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Unlikely lower courts learned a lesson from SCOTUS slap down on Trump Travel Order

Unlikely lower courts learned a lesson from SCOTUS slap down on Trump Travel Order

“what the lower courts did was really pretty outrageous”

On Tuesday, June 27, 2017, I was a guest on the Bill Tucker Show on Newsmax TV.

The topic was the Supreme Court ruling on Trump Travel Order No. 2, including my posts SCOTUS reinstates substantially all of Trump Travel Order and SCOTUS Travel Order ruling was “slap down” of lower courts and progressives.

The interview started with Bill Tucker commenting on the name Legal Insurrection: “which always has a sort of mild radical feel to it.” Why, thank you.

The first topic was my reaction to the Supreme Court ruling.

“Q. Were you happy with the way the court handled this?

A. I was happy, yes, I think it’s the right decision.

I had argued that Trump shouldn’t have even abandoned the First Travel Order, and watered it down so to speak, because whether you like the policy or you don’t, it’s within the power of presidency to do that. So I felt that is was extremely important that he ultimately take this to the Supreme Court because I was convinced that they would uphold the power of the presidency to control national security, control who comes into our country. And that’s so far pretty much what they did.

To the extent I’m disappointed, I agree with the three dissenters, that they should have upheld the Travel Order in its entirety….”

We then turned to the topic of the lower courts:

“Q. I think we’re bordering on legal chaos [because of the action of the lower courts]. Am I wrong?

A. I describe what the Supreme Court did the other day as really a slap down to the lower courts. They issued this ruling on a preliminary basis, which basically said lower courts, what you did was wrong. And not only that, nine Justices, every single Justice of the Supreme Court said that. Now they said it in varying degrees….

Not a single Justice, not even Ruth Bader Ginsburg, the leading liberal light on the Court, was supportive of what the lower courts did. And that’s why I think this was a tremendous slap down. I hope the [lower] courts will learn their lesson from this, I’m not confident that they will ….

I don’t know if it’s legal chaos, but what the lower courts did was really pretty outrageous …. [The Supreme Court said] no, you cannot strip the presidency of its constitutional and statutory power to control who enters the country.”

We will find out soon enough, maybe at the end of next week, if the lower court’s learned a lesson, Hawaii seeks injunction against Trump admin interpretation of SCOTUS Travel Order ruling.


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I’m pretty sure they didn’t. The lower court judges knew they were up against overwhelming precedent and they didn’t care. The ideologues placed on the courts during the prior 8 years are there to hold the line against any change this President and/or Congress attempts to enact. It took 6 months to undo what the lower courts did. It will take another 4 to undo it again since the USSC doesn’t meet again until October. We are now faced with a federal bench, populated not by judges, but political operatives.

    C. Lashown in reply to rso3. | July 1, 2017 at 8:50 am

    Key words, “…and they didn’t care.” That seems to sum up a lot of the liberal left in these days of turmoil. Their ‘caring’ seems to extend only as far their ideology can envision some liberal utopia. Building strong family structures and a strong nation via the rule of law doesn’t seem to be on their horizons.

It’s well past time that Congress starts impeaching some of these judges. Oh wait, they’re all on vacation again…

Certain state and federal judges will simply ignore the Supreme Court ruling and issue new orders to “clarify” what the Supreme Court meant. Knowing they can get away with it.

Until impeached, these judges will continue to violate their oath and to simply break the law solely for ideological and political reasons. This is, to put it simply, criminal activity.

Being told that you as a judge were professionally wrong, and especially being told that unanimously by the country’s highest court, has got to sting. It’s as public as it gets for a judge, or in this case, for a group of judges (does “An Exaltation of Larks” have a name for this grouping?).

Unless being a member of The Resistance exceeds being a respected member of the judiciary, I think most judges, while neither seeing nor even acknowledging the error of their lefty ways, will honor the higher authority of the USSC.

The HI motion will probably set the tone for the other lower courts. If that court nitpicks the USSC order, then we’ll know. Membership in The Resistance is more important that the Article VI oath.

It’s not much of a slapdown when there’s no penalty for it. Nothing whatever prevents the same courts from doing the same thing again, and again, and again.

One option may be for Trump to up the ante. If they pull such a trick, write another E.O., a far more drastic version; then pursue that one up the chain of courts. Whatever they do to block him has to make their situation worse. Then they have something to lose, and crime no longer pays. And rub it in—”Oh-oh, anyone from Country X is banned permanently!” “Ha ha, thank the 9th Circuit for that, sucker!”

    TX-rifraph in reply to tom swift. | July 1, 2017 at 11:57 am

    Agree. These lower court democrat hacks act like bullies. Never submit to a bully. Punch back harder.

    Can Trump simply state that they will abide by the SC and not these leftist hacks at the DC level? Apply Alinsky back.

    rdmdawg in reply to tom swift. | July 1, 2017 at 12:50 pm

    I like your strategy, a much further-reaching EO, make the lower courts regret their meddling and posturing.

    A second strategy I’m in favor of is for the Executive branch to simply ignore the judiciary and especially obviously ludicrous decisions such as these recent ones, and fully reclaim their circumscribed powers. It used to be a time-honored tradition in the US that all 3 branches were to check each other as to what is constitutional and what is not. It is a new thing that in these modern times, decisions about what is constitutional or not was vested with the Supreme Court.

Slapdown??? What slapdown?

So the SCOTUS said that the lower courts were wrong in their decision. Big deal. There is no penalty for a federal judge being wrong. A real slapdown would be for these judges to be relieved for gross incompetence of judicial misconduct. But, that’s NOT going to happen. So, activist judges will continue to be activist judges and dispense bogus ruling which may, or may not, be overturned by a higher court.

Judges are supposed to rule on the letter of the law. If a judge believes that the intent of a legislature was different from the result of the letter of the law, then the legislature has to correct that. The judge has no authority to rewrite the law to suit his or her belief on the matter. In this case, lower courts and appellate courts simply ignored the laws which they did not like and arrived a “legal” decision based solely upon their own personal ideology. This is gross incompetence and should be the basis for relieving these jurists from the bench and impeaching them.

Best case for Trump’s first term; he appoints 3 Gorsuch-like 18-year olds to replace the retiring Ginsburg, Thomas and Kennedy. Then we would have five solid Textualists, Alito, Gorsuch, and then these 3-new justices. I could live with this outcome.

    rso3 in reply to rdmdawg. | July 1, 2017 at 12:57 pm

    The good news is Thomas is not likely to retire anytime soon. Here’s hoping Kennedy and Ginsburg do. Given Ginsberg’s love of her own faint voice, she will stay on for life.

Subotai Bahadur | July 1, 2017 at 6:04 pm

Everybody is tiptoeing around the facts.

1) we no longer have the rule of law. Law is routinely ignored by all three branches. Expecting the courts to produce results in consonance with the law is pointless.
2) as far as the Democrats are concerned, elections mean nothing, and “consent of the governed” is moot. And it only takes one side ignoring elections to make them moot.
3) in the absence of the rule of law, then what counts is force. Already the Democrats have been using street violence and attempted mass assassination of political enemies as an acceptable tactic.
4) the only way to restore a balance of power is to restore a balance of fear of consequences for their action. Restoring that balance will be extremely untidy.