A Mistaken Post-Script — From One Faction Of The Ninth Circuit: In An Echo, On Muslim Ban 1.0
March 15, 2017

First, this 26 pager is not law, in any sense. It is the view of only one member of the Ninth Circuit, on appeal. [Amended version, here.]

But in fairness, I’ll post the entire PDF, here. I do so in part to make sure readers who’ve follow this less closely than I have won’t be. . . led astray. Ultimately, the Hawaii TRO (or a later preliminary injunction) opinion is likely to come before this same Ninth Circuit.

And this dissent was filed as Ban 1.0 was closed out, in the Ninth Circuit tonight. But we may yet see this sort of erroneous reasoning raised there — against enjoining Ban 2.0. [In fact, Mr. Trump echoed the most silly parts of it tonight, as he spoke in Nashville — of the “overreach of the courts,” in entering the Hawaii TRO on Muslim Ban 2.0. So we must be vigilant. Ever vigilant, against false premises, like these.]

In sum, the dissenter simply leaps from the 1952-era INA, to the 2000s and later versions, ignoring the 1965 INA amendments we have discussed here at some length. [And I should be clear that tonight, Judge Walton in Hawaii specifically reserved on the INA arguments, settling on the Constitutional violations first.]

The more fundamental error, in my view though, is that the dissenter simply ignores the way in which First Amendment claims must be handled, in the face of clear evidence of an impermissible motive on the part of the Executive Branch. The Executive is not sanitized, just because it acts on an immigration measure. In fact, that is when the First Amendment must be most jealously guarded.

It is fair to say that there has never been, in our modern post WWII era (1940s and later) a case with such blatant evidence of invidious religious discrimination, and nationality discrimination, directly from the mouth of the Commander in Chief. In public, and in repeated written statements. So this case is unlike any in the modern era — but the US Supreme Court’s First Amendment jurisprudence here is clear, and stretches back more than a century. The dissenter simply ignores it. So his view will not carry the day, when this reaches the Supremes. But we should be careful, between now and then, not to be dissuaded.

As he closes, he does make a very solid point — to personally rebuke Mr. Trump directly, about ad hominem attacks on federal judges, thus:

. . . .Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge [Ed. Note: that would be Judge Robart, imaged at right] and our colleagues were out of all bounds of civic and persuasive discourse — particularly when they came from the parties [Ed. Note: this means Mr. Trump, personally].

It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. . . .

Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all. . . .

Indeed, we were, are and remain a nation of laws, not just petty, small-handed, old white men. Now you know. Be vigilant about your rights, lest you lose them. Sleep well one and all — I’m in the air all day tomorrow — off grid, as it were. . . .



And… In Seattle… More Date Tightening — But Hawaii’s Hearing Will Almost Certainly Happen First.
March 13, 2017

The race is fully on, now — as to which of the numerous federal District Courts will be the first to enjoin 45’s Muslim Ban 2.0. [In a courtroom, “it is not the loudest voice that prevails, it is the Constitution. . . .”]

Just now, after-hours out West, the Seattle courts set a hearing for no earlier than the one in Hawaii, on Wednesday. And likely for a day or two later than that.

But now the Trump Administration owes Judge Robart some 13 pages by tomorrow afternoon, Pacific. Otherwise, the existing TRO there (already upheld by the Ninth Circuit) will also very-likely be applied to Muslim Ban No. 2.

. . . .The court is in receipt of Plaintiffs’ emergency motion to enforce the court’s February 3, 2017, order preliminarily enjoining certain provisions of the January 27, 2017, Executive Order, entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” (Em. Mot. (Dkt. # 119); see also Order (Dkt.# 52).) Plaintiffs ask the court to “order a response and set a hearing for March 14.” (Em. Mot. at 12.)

The court hereby ORDERS Defendants to file a response to Plaintiffs’ motion no later than 4:30 p.m., Pacific Daylight Time, on March 14, 2017.

Defendants’ response shall be limited to 13 pages, which is the length of Plaintiffs’ motion. (See generally id.)

The court will defer scheduling a hearing, if any, on Plaintiffs’ emergency motion until after it has reviewed Defendants’ response. In any event, the court will not schedule a hearing prior to March 15, 2017.

If the court schedules a hearing on Plaintiffs’ emergency motion, the court will permit the parties to appear by telephone.

Dated this 13th day of March, 2017. . . .

So — after some day and night snow-carnival festing. . . It’s an early Thursday flight, to the generally-vacant sunshine that is. . . LA. I will keep the readership apprised here on these orders, and the progress of the Wildcats, though — to be sure. Smile.


[U] I Have Read The “New” Executive Order. It Is A Dead Letter. Period.
March 6, 2017

Well. . . over some delicious miso soup and sashimi, at lunch — it took me all of five minutes to read — and re-read — the “new” order.

The problem 45 faces is. . . simply insurmountable. His own very public statements, along with (notably) those of Rudy Giuliani cannot be washed away. They are powerful evidence of a violation of the First, and Fourteenth, Amendments.Once “rung” — in the poetic language of the Supremes — that bell cannot be “unrung“. Mr. Trump, verbatim, then:

. . . .December 7, 2015: We will have a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. . . .

That is the evidence — and no amount of lipstick on this pig will. . . suffice.

The “Three Day Condor” predicts this new order will suffer the same fate as the first one. And that will be. . . a victory for our federalized (republic) system of checks and balances, for the US Constitution, for our democracy, and ordered liberty. More than 240 years of US history hangs in the balance here — these are momentous times, indeed. But ones the founders left us well-equipped to address. Thank you, Messrs. Hamilton and Jefferson — and countless others. . . .


UPDATED @ 3:10 PM EST: The administration has already filed papers in at least three federal courts on both coasts, arguing that those courts should let the New Muslim Ban go into effect on March 16, 2017, thus: “Rather, the Order applies only to those who are overseas and without a visa. That grouping presents the highest concern with respect to the adequacy of visa screening procedures, circumstances for which the courts afford “considerable deference to the President’s policy determinations.” Washington, 847 F.3d at 1164. Nor is there any immediate harm presented to that grouping. They do not have visas and do not have an entitlement to one. Indeed, even if there were some legal right, there is no imminent harm from a temporary suspension where visa applicants normally must wait a period of months or longer to apply and/or be issued a visa or travel document if found eligible. See Declaration of Emily Chiang ¶ 13 (ECF No. 8) (“The process of getting a visa for her mother who lives in Iran was long and arduous. It took six months to get an appointment with the embassy. Her appointment was in August and she finally received her visa in early January.”)….

The portion I bolded, above — completely mischaracterizes the existing federal law. The Trump administration cannot change the law, simply by making a false assertion about it. The New Muslim Ban will be a dead letter. [The administration’s ED NY version of the filing (in 17-cv-0480) of this afternoon, may be found here.]

Here endeth my sermon, for this day.