In Neil Gorsuch, Trump has nominated to the Supreme Court a man with deep respect for the Constitution and the freedoms it protects.
– David French.
I am not a great Trump fan but I find it hard to argue with this.
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 71 comments to Samizdata quote of the day |
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Seeing the Senate Democrats splutter about the confirmation of a man who was, I understand, confirmed unanimously in his current judicial post by the same body, and who comes across to me as the ultimate normal, sober American, and who is younger than I am, will indeed be a joy.
Yeah, it’s a good pick. The Democrats are playing games because their base still hasn’t regained its sanity.
Ilia Somin expresses some cautious reservations, but then nobody’s perfect either.
Quite correct Mr Ed.
And yes Alisa – we must be careful.
But it does seem to be a good choice.
It does seem to be a very good choice, from everything I’ve read about him. And the Democrats’ only real argument against him seems to be that it’s payback for what the Republicans did to Merrick Garland (Obama’s nominee), which isn’t truly comparable (for reasons I won’t go into here). But I rather hope that they do try to filibuster this. It would give the Republicans the opportunity to kill the last vestiges of the filibuster rule. They’re calling that the “nuclear option”, but they really should call it the “Harry Reid option” since he played that card first. Sauce for the gander and all that.
But I wouldn’t make too much of Gorsuch’s unanimous confirmation vote when he was first appointed to the bench. It was to a lower court, which gets less scrutiny, and it was on a voice vote so you can never be too sure about it.
My take from a source in our local Democrat war room is that they want to force the ending of the filibuster with Gorsuch’s nomination. They expect that he will be approved, but they want it to be accomplished through brute force, not through bipartisanship or guile.
The feeling is that if McConnell takes the nuclear option, the mailed fist will be exposed and the people will understand the evil of the Right, and then, the Revolution . . .
It’s just like the anarchists’ strategy. They don’t care about stopping speech or destroying property as an ultimate goal. They do these things so that The Man will use force to stop them, thus alienating The People even more and bringing authority down.
A completely irrational fight against Gorsuch – like the one we’re seeing – that necessitates an end to the filibuster plays into their plan.
Of course, ultimately it’s the same plan that told them that Hillary was a lock.
This idiot Trump keeps making great decisions. He’s so stupid.
bobby b, you could be correct. But it must be remembered that it was the Democrats (under Harry Reid) who first invoked the “nuclear option” by eliminating the filibuster for all judicial appointments except the Supreme Court. The Republicans had refused to do so when they had the chance, but Reid didn’t care about that. Of course, should it occur the media can be counted on to ignore the fact that this is, in fact, a strategy pioneered by the Democrats, and paint the Republicans as evil; it’s what they do. The rest of would have to be sure to get the true story out as widely as possible.
Laird, no doubt. I said it’s their plan. I didn’t say it was a smart plan. 😀
I’ve seen quite a lot of liberal chatter about what a good thing the death of the filibuster would be. By which they mean that it’s an obstacle to the march of progress.
But to me this looks a bit like taking careful aim and blowing your own foot off. For various reasons – huge Dem majorities in California and NY, healthy GOP majorities in many small and medium sized States, and increasingly straight party line voting – the average Senate composition ought to be about 55-45 to the Republicans*. In strong Dem years, or if they have much better candidates, the Dems could win a majority and then the absence of a filibuster would help them (because they’re likely to have a Dem President too if they’ve done well for a couple of cycles in the Senate.) But if 55-45 to the GOP is the average, then all other things being equal you’d expect the GOP to have the majority 70%-80% of the time. Is the death of the filibuster really in the Democrats’ interests, given that sort of playing field ?
* so for example, as a guide to party strength by State, this year Trump lost the popular vote by 2% but won 30 of 50 States. Over the last 5 Presidential elections the Republican has lost on average by 2%, but won 27.6 States on average.
“I am not a great Trump fan but …..”
I get very annoyed by articles qualifying themselves with this clause. It is virtue signalling that the writer/speaker wishes to place himself within the Overton Bubble of correct thinking people.
Whatever reservations one may have entertained preelection, he is now POTUS and it is upon his actions as POTUS he should be judged. I am impressed by the caliber of his choices and the speed with which he has begun to meet his campaign promises. Six months ago I did not expect this of him but I won’tmake a virtue of that.
I get very annoyed by articles qualifying themselves with this clause.
I’m inclined to think of it as bet-hedging. With a chief policy advisor who’s a Neo-Nazi who regards Satan as a role model (his own words on the latter), a national security advisor who was last seen anchoring on Russia Today (and Trump turning the recorders off when calling Putin), a vice-president who supports torturing the gay out of kids (which is what conversion therapy amounts to), and president who bragged about getting away with serial sexual assault (alongside the misogyny, this also amounts to gloating that the rules are different for him than for the little people), it must be hard deep down to shake the idea that the liberal Cassandras will turn out to be right about him.
Trump already committed a bad mistake. It was denying entry to the US to about 60,000 people (from 7 Muslim countries) who held legal and valid entry visas, issued by the US. Trump’s claim that this ban was necessary for security reasons is obviously bulls**t, innocent people were unnecessarily harassed. It was just theater or show, the kind of show Trump likes, but this time – hurting real people. You don’t stage shows on the back of people. A Judge overturned this dumb ban, and Trump doubled down on his error, criticizing the Judge. He will lose again on appeal, because he is plain wrong.
It was terrible staff work, heads should roll for this misstep, but the one responsible seems to be Trump himself.
And, I’m not qualifying myself with the claim that I was not a Trump supporter. I was. I still am, but very hesitant.
Thanks for using the “obviously!” argument. It makes it easy to dismiss your assertions.
These visas were issued by the earlier admin, with very little screening done. That was the whole point of this exercise – to put in place a 90 day delay until we could devise a workable and effective screening process. It was far more of a delay of entry than a denial, unless you’re one of the applicants who can’t pass the newly-enacted screening, in which case it should be a denial.
(An important point: a visa is not a ticket of admission. A visa only gives one the right to board a plane or ship and present oneself at the border and then request admission. That’s all.)
A visa is a contract with the US government, whereby it grants you permission to enter the US. The US needs to have a specific reason to revoke a visa, not a general worry.
Trump could have announced that the issuing of new visas is suspended until effective screening procedures are devised. But, for revoking valid visas and detaining people who arrived with valid visas you need specific causes. That is my humble opinion based on logic. I’m not a lawyer, but seems the Judge thought so too.
Trump did not present specific reasons, you can’t have specific reasons for 60,000 people.
Jacob
Is there, in US Federal law, which was founded on the Common Law, a basis for there being a contract? My understanding (broadly) of a contract is that it is a legally-enforceable agreement arising from interactions between persons, with (in England) consideration being exchanged and there being an intention to create enforceable legal relations.
I am unaware of anyone claiming in the UK in contract that they have a right to enter the UK when granted a visa, and indeed the remedy I understand to be sought is by way of a form of judicial review, not suing for specific performance in a contract.
And pray tell me why the US Embassy in the UK states this on its website:
That certainly chimes with my understanding of the situation, not only in the US but generally around the World.
“A visa is issued by a U.S. Embassy or Consulate. A visa entitles the holder to travel to the United States and apply for admission; it does not guarantee entry. An immigration official at the port of entry determines the visa holder’s eligibility for admission into the United States.”
Again, I’m not a lawyer, and don’t speak legalese. This clause (above) seems to me to be ass-coverage bureaucratese.
A visa by itself doesn’t grant you entry, but I think that if you come to the immigration at an US airport, the official there checks that you are who you claim to be, and if he doesn’t find some specific violation (such as carrying arms, or undeclared amounts of cash, or drugs, or having made a false declaration on your visa application) he is bound to let you in.
You can argue legal niceties all you want, sure the lawyers and Judges will have a field day.
I’m talking logic. This was a Trump road show. It has absolutely no basis in reality. There is no specific threat or info that caused this act, just a political show. The Judge in Seattle said: ” “there’s no support” for the administration’s argument that “we have to protect the U.S. from individuals” …. no such support has been produced…
Leaving the legal points aside – do you really believe that a sudden and urgent and concrete need for this ban arose just at this time? Give me a break.
If Trump wanted to tighten the procedure for issuing new visas – that would be fine.
Here is a personal story: I came to the US many years ago, with a valid visa, and filled out the entry form, but I was going to stay with a friend and didn’t know the address I was going to stay at, and left this field empty in the form. The immigration official rejected me and called the air carrier people to take me back to the plane. I called my friend by phone, he gave me the address, I completed the form, and was accepted. (My friend told me: idiot, why didn’t you put your US address The Plaza, NY ??)
The immigration officer (probably) had authority to reject me, despite my visa, but he needed a cause.
So you know from personal experience that a visa is no guarantee of entry and yet you argue the opposite.
But what if it is true?
I cannot speak for the mysterious and ineffable Samizdata Illuminatus (well, actually I can, as I am the Grand Fromage of this particular T.A.Z) but in this neck of the woods I think the Overton Bubble of correct thinking we have in mind owes lots to Adam Smith/Ludwig Von Mises/Frédéric Bastiat etc… and thus yes, that means folk here will often think Donald Tariff Barriers Trump is actually a bit shit, even if a less of a steaming pile than Shelob Clinton. And as a consequence, when he does something we approve of (such as nominating this particular bloke) you may well often see such qualifying statements of which you disapprove, because we have not drunk the Trump Koolaid even if we might sometimes think he is on the money.
Unlike the Left and Right, I doubt you will find many Samizdatistas opposed to or supportive of something Trump does because we have tribal allegiances or antipathies to him. If he advances individual liberties, we will cheer, and we will boo when he trammels them.
I said (and the Judge said): you need a cause (to be denied entry). A concrete, specific cause. (I failed to complete a field in my entry form).
You can’t just harass 60,000 people without a specific cause, just because Trump wishes to signal his toughness by a dramatic theater piece. People need to be treated correctly and in a dignified manner, even if they are foreigners. What Trump did smacks of lack of respect for human beings, lack of sensitivity, which is in line with his character as exposed by other incidents. The worrying thing is – there was no one on his staff to rein him in.
Jacob, February 4, 2017 at 10:17 pm: “You can’t just harass 60,000 people without a specific cause”
Yes, Jacob, you can – or rather, the executive has power over visas in all ordinary circumstances in most states. The executive can also use free speech to assert they have a cause as freely as you can use your free speech to dispute it.
I too am not a lawyer – but if you want to sustain your position you would have to find explicit posited law, voted through by congress, that constrains the executive the way you wish on visas. Unless I misunderstand either the recent past or the specifics of what you are claiming, this law would have to have been voted through after Obama’s six-month ban in 2011.
Mr Ed (February 4, 2017 at 8:19 pm) indicates why a visa is in no way a contract.
Jacob:
A US visa differs from a UK visa in a substantial way, and unfortunately the way in which they differ overturns your argument.
A US visa is confirmation that one has presented oneself at an American embassy with certain documents and that the documents have been seen, the root of the word visa.
A US visa gives one permission to travel to the US and apply for admission at the border. The decision of whether to admit lies with the immigration officer.
A visa waiver, in the context of the US, means that one does not need to be seen at an American embassy but can just travel and apply for admission at the border. The US has decided that such travel still needs to be authorized, hence the introduction of ESTA for e.g. British passport holders going for short holidays or business trips.
A UK visa is permission to enter the UK. It is formally called “leave to enter” but this is confusing to some types since the most common meaning of ‘leave’ is the exact opposite of ‘enter’. Leave to enter is granted by entry clearance officers who work in UK embassies, and is exactly what it says. Unlike US visa holders, UK entry clearance holders do not apply for permission to enter the UK at the border, they already have the right to enter, provided that the circumstances that led to the granting of entry clearance have not changed. It is the job of the immigration officer to find out if these circumstances have changed, but they do not grant entry.
When Americans visit the UK, however, they are not required to possess entry clearance and thus they do apply to the immigration officer for leave to enter.
To restate the above, a US visa is in no way a contract with the US government, it is merely evidence that one has followed a specified procedure. A UK visa is a sort of contract with the UK government, but not one where you have any rights if the UK fails to perform its side of the bargain.
Exactly.
Another word for “ass-coverage bureaucratese” is “law”.
You complain that the denial of entry shows a lack of respect to the applicants. I’d say that the unscreened admittance of people from those specified countries shows a lack of respect for me.
The border-screeners owe a duty of care to me that outweighs any duty that they might owe to applicants for admission. Obama thought that unfair. Hillary thought that unfair. You find that unfair. I find it fortunate that none of you now decide such issues.
Knowing what little I know of Trump, I suspect that applicants are going to be less happy with what happens next than if the judge had left the Order undisturbed. Do you picture him shaking his head sadly and thinking “well, he showed me, didn’t he”?
Dear M. le Grand Fromage,
For occasional relief from the burdens of Evil Hippo-ing, , perhaps you might undertake a second (or third or fourth) career as a humourist. Your example above is far from cheesy. :>)!
.
By the way, what is a “T.A.Z”? Something Zone, I imagine. Anyway, let me publically concur with your comment.
.
Also by the way, could you also use Your Grand (non-)Cheeziness to persuade Mizz Merkel to allow her people to go back to manufacturing and exporting real German Tilsit? This is my favorite cheese in the whole world, and the wretched Allemands seem to have gotten the wind up about possibly poisoning the globe with toxic Tilsit cultures or some such. I’m told it’s no longer available here. I suppose our wretched Border Security colludes in making it unavailable.
Jacob is simply wrong in his understanding of what a US visa is; he should abandon that argument. But I agree with him on the point that Trump unnecessarily overreached by summarily cancelling already-issued visas and, especially, in barring entry to legitimate green card holders. The latter have already been granted legal US residency, which must be respected. The Executive Order could have been made prospective with little or no harm to anyone, and in my opinion it should have been. But I hesitate to claim that this was a “mistake” by Trump; he’s far to canny a negotiator for me to lightly make that assumption. He might very well be playing a deeper game here.
As to the order issued by the Seattle court (technically, a “Temporary Restraining Order”, or TRO) suspending implementation of the Executive Order, which I have read, I don’t think it was properly issued and it should not stand on appeal. The legal basis for granting such “extraordinary relief” is that the plaintiff (“movant”) must demonstrate both (1) that he will suffer irreparable harm absent such relief (“irreparable harm” in this context means not adequately compensable with money damages), and (2) that he is likely to prevail on the merits once a proper hearing is held and evidence presented. The first of those tests is probably easy enough to establish here, but the second is more problematic. The court’s written Opinion spends a little time on the issue of “irreparable harm” (which is the easy part!), but as to the issue of prevailing on the merits it only says “they [the movants] have shown that they are likely to succeed on the merits of the claim“. That’s it; that is the entirety of its “findings of fact” on that issue. Obviously that is not a “finding of fact”, but is merely a conclusory opinion. To me that seems a grossly inadequate basis for suspending an Executive Order and shutting down an entire national program. It is, of course, entirely possible that the movants will ultimately succeed on the merits, but the judge should have described the facts which make him think that such a result is more likely than not; he did not do so. In my opinion the TRO should be quashed by the appellate court as having been improvidently granted (and I read that the government has already filed its appeal). But this is the 9th Circuit, so who knows what it will do. And in any event the judge has ordered that the case be argued in his court on Monday, so it is moving along quickly and we should have a definitive resolution fairly soon.
Laird, I haven’t read the Seattle court judgement. But I did read somewhere that the suit was brought by Washington State, and that the judge had decided that Washington State had standing because the State university could lose fees from students denied entry.
Why would this sort of harm not be remediable simply with money ?
Presumably the judgement found some other kind of harm to Washington State ?
What still befuddles me about this, and for which I see no explanation in the opinion, is how a court can suspend enforcement of an executive action ostensibly taken for national security reasons, and then not suspend enforcement of his TRO Order pending appeal.
If nothing else, harm to applicants could have been addressed by allowing them into the border stations pending appeal without releasing them into the country. If several thousand people seeking entry to the US had to stay a week in custody, the harm surely would be less than the harm done by the court’s rather presumptuous move. And, no, in a national security risk argument, the government does NOT need to show specific individual circumstances of threat.
It seems to me that the default status ought to be that the order stays in place in case our security truly is threatened, conditioned upon a quick argument to the next appellate level. The idea that a district court judge shuts down a presidential national security order and lets in the disputed applicants on these grounds baffles me.
So did Trump. That had already been corrected about ten hours after it came up.
“So did Trump. That had already been corrected about ten hours after it came up.”
So, in this, at least, Trump committed a silly error, and passed a half cooked measure, with no staff work, and no one to correct him.
I do not deny that if Trump had good reason (such as a tip by an informer) he had the authority to deny entry in order to protect US citizens.
I only claim that he had no good reason, and this was just a show or political theater, and you should not harass 60,000 innocent people just for the show. It is plain wrong.
As to the legal issue – leave that to the courts, you’ll hear plenty from them… I predict Trump will lose. That is a guess.
Jacob, this wasn’t a situation in which there was some new risk suddenly discovered and acted against.
Many many people – close to 63 million of them, I’d guess – thought that the scrutiny being applied to people coming to the US from several discrete areas of the world was seriously lacking, and had been lacking for some time. Many of those people considered this to be a huge unwarranted risk to our national security (which is just a fancy term for “our enemies won’t blow me up or shoot me tomorrow at the bank/concert/mall.”)
Trump ran on a platform that left no question that he would be doing this. No one could have truly been surprised, except maybe that a winning president was keeping promises, and that surprise certainly isn’t his fault.
It doesn’t matter that he points to no new reason occurring lately to justify his actions. His actions address a long-held, widely-held concern that many in the US share with Trump that we’ve been letting in the wrong people out of incompetence on our part.
He’s gone all Hakim Bey and is referring to a Temporary Autonomous Zone, kinda on-the-fly anarchy 😆 As hardcore libertarian in-jokes go, it’s a pretty good one
“a long-held, widely-held concern”…
Fine, so, no new emergency, good.
Address this in a orderly, systematic manner. Suspend issue of new visas. Install better screening procedures…
There was absolutely no good reason for this hysterical harassing of 60,000 innocent foreigners. As I said, it was political theater, and plainly wrong. Typical Trump. Instinctive, not thought out, abusive, vulgar. Trump has weak points. Plenty of them.
By the way: seems to me that most, if not all, terrorist acts in the US (after 9/11) were committed by US citizens, not foreigners. It also seems to me (I haven’t researched it) that there were more incidents of mass shooting (or murder) by deranged US Christians and atheists than acts of terrorism by Muslims.
Here is a copy of the trial court’s Order, if anyone is interested in reading it (it’s only 7 pages). Lee, there are a number of plaintiffs, not just Washington State, and for purposes of a TRO I think it dealt adequately with the “irreparable harm” issue. But, as I wrote above, not with the “likely to prevail” test.
I tend to agree with bobby b’s point that the TRO should have been suspended pending appeal; I don’t think this judge (a GW Bush appointee, by the way) was ruling on the law but rather on his emotions. But, FWIW, the appellate court has already declined to suspend it, and has simply ordered more arguments tomorrow afternoon, so apparently it disagrees with us on this. But as I said, this is the 9th Circuit, so it’s entirely unpredictable. Its initial ruling will likely turn on which individual judges make up the panel. After that it will not doubt be re-heard en banc (i.e., by the entire body of judges on the Circuit), and then no doubt by the Supreme Court on expedited review. Whatever the ultimate outcome this will move quickly.
As a sort of aside here, while we have all been talking mostly about the merits of Trump’s Executive Order (and I’ve thrown in some stuff on legal procedure as well), taken as a whole I think this episode is a fine example of how our system is supposed to work. And it is proceeding quite properly. This is an illustration of the “separation of powers” doctrine in action. Many of us have argued for years (starting with Nixon, at least, but reaching its apogee with Obama) that executive overreach has achieved alarming proportions and needs to be curtailed. Congress has been extremely reticent to push back and reclaim its rightful powers and prerogatives, and the courts have largely acquiesced to the usurpations of an Imperial Presidency (and, for that matter, to those of an Imperial Bureaucracy; SC nominee Gorsuch has forcefully argued against the Chevron Doctrine). That started to change under Obama, with the courts (even the Supreme Court) beginning to push back. I’d like to see more of this, if only so we can all gain a better understanding of the proper constitutional limits to presidential power. So I welcome this challenge, and hope the Supreme Court ultimately weighs in on it.
Good heavens, Expatnik! Well, but at least it teases my curiosity. Thanks for the link. :>)
Leave the legal question aside.
The core issue is: was this a necessary and good and effective counter-terrorism measure? Did it enhance the safety of US people? or was it pure political theater, irrelevant for security?
Was it necessary to harass and abuse 60,000 visa holders (and their dependents and associates)? Was there no other way to approach the issue, a less abusive way? I’m sure that after enhanced screening practices are established and these 60,000 visa holders are re-checked, 99.72% of them will be cleared.
There was no emergency problem. Since visas are usually issued for 10 years, there was plenty of time to re-check the visas already issued and revoke only those visas that needed revoking, not all of them.
In short: this move was both abusive and idiotic, and, probably also illegal. The President must act legally (to the best of his ability and faith) and not prod the limits of legality and rely on the judiciary to correct him.
There were a million reasons against this move, and only one that I can discern for it: Trump’s love of drama and show.
While Laird would like to see more push back by the courts, I would also like to see less abuse of power by presidents.
It was not a good move by Trump.
No, Jacob, the question is do we have to let anyone not a citizen or permanent resident into the US. The answer is no we don’t. It is as simple as that.
And as for harm, look up the terrorist attack in San Burnardino… although not a refugee, the wife would have been denied entry if anyone had been allowed, as part of vetting, to look at her social media. It clearly showed she had jihadist sympathies. But immigration officials were not allowed to do that so 14 people died and 22 more were injured.
Please know that many here do not feel it is our job to take in anyone who wants to live here. Our immigration policy should reflect what is good for the US NOT what is good for the rest of the world (I would suggest the same policy for any sane country).
Jacob, you keep banging on about political theater, but, besides the fact that the US is not required to grant non-citizens access to the country, for mostly whatever reason it cares to invent, I find the argument that this mean ‘political theater’ is unnecessary for those 60,000 unfortunate people; which Nation does NOT engage in political theater, for its leader’s reasons? Seems to me to be an immaterial and naive argument… you might as well complain that bullying is unfair.
“Please know that many here do not feel it is our job to take in anyone who wants to live here. Our immigration policy should reflect what is good for the US NOT what is good for the rest of the world (I would suggest the same policy for any sane country).”
No one disputes that. The US has the right to vet and reject any foreigner.
But once the US has granted a visa, logic and courtesy demand that the US respect this visa, unless new and specific cause surfaces to revoke it.
The mass revocation of visas already granted, and for no specific reason, are an abusive and insensitive behavior. Maybe the US has legal right to behave in a brute and inhuman manner, but it should not do so unless it is absolutely necessary.
The was no valid reason why this sudden and wholesale canceling of visas was needed.
8 U.S.C. Sec. 1182:
Seems pretty straightforward to me.
Put shortly, a visa entiltes an alien to have the chance to be told to ‘F*** Off’, or not, by a US Immigration Officer, for which the said alien might be grateful.
Thanks for the link to the ruling, Laird. As I read it there were no human plaintiffs, just the States of Washington and Minnesota. And the irreparable harms found to be suffered by the States were
(a) harm to the States’ “children” ie the residents of the States, and
(b) harm to the missions and operations of State universities, harm to State tax bases and so on
It seems to me that on this basis, any State would be able to claim irreparable harm from pretty much any federal policy. And on (b) pretty much any business operating with employees.
I find myself somewhat confused between the “irreparable harm” condition for the injunction, and the standing question. My recollection is that the anti Obamacare folk had to trawl far and wide to find actual humans harmed by the Obamacare mandate. It wasn’t good enough for a State to turn up and say “my “children” are being hurt by this, the State health insurance market is being screwed by this. ”
And yet in this immigration case the two States have standing and can demonstrate irreparable harm.There must be some very deep legal logic, which is too deep for me.
“But once the US has granted a visa, logic and courtesy demand that the US respect this visa, unless new and specific cause surfaces to revoke it.
The mass revocation of visas already granted, and for no specific reason, are an abusive and insensitive behavior. Maybe the US has legal right to behave in a brute and inhuman manner, but it should not do so unless it is absolutely necessary.
The was no valid reason why this sudden and wholesale canceling of visas was needed.”
************************
A Visa does not grant you entry to the US. And the valid reason is because the President said so under the powers granted to him by 8 U.S.C. Section 1182. That is all the reason that is necessary (although I did notice you completely failed to address the example of real harm caused by lax vetting that I gave you).
Scary thing is, with our present 5-3 split on the Supreme Court, chances are good that this will be upheld all the way up. Four of the five on the liberal side vote in very much of a lockstep liberal fashion, and the fifth (Kennedy) is easily swayed to follow. Even if he votes to overturn, a 4-4 vote leaves the lower court result in place.
This is why it was so important that Hillary lose. The Supreme Court can take it upon itself to become the only empowered branch of our government should it so desire, and four of our current justices so desire.
Lee, it may interest you to know that on the very same day that the Seattle judge was issuing his TRO, another federal judge in Boston was declining to do so. The Boston judge’s opinion was three times as long as the Seattle judge’s, and he actually addressed the “likely to prevail on the merits” issue honestly and came to the opposite conclusion. I had not heard about one that until today; funny how the media has made no mention of that case, isn’t it? 😛 And I still think the statute I cited above is both controlling and dispositive of the issue.
“A Visa does not grant you entry to the US.”
Ok, fine, so why does the US keep several thousands of consular officers all over the world employed in shuffling papers and granting (or denying) visas? What are visas good for?
And, if the danger is so acute – wouldn’t it be urgent to deport the visitors that are already in the US? Are they any less dangerous? And are the terrorists exclusively coming from these 7 countries? Seems to me most of the 9/11 terrorist came from Saudi Arabia. How come it is not in the list of extremely terrorist countries?
This is just a farce.
Seems the Judge in Seattle did some research and other reporters researched too, and came up with a grand total of two (2) suspects (from these 7 countries) who where charged in the last 15 years with supporting somehow terrorists – i.e. not committing themselves acts of terrorism.
(A third one was accused of sending money to a terrorist group abroad).
But the President said so (that there is an acute danger) so surely, it must be so. He’s our president, isn’t he?
“I think the fundamental argument of the president and the federal government is that there is no judicial review. As the panel recognized, that is not the law.” (Bloomberg)
The first question is: Is the President legally authorized to abruptly revoke 60,000 visas and harass and cause damage to all those people and their dependents and associates in the US on his just saying so, with no apparent cause and no review (judicial or otherwise)?
The second question is: even if he is so authorized by law – should he do it? Is it logical, is it moral? Is it correct? Is it helpful?
A great short video about the subject of immigration can be found here.
Excellent video.
But Trump’s ban was not related to immigration, it revoked non-immigrant visas (tourist/business/visitors) visas, mostly.
Immigration policy is made by the Congress.
Jacob, as to your first question, I quoted the relevant statute above in my post of February 6, 2017 at 7:46 pm. Read it. So the answer is “yes”. You really should stop offering opinions on legal issues you’re clearly not competent to answer. Stick with the moral and tactical questions; you’re on more solid ground there.
Which leads us to your second question. That’s not a legal one, it’s a judgment call. We can debate it all day; there are reasonable arguments on both sides. Trump may have made the wrong call (I’ve already opined that I think he did a pretty bad job of it and overreached unnecessarily), but at the end of the day it’s someone’s decision to make. And at the moment that someone is Trump.
“And at the moment that someone is Trump.”
And he made a very bad decision.
That comes from someone (me) who supported Trump (theoretically, since I’m not a US citizen), and still thinks the positive things Trump did (his nominations) outweigh by far this wrong decision.
About the legal issue – as I said, we’ll hear soon from the courts…
From the 9th circuit court ruling:
“They [the 9th circuit court] said the states were likely to succeed at the end of the day because Mr. Trump’s order appeared to violate the due process rights of lawful permanent residents, people holding visas and refugees.”
The appeals court acknowledged that Mr. Trump was owed deference on his immigration and national security policies. But it said he was claiming something more — that “national security concerns are unreviewable, even if those actions potentially contravene constitutional rights and protections.”
Yes, even foreigners need to be treated correctly, as human beings – with “due process rights”.
The appeals court order is correct in many respects (notably on the issues of standing, jurisdiction and justiciability, as well as in its holding that lawful resident aliens have due process rights). But it goes overbroad in hinting (although it does not explicitly hold) that nonresident aliens who are not presently visa holders might somehow acquire such rights through resident relatives. That is utterly nonsensical; only persons presently subject to the jurisdiction of the US government (i.e., within our borders [legally or otherwise], or possessing quasi-contractual claims as visa holders, in its custody as enemy combatants, etc.) possess any due process rights under our Constitution. And the appeals court gave unreasonably (in my opinion) short shrift to the administration’s claim that it has already walked back from applying the Executive Order to green card holders, and to is offer to ensure that current visa holders are granted their due process rights. Also, the appeals court was simply wrong in its discussion of that portion of the EO dealing with refugees, asserting that it violated our refugee laws. But the court simply ignored 8 USC 1182(f) (which I cited above), which is clearly controlling in this matter. It is one thing for a court to overrule an EO on the basis of unconstitutionality (which is entirely proper), but quite another to do so on the basis of inconsistency with some statute (which is not). This part of the opinion was clear error. The appeals court could, and in my opinion should, have limited the scope of a badly overbroad TRO, but it failed to do so.
But at its heart, I think all of this is due to the administration badly mishandling this whole affair. First, the appeal itself was botched: by raising a litany of mostly spurious challenges to the TRO, the administration invited the appeals court to re-examine the merits of the case, which the trial court had blatantly failed to do. Rather, it should simply have argued that the trial court did not satisfy one of the basic requirements for the issuance of a TRO (that the movant is likely to prevail on the merits, which point the trial court simply glossed over with a summary, one-sentence conclusory statement) and asked that the TRO be quashed as improvidently granted. Instead, it asked that the TRO be merely suspended, which simply invited the appeals court to create its own record and insert its own finding where the trial court had provided none. Then the case could have gone back to the trial court for creation of a proper record. (And the EO would have remained in effect until that was accomplished.)
And of course the administration bungled this from the start with a badly-drafted Executive Order. Its constitutional defects are apparent on its face. I think Trump wanted to act quickly and, lacking a confirmed Attorney General to oversee the matter, rushed out a bad document. Now that Sessions has been confirmed (and I’m no fan of Sessions, but he is competent) they should simply withdraw the original EO, abandon all the related cases and any appeal, and issue a new one which satisfies the constitutional defects identified in these opinions. That should be easy enough to do; I could draft it myself, and I’m sure the DOJ lawyers are up to the task.
Laird, this article leaves the impression that the lawyers for both sides came poorly prepared – could it be that both sides are saving the big guns for the Supreme Court?
Well, Alisa, I would probably attribute that to the speed with which this was all moving; they couldn’t think of everything. But the fact that the judges would ask those questions at all is telling: they are utterly irrelevant to real the issue, which is how the administration’s lawyer should have responded.
Alisa, I think we just saw a power struggle between the courts and the executive branch.
Trump’s forces went in to argue that the decision in question was completely within the discretion of the executive branch – that the executive has no need to justify the basis for its decision to the court – and so an argument by them of the facts that provided Trump with his rationale had no place in the discussion.
In fact, for Trump to have supplied those facts to the court would undercut his primary assertion that they were none of the court’s business. I suspect that the “unpreparedness” of Trump’s team had more to do with intentionally avoiding presenting the court with the facts than not knowing them.
The plaintiffs then argued that Trump had provided no facts justifying his decision.
The court essentially ignored Trump’s argument, agreed with the plaintiffs that Trump had not supported his decision, and denied quashing the TRO on the basis that, without such facts, Trump could not prevail at the ultimate hearing. In doing so, the court implicitly held that Trump does need to justify his decision to the court, without ever actually stating that. That implicit holding is wrong, which I think is why they made it implicit.
Going to the SC would probably not change things. A partisan vote would likely be 4-4, which would leave the lower court’s ruling intact. Trump needs to get Gorsuch in before he starts his next fight with the courts. The Dems understand this – I predict they’ll be challenging every ruling they can through the courts quickly and stalling as much as they can on Gorsuch.
Thank you both.
“And of course the administration bungled this from the start with a badly-drafted Executive Order”
I fully agree.
The order should have suspended the issue of NEW visas until a new, secure vetting procedure was established.
As to existing, legal, visas – it would be ok to re-examine them, but revoke only those that needed revoking for specific reasons.
Trump rushed to fulfill a campaign promise without adequate staff work.
I agree with Jacob’s last comment.
I also with bobby b’s last comment, except that the administration did not actually “make” that argument: the attorney arguing at the trial court did not say, in response to that question, “that is utterly irrelevant to the issue at bar, and the president does not have to demonstrate a reason for making a decision which is wholly within is discretion under that applicable statute”. Instead he said “I don’t know”, which means he was unprepared for that question. But clearly the judge was prepared, because he already knew the answer. It was a “gotcha” question which demonstrates that he had already made up his mind and was merely going through the motions. (His written opinion shows that, too.)
There are standards of review where constitutional rights are impacted, and although the trial court did not articulate this the appellate court did (not clearly, and entirely accurately in my opinion, but well enough with respect to certain points). But where there are no such rights involved (as with the issuance of new visas or the acceptance of refugees) those tests don’t apply. The president acted well within his powers on those matters, and no court should second-guess him there. In this respect the TRO was overbroad and should have been curtailed (if not completely quashed for the reasons I explained earlier).
I don’t agree with the remark that if the matter reaches the Supreme court it is going to split 4-4 on ideological lines.
I think this is a matter of human rights. All human beings (even foreigners) have human rights that need to be respected, by all governments. That does not include the right to get a US visa, but, once a visa was awarded – you have a “due process” right. I think that all judges should uphold this principle.
Jacob (February 12, 2017 at 10:00 am) if Gorsuch is confirmed before the hearing (and Trump will surely not risk it earlier) then either he will rule for the administration, or else Trump (and I, and many) will feel very disappointed in a candidate whom we hoped would uphold honest interpretation of law.
“I think this is a matter of human rights … all judges should uphold this principle.”
No, all judges should most certainly not uphold this ‘principle’ that, as you correctly say, you ‘think’ a human right; they should instead uphold the law and constitution of the US.
I’m probably flogging a thoroughly dead horse here (since I think the Administration is going to take the sensible approach of abandoning all the pending litigation, withdrawing the original Executive Order, and issuing a new one minus all the constitutional infirmities), but Stanford law professor Michael McConnell has written an excellent article detailing all the flaws in the 9th Circuit order affirming the TRO. I think he has it exactly right on all points.
(I will add here that Prof. McConnell has thought much more deeply than I did about the “standing” issue, which I had accepted as discussed by the 9th Circuit. He makes arguments I hadn’t considered, but it is clear that the 9th Circuit didn’t either. This is yet more evidence of inadequate preparation by the Administration’s attorneys.)
A brief remark on the last pair of comments by Jacob and Niall:
In all of this discussion the peculiar procedural posture of the case must be kept in mind. What follows is all hyper-technical legal stuff, but fundamentally all that is at issue here is the issuance of a Temporary Restraining Order. The sole purpose of a TRO is to preserve the status quo ante while the actual legal issues are sorted out in an orderly fashion. And the only issue on appeal was whether the TRO should be suspended or limited. If that decision should be appealed farther, either to the 9th Circuit en banc or to the Supreme Court (neither of which is going to happen) the only issue would be whether the appellate court’s decision was correct. In other words, all of this deals only and exclusively with the TRO itself; it has absolutely nothing to do with the merits of the underlying case. The appellate court’s opinion is of almost zero precedential value (the things it has to say about substantive issues are entirely dicta), and what little precedential value it might have is limited to the standard of review of TROs (within just the 9th Circuit). And likewise even a 4-4 Supreme Court default affirmance of that decision would have no greater precedential value than to expand that standard of judicial review to all Circuits. It wouldn’t establish any sort of precedent with regard to Presidential Executive Orders generally (other than the standard of review), or the issue of limiting immigrants or refugees specifically. People are getting themselves all worked up over this, but the reality is that it’s not particularly important from a legal perspective; it has no long-term impact and establishes no important precedents.
You mean it would leave Trump’s Order standing?
Obviously I wasn’t clear. No, of course it would not leave Trump’s Executive Order standing; it would leave the TRO standing. But beyond that one specific Executive Order (which will undoubtedly be replaced with a constitutional one) it will have essentially no impact on the legal landscape.
Got it.
“it has absolutely nothing to do with the merits of the underlying case.”
Of course.
People like Niall and many others get emotional and protest that the President does have the right to limit immigration (this is “the underlying case”).
This is not disputed, this is not the issue. Yes, the president has the right to limit immigration and improve and harden the vetting process of visa applications.
But this must be done in a legal and reasonable manner, without unnecessarily and unreasonably injuring (i.e. denying due process) the people which already are legal residents and visa holders.
By issuing this specific dubious executive order Trump has shown incompetence, but what is worse – also insensitivity to human rights and human suffering. For now – that’s just a mistake. Let’s hope he won’t do worse things in the future (he probably will).