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SCOTUS Travel Order ruling was “slap down” of lower courts and progressives

SCOTUS Travel Order ruling was “slap down” of lower courts and progressives

Progressives who “were popping champagne corks … with these lower court decisions, they got slapped down by all nine Justices, including Ruth Bader Ginsburg”

Shortly after the Supreme Court released its preliminary ruling on Trump Travel Order, I appeared on the Tony Katz Show, WIBC Indianapolis.

Here are some of my comments:

“Nine Justices agreed on this. Nobody said the 4th and 9th Circuit injunctions should continue in full force and effect. Not a single Justice said that. The only question was how much of a slap down they were going to give to the 4th and 9th Circuits, and I think they gave a substantial one….”

* * *

“All the progressives out there, who were popping champagne corks and all that sort of stuff with these lower court decisions, they got slapped down by all nine Justices, including Ruth Bader Ginsburg, the leading liberal on the court, at least to a substantial part of the lower court orders. So that’s what the media’s not really reporting here.

Whenever something good happens for Republicans or Trump, I like to watch CNN and MSNBC to see how they react. And they were both playing this as, ‘oh well, the court only partially reinstated, blah, blah, blah’.  So they were trying to downplay it. In fact, nine Justices agreed that what the lower courts did was improper, the only disagreement was how improper it was.”

After this lengthy discussion, Tony asked me to explain whether I thought this was a precursor of a decision on the merits. My response, in part:

While this isn’t a ruling on the merits, it’s a ruling on what they call a ‘stay application’ to put a hold on the lower court injunction, the standard for doing that is pretty high. You have to show that there is a substantial likelihood that the person seeking the stay – meaning Donald Trump – is going to prevail.

… I think it’s highly unlikely that you’re going to get a decision in October that says, ‘You know what? the 4th circuit and the 9th circuit were right after all.’ I just don’t think that’s likely.

At the end, he asked me whether I though Justice Kennedy would retire before the next term. Here’s part of my response:

I don’t know, I mean he’s been there 30 years, he’s 81 years old. On the other hand, sometimes these justices don’t want to give it up. I mean this is what their life is. They obviously enjoy it. I mean it’s stressful, but no indication [Kennedy] is incapable of going forward.


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Thanks for the analysis, Professor. What bothers me about this decision is that SCOTUS seems to have “clarified” (e.g. rewritten) part of the law by granting exceptions that weren’t there.

…immigrants and refugees and others entering the country cannot be kept out if they can show a link to somebody who is a citizen living in America, or if they have been accepted by a school, or had a job offer.

Do they intend to re-write the law to make it kinder, gentler?

    NavyMustang in reply to snopercod. | June 27, 2017 at 7:34 am

    “…immigrants and refugees and others entering the country cannot be kept out if they can show a link to somebody who is a citizen living in America, or if they have been accepted by a school, or had a job offer.”

    Hmmm. In that case, look for many acceptance letters from progressive colleges and job offers from progressive companies.

      mailman in reply to NavyMustang. | June 27, 2017 at 9:19 am

      Surely they would first have to go through the immigration process to start with? One would think that unless they can convince someone from where ever the ministry is that makes these decisions then they aint coming in.

      One of the clauses in the decision dealt specifically with that, allowing heightened scrutiny and denying entry for “relationships meant to evade the EO.”

        TeacherinTejas in reply to SDN. | June 28, 2017 at 9:45 am

        Exactly i.e. “We know all you left wing and pro illegal immigrant groups are going to start international ambulance chasing as soon as you finish reading this so don’t bother.

    Milhouse in reply to snopercod. | June 27, 2017 at 3:24 pm

    What law? An executive order is not a law. And no, they didn’t rewrite it, they left in place the injunction against it in these cases. Which indicates that they don’t think the administration is likely to prove at trial that the president has the right to exclude such people.

    @NavyMustang, the Court specifically ruled that out. The job or college offer must be bona fide, and not for the purpose of gaming this ruling. If the administration suspects that an acceptance letter is not bona fide it will refuse the application, and the applicant will have to sue and prove in court that it was.

    @mailman, you’ve got it backwards. You can’t apply for immigration until you’ve already been offered the job or the place in college; then you apply, and if you’re denied then you have to notify the employer or college that you can’t come. The injunction says the administration is not allowed to treat such applications from these six countries differently than similar ones from other countries.

When the drive-by media sees that picture of President Trump with the Supremes, you’re gonna start hearing cries of ‘possible collusion between Trump and the Supreme Court on this decision!’.

RSConsulting | June 27, 2017 at 8:19 am

Interesting to see, with CNN’s current moratorium on reporting (fake) Russia news, that they’ve actually reporting news (even if they’re minimizing positive news for this administration).

The case is not about what DJT said on the campaign trail (even if the elephant in the room is still whether it’s a “muslim ban”), it’s about how the order was written, whether it measures up to the constitution, and whether it is in the constitutional authority of the executive to make and enforce such an order.

And the Supremes ruled that it is.

The 9th needs to be on notice (and really needs to be split, as it’s region is too large and diverse and suffer under the onerous burden of it’s liberalism). The 4th is going to be, what it’s going to be – as it is representative of the constituency of the region it oversees. Though it would be nice if it’s rulings were based on LAW AND NOT SENTIMENT.

Question for the lawyers out there.

What happens if the Congress “reorganizes” the appeals court system so that there is no 9th Circuit anymore?

What happens to those judges?

    Ragspierre in reply to clintack. | June 27, 2017 at 9:14 am

    With the caveat that this is not something I was ever taught in law school, I’ll venture that…

    once a Federal Appellate judge, you are that until you retire or are removed from office via impeachment.

    Ergo, I’d expect that all the judges on the 9th would simply be assigned to the new districts we HOPE will be created.

      4th armored div in reply to Ragspierre. | June 27, 2017 at 9:59 am

      i would rather that these LibTards stay in 1 place (Puerto Rico)
      or some other 3rd world location where we can safely ignore them.

        Tom Servo in reply to 4th armored div. | June 27, 2017 at 10:31 am

        Even if there is a reorganization, there will still be a 9th circuit, and the members of the 9th circuit will be substantially the same, barring some being moved to a newly created circuit.

        What would be different is that the new 9th circuit would cover far less territory and be much less significant than the current 9th circuit.

          notamemberofanyorganizedpolicital in reply to Tom Servo. | June 27, 2017 at 2:19 pm

          I propose a new 9th district that will only encompass those judges on it. Please leave decent people out of their “Commie-Leftist” jurisdiction. SNARK!

      Sam in Texas in reply to Ragspierre. | June 27, 2017 at 5:13 pm

      That’s a possibility. But taken to its logical conclusion: Congress may completely abolish the entire federal court system, other than the Supreme Court, and your conclusion would mean all the federal judges would have to be kept on the payroll until they died.

      I would expect that if the position is eliminated, the judge filling it goes into immediate retirement.

        Ragspierre in reply to Sam in Texas. | June 27, 2017 at 7:58 pm

        “…all the federal judges would have to be kept on the payroll until they died.”

        Or retired or where impeached, yes.

        There is no probability that Congress would abolish the Federal District or Appellate courts. They serve too valuable a function in our society. Indeed, abolishing the courts would be highly UN Constitutional, though they are critters who exist at the good pleasure of Congress.

        Diversity of citizenship was a BIG reason for the failure of the Articles of Confederation, and bankruptcy and admiralty courts are simply necessary.

    mailman in reply to clintack. | June 27, 2017 at 9:18 am

    You’d like to think they would have to reinterview for the new jobs wouldn’t you? A lot of them not fit for purpose left political appointees would be out of a job if thats how things are done (like in the real world).

Immigrants who have job or relative attachment may be considered to come here. What if that ” Group,” has declared, that they intend to ” Not asimulate,” and intend to ” Kill Us ? ” That should have a bearing on their ” Entry into,” this Country. The Progressive ( Commies) may want them here, But that infers no obligation on our part.

    Ragspierre in reply to bobgood1. | June 27, 2017 at 10:07 am

    Let’s keep things straight and in their proper realm.

    1. the exceptions to the temporary hiatus (it isn’t a “ban”) from certain regions only apply to the EO

    2. “vetting” is still exercised WRT these applicants–they are not given a ‘king’s x’

    3. there is no impediment to vetting them even if they successfully obtain permission to come here

    4. the exceptions only give them a POSSIBLE route to obtain permission to come here during the temporary hiatus

    5. the EO expires at the end of its stated term (unless modified)

      Granny in reply to Ragspierre. | June 27, 2017 at 10:16 am

      You should also note that it takes far longer than 90 days to acquire the appropriate paperwork to enter the US as a foreign citizen. It took two full years for an acquaintance of mine to bring her husband to the US.

      Bottom line: if these folks already have a job offer or school placement or family connection visa in hand, then they cannot be stopped from coming but nobody is going to manage to get a brand spanking new one in the next 90 days.

buckeyeminuteman | June 27, 2017 at 10:43 am

The 9th and 4th Circuses were so far off on this case. Is there anybody that can tell the judges on those courts they obviously have no understanding of the Constitution or separation of powers…you’re so far off you don’t get to be a judge anymore? Surely there’s a way to stop the madness they are committing.

OleDirtyBarrister | June 28, 2017 at 1:53 pm

Trump can and should take the security of this country even further by withdrawing the US from any and all treaties that require the US to accept refugees and deny them entry. The govt can use enhanced scrutiny to make it so difficult and time consuming that those people with bona fide connections and ostensibly eligible to enter under the Roberts carve-out do not want to endure it, and there is then a stronger de facto ban in place. Then Trump can show the leftists and the media his three middle fingers on is right hand and tell them to read between the lines.

No one should forget that the wife and co-perpetrator of the San Bernardino Christmas Party massacre came into the US shortly before the massacre due to a “bona fide” connection to a citizen and fellow prospective perp. Apparently, all the liberals and most of the federal judiciary have forgotten it. The only reason that she was able to participate in the Christmas massacre was that the US was stupid enough to allow her to enter the country.