RebKell's Junkie Boards

[GlennMacGrady]

I'm going to try to limit myself to explaining the legal procedure that's going on in the Supreme Court about the travel ban, and I'll try to avoid legal jargon.

Trump's second travel ban is at issue. While it has a lot of stuff in it, the part under attack is the provision that puts a 90 hold on entries into the U.S. of foreign nationals of Iran, Yemen, Somalia, Syria, Libya and Sudan. That hold is subject to case-by-case waivers for various stated reasons, including the entry of a "close family member".

The Fourth Circuit Court of Appeals in Virginia held that the travel ban violated the Establishment Clause rights of one person, an Iranian man in America (called John Doe #1) who claims the 90 day hold may prevent his Iranian wife from entering the U.S. during that period. The specific constitutional violation is that the travel ban, as it affects this one man, "establishes" a "religion" under Supreme Court doctrines.

There is no holding that the travel ban violates any other part of the constitution -- such as the Due Process or Equal Protection Clauses -- or that it violates any statute.

The Fourth Circuit also upheld a worldwide injunction suspending the travel ban in favor of every foreign national of the six countries anywhere in the world, not just in favor of John Doe #1's wife.

On June 1, the DOJ appealed this ruling of the Fourth Circuit to the Supreme Court, asking the Court to reverse the constitutional ruling on the establishment of religion clause. Simultaneously, the DOJ asked to have the injunction stayed (lifted, removed, dissolved) until the Supreme Court renders a final decision in the case -- or, alternatively, to stay the injunction as to everyone except John Doe's wife, since she is the only person he is representing.

Also on June 1, the DOJ asked for a stay of similar injunction that has been issued by a federal district judge in Hawaii. That judge's ruling is currently on appeal, awaiting imminent decision, in the Ninth Circuit Court of Appeals in California. The DOJ said the Supreme Court should consider this stay motion as an appeal of that Hawaii case, which is similarly based solely on the establishment of religion clause of the constitution.

Finally, the DOJ asked the Supreme Court to put a rush on the whole process.

On June 2, the Supreme Court ordered John Doe #1's lawyers (the ACLU) to file legal papers responding to the requests for appeal and a stay by Monday, June 12. This is a big rush job.

What happens next?

Supreme Court rules require four of the nine Justices to agree to take an appeal. If four don't agree to do so, the lower court ruling stands as the final ruling.

However, five Justices must agree to stay an injunction. Otherwise, the injunction remains in force until a final ruling.

Tea leaf time. If the injunction gets stayed, which will likely be by a one sentence order, will that be a signal that a majority of the Court is leaning in Trump's favor on the constitutional issue? And vice versa if the injunction is not stayed?

https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-1436.htm

_________________
http://www.youtube.com/MagicBusBasketball

[ArtBest23]

I'm just glad he's not my client after his brain-dead tweets this morning.

[GlennMacGrady]

[Ex-Ref]

[ArtBest23]

So the Solicitor General argues in court "it's not a ban.". President tweets "I don't care what the lawyers call it, it's a ban."

Solicitor General argues second EO is a big change from the first. President tweets "second one is a 'watered down" version of the first and he wants the first one approved.

So is he really that stupid, simply lacking in self-restraint, or is he just pandering to his base that it's all the fault of the courts in preparation for the inevitable loss in court?

I'm going to laugh if and when his own SupCt appointee votes against his ban.

BTW, his tweets said:

“People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!”

And

“The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.,”

And I guess we know why Conway's hubby withdrew his name from his nomination to be Asst AG for the Civil Division of Justice. He tweeted:

"These tweets may make some ppl feel better, but they certainly won't help OSG get 5 votes in SCOTUS, which is what actually matters. Sad."

[GlennMacGrady]

For legal purposes Trump shouldn't be tweeting about court matters at all, but I think in his mind, he's emphasizing that the executive order is a travel ban in contrast to a Muslim ban, which is what the press, the litigants and several judges have outright called it.

The more erroneous word is "ban". The executive order has a travel ban -- or, more accurately, an entry ban -- but it's only for 90 days and has many exceptions and waiver provisions. Trump can't stuff all that into a tweet, but the DOJ is hammering in court that the executive order says nothing about Muslims or any religion.

The Fourth Circuit and the Hawaii judge agree the travel ban (as even I am calling it for shorthand) is religiously neutral on the face of the executive order, which speaks only in terms of nationality not religion. However, they have held that this is all a "pretext" for a Muslim ban. As evidence for such a pretext, the courts have looked exclusively to pre-inaugural campaign statements by Trump and even some of his surrogates. So far, they have only relied on one post-inaugural statement. These tweets provide more post-inaugural statements from Trump.

One of the key issues before the Supreme Court, if it gets to the constitutional establishment of religion issue, is whether judges are legally allowed to "psychoanalyze" or "look into the hearts" of legislators, administration officials or campaign workers when evaluating the constitutional effect of later legislation or executive decisions/orders in immigration matters. That is, was it appropriate for the Fourth Circuit or Hawaii judges to "look behind" the face of the travel ban in order to ascertain some sort of subjective mental purpose. According to the DOJ, the answer is a ringing "no", based on a 1972 Supreme Court case called Mandel. The answer according to the Fourth Circuit is "occasionally yes, and this is the occasion", based on one sentence in a concurring opinion written by Justice Kennedy in a 2015 case called Din.

Counsel for the ACLU conceded in his oral argument before the Fourth Circuit that the very same travel ban would have been constitutional under any President other than Trump.

In net, I'm not sure the Trump tweets using the shorthand words "travel ban" will ultimately affect the constitutional decision, although they will certainly give the other side ammunition to beef up their arguments about pretext.

The most troubling tweet by Trump today may be this one:

"In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!"

If the court believes the administration is already engaging in extreme vetting, that may be a reason to deny the requests to stay the injunctions, because the government must show that the injunctions are "irreparably harming" the President's immigration policy. The ACLU's argument will be: How can an injunction against entry of foreign nationals be irreparably harmful if the administration is already engaged in extreme vetting of these people? A Republican senator made a similar argument on some Sunday show.

This is all incorrect. The Hawaii judge's injunction against the whole executive order -- although not the Fourth Circuit's injunction against just the travel ban section -- prohibits the administration from even beginning to study extreme vetting. The DOJ represented to the Fourth Circuit that the administration has "dropped all pencils" on extreme vetting since the Hawaii injunction was issued. Trump may not be aware of this legal subtlety, and he was probably just trying to give safety assurances to Americans in the aftermath of the London Bridge massacre, but his tweet will make the DOJ's explanations about the irreparable injunction harm more difficult in court.

_________________
http://www.youtube.com/MagicBusBasketball

[ArtBest23]

You're giving him waaaaaaay too much credit. It's just Trump being Trump.

George Conway said more this afternoon in a series of tweets:

"1) Just to be clear, and in response to inquiries, I still VERY, VERY STRONGLY support POTUS, his Admin, policies, the executive order ...

2) ... and of course, my wonderful wife. Which is why I said what I said this morning. Every sensible lawyer in WHCO and every political ...

3) ... appointee at DOJ wd agree with me (as some have already told me). The pt cannot be stressed enough that tweets on legal matters ....

4) ... seriously undermine Admin agenda and POTUS--and those who support him, as I do, need to reinforce that pt and not be shy about it."

[ArtBest23]

[GlennMacGrady]

There are lots of unique and unusual facts, circumstances and issues in this case -- including whether the case is being brought too early (not ripe) or too late (moot) or whether any of the plaintiffs have standing.

My sense is that the Supreme Court will (and should) go right to the elephant-in-the-room separation of powers issue in this case and decide it: Can an executive order that is religiously neutral on it's face become a First Amendment violation depending how any of 3000 federal judges perceive the "real" mental intent of the executive who issues it -- such that the very same order, having the very same real world effects, can be constitutional or unconstitutional depending on what the executive has or has not said in college, in his campaign, in the locker room or on social media?

For example, the carefully spoken DHS Secretary Kelly could issue the very same order to his own department and it would seem to be constitutional under the Fourth and Ninth Circuits' legal theories.

More generally stated, the real issue is who has the constitutional authority to decide what persons can immigrate into this country, the President as empowered by Congress or the judiciary?

If a majority of the Supreme Court believes that plenary immigration authority and plenary foreign policy authority reside in the political branches and not in the judiciary, and that the Fourth and Ninth Circuit written opinions are constitutionally wrong, they must nuke those written opinions out of the law books by vacating them on the merits, so that they can never be cited as precedents.

_________________
http://www.youtube.com/MagicBusBasketball

[ArtBest23]

[Howee]

[GlennMacGrady]

Sixteen states filed an amicus brief today in support of the travel ban.

_________________
http://www.youtube.com/MagicBusBasketball

[scullyfu]

[GlennMacGrady]

[Ex-Ref]

[GlennMacGrady]

A lot of paper has been filed in the Supreme Court this week.

A few days ago the Ninth Circuit affirmed the Hawaii judge's decision against the travel ban, but in a very unexpected way. The three judge panel said they were not going to decide the case on ANY constitutional basis, including the establishment of religion theory of the Hawaii judge and of the Fourth Circuit. Instead, the Ninth Circuit said that Trump's order was not authorized under the immigration statutes. No litigant ever even argued such a theory.

Because of this new legal theory development, the DOJ requested and the Supreme Court granted another week for everyone to file additional briefs on the statutory theory. What's going to happen now is that the Fourth Circuit's establishment clause case and the Ninth Circuit's immigration statute case are consolidated for the pending appeal in the Supreme Court.

Meanwhile, several Democrat states filed an amicus brief against the travel ban, and many other organizations have filed amicus briefs for both sides.

Remember, all of this is just to convince the Supreme Court to accept or reject the appeal and, if it accepts the appeal, to leave to leave the injunctions in place or to stay them.

If the Supreme Court takes the appeal, the snowstorm of paper will become one of the mightiest blizzards ever seen.

_________________
http://www.youtube.com/MagicBusBasketball