldn’t exclude adherents of that religion from immigrating to the United States because it violate the establishment clause?

    Arminius in reply to Nate Krumm. | March 16, 2017 at 9:47 pm

    “Let’s suppose that all the worst right wing caricatures of Islam were true: that it is an imperialistic, psychopathic death cult that requires its adherents to work for the destruction of the secular/Christian west, but that its adherents are also instructed to lie about their intentions, and pose as moderates, so as to infiltrate the west.”

    How do you hallucinate this is a right wing caricature? Because you know Muslims who are nice guys? So do I. But I also believe that 94% of Catholics use contraceptives. It’s not what the Catholic Church teaches, though. But just like Catholic contraception being a nice guy to unbelievers is not what Islam teaches.

    How do you want to go with this? I’ve got thousands of examples and should you want play the “you can’t understand the Quran unless you can can read it in Arabic” and the “somewhere there’s a unicorn defecating the magical fantasy context skittles” game I’m ready.

I would make this Hawaii and Maryland judge review and approve or deny all visa applications from those six countries. Just barge in with a suitably impressive escort of U.S. Marshalls and dump them all on the floor of their chambers. If the judiciary is going to decide the executive branch can’t be trusted to do it’s job, let them take it over.

All of it.

They can choke on it.

Also I think I can detect some more room when it comes to budget cutting. Such as security at federal courts.

so you are telling me that TWO branches of government are held hostage to a third “co-equal” branch? I call BxxxSxxx. The Congress can abolish those courts — and should. THe executive should announce that their decisions are inoperable — and should. BOTH branches should act to reprimand the third and set this right or we are in BIG TROUBLE. And I think we are.