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ArtBest23
Joined: 02 Jul 2013
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 Posted: 02/07/17 6:16 pm ::: |
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The oral argument on the stay motion is being streamed live. It's painful. The judges are not sounding very sympathetic to the Government's position.
Plus - Q "Do you have any examples of_________". A - " Yes, for example ___________". Q- "Are those examples in the record, can you point them out to us?". A - "No, they're not in the record."
The DOJ lawyer will not be on Trump's Christmas card list. Feel sorry for him. The whole world is listening to this mess.
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ArtBest23
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| Posted: 02/07/17 6:22 pm ::: |
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These judges are prepared and know the case precedents more thoroughly than the Government's lawyer does. He's getting creamed. There's no excuse for this.
Rule number one for any courtroom appearance. You, as the lawyer, have to know the facts and the law at issue better and more thoroughly than any other person in the room.
Having an expedited schedule is no excuse for being unprepared.
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justintyme
Joined: 08 Jul 2012
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| Posted: 02/07/17 6:45 pm ::: |
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| ArtBest23 wrote: |
These judges are prepared and know the case precedents more thoroughly than the Government's lawyer does. He's getting creamed. There's no excuse for this.
Rule number one for any courtroom appearance. You, as the lawyer, have to know the facts and the law at issue better and more thoroughly than any other person in the room.
Having an expedited schedule is no excuse for being unprepared. |
They are also in the unenviable position of not having facts on their side. There is a very good reason the previous acting AG had ordered them not to defend the position.
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ArtBest23
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| Posted: 02/07/17 7:09 pm ::: |
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| justintyme wrote: |
| ArtBest23 wrote: |
These judges are prepared and know the case precedents more thoroughly than the Government's lawyer does. He's getting creamed. There's no excuse for this.
Rule number one for any courtroom appearance. You, as the lawyer, have to know the facts and the law at issue better and more thoroughly than any other person in the room.
Having an expedited schedule is no excuse for being unprepared. |
They are also in the unenviable position of not having facts on their side. There is a very good reason the previous acting AG had ordered them not to defend the position. |
I'm not convinced.
I think in the end, the Government is likely to win on the executive order. But it's in an odd procedural posture right now and the standards for the stay pending appeal are not favorable to the Govt.
The Govt basically wants the brand new order to constitute the status quo to be maintained while the appeal proceeds. The more rational view would probably be that, in the absence of some change of circumstances that required an immediate change of approach, the status quo is more likely the procedure that existed for years prior to the issuance of the executive order.
But in the end, I suspect it's more likely than not that the Executive Order will be upheld. That's just not the primary issue at this stage.
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justintyme
Joined: 08 Jul 2012
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| Posted: 02/07/17 7:37 pm ::: |
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| ArtBest23 wrote: |
| justintyme wrote: |
| ArtBest23 wrote: |
These judges are prepared and know the case precedents more thoroughly than the Government's lawyer does. He's getting creamed. There's no excuse for this.
Rule number one for any courtroom appearance. You, as the lawyer, have to know the facts and the law at issue better and more thoroughly than any other person in the room.
Having an expedited schedule is no excuse for being unprepared. |
They are also in the unenviable position of not having facts on their side. There is a very good reason the previous acting AG had ordered them not to defend the position. |
I'm not convinced.
I think in the end, the Government is likely to win on the executive order. |
Reading the decision on the stay, it does not sound like the judge felt the government had much of a case and that the petitioners were likely to win.
One of the biggest questions is whether or not the states have standing to bring the suit, or whether the president has absolute authority on who to allow in or not. From the questions asked by the judges they seem quite skeptical about the Government's claim. Combined with the recent precedent set that requires these things to be fact based rather than just insinuations of "could possiblys", it seems that the ban is likely to be shot down.
Unless I am missing something, which is a decent possibility.
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justintyme
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| Posted: 02/09/17 6:26 pm ::: |
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| Appeals court refuses to reinstate ban. 3-0 decision.
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ArtBest23
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| Posted: 02/09/17 7:23 pm ::: |
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Well, they denied a stay of the district court's injunction pending appeal of the merits of that injunction ( which itself is only a TRO, not a final decision on the merits).
I think saying what they did and recognizing the procedural context is critical.
A whole bunch of reporters and so-called experts have been on TV mischaracterizing this decision.
I said before that the procedural posture and burden were really unfavorable to the Govt on this motion, and that was reflected in the ruling.
Whenever they finally get to the merits of the EO itself, the burden will flip and be extremely favorable to the Govt.
Of course that moron Napolitano on Fox has it ass backwards and was ranting that the court outrageously erred by putting the burden on the Govt. But it was the Govt requesting the stay, so it was the Govt that had to show a likelihood of success on its appeal and irreparable harm if the stay remained in effect, which evidently they didn't do.
If it was my client and I wanted this EO to go into effect as soon as possible, I'd abandon all of these interlocutory appeals and motions for interlocutory orders and go back to the District Ct and get on with litigating the merits of the challenge to the EO. I'd get the case back in a posture where I have the advantage and stop fighting uphill battles.
But maybe the Trump WH just wants the fight and doesn't really care about the outcome. They may want to prolong the fight as long as possible. He can keep bitching about liberals and courts and complaining about how they're all stopping him from protecting the nation. He can tell the GOP that they have to use the nuclear option to get his nominee onto the Supreme CT. This all has great propaganda value to him. Probably more value than having the EO upheld.
Last edited by ArtBest23 on 02/09/17 7:34 pm; edited 1 time in total |
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ArtBest23
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| Posted: 02/09/17 7:30 pm ::: |
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The 9th circuit correctly presented it's holding by saying:
“We hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury,”
It was the Govt's motion, so it was the Govt's burden.
The merits of the legality of the EO were only tangentially at issue on the "likelihood of success" issue.
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justintyme
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| Posted: 02/10/17 6:35 pm ::: |
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Thanks for the insight into all this Art. It is quite helpful.
One question for you: in the original district court ruling, wasn't it the petitioners (or the States of Washington and Minnesota) who had the extra burden placed upon them? I thought that in order to get the EO put on hold until the courts heard the challenge one of the things that the judge had to consider was the likelihood of the states winning their case.
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ArtBest23
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| Posted: 02/10/17 7:20 pm ::: |
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| justintyme wrote: |
Thanks for the insight into all this Art. It is quite helpful.
One question for you: in the original district court ruling, wasn't it the petitioners (or the States of Washington and Minnesota) who had the extra burden placed upon them? I thought that in order to get the EO put on hold until the courts heard the challenge one of the things that the judge had to consider was the likelihood of the states winning their case. |
Yes, in the original case the burden was reversed. At that point Washington had to show a likelihood of success on the merits, irreparable harm, and that that public interest would not be harmed. Rightly or wrongly, the judge found for the state and entered what he styled as a TRO (although it seemed more akin to a preliminary injunction). How the factors interrelate varies. For example, If you have a serious and irreversible harm (say, they're going to demolish an historic building), they will likely require less compelling
Iikelihood of success.
Once the judge issued the TRO, it became the Fed's burden to show essentially the same things in support of its motion for a stay of the district court's order. The 9th circuit found that the govt had established neither a likelihood of success ( which seems a bit murkey) nor irreparable harm ( and the Govt seems to have fallen flat on its face on this one).
Rather than demonstrating that there was some urgency for the new procedures to go into effect, they just tried to tell the court of appeals "that's just up to the President to decide,". I'm not surprised they didn't buy that.
When you have these cases where peoples' lives are being disrupted, it often comes down largely to the irreperable harm issue. Unless the merits are frivolous, courts often want to freeze the status quo while they take a closer look.
When they get down to the validity of the EO, though, it's going to become a pretty straightforward legal question of (1) is the order within the President's statutory authority and inherent authority over national defense and foreign relations; and (2) notwithstanding that it's authorized, would implementing the order violate the Constitutional rights of some effected parties. If the answers are (1) yes and (2) no, then all the long list of resultant harms and inconveniences and even personal tragedies aren't going to matter to the final outcome. They're going to have to show the EO is unauthorized, illegal or unconstitutional.
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justintyme
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| Posted: 02/10/17 7:44 pm ::: |
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| Thanks for taking the time to detail that, Art. It is a big help!
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