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Judge Rules Against Travel Ban – Will It Survive?
I think the Hawaii district judge’s opinion will likely not survive on appeal, either to the Ninth Circuit or the Supreme Court. It stretches beyond the current law in two areas.
First, it finds the state of Hawaii has the right to sue because its tourism industry will suffer and its university will see fewer visiting students and scholars. If that is true, then any state will be able to challenge any change in federal policy that might affect the number of people, goods, or services that enter or leave the United States. That has little support in Supreme Court case law, which stresses that judges should not recognize such broad theories that would allow anyone to challenge every federal policy in court.
Second, it finds that statements that President Trump and his aides made to the popular press about the first and second travel bans show religious bias against Muslims. That might be true, but the courts have never found that it can block an executive order that is neutral on its face for religious bias, because of suspicions about the motives of the President. If the courts were to go down that route, it would open up a Pandora’s box of lawsuits against the President and the rest of the government. I find it hard to believe that the Supreme Court would allow the judiciary to exercise such intrusive review into the motives of the head of a co-equal branch of government.
Published in General
I doubt you read the comments sir but if you do I’d like you to contemplate this. The current supreme court would tie 4-4 over this issue despite all the obvious reasons you discuss. A Clinton supreme court would uphold Hawaii. A Trump one will overturn it. The 9th circuit will condone Hawaii with private snickers and lousy public reasoning.
If the law is determined by the judge’s impressions of what Trump really wants, we really a nation of men, not a nation of laws. Words no longer decide, only the feelings and impressions of people in positions of power.
Aren’t those essentially what was asserted in the prior District Court case and didn’t the 9th Circuit expressly endorse the latter?
This seems highly tenuous. Are these courts offering genuine opinions? or just some dressed up reasonings to justify the intervention in the bans or other decisions for the matter? Couldn’t the judge simply say “I don’t like it, so NO!”. It seemed like a joke that “regulating interstate commerce clause” was a license for the Feds to do just about anything. Now that same concept appears to have a role in stopping the Federal Govt from doing an action.
The real question is…at what point do we consider the impeachment of some of these judges?
I don’t know this current supreme court universally overruled 9-0 several times Obamas overreach. In fact I believe he held the record for such decisions.
So lets not condemn them to much.
I admittedly did not read the 9th Circuit decision out of disgust, but the District Court ruling was wholly based on generalities and I’m not sure that the ruling definitively addressed those standing issues. In addition, there were assertions about particular effects on employment (e.g., Microsoft) from the absence of a certain pool of foreign workers that don’t seem to apply in Hawaii.
According to the AP, Judge Watson released his 43 page opinion less than two hours after hearing arguments from the state of Hawaii. I’m certainly no expert in law or the inner workings of the courts, but this strikes me as suspect. Can someone with legal expertise comment? Is it conceivable that a politicized judge had this ruling written up in advance, waiting for the first opportunity to issue it?
Alexander Hamilton’s writings before the framing of a little piece of law called the US Constitution imagined just this situation as cause for judicial impeachment. I guess if Trump’s campaign rhetoric is legitimate grounds for interpreting the intent of his EO then the written intent of one of our most recently beloved founders could support the impeachment of a judge who usurps the constitutional authority of a coequal branch.
When has this ever stopped a liberal judge?
I’m guessing (hoping) that the issues had been previously briefed by the parties prior to arguments. But still . . .
Except, if I recall correctly, the present executive order corrects the errors that were specifically mentioned in that case, making it neutral on its face.
How better to say thanks to your erstwhile classmate at Harvard Law who appointed you to the federal bench, than to stay his successor’s efforts to protect the nation? Especially by granting a stay to litigants with no standing, no harm, and on so little basis in fact or law?
No matter how cynical I become, I just can’t keep up.
What they are saying is, if Obama had issued the same order word for word it would be constitutional because he didn’t appear to be anti-Muslim and Trump does?
We need to stop playing games. This is a leftist political attack, and a very effective one. When any of nearly 700 district court judges can issue nationwide shutdowns on a President acting this far within the four corners of federal legislation there is only one counterattack: jurisdiction stripping over any issues of immigration and naturalization and claims of constitutional standing by non-citizens.
I say let the Supreme Court handle it once Gorsuch is confirmed, then if that doesn’t work take more extreme action.
That goes to the merits and not standing.
Why would anyone count Kennedy in the conservative column on this one? Let’s face it, the case involves many lonely people who might call out and find no one there, right? Better approach would be to introduce the legislation, perhaps by someone with guts and verbal competence like Tom Cotton, and dissuade Kennedy from indulging his international law proclivities.
I hope you’re right about this. I’m horrified by this decision and this whole turn of events. Our president has essentially been stripped of his executive power.
Kennedy just handed everybody in america a free appeal card, if you can make believe that a juror may have crimethink.
Legislation? The legislation already on the books gives the POTUS authority to do what Trump did. Would the legislation say that foreigners who have never been here and have no connection to the US have no constitutional rights? Also add that campaign statements are not grounds for striking down a law and foreigners’ feelings don’t give them standing to sue in federal court? We could call it the “captain obvious plan”, but we would still have to show that it meets reconciliation requirements, then the judges would still ignore it.
And if any of you haven’t read @hypatia‘s post and subsequent conversation on the subject, you should.
Here’s the full text of the District Court’s ruling, fyi.
Only temporarily. When a Democrat is President again, suddenly, these same judges will tell you that their emanations and penumbras teach that POTUS’s power is nearly unlimited.
Regarding the first travel ban….
The language of the opinion was almost Scalian: the five Ninth Circuit judges noted their “obligation to correct” the “manifest” errors so bad that the “fundamental” errors “confound Supreme Court and Ninth Circuit precedent.” The district court questioned any judge issuing a “nationwide TRO” “without making findings of fact or conclusions of law” on the merits of the matter and conducting published opinions on seminal matters of national security based on “oral argument by phone involving four time zones.”
And yet, despite everything it worked. The system is so broken it’s maddening.
We live in a Judicial Tyranny.
Dear Sweet Ann Coulter once said that the Supreme Court has pre-printed forms saying: “The judgment of the Court of Appeals for the 9th Circuit is reversed for the reasons set forth in Judge Kozinski’s dissent. It is so ordered.“
Updated with Kozinski and Bea dissents.
Wasn’t it FDR that said the Court has made their ruling, now let them enforce it?