THE HILL: N. Rappaport Blasts U.S. Courts For Blasting Trump!

http://thehill.com/blogs/pundits-blog/immigration/324764-federal-courts-upend-legal-precedent-in-blocking-trumps-travel

Nolan writes:

“But the court’s objection to the travel ban, which would impose a 90-day suspension on the entry into the United States of nationals from six countries which were designated by Congress and the Obama administration as posing national security risks, is that President Trump wrote it.

. . . .

Maybe the courts should heed the advice of former Vice President Joe Biden who said last week that President Trump “deserves a chance” to lead the country.”

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PWS

02/20/17

TRAVEL BAN UPDATE: “SOPS” Continue To Flow From 9th Cir. Judges in Washington v. Trump — WSJ & WASHPOST Hang “Stupid But Constitutional” Tag On Trump — CNN’s Danny Cevallos Agrees With Rappaport That Trump Has Good Chance Of Ultimate Legal Win!

What’s a “SOP?”  That was BIA lingo for “separate opinion,” a fairly frequent occurrence on the “Schmidt Board.”

There are now five separate opinions commenting on the refusal of the en banc 9th Circuit to vacate the panel’s decision in State of Washington v. Trump following the Government’s decision to withdraw it’s appeal form the TRO on “Travel Ban 1.0:”

“This order is being filed along with a concurrence from Judge Reinhardt, a concurrence from Judge Berzon, a dissent from Judge Kozinski, a dissent from Judge Bybee, and a dissent from Judge Bea. No further opinions will be filed.

Josh Gerstein explains in Politico:

“President Donald Trump’s travel ban has triggered an unusually caustic public spat among the judges of the federal appeals court that first took up the issue.

The disagreement began to play out publicly Wednesday when five 9th Circuit Court of Appeals judges publicly recorded their disagreement with a decision three of their colleagues issued last month refusing to allow Trump to reinstate the first version of his travel ban executive order.
The fight escalated dramatically on Friday with the five Republican-appointed judges filing another withering attack on the earlier opinion and two liberal judges accusing their conservative colleagues of trying to make an end-run around the traditional judicial process.

In the new opinion, Judge Alex Kozinski blasted the earlier ruling for essentially ignoring the fact that most of those affected by Trump’s initial travel ban have no constitutional rights.

“This St. Bernard is being wagged by a flea on its tail,” Kozinski wrote, joined by Judges Carlos Bea, Jay Bybee, Sandra Ikuta and Consuelo Callahan.

Kozinski’s opinion harshly criticized the earlier 9th Circuit decision for blessing the idea that courts could take account of Trump’s campaign-trail statements vowing to implement a Muslim ban.

“My colleagues err by failing to vacate this hasty opinion. The panel’s unnecessary statements on this subject will shape litigation near and far. We’ll quest aimlessly for true intentions across a sea of insults and hyperbole. It will be (as it were) a huge, total disaster,” Kozinski said, in an an apparent tip of the hat to Trump’s bombast.

That didn’t sit well with Judge Stephen Reinhardt, who accused his colleagues of trying to affect the ongoing litigation over Trump’s redrafted executive order.

“Judge Kozinski’s diatribe, filed today, confirms that a small group of judges, having failed in their effort to undo this court’s decision with respect to President Trump’s first Executive Order, now seek on their own, under the guise of a dissent from the denial of en banc rehearing of an order of voluntary dismissal, to decide the constitutionality of a second Executive Order that is not before this court,” wrote Reinhardt, an appointee of President Jimmy Carter. “That is hardly the way the judiciary functions. Peculiar indeed!”

Another liberal 9th Circuit judge, Marsha Berzon, weighed in Friday with a more restrained rejection of her colleagues’ efforts to undermine the earlier ruling.

“Judges are empowered to decide issues properly before them, not to express their personal views on legal questions no one has asked them. There is no appeal currently before us, and so no stay motion pending that appeal currently before us either,” wrote Berzon, an appointee of President Bill Clinton. “All the merits commentary in the dissents filed by a small minority of the judges of this court is entirely out of place.”
“My dissenting colleagues should not be engaging in a one-sided attack on a decision by a duly constituted panel of this court,” Berzon added. “We will have this discussion, or one like it. But not now.”

Kozinski responded by accusing his liberal colleagues of trying to silence the court’s public debate on the issue.”

“My colleagues’ effort to muzzle criticism of an egregiously wrong panel opinion betrays their insecurity about the opinion’s legal analysis,” wrote Kozinski, an appointee of President Ronald Reagan.”

Here’s the link to Gerstein’s article:

http://www.politico.com/story/2017/03/9th-circuit-judges-feud-trump-travel-ban-236211

And, here is the link to the court’s order containing all of the opinions, so you can judge for yourself:

http://cdn.ca9.uscourts.gov/datastore/general/2017/03/17/17-35105_Amd_Order.pdf

Meanwhile, the WSJ Editorial Board channeled a little of the late Justice Antonin Scalia:

“The late Supreme Court Justice Antonin Scalia once wished aloud that all federal judges be issued a stamp that said “Stupid but Constitutional.” Such a stamp would have been useful this week to the two federal judges who bounced President Trump’s revised travel ban that suspends immigration from six Muslim-majority countries that the Administration says pose particular terror risks.

Our view is that the ban is lousy policy, and any urgency that Mr. Trump’s first-week executive order once had is gone. But after the Ninth Circuit Court of Appeals blocked the original version, the White House went back to the drafting board and tailored the new order to address the court’s objections. The President has vast discretion over immigration, and the do-over is grounded both in statute and core presidential powers, which is when the Supreme Court’s Youngstown decision teaches that a President’s authority to act is strongest.”

Read the complete editorial here:

https://www.wsj.com/articles/the-trump-legal-exception-1489706694

On today’s editorial page, the Washington Post made much the same point, if only a little less emphatically with respect to the Administration’s legal position:

“THE SPEED and enthusiasm with which two federal courts halted President Trump’s latest travel executive order might suggest that the revised policy is as obviously problematic as the last, which was a sloppy rush job that the government poorly defended in court. In fact, the revised policy, while still more likely to harm than help national security, is legally far more defensible. Decades of precedent instruct judges to defer to the executive branch on immigration and national security matters such as this. It should surprise no one if the Supreme Court eventually allows the Trump administration to proceed.”

Read the complete Post editorial here:

https://www.washingtonpost.com/opinions/trumps-new-travel-order-is-self-defeating-and-maybe-legal-too/2017/03/17/95171a6c-0a93-11e7-93dc-00f9bdd74ed1_story.html?utm_term=.7cf47133cd49

Finally, CNN Legal Analyst Danny Cevallos makes many of the same points that Nolan Rappaport has made in his articles in The Hill in predicting that the Administration legally has a winner if they are ever able to get this issue to the Supremes:

“The president is in charge of immigration. Immigration policy, by its very definition, is a form of discrimination. The only truly nondiscriminatory immigration policy would be: Everyone come in, whenever you want. Anything short of that is discrimination in some form, and it’s generally within the president’s province. This is not some village rezoning policy. This is national immigration policy, and it’s different than any of the other Establishment Clause cases.
If courts can look into this particular President’s prior statements when considering the constitutionality of his actions, then every single executive action is potentially vulnerable. A gender-neutral executive order could be challenged as discriminatory against women. After all, this is the candidate who believes women can just be grabbed by the …, well, you know. A presidential action that is disability-neutral could be challenged on the basis that the candidate mocked a disabled reporter.
While the court in Hawaii cited established Supreme Court precedent in finding a probable Establishment Clause violation, the appellate courts could still find that Trump’s executive authority prevails. Yes, the district court cited some controlling authority, but an appellate court could distinguish those cases from the unique case before it — one that pits constitutional executive power head-to-head with the First Amendment.”

Read the full Cevallos analysis here:

http://www.cnn.com/2017/03/16/opinions/trump-win-travel-ban-appeal-danny-cevallos-opinion/index.html

Then, read Nolan’s previous articles from The Hill or as reposted on this blog.

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Overall, I think it is a good thing when there is some spirited dissent and disagreement among members of a collegial court like the 9th Circuit.  It shows that the Judges are engaged and that they care about the issues, as they should. Also, dissent is often directed at other courts (like the Supreme Court), at Congress, the Executive, or at educating the media and the public at large about important legal issues. Without dissent and the resulting dialogue it often provokes, you would have “a room full of people patting each other on the back.” And, what’s the purpose of a “deliberative” collegial court that doesn’t “deliberate?”

PWS

03/18/17

 

HuffPost Politics: Trump’s Attacks on Federal Judges Continue to Draw Fire!

http://www.huffingtonpost.com/entry/blaming-judges-is-corrosive-says-a-judge-who-ruled-against-trump_us_58cbe793e4b0be71dcf40451

“HONOLULU (Reuters) – One of three federal appeals court judges who last month upheld a ruling that blocked U.S. President Donald Trump’s first try at a travel ban said on Thursday it was “corrosive to the justice system” when litigants attack judges for their decisions.

Judge Richard Clifton of the 9th U.S. Circuit Court of Appeals became the latest in a series of judges to draw criticism from Trump after Clifton and two colleagues refused to reinstate an executive order temporarily barring entry by people from seven Muslim-majority countries.

Shortly after the Feb. 9 ruling, Trump tweeted: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” He also told reporters that the ruling was “political.”

“It’s easy to blame the referee when you don’t like the result,” Clifton said in a speech to the Conference of Western Attorneys General, which is meeting in Honolulu.

“It is corrosive to the system when a disappointing result, or result disappointing to you, is responded to by blaming the referee,” said Clifton, who did not mention Trump by name.

. . . .

In an order issued late Wednesday related to Trump’s first travel ban challenge, a colleague of Clifton, U.S. Circuit Judge Jay Bybee, had words of his own for the invectives against members of the judiciary in these cases.

“The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse — particularly when they came from the parties,” Bybee wrote, declining to mention the president by name.

The judge, who was also appointed by Bush, added: “It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court.”

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As pointed out in my blog yesterday, Judge Bybee was actually filing a dissenting opinion supporting the President’s authority to issue “Travel Ban 1.0.” Even so, he was offended by the President’s attacks on his Federal Judicial colleagues. Never good when even those who agree with your legal position are put off by your obnoxious personal conduct.  Judge Bybee also reinforced one of my points — judges at any level never appreciate comments on the merits of a case by a party.

Here’s the link to my post from yesterday:

http://wp.me/p8eeJm-uZ

 

PWS

03/17/17

Five Circuit Judges Dissent From 9th Circuit’s Decision Not To Vacate The Panel Decision In State of Washington v. Trump On Travel Ban 1.0!

Judge Bybee writing for the dissenters:

“Washington v. Trump, No. 17-35105 (Motions Panel–February 9, 2017)
U.S. COURT OF APPEALS

FILED

MAR 15 2017 MOLLY C. DWYER, CLERK

BYBEE, Circuit Judge, with whom KOZINSKI, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of reconsideration en banc.

I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel’s opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.

The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).

1 Our personal views are of no consequence. I note this only to emphasize that I have written this dissent to defend an important constitutional principle—that the political branches, informed by foreign affairs and national security considerations, control immigration subject to limited judicial review—and not to defend the administration’s policy.

This is not to say that presidential immigration policy concerning the entry of aliens at the border is immune from judicial review, only that our review is limited by Kleindienst v. Mandel, 408 U.S. 753 (1972)—and the panel held that limitation inapplicable. I dissent from our failure to correct the panel’s manifest error.”

Read Judge Bybee’s full dissent here:

http://cdn.ca9.uscourts.gov/datastore/general/2017/03/15/17-35105 en banc.pdf

 

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I had speculated at the time a Judge of the 9th Circuit requested a vote on rehearing en banc that it was part of a strategy not intended to actually force such review, but rather to give those Judges who disagreed with the 3-Judge panel a chance to publicly express dissenting views.  This dissent will be published.

Nevertheless, with only five of the 29 or so active Judges on the 9th Circuit joining Judge Bybee’s dissent, the prospect for the Administration obtaining any relief there from the TRO in State of Hawaii v. Trump enjoining Travel Ban 2.0 appears dim.

Notwithstanding President Trump’s claim that he will litigate Travel Ban 2.0 to the Supreme Court, that might not be so easy, particularly for the foreseeable future. The Supreme Court is not obligated to take any case just because the President wishes it.  The Court has discretion.

In exercising that discretion (known as a “petition for certiorari”) the Court generally does not like to intervene at the TRO or Preliminary Injunction stage, before a full record is developed. Also, the current eight member configuration, presenting the possibility of a tie vote, makes it less likely that the Court would take the case now.

And, one of the reasons for the Court taking such a case — a split in Circuits — doesn’t exist here. The Administration has consistently lost on the issue except for a single District Court ruling from Massachusetts.

Consequently, the Administration might have to wait for a full trial on the merits of the plaintiffs’ case, a process that would take weeks at a minimum and quite possibly months or even years. Even then, there is no guarantee that the Supreme Court would take the case, or that even with Justice Gorsuch on the bench the Administration’s position would prevail.

Finally, I note that much of Judge Bybee’s dissent echoes the views expressed by Nolan Rappaport in several articles from The Hill posted on this blog.  The most recent of those, relating to State of Hawaii v. Trump, can be found here:

http://wp.me/p8eeJm-tV

PWS

03/16/17