Revolted Colonies

U.S. Politics and Culture

Category: courts

General Washington, Meet Mr. Trump

 

Let’s get legal for a minute. Last night, the U.S. Ninth Circuit Court of Appeals refused to reinstate even temporarily the immigration travel ban, handing the Trump administration a defeat on one of its signature issues. For several reasons, it’s huge.

The Constitution creates three branches of government and gives certain powers to each branch. In this case, the Executive branch has the power to administer matters of immigration, as well as primacy in matters of national security. The Ninth Circuit decision in the case, improbably named Washington v. Trump, addressed whether this power has any limitation and, if so, whether the Judicial branch can restrain the Executive. The Court decided that it did indeed have the power to review and determine if the Executive Order is unconstitutional. Because if the courts can’t do it, who or what is there to stop an Executive from violating the Constitution?

This is not as obvious as it sounds. Lots of times, the Executive or Legislative branch cannot be checked by the courts. For example, the Executive has the exclusive power over foreign relations. Under the law, the courts have refused to get involved, calling it a political question. The government argued the same principle in this case.

Three Ninth Circuit judges speaking as one rejected the Government’s argument.

“Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).”

That’s the nub of it. The courts will step in when the constitutional rights of individuals are at stake. Make no mistake. Given the first few weeks of the new administration, a showdown over the limitation of Presidential power was inevitable. We can expect a lot of cases about Presidential power, and we can expect the courts to reel in the power of the executive, especially with one who has disdained the authority, competence and fairness of the judicial system.

© 2017 The Revolted Colonies ™

 

Immigration Ban Losing Its Appeal


 This past Friday, Hon. James Robart, a Republican-appointed federal district court judge, declared unconstitutional the presidential immigration ban, allowing immigration travel to resume without delay.

Stay Denied

The Justice Department filed an appeal with the United States Court of Appeals for the Ninth Circuit and asked the court to stay the Judge Robart’s decision striking the executive order until the appeal is heard, meaning that the ban should stay in effect until there has been a final decision on the appeal. The Court of Appeals turned down the Justice Department plea, permitting flights into the United States to resume for the time being.  At the same time, the Court of Appeals set a very rapid schedule for the parties to file their briefs, signifying that a decision would be made rapidly.

 What It Means

The Circuit Court decision represents a minor victory for the anti-administration position. It suggests, at most,  that the court expects to uphold Judge Robart’s decision. At the least, it means that, given the short briefing schedule, no real harm will be done by allowing flights to be rescheduled.  Judges frequently it will overcome a request for temporary relief by shortening the time involved.

In part, it is a reflection that the court expects to rule against the executive order. It doesn’t represent an in qualified victory for the anti-administration position. Only after the case is briefed, argued and decided will we know what this appellate court thinks about the executive order.

Constitutional Problems

 The administration has several problems with its position. The first is that it is well known now that it was conceived as a means to stop entry of Muslims into the United States.  It was so declared by its conceiver, Rudolph Giuliani, the former mayor of New York and currently the reincarnation of Heath Ledger’s Joker. Giuliani proudly admits taking the idea of a Muslim ban and couching it in terms of banning entry by nationals of certain  Muslim-majority countries.

However, those countries do not account for an imminent threat or a single act of terrorism on United States soil. Moreover, the executive order also exempted religious minorities from those countries. It reads like a ban against all people of Islam. Oops!

 National Security 

The administration’s second problem is that it relies entirely on the President’s motivation on the need of national security, which in turn is based on his belief, as opposed to evidence. No doubt, there is an underlying national security need to exclude potential terrorists. By declaring everyone (except Christians) from certain Muslim-majority countries to be excluded, the administration painted with a broad and religiously discriminatory brush.

Second, the administration has offered no proof of a national security risk if the immigration ban is not enforced.  There is no publicly available information suggesting a threat of terrorism by one or more individuals emigrating from the targeted countries. Addition, there is no explanation why other Muslim-majority countries are not included in the executive order-such as Saudi Arabia. If there is information and it’s confidential, the Justice Department could offer to show the courts the information on a confidential basis, so that the classified nature is not destroyed. The Justice Department has not offered to do that.

Cyber-Based Terrorism

There is a third factor, and it is important. The attacks within the United States and in Western Europe over the last couple of years were thought to be Lone-wolf actions or the act of ISIS  sympathizers. The people carrying out the attacks were lawfully in the countries where the attacks took place. Most recently, investigation suggests that these were not Lone-wolf attacks but in fact were directed by ISIS through instant messaging via the Internet. The domestic terrorism issue is as much an issue of cyber security as it is about admitting potential terrorists into the country.

In addition to being unconstitutional for a variety of reasons, the executive order may be ineffectual in stopping domestic terrorism.

  What else can the Justice Department say? It will probably argue that the executive order is an exercise of the presidential prerogative to maintain national security.  This argument is not persuasive.  It is too easy for the administration to assert a national security pretext to cover otherwise unjustifiable actions.  

If the administration is able to present some tangible evidence of an imminent risk, no doubt the court would take such evidence very seriously and would uphold the ban in some modified form that would address the potential danger. But the court cannot grant blanket use of a national security exception without creating an opportunity for abuse by the administration.

© 2017 The Revolted Colonies

 

 

 

The New Sport of Kings: Casino Litigation Pt. 1

Until recently casino litigation meant law suits involving actual casinos.   No more.   Thanks to Peter Theil, the Paypal founder backing a law suit against Gawker media seeking vengeance, casino litigation now means  some fat cat fueling litigation for profit or private purposes.
It’s spurious for a lot of reasons, most directly that litigation is not particularly a game of chance, and the investors are not suckers holding cards that were dealt from the bottom.

Third-party financing of litigation isn’t new,  The most basic case, a personal injury case, is funded on one side by the plaintiff’s attorney’s line of credit  and sometimes a litigation funding firm and on the other side by an insurance company.  Not the same?  What about issues-based non-profit organizations funding lawsuits to test principles?  Flag-burning, integration, school prayer, women’s reproductive rights, etc.  Some even are test cases, situations designed for litigation to test the principle. No disrespect to the plutocrat who funded the law suit against the well-healed dot-com, but the only thing new about this case is the personal nature of the animus that fueled it.

If you’ve visited a state courthouse recently and witnessed the under-staffing, slowness and dilapidated conditions, you can safely conclude that if this is the era of casino litigation, the odds are against the courts.  Litigation has become an over-used tool of retribution, and the state court systems are not given the resources to keep pace with the case load.  For those cases that are truly casino litigation, shouldn’t the house at least get a piece of the action?  That’s the way it works in Vegas.

Powered by WordPress & Theme by Anders Norén

%d bloggers like this: