While It Is Well, With My Soul, That Checks And Balances Work…
March 16, 2017

. . .I find myself rather profoundly saddened this morning, as I board the plane. [Perhaps I should be feeling more upbeat — that the judiciary branch is functioning exactly as it ought — 240 years on.]

I do deeply appreciate what Mr. Hamilton, et al., left us — for protection, against would-be tyrants.

And yet, I think it demeans our nation, on the world stage, to have a President who is so manifestly unfit for office. [It doesn’t speak well for the level of sophistication — minus some three million votes — of our electorate, either.]

In sum, I see little evidence that 45 can contain his own ill-founded, hateful rhetoric (for the purpose of governing) in a manner that comports with our Constitution — and his duties thereunder. [He is a forever candidate — like Bryan, of a century ago.]

More ominously, for however many months 45 is able to hold the office, I worry that he doesn’t even comprehend the Constitution’s schema, nor his place inside it. His near maniacal ravings in Nashville, after he learned of the clearly correct decision in Hawaii (and now, in Maryland, as well). . . does not bode well for his Presidency.

His health care ideas are being retooled as I type this, in the House, because (as ever) he has made promises to the American people — ones that he manifestly cannot keep. [I wonder if he is tired of. . . losing, yet.]

For the weekend, we will return to our masthead that predated much of this. It is a reminder that we as a nation will thrive — with or without him.




[U] NATIONWIDE TRO Entered! Live Blogging Of Federal TRO Hearing(s) Concluded…
March 15, 2017

UPDATED @ 6:30 PM EDT — Judge Watson just enjoined Muslim Ban 2.0, nationwide. Let the DoJ appeal — I don’t care. WILL issue a ruling, before 6 PM Hawaii time — or about four hours from now.

I will go out on a smallish limb and indicate (guess, really) that he will enter a TRO against Muslim Ban 2.0 — nationwide. You read it here first. Here is Judge Watson’s very cogent 43 page opinion. [END, UPDATED PORTION.]

. . .And, as we wait for the Sun to set, here in Chicago — and the start of the TRO hearing in Honolulu, Hawaii at 9:30 AM island time. . .

We will note that a federal District Court in Maryland held a motion hearing on a TRO request, against Muslim Ban 2.0 this morning — but likely won’t rule before midnight tonight, Eastern.

. . . .Hawaii’s State Attorney General, Douglas Chin, flashed a casual DLDL (or down low) “shaka” — or “all good” — island hand sign, as he entered the federal District courthouse in Honolulu a few moments ago. . . .

The hearing is now underway. . . . and though it’s not clear when the able Judge Watson will rule on the state’s request for a temporary restraining order, he might rule immediately from the bench — at the end of the hearing. . . .

Preeminent attorneys from the Washington, D.C. office of Hogan Lovells — acting “on brief” as special counsel to Hawaii — are on the phone conference line, as is the US DoJ (for the Trump Administration). . . .

Fourteen state attorneys general and 58 technology companies have also filed amicus briefs supporting Hawaii’s challenge. The attorneys general argue that the revised ban retains the unconstitutional components of the original order, including a broad ban on entry by nationals from six predominantly Muslim countries and a suspension of the refugee program. . . . the 1965 amendments to the federal INA prohibit barring entry on the basis of race, religion or nationality. . . . and our First Amendment prohibits religious tests, even more broadly.

Do look in here — for updates. . . . they will appear from time to time now, until late this evening. . . .

[Of course, there will eventually be appeals on all sides, either way. And those appeals will go. . . that’s right — to the Ninth Circuit, just as Ban 1.0, did a month ago. And you know what I bet will happen there. Smile. FINAL UPDATE: The very capable US District Court Judge Theodore Chuang, sitting in Maryland, has also enjoined it — that’s a 43 page PDF of the opinion, overnight. Onward.]


Now Expecting Overflow Crowds — Three Federal Courtrooms Full — Of Galleries… Like 600 People, In Honolulu…
March 14, 2017

I imagine that the Hawaii District hasn’t seen as much interest in any trial level proceeding in a generation at least.

We learn overnight, local time, that the able Judge Derrick Watson has authorized remote broadcast of an audio feed, into two adjacent courtrooms. In the federal system, US District courtrooms are vast, and cavernous. I expect each will hold a gallery of around 200 people, tightly packed. [Here is the what the good people of Hawaii have answered the Trump Administration, as the plaintiffs’ latest restatement — in favor of the TRO, as filed tonight. Do read all 34 pages, in prep for the oral arguments. “. . . .The 1965 Immigration Act reflects the determination that such considerations are irrelevant. . . . President Kennedy urged Congress to dismantle the national origins system because “discriminat[ing]” in admission “on the basis of accident of birth” was “without basis in either logic or reason. . . .” Congress concurred. . . .” Br. of NAPABA 13-18 (Dkt. 140-1).“]

So, as many as 600 onlookers will likely see (and at least hear) how our system of ordered liberty — of checks and balances — actually operates. They will see the majesty of the law — that these bedrock ideas, passed to us by the Founders — they rise above mere. . . . men’s artifice — and caprice. Several dozen of them will be media bloggers, with credentials to transcribe in real time. We will update you, from those feeds, tomorrow evening — in near real time:

. . . . Judicial Conference of the United States policy allows a judge to authorize broadcasting of court proceedings to adjacent areas for the purpose of judicial administration. Consistent with that policy, the Court hereby authorizes the audio of the hearing on Plaintiffs’ motion for temporary restraining order, set for March 15, 2017 at 9:30 a.m., to be broadcast in up to two adjacent courtrooms to the extent necessary to accommodate public interest. . . .

Onward. . . . ever, onward. We will henceforth simply “seek to do the right, as we see the right. . . .” [Bonus: who can identify the speaker of that fine bon mot? Hint: he was not an American.]


Virginia’s “Next Briefings” Schedule Now Defers To Hawaii’s, As Well… On Muslim Ban 2.0 TROs
March 13, 2017

Late this afternoon, in the federal District Court for the Eastern District of Virginia (Alexandria), the able Judge Trenga ordered one week’s worth of “slackening“, in the briefing schedule, on the TRO against Muslim Ban 2.0 — originally scheduled to go forward this week. See below — just entered, but this pushes the Virginia TRO hearing back, into next week. [A decision wouldn’t come until later in the week there, then.]

So, once again, we continue expect the hearing in Honolulu will decide it — as a matter of first impression:

. . . .The hearing on Defendants’ Motion currently scheduled for March 13, 2017 be, and the same hereby is, CONTINUED to Tuesday, March 21, 2017 at 10 a.m. . . .

[I]t is further ORDERED that Defendants file their opposition brief no later than Friday, March 17, 2017 at 12 p.m. noon.

Signed by District Judge Anthony J. Trenga on 03/13/2017.. . .

UNRELATED UPDATE: 24 million people may lose insurance (primarily due to cut-backs, and carve-outs from Medicare/Medicaid) under “Trump[No-]Care“, according to the non-partisan CBO. As I earlier opined, this package is. . . DOA. Not really worth discussing — in this flawed form. Not even clear it will have 50 votes in the Senate — let alone the required 60.

Now you know — onward. Off to some snowy night-time fun, here — then LA later in the week, for some warm sunshine!


The State Of Hawaii Offers A Muscular Argument For Extending The TRO — Against Ban 2.0
March 8, 2017

[UPDATED: The able federal District Court Judge Derrick Watson, sitting in Honolulu, has granted the TRO scheduling order, and set in motion arguments — to conclude by March 15, 2017 at Noon local, in Hawaii. Onward.] Oh my. Good morning. . . . The State of Hawaii is now on file, and so. . . I’ll set out just a few of the Constitutional bases for the to-be-extended TRO first, then a solid statutory one, below. But make no mistake — Ban 2.0 will fail. Utterly.

I want to particularly point out the last paragraph in blue, below — as we haven’t mentioned it since late January. That is the section of the Immigration and Nationality Act that President Lyndon Johnson signed, as amended — in the shadow of the Statue of Liberty, in 1965. It did away with harsh quotas — and tests based on nationality or religious affiliation. Mr. Trump cannot change that without an entirely new act of Congress. He simply lacks the power. Here is the full 40 page PDF motion for the extended TRO, and the bit:

. . . .Plaintiff Ismail Elshikh, PhD, the Imam of the Muslim Association of Hawai‘i, joins the State in its challenge because the Executive Order inflicts a grave injury on Muslims in Hawai‘i, including Dr. Elshikh, his family, and members of his Mosque. . . .

The White House originally indicated it would sign the new Executive Order on Wednesday, February 29, 2017, but then postponed the announcement. One Administration official told a news outlet on February 28 that a reason for President Trump’s delay in signing an updated Executive Order was “the busy news cycle,” and the desire of the President that the new order “get plenty of attention. . . .”

A senior Administration official told a different news outlet on March 1, 2017, that a related reason for the delay in releasing the updated Executive Order was the “positive reaction” to President Trump’s “first address to Congress” on the evening of Tuesday, February 28, 2017. That article reported that “[s]igning the executive order Wednesday, as originally indicated by the White House, would have undercut the favorable coverage,” and the senior Administration official “didn’t deny the positive reception was part of the [A]dministration’s calculus in pushing back the travel ban announcement.”. . .

The Establishment Clause of the First Amendment prohibits the Federal Government from officially preferring one religion over another.

Sections 2 and 6 of President Trump’s March 6, 2017 Executive Order, as well as Defendants’ statements regarding the Executive Order and their actions to implement it, are intended to disfavor Islam.

Sections 2 and 6 of the Executive Order, as well as Defendants’ statements regarding the Executive Order and their actions to implement it, have the effect of disfavoring Islam.

Through their actions described in this Complaint, Defendants have violated the Establishment Clause. Defendants’ violation inflicts ongoing harm upon Dr. Elshikh, his family, and members of his Mosque, as well as other Hawai‘i residents and the sovereign interests of the State of Hawai‘i. . . .

The March 6, 2017 Executive Order was motivated by animus and a desire to discriminate on the basis of religion and/or national origin, nationality, or alienage.

The Executive Order differentiates between people based on their religion and/or national origin, nationality, or alienage and is accordingly subject to strict scrutiny. It fails that test, because it is over- and under-inclusive in restricting immigration for security reasons. The statements of President Trump and his advisors also provide direct evidence of the Executive Order’s discriminatory motivations. . . .

The Immigration and Nationality Act provides that “[e]xcept as specifically provided” in certain other subsections of that Act, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A). . . .

Mr. Trump is. . . only a man. Not a king. Mr. Trump serves us, the people, not the other way around. Onward.

[Late afternoon update — in the Ninth Circuit, the Trump administration has dropped its appeal of the nationwide TRO there. The litigation now continues in the trial court in Seattle — I’d expect motions from the State of Washington lawyers, much along the lines of those filed by lawyers for the State of Hawaii, overnight. I’d expect much the same, in Brooklyn and Alexandria, Virginia as well — soon. Now you know. End of update.]