Judge Jay Bybee – immigrationcourtside.com

COMPLICIT COURT UPDATE: 4th CIRCUIT JOINS 9th IN “TANKING FOR TRUMP” ON PUBLIC CHARGE RULE – Judges Harvie Wilkinson & Paul Niemeyer Go “Belly Up” For Trump, While Judge Pamela Harris Stands Up For The Rule Of Law –- Complicit Federal Judges continue to advance & enable Trump’s White Nationalist agenda by “working against our collective national interest.”

https://apple.news/AEvdsXcjDQJ6o7WK_NGgpYg

Scott Martelle writes in the LA Times:

Opinion: Court decisions are falling Trump’s way on a bad immigration policy

Just because two of three pending appeals have gone Trump’s way, that doesn’t mean his ‘public charge’ rule for immigrants is good policy.

Two down, one to go.

Federal judges in three separate circuits issued injunctions — two nationwide, one limited to the 9th Circuit — against President Trump’s pending “public charge” rule, which would make immigrants ineligible for green cards if they sign up for certain public benefits.

On Monday, the 4 Circuit Court of Appeals in Richmond, Va., joined fellow jurists in the San Francisco-based 9th Circuit Court of Appeals in lifting injunctions after the federal government persuaded them that it likely had the legal authority to adopt the new restrictions.

That leaves the 2 Circuit Court of Appeals, which is mulling an appeal of a nationwide injunction issued in October by a district court in New York City, as the last barrier.

The lower court decisions hinged on complaints by immigrant advocates and several state attorneys general (including California) that the government violated the federal Administrative Procedure Act by adopting an “arbitrary and capricious” policy that exceeded its authority under immigration law. But two appellate courts now say the government likely had the authority to do what it did.

Even if that is true, that doesn’t make the new rule good policy. Much like the government’s effort to require potential immigrants to prove they could cover anticipated healthcare costs (that also has been held up in the courts), the public charge rule is clearly aimed at reducing the number of poor people admitted to the country and increasing the ranks of the wealthy.

You know, fewer people from those infamous “shithole countries” in Africa, South American and the Caribbean, and more from wealthier nations in Europe, such as Trump expressed favorite, Norway (good luck with that, as my colleague Paul Thornton once pointed out).

In typical fashion, the White House used the Monday decision as a point of attack.

“The 4th Circuit’s lifting of the lawless nationwide injunction imposed against the administration’s public charge immigration regulation is a major step forward for the rule of law,” the White House said. “It is our hope that the 2nd Circuit will, like the 9th and 4th Circuits have already done, lift the meritless nationwide injunction a New York district court has imposed against the rule so that it can be enforced, consistent with the plain letter of the law, for the benefit of all citizens and lawful residents of this country.”

But the “public charge” rule is not a benefit to all. It makes life tougher for people who have already immigrated and who are hoping to be joined by their families — allowed under decades of U.S. policy — and it counters our national economic interest.

As The Times editorial board wrote in September when the proposed rule surfaced:

“The government estimates that the new regulations would negatively affect 382,000 people, but advocates say that is likely an undercount. And the rules would keep people from coming to the country who economists say are vital for the nation’s future economic growth. President Trump’s xenophobic view of the world stands in sharp contradiction not only to American values, but to the nation’s history. We are a country of immigrants or descendants of immigrants, and as a maturing society we will rely more and more on immigration for economic growth. Research shows that even those who start out in low-wage jobs, and thus are likely to get some financial help from the government, often, over time, learn or improve skills that move them into higher income brackets and help the overall economy.”

So in the administration’s efforts to reduce immigration of all stripes, it continues to push policies that appease Trump’s narrowing base while working against our collective national interest.

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Wonder who’s going to stand up for the legal rights of anti-democracy judges like Wilkinson and Niemeyer once Trump and his White Nationalists no longer need the courts? Would their immigrant ancestors have passed Trump’s nativist tests?

My full commentary on the similarly complicit ruling of the Ninth Circuit is here:http://immigrationcourtside.com/2019/12/06/complicit-9th-circuit-judges-continue-to-coddle-trump-this-time-legal-immigrants-are-the-victims-of-trumps-judicially-enabled-white-nationalist-agenda-judges-jay-bybee-sandra-i/

Constantly Confront Complicit Courts 4 Change!

Due Process Forever! Complicit Judges Never!

PWS

12-10-19

COMPLICIT 9TH CIRCUIT JUDGES CONTINUE TO CODDLE TRUMP — This Time Legal Immigrants Are The Victims Of Trump’s Judicially-Enabled White Nationalist Agenda — Judges Jay Bybee & Sandra Ikuta Tank, While Judge John Owens Files a Feeble Dissent!

https://apple.news/AJHrFUWorRIyFv_yLCkI5Aw

Priscilla Alvarez reports for CNN:

Trump nabs win on rule that could reshape legal immigration, but hold remains in place

Updated 12:17 PM EST December 6, 2019
Washington

A federal appeals court ruled in favor of the Trump administration on a rule that makes it more difficult for immigrants who rely on government assistance to obtain legal status to take effect.

But the decision by the Ninth Circuit Court of Appeals doesn’t have an immediate practical effect because the policy is still on hold due to nationwide rulings in two separate federal courts.

In August, the administration unveiled its regulation broadening the definition of “public charge,” a provision that dates back at least to the Immigration Act of 1882. The rule introduced by the Trump administration affects people who receive most forms of Medicaid, food stamps and housing vouchers. It was immediately met with pushback from advocates and several states who argued that the changes would penalize immigrants who rely on temporary assistance from the government and impose costs on the states.

While the majority of the three-judge panel recognized many of these arguments, they also found that the administration would likely succeed in its argument that it has the legal authority to define what makes someone a public charge.

In a 2-1 decision, the Ninth Circuit Court of Appeals granted a stay on rulings that have blocked the so-called “public charge” rule from taking effect. The panel has jurisdiction over nine western states. Legal challenges in other parts of the country continue to halt the rule from being implemented.

The ruling was a rare victory for the President, who has repeatedly railed against the Ninth Circuit.

“We find that the history of the use of ‘public charge’ in federal immigration law demonstrates that ‘public charge’ does not have a fixed, unambiguous meaning,” wrote Judge Jay Bybee. “Rather, the phrase is subject to multiple interpretations, it in fact has been interpreted differently, and the Executive Branch has been afforded the discretion to interpret it.”

Judge John Owens dissented in part because of the “lack of irreparable harm to the government at this early stage.”

The White House lauded the Ninth Circuit’s ruling in a statement Friday, but noted the obstacles the rule still faces before it can be implemented.

“Unfortunately, as a practical matter, the ruling has accomplished nothing to vindicate the rule of law due to the destructive practice of individual district judges taking over national policy issues by issuing nationwide injunctions,” White House press secretary Stephanie Grisham said in a statement. “Such subversions of the rule of law must come to an end.”

The 73-page majority ruling recounted the history of the rule and noted that Congress didn’t define the regulation, thereby leaving it “subject to multiple interpretations.”

Bybee, however, also recognized the difficulty of the issues at hand, writing separately that “we as a nation are engaged in titanic struggles over the future of immigration in the United States.” He also appeared to take aim at administration officials, including the President, who have accused courts of making decisions based on policy preferences, as well as Congress for lack of legislative action.

“My first point is that even as we are embroiled in these controversies, no one should mistake our judgments for our policy preferences” he wrote, adding: “In the immigration context, whatever dialogue we have been having with the administration over its policies, we are a poor conversant.”

Judges Bybee and Sandra Ikuta were appointed by George W. Bush while Owens was appointed by Barack Obama.

© 2019 Cable News Network, Inc. A WarnerMedia Company. All Rights Reserved.

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Judge Jay Bybee’s majority opinion reads like something written by White Nationalist Stephen Miller: Judges should never, ever, think of the clear and logical consequences of their actions, nor should they worry themselves about an Administration with a clearly invidious racially motivated agenda of dismembering the Constitution.

And, gosh, the world might come to an end if the Executive were actually forced to act in a reasonable manner, consistent with the facts: This regulation would do far more harm than good and has, even without implementation, already been responsible for the spread of disease and immigrants not getting available health services, sometimes for U.S. citizen family members, because of the fear and confusion that Trump has intentionally sown in ethnic communities. Just because we make the services legally available, doesn’t mean we will allow you to use them if you are an immigrant. This is the kind of nonsense that Bybee promotes in his decision.

Bybee also seems totally indifferent to the simple fact that every time Article III Judges “tank” on their legal and Constitutional responsibilities, actual innocent human beings suffer, and even die, at the hands of Trump, Miller, and the rest of their bullying and cowardly White Nationalist “wrecking crew.” Inaction, particularly in the face of tyranny, can have just as grave consequences as action.

Bybee’s brain-dead colleague Judge Sandra Ikuta joined his blathering subservience to Trump’s White Nationalist mission.

Bybee even wrote separately to absolve himself of any moral responsibility for his complicity and to finger the “real culprit” here, a feckless Congress. The latter point is correct. But, according to Bybee, in the face of a Congress that has abdicated its Constitutional responsibilities, life-tenured Article III Judges also get to ignore theirs. The last thing that should be expected of the life-tenured is any “heaving lifting” or courage in the face of tyranny! Nope, they are there to “go along to get along.”

After all, while most of us have no difficulty recognizing the undisguised ethnic and racial basis for the Trump regime’s anti-immigrant agenda, and while many U.S. District Judges, and even some Immigration Judges and Asylum Officers, are able to figure it out, such level of awareness is completely beyond Court of Appeals Judges. Nor, can they be expected to discern that a regulatory proposal adopted over the objections of most of the 266,077 commenters is likely to be based on something other than reasonable, responsible, fact-based policy making: Like, perhaps racial and ethnic biases or arbitrariness that violate our Constitution. Not to mention that the policy also makes little sense from a socio-economic standpoint.

This is an Administration whose proclivity to present “pretextual reasons” to cover their tracks for improper and illegal motives has been recognized all the way up to the Supreme Court in the “Census Case.” And, while ideally policy-making should be informed by “Executive Expertise,” that clearly isn’t the case with immigration under the Trump Regime. Trump’s utter disdain, disrespect, and disregard for Executive Branch civil servants with expertise and a fact-based approach to policy making is well-established.

But, of course, all of this is too deep for Article III Judges like Bybee and Ituka to be expected to grasp. Better to just turn the other way, put on blinders, ignore the Constitution and the rule of law, and let the abuse of immigrants continue unabated. Leave the “tough stuff” to others.

But, just whom might those “others” be who will eventually put an end to this anti-Constitutional, and ultimately anti-American, rampage of Executive overreach? An interesting question when you consider that those courageous lawyers and U.S. District Judges trying to uphold the Constitution and the rule of law in the face of Trump’s onslaught have too often been “dissed,” ignored, and undercut by Bybee and his complicit colleagues.

Did our “Founding Fathers” really intend to empower a despotic Executive to act freely against individuals without without any realistic restraints? If the Trump Administration is what they aspired to, then why didn’t just stick with good old K. George III? If, on the other hand, the Trump Administration is, in fact, “Our Founders’ Worst Nightmare,” as most informed (e.g., other than GOP toadies, Fox News, and other extremest media) observers have concluded, why are the Article III Appellate Courts too gutless to say so and stand up for our rights?

Got to wonder who is going to stand up for the rights of Judges like Bybee and Ituka, and even Owens, when Trump, Miller, and the rest of the regime come for them?

The case is City and County of San Francisco v. USCIS, and you can read it at the link in Priscilla’s article.

Sadly, Due Process and Fundamental Fairness don’t seem to have any “friends in high places” these days. Ultimately, that’s going to be a problem for our nation even if the Bybees and Itukas of the world are too blind and self-interested in preserving their ivory tower sinecures to recognize it and act accordingly!

Due Process Forever! Complicit Courts Never!

PWS

12-06-19

TRUMP’S ILLEGAL BEHAVIOR REBUKED: The 9th Joins Other Circuits Finding That Trump Administration Lacked Legal Authority To “Punish” Jurisdictions Choosing Not To Assist ICE!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=a28c0bb6-7496-4bde-a4f5-5fa4a50a4a12

Maura Dolan reports for the LA Times:

Court rules against Trump

9th Circuit panel says White House can’t force L.A. to help deport immigrants in order to receive funds.

By Maura Dolan

SAN FRANCISCO — A federal appeals court decided unanimously Thursday that the Trump administration may not force Los Angeles to help the government deport immigrants as a condition of receiving a federal police grant.

A panel of two Republican appointees and one Democrat of the U.S. 9th Circuit Court of Appeals said federal law did not permit the Trump administration to impose the conditions.

The decision involved the Edward Byrne Memorial Justice Assistance Grant Program, the primary provider of federal aid to local and state law enforcement agencies.

Congress authorized the program in 2005 to help law enforcement pay for personnel, supplies and other services. It is administered by the U.S. Department of Justice.

In 2017, the Trump administration imposed two new requirements on the grant. One required recipients to notify immigration authorities before releasing immigrants from jail. The other said recipients had to give federal agents access to correctional facilities to meet with immigrants who might be in the country without authorization.

The city of Los Angeles sued, saying it did not cooperate with immigration agents because doing so would discourage immigrants from helping police in fighting crime.

A district judge blocked the requirements, and the Trump administration appealed to the 9th Circuit.

Judge Sandra S. Ikuta, writing for the panel, said the 9th Circuit agreed with two other circuit courts that the law authorizing the grants does not give the Justice Department “broad authority to impose any condition it chooses.”

Ikuta, appointed by President George W. Bush, was joined by Judge Jay S. Bybee, also appointed by Bush, and Judge Kim McLane Wardlaw, a Clinton appointee.

Wardlaw wrote separately, saying she agreed the conditions were unlawful but criticizing the majority’s analysis as “contrary to every other court to have addressed the issue in a reasoned opinion.”

Los Angeles City Atty. Mike Feuer called Thursday’s decision “a victory for public safety on our streets and for the Constitution.”

“We will continue to fight the Trump administration’s unlawful overreach and to stand up for the best interests of L.A. residents,” he said.

Los Angeles uses the federal grant to support local criminal law enforcement and drug treatment and enforcement programs.

The immigration conditions would have denied the grant to hundreds of sanctuary cities.

Last year, the U.S. 7th Circuit Court of Appeals upheld an injunction preventing the federal government from applying the immigration conditions. That ruling stemmed from a lawsuit by the city of Chicago.

In another decision this year, the 3rd Circuit also decided the conditions were not authorized by law. That case was brought by the city of Philadelphia.

The grants can be used for technical assistance, strategic planning, research and evaluation, data collection, training, personnel, equipment, forensic laboratories, supplies, contractual support and criminal justice information systems.

The law authorizes $1.1 billion in grants, but funding is generally significantly lower.

According to the National Criminal Justice Assn., Congress appropriated $830 million for fiscal year 2002, but in later years funding for the grants was about $500 million.

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A wiser, more professional, and less ideological future Administration likely could work out agreements with states and localities for mutually beneficial cooperation in the immigration area.

But, the Trump Administration’s intentionally toxic and inflammatory White Nationalist rhetoric and actions overtly intended to terrorize local ethnic communities have “poisoned the well.” They have also been bad for legitimate law enforcement; reporting of serious crimes, particularly domestic violence, as well as cooperation in anti-gang efforts, has gone down in localities mindlessly targeted by Trump’s totally politicized DHS.

It’s also significant that conservative Bush-appointed Judge Jay S. Bybee, often the target of liberals because of his involvement in Bush-era attempts to legally rationalize torture, has stood up against the Trump Administration’s lawlessness on several important occasions.

PWS

11-01-19

TAL @ SF CHRON: 9TH CIR. STICKS A FORK IN CORE OF “GONZO APOCALYPTO” SESSIONS’S CHILD ABUSE PROGRAM — Many Of DOJ’s Wasteful “Criminal” Prosecutions Of Harmless Asylum Seekers Were Illegal — Conservative Icon Judge Jay Bybee Becoming A Key Judicial Voice For The Rule Of Law Against Trump & Co’s Executive Abuses!

Tal Kopan
Washington Reporter, SF Chronicle

https://www.sfchronicle.com/politics/article/Ninth-Circuit-ruling-could-wipe-out-hundreds-of-14152171.php

Ninth Circuit ruling could wipe out hundreds of family separations convictions

By Tal Kopan

WASHINGTON — A federal appeals court in California substantially narrowed the government’s ability to charge people for crossing the border illegally — a case that could invalidate hundreds of prosecutions that were at the core of the Trump administration’s separations of migrant families last year.

The ruling comes as the federal law in the case, which makes it a crime to cross the border without authorization, is under scrutiny in the Democratic presidential campaign, with several candidates arguing it should be done away with altogether.

Wednesday’s ruling by a three-judge panel of the Ninth U.S. Circuit Court of Appeals in Pasadena could bolster the Democrats’ argument that the Trump administration is misusing the law to criminalize well-intentioned immigrants seeking asylum. It also adds further questions to the administration’s widely criticized prosecutions that resulted in thousands of family separations last year.

The Justice Department did not respond to a request for comment Thursday.

The 2-1 decision overturning a lower court ruling concerned the provision of U.S. law that makes improper entry to the country a misdemeanor, punishable by up to six months in jail. The law has three parts: entering the U.S. at an improper time or place, eluding immigration officers or entering the U.S. using false pretenses.

In an opinion written by Judge Jay Bybee, a George W. Bush-appointee, the court decided that the second part — eluding officers — could only apply to immigrants who are at a valid border crossing but who try to enter by evading detection, not immigrants picked up on the U.S. side having crossed somewhere else. That was the case with Oracio Corrales-Vazquez, a Mexican national whom officers found hiding in bushes miles from the border, whose conviction the court overturned.

Because part one of the statute already covers immigrants who surreptitiously enter where there is no legal crossing, the court held, the second part must exist to cover some separate activity. Otherwise, the court said, it would be redundant.

Circuit has already held that part one of the illegal-entry crime — entering at an improper time or place — does not apply to people who cross the border where officials can see them, in person or over cameras, and then seek out an officer and claim asylum. Those migrants are clearly not trying to avoid detection, court rulings have held.

It has become standard practice for federal authorities in Southern California to charge border crossers only using part two to avoid the defense to part one, said Kara Hartzler, an attorney with the nonprofit San Diego Federal Defenders who brought the case. Now, federal attorneys will not have part two as a back door to charge asylum seekers with illegal entry.

The court ruling means thousands of similar convictions could be thrown out, including hundreds that were the basis for family separations the Trump administration carried out last summer in the name of prosecuting a crime.

“All of the criminal cases that led to being separated from their families, … at least in San Diego, are at least convictions where the person was actually innocent because of this ruling,” Hartzler said.

David Leopold, a former president and general counsel of the American Immigration Lawyers Association, recalled then-Homeland Security Secretary Kirstjen Nielsen telling Congress the family separations were justified because the adults taken into custody had been charged with illegal-entry crimes.

“Well, here they weren’t even prosecuting those cases correctly,” Leopold said. “It puts a question mark next to every one of those convictions, which led to separation of children and in some cases the permanent separation of child from parent.”

The Trump administration separated thousands of families in the two months the program was in effect, before the president stopped it and a federal judge in San Diego ruled the practice was unconstitutional. In hundreds of those cases, parents were deported without their children, many of whom will not be reunited as the youths pursue a right to stay in the U.S.

The Justice Department does not make prosecution data public that would identify how many separated families could be affected by Wednesday’s ruling, but there could be hundreds of such cases. Nearly 4,000 immigration-related offenses were brought in the Southern District of California in 2018, according to court data, of which the most common charge is illegal entry.

The ruling also comes as some Democrats are attacking the notion that crossing the border should be a criminal rather than civil offense. Former Housing Secretary Julián Castro has made repealing the law a central focus of his presidential campaign, pointing to the Trump administration’s use of the law as a justification for separating the families last year. Twelve Democratic candidates have embraced the idea, according to a Politico tracker.

Castro and other critics of the law say it criminalizes asylum seeking. Other parts of the law make clear that an immigrant can file an asylum claim regardless of whether they entered the country legally.

Bill Hing, professor of law and migration studies at University of San Francisco, supports Castro’s arguments to remove the criminal part of the law, saying deportation is “already a pretty severe penalty” for anyone found not to have a valid asylum claim.

“Especially now, the vast majority of people gathered at the border are coming to seek protection — why criminalize that activity?” Hing said. “The statute should require something much more criminal in intent, and when it’s just simply to cross the border to seek protection, I think there’s a good argument that we should decriminalize that activity.”

The ruling applies only to the nine states covered by the Ninth Circuit, including California and Arizona along the Mexican border. But Hing says lawyers could seek similar rulings in other border states.

“Conceptually it actually makes sense,” Hing said. “It doesn’t make sense to have two parts of a law where the same act could qualify for the violation of both.”

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Appointed by President George W. Bush, Judge Jay Bybee has been a controversial figure. His confirmation was strongly opposed by many Human Rights and Civil Rights groups because of his role in justifying torture while serving in the Bush DOJ.

Nevertheless, in this case, and in the earlier case of East Bay Sanctuary Covenant v. Trump, blocking an illegal attempt by Trump to bar Central American asylum seekers, Judge Bybee has been a strong and courageous voice for the rule of law, reason, and Constitutional separation of powers in the face of Trump’s intentional overreach in the area of immigration. https://immigrationcourtside.com/2018/12/10/mark-joseph-stern-slate-on-why-judge-bybees-65-page-evisceration-of-trumps-lawless-asylum-order-is-so-important-the-next-time-trump-floats-a-flagrantly-lawless-idea-then/.

Indeed, many observers believe that Judge Bybee’s scholarly opinion in East Bay Sanctuary was key to Chief Justice Roberts voting with the Supremes’ so-called “liberal wing” to reject the Administration’s bogus attempt to “end run” the system in that case by going directly to the Supremes without allowing the lower court proceedings to be completed. https://immigrationcourtside.com/2018/12/21/i-was-right-barely-chief-justice-roberts-saves-asylum-rule-of-law-administrations-request-to-implement-order-truncating-asylum-law-turned-down-5-4/.

Unfortunately, this much needed decision comes too late for many families who have been irreparably damaged by “Gonzo Apolcalypto’s” vile illegal and immoral abuse of Government prosecutorial authority. It’s too bad that there does not appear to be any way of holding “Gonzo Apocalypto” Sessions personally liable for his abuse of office, unconscionable distortion of our justice system, and the lifetime damage he inflicted on so many innocent children and families.

The case is US v. Oracio Corrales-Vazquez, and here’s a link to the full opinion: https://www.courtlistener.com/pdf/2019/07/24/united_states_v._oracio_corrales-Vazquez.pdf

And, of course, thanks to Tal for her continued incisive reporting on the most important issues facing America!

PWS

07-26-19

LITHWICK & STERN @ SLATE: Will California’s Appeal To Conservative Jurisprudence Convince Conservative Judges In Litigation Against Trump’s Fake National Emergency?

https://slate.com/news-and-politics/2019/02/california-lawsuit-trump-emergency-wall-conservative-gorsuch.html

Dahlia Lithwick and Mark Joseph Stern write in Slate:

Last Friday, President Donald Trump declared a national state of emergency at the southern border, adding that it wasn’t one of those emergencies he actually “needed” to declare and then saying a bunch of other things. As he predicted, a coalition of 16 states filed a federal lawsuit on Monday night, seeking a preliminary injunction to prevent the president from acting on his emergency declaration. As he also predicted, that suit was filed in federal district court in California.

What Trump did not predict—and probably could not, given his tenuous grasp on the legal limitations of executive authority—is that Monday’s lawsuit is, at bottom, extremely conservative. The suit does not appeal to the justices’ empathy for vulnerable immigrants or question whether Trump’s racist motives might undermine the declaration’s legality. Instead, it relies upon ancient principles of separation of powers to make a very strong case that Trump has short-circuited the Constitution. It is not a lawsuit about equality, or dignity, but about the nuts and bolts that undergird the constitutional lawmaking process. It is wonky, and formal, terse, and unromantic. And if the Supreme Court’s conservatives have any consistency, Monday’s lawsuit should persuade them to block Trump’s wall.

The 16 plaintiff states center their 57-page complaint around a basic argument: that the president has violated the cardinal principle of separation of powers by trammeling Congress’ will to achieve his policy preferences. Trump, the lawsuit alleges, “has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction, and law enforcement initiatives toward building a wall on the United States-Mexico border.” There is “no objective basis” for this declaration, as Trump himself has essentially admitted. Further, “[t]he federal government’s own data prove there is no national emergency at the southern border that warrants construction of a wall,” and unauthorized entries are “near 45-year lows.”

Much of the complaint details funding that will be diverted from National Guard and drug-interception projects favored by the states in order to build the wall instead. The plaintiffs say that grants them standing to sue in federal court since the president is redirecting money that would benefit their interests to a project that will not. But the states aren’t simply upset because they would have preferred that the money be used for military construction and law enforcement. They are upset because, they allege, the money has been taken from these projects and from their citizens to be used illegally.

Trump, the plaintiff states write, has “violated the United States Constitution’s separation of powers doctrine by taking executive action to fund a border wall for which Congress has refused to appropriate funding.” By “unilaterally diverting funding that Congress already appropriated for other purposes to fund a border wall for which Congress has provided no appropriations,” the president has run afoul of the Presentment Clause.

This lawsuit joins a series of others that have already been filed by watchdog groups. While they all argue that there is no actual emergency at the southern border, that is not the gravamen of their complaint. Instead of asking the courts to second-guess Trump’s intent, these challengers ask them to decide whether Trump had authority to act in the first place.

The answer, they assert, is no. The Presentment Clause is straightforward: For a bill to become law, it must pass both houses of Congress, then be presented to the president for approval. Yet Congress never passed a bill authorizing and funding the border wall Trump now demands. It never presented such legislation to the president for his signature. This is the stuff of Civics 101. Whatever powers the National Emergencies Act may grant to the president, a federal statute cannot override the Constitution. The executive cannot use funds Congress did not appropriate. He cannot amend statutes himself to create money for pet projects. Trump asked Congress for a large sum of money to construct a border wall; Congress resoundingly and provably said no. The National Emergencies Act does not give him leeway to contravene Congress’ commands.

These problems ought to be catnip for SCOTUS’ conservative justices—particularly Justice Neil Gorsuch. In his very first dissent on the Supreme Court, Gorsuch extolled the virtues of this pristine constitutional system. “If a statute needs repair,” he wrote, “there’s a constitutionally prescribed way to do it. It’s called legislation.” Gorsuch continued:

To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty.

A year later, in his rightly celebrated opinion in Sessions v. Dimaya, Gorsuch hammered this same point home again. “Under the Constitution,” he wrote, “the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives.” The courts abdicate their responsibility when they ignore the Constitution’s “division of duties” between the branches of government. These “structural worries” form the bedrock of American constitutional governance, whose ultimate goal is to safeguard “ordered liberty.” These new challenges demonstrate that Trump is circumventing these “structural worries” and harming “ordered liberty” in the process.

There’s also clear precedent for allowing states to take up this kind of challenge. When President Barack Obama tried to defer deportation for the undocumented parents of American citizens and legal residents, the Supreme Court’s conservatives threw a fit. They accused the president of legislating from the Oval Office and acting without congressional approval. And they succeeded in blocking that program after Texas and 25 other states sued based on an allegation of the flimsiest of hypothetical harms. In that case, Obama was merely executing a statute that allowed him to set “national immigration enforcement policies and priorities,” not building a border wall by fiat in defiance of congressional appropriators. If a president can violate the cardinal principle of separation of powers by stretching congressional guidance, and the states can sue him for it, surely he commits the same constitutional sin against those states by flouting congressional commands.

Litigants have learned well, after two long years of arguing over the travel ban, that the five conservatives have little to no interest in probing what lies in the president’s heart. They simply don’t care about what might or might not be a pretext, or whether tweets should count. They want clinical analysis of formal constitutional authority and presidential power. California v. Trump offers that up on a silver platter: Whatever the president can do—whether his name is Obama or Trump—he cannot take funds Congress refused to appropriate and use them to thwart the will of Congress. No tears, no drama, no probing of the executive’s soul. Just the cornerstone of the Framers’ plan.

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The appeal to “conservative jurisprudence” certainly appeared to “score” with Circuit Judge Jay Bybee of the 9th Circuit and Chief Justice John Roberts in the recent East Bay Sanctuary case (asylum regulations). Can it bring over Justice Neil Gorsuch and others in California v. Trump?

On the other hand, Professor Aziz Huq, writing in Politico says the case is already over and Trump has won because of the Supremes’ prior “what me worry” tank job in Hawaii v. Trump, the so-called “Travel Ban 3.0 Case” which also involved a “Trumped up bogus national emergency” to fulfill a political campaign promise. https://www.politico.com/magazine/story/2019/02/19/trump-national-emergency-border-wall-225164

With due respect to Professor Huq, I think this case is different because Congress specifically considered Trump’s request and “reasoning” for wanting more “Wall money” and rejected it. Whether that difference “makes a difference,” in terms of result, remains to be seen. Stay tuned!

PWS

02-20-19

NOTE: An earlier version of this post misidentified the subject of the East Bay Sanctuary case — it was about the Trump Administration’s attempt to circumvent the asylum statute, NOT DACA, in which the Court has taken no action on the Government’s pending petition.

MAJOR VICTORY FOR DHS ON PEREIRA JURISDICTION ISSUE: 9th Approves BIA Precedent In Matter of Bermudez-Cota! — KARINGITHI v WHITAKER

stop time — 9th

Karingithi v. Whitaker, 9th. Cir., 01-28-19, Published

PANEL: M. Margaret McKeown, William A. Fletcher, and Jay S. Bybee, Circuit Judges

OPINION BY: Judge McKeown

COURT STAFF SUMMARY:

The panel denied Serah Karingithi’s petition for review of the Board of Immigration Appeals’ denial of relief from removal, holding that a notice to appear that does not specify the time and date of an alien’s initial removal hearing vests an immigration judge with jurisdiction over the removal proceedings, so long as a notice of hearing specifying this information is later sent to the alien in a timely manner.

The Supreme Court recently held in Pereira v. Sessions, 138 S. Ct. 2105 (2018), that a notice to appear lacking the time and date of the hearing before an immigration judge is insufficient to trigger the stop-time rule for purposes of cancellation of removal relief. In light of Pereira, Karingithi argued that a notice to appear lacking the time and date of the hearing was insufficient to vest jurisdiction with the immigration court.

The panel rejected this argument. The panel noted that Pereira addressed the required contents of a notice to appear in the context of the stop-time rule and the continuous physical presence requirement for cancellation of removal under 8 U.S.C. §§ 1229(a), 1229b, but was not in any way concerned with the immigration court’s jurisdiction. The panel held that Pereira’s narrow ruling does not control the analysis of the immigration court’s jurisdiction because, unlike the stop-time rule, the immigration court’s

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

KARINGITHI V. WHITAKER 3

jurisdiction does not hinge on §1229(a). The panel explained that the issue of immigration court jurisdiction is instead governed by federal immigration regulations, including 8 C.F.R. §§1003.13, 1003.14(a),1003.15(b), which do not require that the charging document include the time and date of the hearing.

The panel noted that its reading of the regulations was consistent with the Board’s recent decision in Matter of Bermudez-Cota, 27 I. & N. Dec. 441 (BIA 2018), which held that “a notice to appear that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings . . . so long as a notice of hearing specifying this information is later sent to the alien.” The panel also concluded that the Board’s decision in Bermudez-Cota warranted deference.

Because the charging document in this case satisfied the regulatory requirements, and Karingithi received subsequent timely notices including the time and date of her hearing, the panel held that the immigration judge had jurisdiction over the removal proceedings.

The panel declined to consider Karingithi’s argument, in the alternative, that Pereira renders her eligible for cancellation of removal, because cancellation relief was a new claim that was not part of the present petition for review.

The panel addressed the merits of Karingithi’s petition for review of the denial of asylum and related relief in a contemporaneously filed memorandum disposition.

Here’s another helpful summary from “Our Gang” Member Retired IU.s. Immigration Judge Polly Webber:

Dear Colleagues,

Today a panel of the Ninth Circuit (McKeown, Fletcher and Bybee) denied a PFR of Serah Njoki Karingithi holding that a notice to appear that does not specify the time and date of an alien’s initial removal hearing vests an immigration judge with jurisdiction over the removal proceedings, so long as a notice of hearing specifying this information is later sent to the alien in a timely manner. In so doing, the panel read Pereira narrowly,finding that it addressed the required contents of a notice to appear in the context of the stop-time rule and the continuous physical presence requirement for cancellation of removal, but was not in any way concerned with the immigration court’s jurisdiction. It also noted that its reading of the regulations was consistent with Bermudez-Cota, and it found that that decision warranted deference.

The panel found that the immigration court’s jurisdiction does not hinge on §1229(a). The panel explained that the issue of immigration court jurisdiction is instead governed by federal immigration regulations, including 8 C.F.R. §§1003.13, 1003.14(a),1003.15(b), which do not require that the charging document include the time and date of the hearing.

Serah Njoki Karingithi v. Whittaker, Case No. 16-70885, January 28, 2019.

Long-time SF immigration lawyer, Ruby Lieberman, represented the Petitioner, and Lonny Hoffman, Professor of Law, University of Houston Law Center, filed an Amicus brief. Representing OIL were Greg Mack, Leslie McKay, Terri Scadron and Joseph Hunt.

I assume someone will ask for an en banc hearing.

Polly

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Thanks, Polly! Sorry there wasn’t “better” news. But, we have to take and publish the bad along with the good.

By the way, congrats to my former Arlington Immigration Court colleague and NAIJ Official, Judge Lawrence Owen “The Burmanator” Burman who “called” this one exactly right when we were walking to the subway after the AILA Holiday Party! Also, as an “early critic” of Bermudez-Cota, I must acknowledge that so far, notwithstanding some “rough sledding” in the District Courts, the BIA’s decision has won deference from the circuits that have considered the question.

PWS

01-29-19

MARK JOSEPH STERN @ SLATE ON WHY JUDGE BYBEE’S 65-PAGE EVISCERATION OF TRUMP’S LAWLESS ASYLUM ORDER IS SO IMPORTANT: “The next time Trump floats a flagrantly lawless idea, then, it’s worth remembering that nativist bluster cannot transmogrify an illegitimate command into a permissible executive order. Just because the president considers ending citizenship for the children of unauthorized immigrants, for instance, does not mean he can actually get away with it. Like the INA, the Constitution grants certain rights that the president cannot unilaterally rescind—including birthright citizenship. Bybee felt no compunction to pretend that Trump’s illicit scheme has any legitimacy. Neither should the rest of us.”

https://slate.com/news-and-politics/2018/12/bush-judge-rejects-trump-asylum-plan.html

Stern writes:

If there were any lingering doubt that Donald Trump’s latest plan to curb asylum is flatly unlawful, Judge Jay Bybee quashed it on Friday.

In a meticulous 65-page opinion, Bybee—a conservative George W. Bush appointee—explained that the president cannot rewrite a federal statute to deny asylum to immigrants who enter the country without authorization. His decision for the 9^thU.S. Circuit Court of Appeals is a twofold rebuke to Trump, halting the president’s legal assault on asylum-seekers and undermining his claim that any judge who blocked the order is a Democratic hack. The reality is that anyone who understands the English language should recognize that Trump’s new rule is illegal. Like so many of Trump’s attention-grabbing proposals, this doomed policy should never have been treated as legitimate in the first place.

Friday’s ruling involves a proclamation that Trump signed on Nov. 9, ostensibly to address the “continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border.” The order alluded darkly to the caravan of asylum-seekers then approaching the border, which Trump tried and failed to exploit as a campaign issue. To remedy this “crisis” and protect “the integrity of our borders,” he directed the federal government to deny asylum to any immigrant who enters the United States unlawfully.

Ten days later, U.S. District Judge Jon S. Tigar halted the new rule, holding that it likely exceeded the president’s authority. Trump responded by dismissing Tigar, a Barack Obama appointee, as an “Obama judge.” The comment led to a rare rebuke from Chief Justice John Roberts, who told the AP: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

As Trump escalated his feud with Roberts, his Department of Justice appealed Tigar’s ruling to the 9^thCircuit. It faced a seemingly propitious panel: Bybee, Judge Edward Leavy, and Judge Andrew D. Hurwitz. Bybee is a very conservative jurist who authored the original “torture memo,” justifying the Bush administration’s brutal interrogation of detainees. Leavy is a staunchly conservative Reagan appointee; only Hurwitz, an Obama appointee, leans to the left. Under Trump’s partisan vision of the judiciary, the DOJ would seem to have a good shot at reviving the asylum rule.

But Bybee didn’t bite. In a crisp and rigorous opinion for the court, he wrote that Tigar was correct to conclude that the policy almost certainly violates the law. The problem, Bybee explained, is that Congress expressly provided asylum-seekers with the right that Trump now seeks to revoke: an ability to apply for asylum regardless of how they came into the country. The Immigration and Nationality Act states that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival …), irrespective of such alien’s status, may apply for asylum in accordance with this section.” This provision implements the 1951 Convention Relating to the Status of Refugees, which the United States has ratified. It directs signatories not to “impose penalties [on refugees] on account of their illegal entry or presence.”

The plain text of the law couldn’t be clearer: Immigrants in the U.S. are eligible for asylum whether they arrived legally (through a “designated port of arrival”) or illegally. If the president wants to change that fact, he’ll have to convince Congress to break its treaty obligations and alter the law.

Obviously, the Trump administration has not persuaded Congress to overhaul asylum law. So it tried to work around the existing statute by allowing unauthorized immigrants to request asylum—then directing the government to deny their application. Bybee easily disposed of this semantical workaround. “It is the hollowest of rights,” he wrote, “that an alien must be allowed to apply for asylum regardless of whether she arrived through a port of entry if another rule makes her categorically ineligible for asylum based on precisely that fact. … The technical differences between applying for and eligibility for asylum are of no consequence to a refugee when the bottom line—no possibility of asylum—is the same.”

In light of the proclamation’s fundamental illegality, Bybee, joined by Hurwitz, affirmed Tigar’s nationwide restraining order. Leavy dissented in a curious five-page opinion insisting that the INA grants the executive branch power “to bring safety and fairness to the conditions at the southern border.” His anemic analysis is no match for Bybee’s thorough demolition of the DOJ’s illogical position. It seems quite likely that a lopsided majority of the Supreme Court will eventually agree with Bybee’s majority opinion.

It is satisfying to see a “Bush judge” (in Trumpian parlance) hand the president such a stinging legal defeat. Roberts overstated the case in totally dismissing the role of partisanship in the judiciary; of course some judges are political. But for now, a majority of the federal judiciary remains willing to stand up to the president, at least when he issues blatantly illegal orders. Judges like Roberts and Bybee may let Trump manipulate ambiguous laws to do some very bad things to immigrants. But they are not willing to let the president ignore a clear and constitutional directive from Congress.

The next time Trump floats a flagrantly lawless idea, then, it’s worth remembering that nativist bluster cannot transmogrify an illegitimate command into a permissible executive order. Just because the president considers ending citizenship for the children of unauthorized immigrants, for instance, does not mean he can actually get away with it. Like the INA, the Constitution grants certain rights that the president cannot unilaterally rescind—including birthright citizenship. Bybee felt no compunction to pretend that Trump’s illicit scheme has any legitimacy. Neither should the rest of us.

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Stern points out that contrary to Trump’s belief that he can bully, co-opt, and control the judicial system, in the way that other authoritarian fascists have done in the past, even so-called “conservative” judges have lines beyond which they won’t be pushed. And, lifetime tenure protects them from retaliation by Trump and his corrupt White Nationalist cronies.

Few things can be more important than having judges across the board, regardless of judicial philosophy, stand up to Trump and his lawless abuses of Executive Power as well as “pushing back” on a Department of Justice that has, with a few exceptions, lost its professionalism, moral compass, and courage, along with any semblance of independence.

PWS

12-10-18

SPLIT 9TH BLOCKS SCOFFLAW ADMINISTRATION’S ATTEMPT TO THWART ASYLUM LAWS! — Trump’s Latest White Nationalist Attack On American Institutions & Values Might Be On Life Support As Leading Conservative Judge Bybee “Just Says No!” — East Bay Sanctuary Covenant v. Trump

18-17274

East Bay Sanctuary Covenant v. Trump, 9th Cir.,12-07-18

PANEL: LEAVY, BYBEE, and HURWITZ, Circuit Judges

OPINION BY: Judge Bybee

DISSENT: Judge Leavy

KEY QUOTE FROM JUDGE BYBEE’S MAJORITY:

The Government asserts that the TRO “constitutes a major and ‘unwarranted judicial interference in the conduct of foreign policy’” and “undermines the separation of powers by blocking the Executive Branch’s lawful use of its authority.” But if there is a separation-of-powers concern here, it is between the President and Congress, a boundary that we are sometimes called upon to enforce.See, e.g., Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012); INS v.

50

Chadha, 462 U.S. 919 (1983). Here, the Executive has attempted an end-run around Congress. The President’s Proclamation by itself is a precatory act.14 The entry it “suspends” has long been suspended: Congress criminalized crossing the Mexican border at any place other than a port of entry over 60 years ago. See Pub. L. No. 82-414, 66 Stat. 163-229 (codified as amended at 8 U.S.C. § 1325). The Proclamation attempts to accomplish one thing. In combination with the Rule, it does indirectly what the Executive cannot do directly: amend the INA. Just as we may not, as we are often reminded, “legislate from the bench,” neither may the Executive legislate from the Oval Office.

This separation-of-powers principle hardly needs repeating. “The power of executing the laws . . . does not include a power to revise clear statutory terms that turn out not to work in practice,” and it is thus a “core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446 (2014). Where “Congress itself has significantly limited executive discretion by establishing a detailed scheme that the Executive must follow in [dealing with] aliens,” the Attorney General may not abandon that scheme because he thinks it is not working well—at least not in the way in which the Executive attempts to do here. Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 368 (2005). There surely are enforcement measures that the President and the Attorney General can take to ameliorate the crisis, but continued inaction by Congress is not a sufficient basis under our Constitution for the Executive to rewrite our immigration laws.

We are acutely aware of the crisis in the enforcement of our immigration laws. The burden of dealing with these issues has fallen disproportionately on the courts of our circuit. And as much as we might be tempted to revise the law as we think wise, revision of the laws is left with the branch that enacted the laws in the first place—Congress.

KEY QUOTE FROM JUDGE LEAVY’S DISSENT:

I dissent from the majority’s conclusion that the Rule was not exempt from the standard notice-and-comment procedures. The Attorney General articulated a need to act immediately in the interests of safety of both law enforcement and aliens, and the Rule involves actions of aliens at the southern border undermining particularized determinations of the President judged as required by the national interest, relations with Mexico, and the President’s foreign policy.

I dissent from the denial of the motion to stay because the President, Attorney General, and Secretary of Homeland Security have adopted legal methods to cope with the current problems rampant at the southern border.

The question whether the Rule is consistent with 8 U.S.C. § 1158 goes to the consideration of likelihood of success on the merits. The majority errs by treating the grant or denial of eligibility for asylum as equivalent to a bar to application for asylum, and conflating these two separate statutory directives.

An alien does not obtain the right to apply for asylum because he entered

illegally. The reason “any alien” has the right to apply, according to the statute, is because he is physically present in the United States or has arrived in the United States. The parenthetical in 8 U.S.C. § 1158(a)(1) (“whether or not at a designated port of arrival”),which the majority chooses to italicize, does not expand upon who is eligible to apply beyond the words of the statute, “any alien.”

The majority concludes that the Rule conditioning eligibility for asylum is the equivalent to a rule barring application for asylum. But the statute does not say that, nor does the Rule. I would stick to the words of the statute rather than discerning meaning beyond the words of the statute and Rule in order to find the action of the Attorney General and Secretary “not in accordance with the law.” 5 U.S.C. § 706(2)(A).

Congress placed authorization to apply for asylum in one section of the statute, 8 U.S.C. § 1158(a)(1). Congress then placed the exceptions to the authorization to apply in another section, 8 U.S.C. § 1158(a)(2). Congress placed the eligibility for asylum in a different subsection, 8 U.S.C. § 1158(b)(1), and disqualifications for eligibility in 8 U.S.C, § 1158(b)(2)(A)(i)-(vi). The Attorney General or the Secretary of Homeland Security has no authority to grant asylum to the categories of aliens enumerated in § 1158(b)(2)(A). Congress has decided that the right to apply for asylum does not assure any alien that something other than a

2

categorical denial of asylum is inevitable. Congress has instructed, by the structure and language of the statute, that there is nothing inconsistent in allowing an application for asylum and categorically denying any possibility of being granted asylum on that application. Thus, Congress has instructed that felons and terrorists have a right to apply for asylum, notwithstanding a categorical denial of eligibility.

**********************************************

Judge Leavy’s dissent seems pretty absurdist to me. There is no parallel between “felons and terrorists” and others who might enter illegally. To state the obvious, most terrorists and felons would be ineligible for “refugee status” under the U.N. Convention. Those whose only offense was illegal entry would not.

There’s a little glimmer of hope for the Administration scofflaws. They finally got a dissenting Article III Judge to bite on their bogus legal arguments for rewriting asylum law.

The bad news: The majority opinion upholding the TRO against the asylum scam was written by erstwhile conservative Judge Jay Bybee. Bybee is so far to the right that he had trouble getting confirmed because of his participation in the Bush II era torture scandals at the DOJ. He also voted in favor of the Trumpsters on the “Travel Ban” case. So, when you lose a case with a 9^thCircuit panel of two “GOP conservative” judges and only one “Democratic appointment” you know you’re in trouble (even if you subscribe to Trump’s semi-myth that judges are identified for life by the party that appointed them).

But wait, there’s more. Judge Bybee is not only a “strict constructionist,” but has also been a strong critic of Trump’s “dissing” of the integrity of Federal Judges. That puts him on exactly the same wavelength as conservative Chief Justice John Roberts. Plus, for the reasons he set forth in this opinion, those conservative Justices who are “strict constructionist defenders of separation of powers” might be reluctamnt to “bite” on the Administration’s rewrite of specific Congressional direction in asylum statutes.

Additionally, Judge Bybee pointed out that the record before Judge Tigar still needs more development. For lots of reasons, it’s looking like the Supremes might be unwilling to intervene to bail Trump out of his self-created mess at the preliminary stage.

It’s also pretty evident at this point that the “asylum crisis” is bogus; if there is any crisis it is self-created by the Trumpsters White Nationalist xenophobia. That’s going to come out in any historical analysis, thus making any Justice voting for Trump’s position look about the same as those who voted to uphold American-Japanese internment in World War II. In other words, it will be a cowardly and disgraceful legacy. While Trump is too ignorant to look at life in historical terms, Chief Justice Roberts (who holds the balance of power these days) clearly cares about how history will judge him and “his” Court.

I could be wrong, but if I were a Trumpster, I’d be concerned about the future of the racist-restrictionist immigration agenda. It’s going nowhere in Congress and at least some of the “bureaucratic end runs” are running into problems with the Article IIIs. That’s not to minimize the short and long term damage he’s doing to America with his abuse of the bureaucratic processes. Whether we can recover, remains to be seen.

PWS

12-08-18

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.”

**********************************

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

************************************

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

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