February 10th, 2017

Next stop—SCOTUS?

From John Hinderaker at Powerline on what might come next in the EO battle:

…[T]he administration might go straight to the Supreme Court. But bear in mind that all the 9th Circuit has done is to deny a motion for an emergency stay, based on “the limited evidence put forward by both parties at this very preliminary stage.” I think the administration could pretty easily tweak Trump’s order to meet the relatively minor objections the plaintiffs have put forward, and create a record in the trial court that would make it difficult for even the 9th Circuit (this is known as “judge shopping” by the plaintiffs, by the way) to stand in the way. In the meantime, let’s confirm Justice Gorsuch, just in case the Democrats try to execute a judicial coup.

From Paul Mirengoff, also at Powerline:

I would like to see the administration take this case directly to the Supreme Court. The law so clearly favors the administration that a win isn’t out of the question.

In any event, let’s have the Supreme Court speak. If it doesn’t overturn the Ninth Circuit, it can share responsibility in the event of a terrorist act the travel ban might have prevented.

Regardless of whether the injunction against the administration is lifted, the case is headed back to the courtroom of the strange judge in Washington State for a decision on the merits. That decision can be appealed. By the time this appeal makes its way to the Supreme Court, perhaps Judge Gorsuch will be on that bench, thus improving the administration’s chances of success.

Would a loss in the Supreme Court on a appeal now hurt the administration’s chances later? I don’t think so. A 4-4 ruling would have no impact later. And if the administration loses 5-3 because it can’t get Kennedy’s vote, it probably will lose 5-4 later.

So my initial take is that the administration should take this to the Supreme Court straight away.

The reason the government could have two chances at judicial review by SCOTUS (if the Court decides to hear them) is that we’re talking about two separate cases. The first would be a SCOTUS review of the TRO and the affirmation of the TRO by the 9th Circuit, and the second would be an appeal of Robart’s decision on the merits in a proceeding which will now most likely be going forward but has not yet done so. Trump could lose the first appeal and win the second, if Gorsuch is on the Supreme Court by the time that appeal arrives there.

[ADDENDUM: William Jacobson of Legal Insurrection disagrees with those who would advise President Trump to rewrite the executive order:

The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.

This legal dispute no longer is just about the Executive Order. Democrats have made clear that they will fight in court over almost everything the Trump administration does. The 9th Circuit has opened the door to this tactic on an issue that goes to the core of presidential authority.

If the Courts are to designate themselves the functional directors of the Department of Homeland Security, then such mandate must come from the Supreme Court, not the 9th Circuit.

But sometimes timing is of the essence. Rewriting the EO would merely clarify some things the administration has said it intended anyway—such as, for example, that green card holders will not be affected. It could be framed to the public as being a clearer and more explicit statement of what Trump intended anyway rather than a bow to the 9th Circuit (I’m not sure how widely that would be believed, of course). If the case goes to the Supreme Court at the moment, the best result I see possible is a 4-4 tie, which has the effect of letting the 9th Circuit decision stand. So it would be counterproductive as well as unnecessary at this point. Wait for a decision on the merits and appeal that to the full Court once Gorsuch has been seated.

It has also been pointed out in several articles I’ve read that nothing in this 9th Circuit decision stops the administration’s proposed vetting study and any resultant fine-tuning of the vetting procedure from going ahead, even without the several-months’ moratorium on immigration envisioned by the EO.]

24 Responses to “Next stop—SCOTUS?”

  1. Otiose Says:

    I agree that rewriting the EO so that it is a clearer statement of the real issues is a good idea.

    On the ground tactical point of view, Robart stopped the EO – a blanket temporary suspension of people from those seven countries. As Trump takes control of the bureaucratic machinery involved in processing applications, he can effectively slow down or bring to a halt all processing of applications.

    Robart deliberately focused on certain details to stop the whole EO. Trump’s bureaucracy can find all sorts of issues to slow down the pipeline.

  2. fiona Says:

    Recall that one reason for the “rushed” order was the possibility that many terrorists were on the way. Now consider that since the TRO went into effect, 77% of Visa entrants have been from the seven countries. Am I the only one who remembers the discussion when the big Euro migrant push was in effect and the FBI answered a Congressional questions saying that effectively we could NOT vet Syrian refugees, since there is no database and no functional government to go thru>

  3. Oldflyer Says:

    I do not have a grasp of the legal nuances of the various rulings on this EO. It does appear to me as a layman, that the Judges ignored the existing statutes that cited the seven countries for special concern; and even more egregiously impinged on the President’s prerogatives with respect to national security. Never mind that they seemingly extended constitutional rights to foreign nationals who are not even legal residents.

    One thing I do grasp is that we have a foot on the slope of judicial tyranny. What I would call the “Bader-Ginsburg” philosophy that the “law is what I say it is” seems to have filtered throughout the federal judiciary. They are substituting their judgements and prejudices for the constitution with seeming impunity.

    I don’t know what the remedy is; but, it must be stopped. It should not take great wisdom to understand that without an enduring, consistent set of laws, we are on the path to chaos. So, one wonders.

  4. neo-neocon Says:


    I just published a post that deals with some of those very issues.

  5. Cornhead Says:

    For people who don’t know, John Hinderaker and Paul Mirengoff are retired lawyers who practiced at the highest level. I’ve met them both and I am glad to call them friends. Both are super sharp and conservative. Scott Johnson is the third one in the trio; all friends from Dartmouth.

  6. expat Says:

    Someone needs to get the info out on the number of blank passports that have been found in Islamist-contolled areas of these countries. They also need to talk about the number of terrorists in Europe who have used passports from different countries in making their way through Europe. And they should talk about the number of European 2nd gens who have traveled to training camps and then have used fake passports to claim refugee status. Most people have no idea of how hard Europe is working to track down the bad guys. This kind of info is more important than Ivanka’s clothing line, but it’s probably too complicated for MSM reporters to understand.

  7. Roy Lofquist Says:

    My response to the Scott Johnson post at Powerline:

    “I think the administration would be well advised to pull the plug on the executive order itself ”

    Wrong, wrong, wrong! This coming clash has been simmering since the FDR administration. I can’t thing of a more clear cut example of an encroachment on the separation of powers.

    The lines in this matter are exceptionally clear and bright. The statute is unambiguous and particularly forceful in its language. As the president said, even a bad high school student can see its clear meaning. The President’s plenary powers in matters outside of the borders is supported throughout our history, starting with Jefferson’s dispatch of the Navy, against the wishes of the Congress, to punish the Barbary Pirates.

    We now have the gravest threat to this Union since the Civil War. The Democratic Party is committed to shutting down the government not because of a particular issue but rather as an exercise of raw political power. It is a usurpation, a rebellion.

    It is not only the Democratic Party that is in rebellion but also two of the States and certain members of the judiciary.

    “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

    Whether he employs the jurisdiction provisions of Article III, Section 2 or the Andrew Jackson, Abraham Lincoln precedents, it is his sworn duty and moral imperative to suppress this insurrection.

  8. Geoffrey Britain Says:

    Liberal/leftist judges are now playing with fire. The flip side of the “the law is what I say it is” coin… is shared responsibility and, when attacks occur*, the blame that goes with it. From now on, Trump can point to where responsibility lies. He’ll beat that meme like a drum and the MSM will have to cover/publicize Trump’s pointing the finger of accusation…

    For far too long, activist judges have born no consequence for what they’ve wrought.

    * So much for Trump playing the fear card.

  9. OM Says:

    “We now have the gravest threat to this Union since the Civil War.”

    Nope, not nuclear war during the Cold War, not the Cuban Missile Crisis, not Ronald Reagan and the nuclear freeze movement, not the New Deal, not 9-11, not radical Islam or home grown Islam, it’s the 9th Circus. Who knew. And who knew that the SCOTUS will have nothing to say. Yep it’s worse than all that.

    The path to Mt Hyperbole has been found again.

  10. Roy Lofquist Says:


    I really don’t appreciate people who either don’t comprehend what they read or deliberately misread the plain meaning of words to be contentious.

    I specifically wrote “Union”, meaning our form of government and the social contract that sustains it.

    “The Democratic Party is committed to shutting down the government not because of a particular issue but rather as an exercise of raw political power. It is a usurpation, a rebellion.”

    Here’s the deal. We, the people, hold periodic elections to decide who gets to run things within Constitutional and statutory constraints. If you don’t like it there’ll be another election in two years. Make your case.

    The Democrats refuse to accept the results. Just like the Confederacy. They insist that they don’t have to follow the law – because Unicorns.

    The things that you mention, Cold War, Missile Crisis, … were external threats over which we prevailed because e pluribus unum. I am appalled that immature gadflies and opportunistic power seekers seek to destroy the greatest society in human history for some perceived temporal advantage.

  11. Geoffrey Britain Says:

    The central reality that some on the right refuse to face is that “the erasure of the American republic is the core agenda of the Democratic Party.” David Horowitz


    I long ago concluded that OM is deliberately misreading the plain meaning of words. It happens far too often to be otherwise.

  12. neo-neocon Says:

    Roy Lofquist; Geoffrey Britain:

    I feel the need to defend OM. Not OM personally (after all, I don’t know OM and can’t read his/her mind or know the motivations of his/her heart), but I reject the idea that repeated misunderstandings of the meaning of the words of another person online is usually or always deliberate.

    I’ve been doing this blogging thing for twelve years, and commenting longer than that. And I can say that, over time, Karl Popper’s aphorism has become more and more meaningful to me, not less: “It is impossible to speak in such a way that you cannot be misunderstood.”

    Not only that, but some people really do have more trouble understanding than others, and it’s not deliberate. Plus, certain people are more easily misunderstood than others because of the way they write—even if the writer thinks he or she is being crystal clear.

    It is not usually a good idea to ascribe misunderstanding to ill will unless you are very very certain of it. I always try to err on the side of assuming something is a misunderstanding, if I can.

    To take the case at hand, I have to say that I would not immediately assume that the meaning of the phrase “this Union” in that particular sentence was restricted to “our form of government and the social contract that sustains it” as opposed to “our country.” Either interpretation seems quite valid to me, and neither would be automatically excluded.

  13. OM Says:

    Well Geoffrey and Roy:

    If you want to run around with your hair on fire (the sky always seems to be falling) you will get noticed. If you want to claim that four bozos (one in Seattle and three in San Francisco) are the worst threat to the republic well that is your choice, but seems hyperbole to me. Notice that the judgement of four bozos are being ridiculed. Notice that Trump has options to counter their gambit. Notice that Congress has options too. And of course there is that other Fat Lady, the SCOTUS.

    So light up your hair and run around. “All is lost!” “Civil war!” Rule 303! 🙂

  14. Geoffrey Britain Says:


    I’m pretty certain of it. Never even an acknowledgement of the possibility of misunderstanding another’s words.


    I can’t recall ever suggesting that its “the worst threat to the republic”. I must have missed it, please show us where I so stated.

    As for hyperbole, neo evidently disagrees; “In other words, this is a big big deal, and one of the difficulties of writing about it and thinking about it is how revolutionary it is and the enormous number of issues involved that are of vital importance.”

    Nowhere in the major MSM is the judgement of four bozos are ‘learned jurists’ being ridiculed. Only in the right’s echo chamber is there ridicule.

    “Trump has options to counter their gambit.”

    Perhaps and perhaps not. Given the Left’s track record and your disparagement of Trump, you’re remarkably optimistic. Upon what do you base that optimism, other that is than simple argumentativeness?

    “Notice that Congress has options too.”

    More remarkable optimism. ONE democrat voted to confirm Sessions. None for Davos.
    Already the meme is being set by the media that if congressional democrats decline enmass, it’s illegitimate.

    While the RINOs are showing signs of passive resistance…

    “And of course there is that other Fat Lady, the SCOTUS.”

    Counting on Kennedy are we? Given his track record, that’s wishful thinking. SCOTUS is far from certain even with Gorsuch or have you forgotten Robert’s twisted ‘logic’ with Obamacare?

  15. parker Says:

    From my POV, and what I have learned, Robart and the 9th are usurping the powers delegated to the executive and legislative branches. Members of the judicial branch should make decisions based on the Constitution and the laws and statutes as decided by the political branches.

    Time for the annual video from the Man for All Seasons….. “And when the last law was done, and the devil turned round on you…”

  16. OM Says:


    ““Trump has options to counter their gambit.”

    Perhaps and perhaps not. Given the Left’s track record and your disparagement of Trump, you’re remarkably optimistic. Upon what do you base that optimism, other that is than simple argumentativeness? ”

    So you think perhaps not? Oh, is the sky falling again, or has it never stopped? Light up the hair again.

    President Trump’s team made a mess of the rollout. Do you agree? Focus. I have not criticized the intent of the EO except regards “terps” from Iraq. Focus. His picks for cabinet offices have been very good. Focus.

    You have a propensity to exaggerate the perils that we face and then fall back on those “willful blindness,” low character, slander, charges. Now I’m a blind optimist and argumentative Pollyanna. After a while it’s water off a duck, and well, it seems that the left must be ten feet tall in your world.

    President Trump is scaring the left and they aren’t rolling over. Well, DUH. If the President is going to succeed he has to expect a fight. This EO hasn’t rollout been his best effort. Maybe President Trump has learned from this “own goal.” We will see.

  17. parker Says:

    oops not done but down.

  18. parker Says:

    OM (and Big Maq),

    I get it. Trump being the brash The Donald shtick. Get use to it. I have decided to accept that from what I view as a strange person now POTUS. It doesn’t mean I am comfortable with his thin skinnedness or his character in general. But he has surprised me by his cabinet picks and the swiftness of his response to issues that need to be addressed.

    No one thought the left would roll over. Of course not. They will double, triple, and quadruple down. That is a good thing. When your opponent is unhinged, they are off blance. That is the time to attack relentlessly. Djt, for all of his many flaws, attacks. About time. I just wish he had the intellect, knowledge, and wisdom of a Ted Cruz.

  19. Roy Lofquist Says:


    You write:

    [“this Union” in that particular sentence was restricted to “our form of government and the social contract that sustains it” as opposed to “our country.”]

    The actual sentence as written:

    [We now have the gravest threat to this Union since the Civil War.]

    The word “union”, in American politics, as opposed to “nation” or “country”, is commonly associated with one of three things – The Constitution (where it appears 6 times), the annual SOTU address, and the “preservation of the Union” as the primary justification for the Civil War.

    The failure to discern my meaning, with “Union” and “Civil War” in close proximity and the context of this post, belies either historical ignorance or deliberate obtuseness.

    You quote Popper on misunderstanding. I quote Fleming: “Once is happenstance, twice is coincidence, the third time it’s enemy action.”

    Now, I certainly don’t want to drag Geoffrey Britain into this but I will quote his comment:


    I long ago concluded that OM is deliberately misreading the plain meaning of words. It happens far too often to be otherwise.]

    This kind of behavior would be merely annoying save for the fact that OM consistently indulges in personal insults:

    [The path to Mt Hyperbole has been found again.]

    [So light up your hair and run around. “All is lost!” “Civil war!” Rule 303!]

    “They Call Me Mellow Yellow”. I don’t start things. But I have a personal rule that has served me well for more than 70 years – when some pissant takes a shot at me I shoot back.

  20. neo-neocon Says:

    Roy Lofquist:

    Look, you can think whatever you want to think about it. Maybe you’re even correct.

    I’m giving you a friendly bit of advice. And I don’t mean that sarcastically. You don’t have to take my advice, of course, but maybe you should at least think about it.

    Indeed, you are correct that the phrase “this Union” is probably best understood the way you say it should be. But most people aren’t parsing words that carefully when they read a blog comment, and it is NOT misreading the plain meaning of the word to understand it in a more general sense as meaning something like “the USA.” That would also be a relatively common interpretation and not necessarily indicative of some sort of ill will or deliberate twisting.

    The Union was threatened during the Civil War. But also the country was, in the sense that it was a huge crisis, a huge threat. So interpreting it as some sort of mortal threat and comparing it to other mortal threats is not necessarily the sort of purposeful distortion you think it MUST be.

    If you want to get really technical, “Union” in that context actually means:

    During the American Civil War (1861–1865), the Union referred to the United States of America and specifically to the national government of president Abraham Lincoln and the 23 free states and 5 border states that supported it. The Union was opposed by 11 southern slave states that formed the Confederate States, or “the Confederacy.”

    Now, obviously (at least, I think obviously) you don’t mean “Union” in the sense of only the states that fought the Confederacy in the Civil War. But I write this to illustrate that there are many ways to interpret the word in a narrow sense or in a broad sense.

    The other thing is that once an adversarial relationship is set up (such as with OM) it becomes easier and easier to interpret every misunderstanding as being motivated by animus. But that doesn’t mean it’s correct. But the more it happens, the more it leads to more animus.

  21. Roy Lofquist Says:

    Buh bye!

  22. parker Says:

    Everyone, me included, needs to take a chill pill. Everyone needs to admit djt wiil make mistakes.AND, everyone needs to focus on the real enemy to life, liberty, and the pursuit of happiness.

  23. Bill Says:

    “everyone needs to focus on the real enemy to life, liberty, and the pursuit of happiness.”

    Parker, you’re a good guy, but I’m not sleeping so good now that DJT has his unbalanced self invested with all this power. And now that Republicans (I don’t say conservatives anymore) seem to want to give him nearly unlimited power.

    He’s more reactive than I expected, way more blatant and shameless about his conflicts of interest than I expected, way less thoughtful. All the things that I thought would happen are happening but ratcheted up to 11. Anyone besides me shaking their head over all his On The Job Training? For example, his apparent misunderstanding of why good people (not just “bad guys”) might not like the police being able to snatch whatever they want from you if they arrest you, regardless of whether you’re ever convicted. And the slow drip-drip-drip of his Putin bromance . . .

    Plus now I’m hearing people in this space equating an Appeals Court’s restricting (most likely just temporarily) of Trump’s ability to restrict travel from a few countries as the “the gravest threat to this Union since” . . . a war that cost us 600,000 American lives as we ruthlessly slaughtered each other on the battlefield right in our own towns and fields.

    Yeah, same thing. Egad.

    Again. The failure of this EO is all on Trump. If he could, pray, wrest himself away from cable TV and his Android and quit fretting about whether Ivanka’s merch is being sold in Nordstrum’s or not, perhaps he could learn a little bit about the job a lot of people (not me) decided it would be a good idea to give to an incurious, inexperienced sleepless wannabe tyrant with impulse problems.

  24. Big Maq Says:

    “everyone needs to focus on the real enemy to life, liberty, and the pursuit of happiness” – parker

    Correct, but that should also apply to trump himself.

    He so wants to “surprise” everyone, nobody really knows where he is headed! And, that is a BIG problem, and reason enough not to let him off the hook.

    If the right gives him a pass, or excuses him, rather than holding him (and his admin) accountable, then what stops trump from becoming a tyrant?

    When trump’s action and spin (lies?) can warrant no wrong or concern, all behind a hyperbolized rationale, that seems as much a danger as the left poses, as it gives free license.

    We all want the “good” to outweigh the “bad”, and for those “good” achievements to be lasting.

    So far, it is not convincing on both counts.

    But, there is some basis to be hopeful for, given his cabinet picks.

    Will they have sufficient sway to temper the worst parts of trump?

    We’ll see.

    Would love to take a “chill pill” … as soon as trump and his red team of cheerleaders do.

    For all those who think trump is “just” fulfilling his “promises”, he “promised” a lot of things, for instance, two words…

    Tax Returns!

    Beyond his short list (delivered extremely late in his campaign) of “promises”, the real issue will be how he governs (particularly in a crisis) and what he does with his new power.

    We can speculate that maybe all he wants is to enrich and glorify himself.

    Perhaps a small price to pay to get everything else “we want” (only will that really be the outcome – or could it be one hot mess, with conservatives branded as trumpism to boot?).

    We still know way too little to say one way or another.

    This EO debacle is not a good omen.

    We’ll see.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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