Archive for the ‘Trump and U.S. courts’ category

A Familiar Judge Wastes More Of Our Time Over Sanctuary City Orders

November 21, 2017

A Familiar Judge Wastes More Of Our Time Over Sanctuary City Orders, Hot Air, Jazz Shaw, November 21, 2017

Judge William Orrick III is certainly making a name for himself and becoming a hero of the #RESIST movement, but if he continues to have his findings overruled upon review it may not do much for his career. It’s also worth noting that prior to taking the bench, Orrick had a long history as a generous political donor while he was working as an attorney in the private sector. A quick look at Open Secrets shows the lengthy list of politicians who have benefitted from his generosity.

Wouldn’t it be shocking to find out that they were all conservatives and Republicans? Naw… just kidding. He gave to Hillary Clinton (2006), Rahm Emanuel, the Democratic Party of Iowa, John Kerry, Dianne Feinstein, Bill Clinton (multiple times), Barack Obama in 2004… shall I go on? I think you get the idea.

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Here we go again.

A judge in northern California has stepped in to “permanently” block one of President Trump’s orders regarding Justice Department grant money for sanctuary cities which refuse to uphold the law. This action will obviously be appealed, as several other such rulings have been, but for the time being, District Court Judge William Orrick III scores himself another turn in the headlines. (Associated Press)

A federal judge on Monday permanently blocked President Donald Trump’s executive order to cut funding from cities that limit cooperation with U.S. immigration authorities.

U.S. District Court Judge William Orrick rejected the administration’s argument that the executive order applies only to a relatively small pot of money and said Trump cannot set new conditions on spending approved by Congress.

The judge had previously made the same arguments in a ruling that put a temporary hold on the executive order targeting so-called sanctuary cities. The Trump administration has appealed that decision to the 9th U.S. Circuit Court of Appeals.

It’s a stretch of the imagination to declare it a coincidence that this is the same judge they found to block a different sanctuary city order back in April. And given the location where the case was heard, the first round of appeals will go to the 9th Circuit, which means the ruling will probably go to the Supreme Court eventually. Much like the travel ban, it’s clear that you can eventually find a judge to rule however you like, providing you’re willing to shop around.

The decision itself remains just as dubious as the previous ruling. Orrick is claiming that the President doesn’t have the authority to repurpose funds which Congress has already authorized. That’s vague at best and seems to ignore the fact that we’re talking about money given to the Executive Branch for the purpose of issuing grants. That means there’s an application process (which we’ve covered here before) and not everyone who applies for one will receive the funding. Further, it’s the Justice Department who determines the criteria for receiving such grants. Congress simply made the funding available to set up and maintain the program.

Judge William Orrick III is certainly making a name for himself and becoming a hero of the #RESIST movement, but if he continues to have his findings overruled upon review it may not do much for his career. It’s also worth noting that prior to taking the bench, Orrick had a long history as a generous political donor while he was working as an attorney in the private sector. A quick look at Open Secrets shows the lengthy list of politicians who have benefitted from his generosity.

Wouldn’t it be shocking to find out that they were all conservatives and Republicans? Naw… just kidding. He gave to Hillary Clinton (2006), Rahm Emanuel, the Democratic Party of Iowa, John Kerry, Dianne Feinstein, Bill Clinton (multiple times), Barack Obama in 2004… shall I go on? I think you get the idea.

So we’ll apparently put the brakes on any progress in enforcing immigration law for the time being. And the to-do list for the Supreme Court grows even longer.

Who Rules the United States?

February 17, 2017

Who Rules the United States? Washington Free Beacon, February 17, 2017

(Update re President Trump’s EPA nominee, Scott Pruitt: He was approved by the Senate 52-46. — DM)

President Donald Trump pauses while speaking during a news conference, Thursday, Feb. 16, 2017, in the East Room of the White House in Washington. (AP Photo/Andrew Harnik)

President Donald Trump pauses while speaking during a news conference, Thursday, Feb. 16, 2017, in the East Room of the White House in Washington. (AP Photo/Andrew Harnik)

Donald Trump was elected president last November by winning 306 electoral votes. He pledged to “drain the swamp” in Washington, D.C., to overturn the system of politics that had left the nation’s capital and major financial and tech centers flourishing but large swaths of the country mired in stagnation and decay. “What truly matters,” he said in his Inaugural Address, “is not which party controls our government, but whether our government is controlled by the people.”

Is it? By any historical and constitutional standard, “the people” elected Donald Trump and endorsed his program of nation-state populist reform. Yet over the last few weeks America has been in the throes of an unprecedented revolt. Not of the people against the government—that happened last year—but of the government against the people. What this says about the state of American democracy, and what it portends for the future, is incredibly disturbing.

There is, of course, the case of Michael Flynn. He made a lot of enemies inside the government during his career, suffice it to say. And when he exposed himself as vulnerable those enemies pounced. But consider the means: anonymous and possibly illegal leaks of private conversations. Yes, the conversation in question was with a foreign national. And no one doubts we spy on ambassadors. But we aren’t supposed to spy on Americans without probable cause. And we most certainly are not supposed to disclose the results of our spying in the pages of the Washington Post because it suits a partisan or personal agenda.

Here was a case of current and former national security officials using their position, their sources, and their methods to crush a political enemy. And no one but supporters of the president seems to be disturbed. Why? Because we are meant to believe that the mysterious, elusive, nefarious, and to date unproven connection between Donald Trump and the Kremlin is more important than the norms of intelligence and the decisions of the voters.

But why should we believe that? And who elected these officials to make this judgment for us?

Nor is Flynn the only example of nameless bureaucrats working to undermine and ultimately overturn the results of last year’s election. According to the New York Times, civil servants at the EPA are lobbying Congress to reject Donald Trump’s nominee to run the agency. Is it because Scott Pruitt lacks qualifications? No. Is it because he is ethically compromised? Sorry. The reason for the opposition is that Pruitt is a critic of the way the EPA was run during the presidency of Barack Obama. He has a policy difference with the men and women who are soon to be his employees. Up until, oh, this month, the normal course of action was for civil servants to follow the direction of the political appointees who serve as proxies for the elected president.

How quaint. These days an architect of the overreaching and antidemocratic Waters of the U.S. regulation worries that her work will be overturned so she undertakes extraordinary means to defeat her potential boss. But a change in policy is a risk of democratic politics. Nowhere does it say in the Constitution that the decisions of government employees are to be unquestioned and preserved forever. Yet that is precisely the implication of this unprecedented protest. “I can’t think of any other time when people in the bureaucracy have done this,” a professor of government tells the paper. That sentence does not leave me feeling reassured.

Opposition to this president takes many forms. Senate Democrats have slowed confirmations to the most sluggish pace since George Washington. Much of the New York and Beltway media does really function as a sort of opposition party, to the degree that reporters celebrated the sacking of Flynn as a partisan victory for journalism. Discontent manifests itself in direct actions such as the Women’s March.

But here’s the difference. Legislative roadblocks, adversarial journalists, and public marches are typical of a constitutional democracy. They are spelled out in our founding documents: the Senate and its rules, and the rights to speech, a free press, and assembly. Where in those documents is it written that regulators have the right not to be questioned, opposed, overturned, or indeed fired, that intelligence analysts can just call up David Ignatius and spill the beans whenever they feel like it?

The last few weeks have confirmed that there are two systems of government in the United States. The first is the system of government outlined in the U.S. Constitution—its checks, its balances, its dispersion of power, its protection of individual rights. Donald Trump was elected to serve four years as the chief executive of this system. Whether you like it or not.

The second system is comprised of those elements not expressly addressed by the Founders. This is the permanent government, the so-called administrative state of bureaucracies, agencies, quasi-public organizations, and regulatory bodies and commissions, of rule-writers and the byzantine network of administrative law courts. This is the government of unelected judges with lifetime appointments who, far from comprising the “least dangerous branch,” now presume to think they know more about America’s national security interests than the man elected as commander in chief.

For some time, especially during Democratic presidencies, the second system of government was able to live with the first one. But that time has ended. The two systems are now in competition. And the contest is all the more vicious and frightening because more than offices are at stake. This fight is not about policy. It is about wealth, status, the privileges of an exclusive class.

“In our time, as in [Andrew] Jackson’s, the ruling classes claim a monopoly not just on the economy and society but also on the legitimate authority to regulate and restrain it, and even on the language in which such matters are discussed,” writes Christopher Caldwell in a brilliant essay in the Winter 2016/17 Claremont Review of Books.

Elites have full-spectrum dominance of a whole semiotic system. What has just happened in American politics is outside the system of meanings elites usually rely upon. Mike Pence’s neighbors on Tennyson street not only cannot accept their election loss; they cannot fathom it. They are reaching for their old prerogatives in much the way that recent amputees are said to feel an urge to scratch itches on limbs that are no longer there. Their instincts tell them to disbelieve what they rationally know. Their arguments have focused not on the new administration’s policies or its competence but on its very legitimacy.

Donald Trump did not cause the divergence between government of, by, and for the people and government, of, by, and for the residents of Cleveland Park and Arlington and Montgomery and Fairfax counties. But he did exacerbate it. He forced the winners of the global economy and the members of the D.C. establishment to reckon with the fact that they are resented, envied, opposed, and despised by about half the country. But this recognition did not humble the entrenched incumbents of the administrative state. It radicalized them to the point where they are readily accepting, even cheering on, the existence of a “deep state” beyond the control of the people and elected officials.

Who rules the United States? The simple and terrible answer is we do not know. But we are about to find out.

For the Media, the Only Jihad Is Against Trump

February 13, 2017

For the Media, the Only Jihad Is Against Trump, PJ MediaRoger L Simon, February 12, 2017

In their zeal to “Jump on Trump,” is our media — not to mention their 9th Circuit cohorts — doing an immense disservice to the American public by obfuscating, effectively censoring, serious discussion of Islamic immigration and what to do about it?

It’s a global problem, surely, and we have a lot to learn from the mistakes of the Europeans who — according to the latest polls — are expressing serious regrets about their open-border immigration policies.

Several countries are beginning to return their migrants, sometimes offering economic incentives.  And you can see why, reading last Friday’s report from the Gatestone Institute:

Several young  gang-rapists started laughing in a Belgian court while yelling:

“women should not complain, they should listen to men.”

The seven ‘men’ were seen in a video where they are standing around an unconscious girl who is lying on a bed, then seen pulling down her pants and raping her. Also in the video, they are dancing around the victim and singing songs in Arabic.

I imagine they’ll be getting some “extreme vetting.”  Let’s hope so anyway.  But does this “extreme vetting” go far enough? In America’s case, it’s complicated by the fact that Trump’s original seven countries in his travel ban are rather circumscribed and arbitrarily limited, despite having been the seven singled out by Obama. As we have seen on multiple occasions, second-generation jihadists come from all over Western Europe, like two of the above un-magnificent seven, not to mention North Africa and the obvious omissions of Saudi Arabia and Pakistan.  They come from Russia and the Far East as well. Shouldn’t they all be on the list?  Yes, I realize the seven countries were chosen because at least some keep no verifiable records of who’s coming and going.  But I’m not sure that matters.  These days identities are more easily forged than ever.  The Daily Beast reports you can buy an undetectable UK passport from the Neapolitan Camorra.

So can “extreme vetting” finally do the job it’s supposed to do? What is the real extent of its capability?

Marine/contractor Steven Gern’s video from Iraq (before being asked to leave) is viral for a reason. Gern has an authenticity and seems to be telling the truth, two truths actually, and those truths are, to say the least, uncomfortable.  One is that many Iraqis (I would assume most Middle Easterners) hate Americans despite all we may have tried to do for them and would kill us if they had any opportunity. The second is that they are master dissemblers (remember taqiyya?) and are willing to wait years, all the while seeming perfectly pleasant, before acting on their hatred. This does not augur well for immigration, to put it mildly.

Given this dissembling/taqiyya that Gern speaks of, we do have some serious”extreme vetting” to do.  It’s almost impossible to see how it can be done without the most detailed attention. Obama, Hillary and Kerry did less than zero to improve the situation. They either exacerbated or ignored it, mostly the former.

Trump asked for a 120-day travel ban, a tiny length of time under the circumstances, to try, in his words, to figure out what’s happening.  But his rapacious opponents in the media (and the judiciary), slavering like a pack of morally narcissistic wolves, would have none of it. He was not to get one day.

Did they have another suggestion?  No, of course not.  Their suggestion comes down to this: anything but Trump.  Forget reason.  Forget what’s left of their own thoughtfulness.  Forget the safety of the American people and the world.  The Orange Man must pay.  He’s too vulgar… or something.  Maybe one of his daughter’s shoes gave someone a blister.  Or Stephen Miller was too rude to one of his high school teachers. Something significant like that.

Meanwhile, the media in its fact-finding mission does nothing to help us because it finds no facts, other than scurrilous gossip about Trump. That’s all they seem to look for. Their myriad liberal and progressive pundits make no suggestions either, contribute no fresh ideas (have you noticed?) to the fight, as if the status quo were just fine with them.  (This is true of many conservative pundits too — no thoughts on what to do about radical Islam.) It’s a mixture of selfishness and envy from which we all lose. Let our children or our children’s children deal with it.   (And they will.)  There may be a jihad in the big world, people being raped and having their throats cut, bombs going off, trucks driving into crowds of innocent tourists, but to our media, the only jihad worth fighting against is against Trump.

 

A legal analysis of the Ninth Circuit’s dangerous usurpation of presidential power

February 10, 2017

A legal analysis of the Ninth Circuit’s dangerous usurpation of presidential power, American Thinker,Ed Straker, February 10, 2017

(I practiced and studied law for more than three decades and find apparently successful attempts to turn Lady Justice into a political whore disheartening.

More diligent study than I have attempted since my retirement in 1996 would be necessary completely to understand a decision like that of the Ninth Circus Circuit. The present article seems brash; perhaps a brash approach is needed, if only as a basis for discussion of the proper, but very different, roles of the three branches of our feral federal government.  Please see also, The Ninth Circuit’s stolen sovereignty should serve as final wakeup call.– DM)

Federal District Judge James Robart violated the Constitution in issuing a TRO (temporary restraining order) against President Trump’s temporary entry ban for citizens of seven countries. Now a three-judge panel of the Ninth Circuit Court of Appeals has affirmed that stay.

What we have here is a creeping constitutional coup. As long as President Obama was in charge and had a massive open door policy at our borders and at our airports, in violation of statutory law, the judiciary was content to be silent. But when Donald Trump became president and tried to use the powers of the Presidency to put some national security safeguards into place, the judiciary sprung into action. The judiciary has usurped the executive branch’s powers and has created a parallel constitution, one that bears no relation to the founding document of our nation. The courts have now cited this parallel constitution to justify taking away the ultimate decision making authority concerning national security from the Presidency, to rest in their hands. The constitutional crisis and injury to our national security caused by this illegitimate decision cannot be overstated.

What follows is an analysis of this travesty and the damage done to our system of jurisprudence and national security.

1) The legal concept of standing has been totally eviscerated. In order to sue one must have “standing,” essentially to show that one is an injured party. The state of Washington, among others, sued claiming that its state-owned universities were harmed because a few students from the affected seven countries could not come to their campuses. The Ninth Circuit (hereinafter “the Court”) found that these grounds gave Washington standing to sue.

As of now, the concept of standing is now meaningless. The idea behind standing was to limit frivolous lawsuits so only people directly injured could sue. The Court’s expansion of standing means that a state can now sue on behalf of anyone, for any reason. This is very important because if anyone can sue on behalf of anyone, the Courts become immensely more powerful. Remember that Courts cannot get involved until someone sues. With standing gone, anyone can sue and the Court can immediately then exercise its power, as was the courts intent in doing away with standing.

2) “Irreparable harm” has been turned upside down. One of the standards the Court used to adjudicate this case was to see if either party would suffer irreparable harm. The Court found the University of Washington would suffer irreparable harm if students from Somalia and Yemen were temporarily delayed from coming to the US. The UW system has tens of thousands of students. The number of students affected here would be a small handful. The Court considers an action that would affect a tiny handful of students in a huge student body as irreparable harm.

On the other hand, the Court does not think the dangers of admitting un-vetted foreign nationals who might be terrorists constitutes and irreparable harm. The Court demanded that the Trump administration prove that there was a terrorist danger from these countries. But the Trump administration is not obligated to prove the terror threat because the Court has no jurisdiction in this area. It would be as if the Court suddenly demanded that Trump get approval for his DHS cabinet pick from an appeals Court, and strike down Trump’s choice because he didn’t submit evidence showing his DHS pick was suitable. This is a mad, naked, power grab. The Court opined:

When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms.

Can you believe this? To consider the inconveniencing of a handful of students as an irreparable harm and the national security of a nation as unimportant shows that this Court is fully in wanton disregard of the law, not to mention common sense.

3) National security policy has been wrested from the presidency and placed in the hands of the judiciary. National Security is traditionally left to the Presidency; indeed, the Court cited cases in support of this.

See, e.g. Cardenas v. United States , 826 F.3d 1164, 1169 (9th Cir. 2016) (recognizing that “the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control” see also Holder v.  Humanitarian Law Project , 561 U.S. 1, 33-34 (2010) (explaining that Courts should defer to the political branches with respect to national security and foreign relations).

But the Court says this deference is not absolute, and when they feel they want to overrule the Executive branch, they can. They even cited cases for that proposition as well:

see Zadvydas v. Davis , 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”);

Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that Courts can review “whether Congress has chosen a constitutionally  permissible means of implementing that power”)

See, e.g. Boumediene, 553 U.S. 723 (striking down a federal statute purporting to deprive federal Courts of jurisdiction over habeas petitions filed by non-citizens being held as “enemy combatants” after being captured in Afghanistan or elsewhere and accused of authorizing, planning, committing, or aiding the terrorist attacks perpetrated on September 11, 2001)

These cases are not constitutionally correct. The Constitution does not apply to foreign nationals. The Constitution is an agreement among the American citizenry. No one else. It doesn’t apply to the people of Iraq, or Somali nationals who come here, or Yemenis with an American visa. By citing cases that were unconstitutionally decided, you can see how far back the judicial rot extends — the Courts have built precedent for a shadow constitution, which allows them to grab power from the Executive.

4) The Due Process clause has been expanded to add seven billion people.The Court cites the Due Process clause, which states in part ” No person shall … be deprived of life, liberty, or property, without due process of law”. The problem is that foreign nationals are not legal “persons” under our Constitution. How could they be? How could we ever legally go to war or take action against a foreign country or a foreign group without letting them have their day in court? The implications are truly ridiculous.

The Court writes:

The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their  presence here is lawful, unlawful, temporary, or permanent.

How could that be true? The Constitution applies to aliens? And the Court doesn’t even have the courage to state its ultimate conclusion: that Due Process doesn’t just extend to aliens in America, but even to aliens in other countries who want to come to America. Because that’s what they’ve extended it to.

5) The Court maliciously avoided a narrowly tailored legal remedy. Even if the Court honestly believes its own argument, its relief should be narrowly tailored to the handful of students affected at the University of Washington. Instead, it used this case as a wedge to assert its primacy over national security and to open the entire nation to unrestricted entry.

6) The Court disingenuously employed false religious protection claims. The Court said

The First Amendment prohibits any “law respecting an establishment of religion.” The States’ claims raise serious allegations and present significant constitutional questions.

Again, the Court has no jurisdiction here. The people affected are not Americans. The Trump Administration can exclude Hindus, Muslims, Christians, Women, red haired people, anyone it wants to.  Of course this is not a Muslim ban, but to even play into that argument presumes the Court has the power to rule over this. It doesn’t.

7) False consideration of “public interest.” The Court says that it has to consider “the public interest” in deciding. No it doesn’t. It only has to consider the Constitution.

Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay [of the TRO]

So the Court weighed free entry to America for foreigners, versus national security for Americans. How to decide? The Court said, for now that free travel for foreigners into America is definitely more in the public interest!

8) Conclusion: the false choices: where do we go from here? Some commentators will say to appeal this to the full Ninth Circuit (this was a three judge panel). Others will say to appeal this case to the Supreme Court. Still others will say to redraft the legislation to better meet the Court’s dictates and current mood swings.

These are all false choices. It is like people coming into your home and telling you that you cannot redecorate it without their permission; submit a proper plan, and perhaps they will approve it. The only way to win this game is not to play.

Yes, President Trump should appeal to the Supreme Court, but with a 4-4 split there (which will continue for months), his victory is far from assured.

More primarily, he should immediately disavow the Court’s authority in this matter and order his officials to reinstate the ban. Trump will be said to be provoking a constitutional crisis, but let us be clear, it is the courts that have provoked this constitutional crisis, and Trump’s entry ban is a relatively mild one. Remember, to secure the country, he is going go to have to do much more than this moderate executive order:

Let’s say that Trump actually wants to have a permanent ban on refugees from Syria or Iraq, for security reasons. A Court could overturn it on the same grounds. Suppose Trump wants to stop all refugees coming to America for a year. A Court could actually force Trump to let 100,000 or more refugees in, if Trump lets them. A Court could stop Trump from doing enhanced vetting, claiming it discriminated against Muslims from ISIS infested countries. A Court also stop Trump’s border wall, claiming it would have a negative effect on a snail or a worm.

That’s why Trump can’t give in on his relatively limited executive order. If he does, he will give the Courts a green light to keep America an open borders country.

If Trump does nothing, merely playing out the process, he may well lose his constitutional power to protect our borders. And while we wait and watch matters go through the courts, every day more and more terrorists could be coming into our country. There is no time to wait.