Comments

SCOTUS has been hearing arguments on the Trump travel order — 26 Comments

1. It is the new judicial outrage that has me flummoxed. Obama’s executive order called DACA has expired and Judge Bates (a GW Bush appointee) says it must be reinstated because the Trump admin lawyers haven’t made a good enough argument as to why it should go away.

   I really hope there is something I’m misunderstanding that could possibly justify this judge’s actions. A quick scan at a new NR article by the editors suggests not.

   Lawfare indeed. What can be done about this?

   Remember the old GW Bush picture with the “Miss me now?” query. No I don’t.

2. You have to re-orient your mind so that you no longer believe judges to be nonpartisan interpreters of the law, but partisan combatants.
   Which they have always been, of course, but now they don’t bother to hide it.

3. Tom:

   The only court established by the Constitution is the Supreme Court. All the rest of the courts were established by Congress, via the Judiciary Act of 1789.

   “The Judiciary Act of 1789 was a United States federal statute adopted on September 24, 1789, in the first session of the First United States Congress. It established the federal judiciary of the United States. Article III, Section 1 of the Constitution prescribed that the “judicial power of the United States, shall be vested in one supreme Court, and such inferior Courts” as Congress saw fit to establish. It made no provision for the composition or procedures of any of the courts, leaving this to Congress to decide.” ~ Wiki

   Thus, if we had a Congress with courage, the whole thing could be eliminated and we could do it over.

   “So often times it happens that we live our lives in chains, and we never even know we have the key.“

4. Alas, government at all levels is staffed with people. This is why the Founders sought to create a system where government power is strictly limited and individuals are sovereign.

5. Judge Bates (a GW Bush appointee) says it must be reinstated because the Trump admin lawyers haven’t made a good enough argument as to why it should go away.

   I have a small suspicion that DOJ lawyers sabotaged this case and Bates was chiding them to go back and write a better brief.
   Take a look.

   The judge imposed a 90-day delay on his own ruling to give the government a chance to reargue its case, but for now the ruling stands as the most severe blow yet to Mr. Trump’s phaseout.

   Judge Bates said the government never gave an adequate justification for revoking DACA, so its decision seemed “arbitrary and capricious” – which makes it illegal under the Administrative Procedures Act.

   “The Department’s decision to rescind DACA was predicated primarily on its legal judgment that the program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision,” he wrote in his 60-page ruling.

   Just a thought.

6. Mike K Says:
   April 26th, 2018 at 5:30 pm
   Judge Bates (a GW Bush appointee) says it must be reinstated because the Trump admin lawyers haven’t made a good enough argument as to why it should go away.

   I have a small suspicion that DOJ lawyers sabotaged this case and Bates was chiding them to go back and write a better brief.
   Take a look.
   * * *
   The delay in place of outright dismissal may be a good sign, but your suspicion sounds a lot like the claims that Justice Robert’s ruling for Obamacare was a rebuke to the Congress for daring to enact stupid laws and needed to be forced to do a better job, although the brunt of it fell on the backs of the people instead, as it will here.

   Not that I don’t think the DOJ would not sabotage its own case if the prosecutors favored DACA and had no higher authority over-ruling them — look at EPA sue-and-settle.

   Without reading all the briefs, though, we only have the judge’s opinion that the DOJ didn’t make the case for the program being unlawful from the beginning — “unexplained” may just mean “I don’t like it” as with so many of our judges today — and it seems to many of us to be undeniably true that DACA has no legal justification (no matter its emotional or ethical considerations).

   Apparently, only Democrats are to be allowed the use of a phone and a pen to radically alter our laws and governance.

   And the judge doesn’t know the difference between “virtually” and “literally” —

7. “You have to re-orient your mind so that you no longer believe judges to be nonpartisan interpreters of the law, but partisan combatants.”

   I think this is often demonstrated by the lower court judges, particularly those that have blocked some of President Trump’s executive actions. Not all, of course, how could I even know if such is true? I like to think SCOTUS members are above that sort of partisan outcome seeking. I do hear the disinterested jurist in some of the SCOTUS questioning.

8. “It used to be that presidents pretty much got their judicial nominees approved. That was pre-Bork; the Bork battle began a long slide to the point we’re at now, where both sides play hardball.” neo

   We are at that point but not because both are equally guilty. When the right objects, they generally advance valid, rational reasons for their objections. When the Left objects, invariably they demonize the character of the nominee.

   CapnRusty,

   But we don’t have a politically brave, loyal Congress. Instead we have half who support covert sedition and even treason, and another third who are only responsive to their financial donors.

   Mike K,

   Judge Bates knows full well that DACA is based in Obama’s Executive Order and that any succeeding President has Constitutional Authority to end or amend a prior E.O. He also knows that Obama’s E.O. creating DACA was “arbitrary and capricious”.

   The good judge is full of sh*t…

9. The President has “plenary” i.e. to quote a dictionary definition “unqualified” and “absolute” power when it comes to Immigration, period. To quote Section 212(f) of the Immigration and Nationality Act:

   “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

   And case law apparently supports the breadth and decisiveness of the President’s power.

   That seems pretty conclusive to me.

10. and who brought the hard ball without regard to the future into the arena with the take no prisoners, and all that even after?

    he even wrote a book about it afterwards…

    As the rioting and riotousness died down in the early 1970s and seemingly disappeared altogether in the last half of that decade and in the 1980s, it seemed, at last, that the Sixties were over. They were not. It was a malignant decade that, after a fifteen-year remission, returned in the 1980s to metastasize more devastatingly throughout our culture than it had in the Sixties, not with tumult but quietly, in the moral and political assumptions of those who now control and guide our major cultural institutions.

    The Sixties radicals are still with us, but now they do not paralyze the universities; they run the universities.

    If the problem were only the universities and the chattering classes, there might be reason to be more optimistic. The Sixties have gone farther than that, however. “The New Left’s anti-institutional outlook and anti-bourgeois value scheme has fed into the ‘new liberalism’ increasingly held by the upper middle class.

    Indeed, the ‘radical’ values and orientations expressed by SNCC [Student Nonviolent Coordinating Comittee] and SDS workers in the early sixties have become the conventional wisdom of college-educated urban professionals, especially those under thirty-five….

    Whatever their other successes and failures, the youthful radicals of that decade propelled a new set of values from the fringes to the very midst of contemporary social conflict.

    That was written in 1982 – 36 years ago by Bork

    here is what he said just before that…

    Its [the New Left’s] adherents did not go away or change their minds; the New Left shattered into a multitude of single-issue groups.

    We now have, to name but a few, radical feminists, black extremists, animal rights groups, radical environmentalists, activist homosexual organizations, multiculturalists, and new or freshly radicalized organizations such as People for the American Way, the American Civil Liberties Union, the National Abortion Rights Action League (NARAL), the National Organization for Women (NOW), and Planned Parenthood.

    Each of these pursues a piece of the agenda of the cultural and political Left, but they do not announce publicly an overarching program, as the New Left did, that would enable people to see that the separate groups and causes add up to a general radical philosophy.

    Yet these groups are in touch with one another and often come together in a coalition on specific issues.

    The splintering of the New Left proved to be an advantage because the movement became less visible and therefore more powerful, its goals more attainable, than was the case in the Sixties.

11. one more as most forgot the past a lot (raise hands if you knew who William Munzenberg was before you read it here)

    We know its current form as “political correctness,” a distemper that afflicts the universities in their departments of humanities, social sciences, and law. Works of literature are read for their sub-texts, usually existing only in the mind of the politically correct reader, about the oppression of women, Western imperialism, colonialism, and racism.

    Political correctness is not confined to the enclaves of the academy. It is now to be found in museums, art galleries, seminaries, foundations-all the institutions relating to opinion and attitude formation.

    A corollary to the politicization of the culture is the tactic of assaulting one’s opponents as not merely wrong but morally evil.

    That was, of course, a key stratagem of the New Left, and it remains a crucial weapon in modern liberalism’s armory. The rioters in the streets did not criticize the universities as in need of reform but as institutions rotten with immorality from top to bottom. Critics of Hillary Clinton’s health care plan were not said to be mistaken but were denounced as greedy pharmaceutical companies, doctors, and insurance companies out to protect their illicit profits.

    – Bork: Slouching to Gomorrah

    Bork was done in how?

    Dont matter anyway… not like anyone gonna look at it together and not in pieces. which is why i wont quote more, even chapter 11… but anyone remember Carey Roberts? never mind…

    Cosby is guilty…

    in a few years the ladies will be upset [what am i saying, they are always upset, its always been a way to get more] and this win, will make the train go faster.. even though it has no brakes (let me know what is the brake other than the….) there are already discussions and seeing the hint of policy changes. while dishonest men would eschew protection, honest men with a lot to lose on just a rumor of such, of which there are a lot more of, will not just ignore the potential ramifications regardless of the validity or not…

    In addition, the feminist and civil liberties communities share substantially overlapping populations. Their estrangement would weaken the political power and public positions of both and thwart the kind of cooperation that defeated Judge Robert H. Bork’s Supreme Court nomination.

    The first postulate of civil liberties is that they are indivisible. They must protect everybody or they will protect nobody.

    The antiabortion activist’s right to speak, a magazine’s right to publish offensive photographs and a defendant’s right to tell his story at a trial cannot be compromised.

    The indivisibility postulate has one exception. When two civil liberties clash, we must decide which will prevail.

    So, press freedom has been restricted to assure a fair trial, and the prospect that affirmative action remedies will lead to greater equality has justified preferential treatment.

    Feminists have also achieved victories by citing competing constitutional rights. Laws forbidding certain private clubs from excluding women impinge on the association rights of men. Yet, courts have upheld these laws because they further the competing value of gender equality.

    No such competing constitutional values are present for those who want to penalize or suppress offensive magazines, stop abortion clinic picketers or deny [censored to preserve the examples neutrality] the right to tell his story.

    – NY Times

    Which is why the boy scouts is now Girl Scouts II
    (and no, cis boys are not allowed in the girl scouts)

    [the above article included considering Bork and a sexual predator of the period, the feminists, and Cosby… ALL RELATED under the rubric of the culture wars and its fruit in our behaviors]

    [more self censored – huzzah, everyone can cry out in relief!!! ]

12. Snow on Pine Says:
    “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

    And case law apparently supports the breadth and decisiveness of the President’s power.

    That seems pretty conclusive to me.

    it is…
    but

    “What is the present family based on? On capitalism, the acquisition of private property…The bourgeois sees in his wife nothing but an instrument of production.”

    “The overthrow of mother right was the world historical defeat of the female sex. The man took command in the home also; the woman was degraded and reduced to servitude; she became the slave of his lust and a mere instrument for the production of children.”

    “major social transformations are impossible without ferment among the women.”

    ok… so WHAT the heck does THAT have to do with the immigration powers of the president?

    Easy… if your social ideas and policies result in the decline of the population following them, at what point would that population notice and so react to it? and what would that reaction be? but if they were past recovery, then what?

    In the European Union the fertility rate measured in births per 1000 women fell from 2.4 in 1970 to 1.5 in 1992. Beth Alder, in Comprehensive Clinical Psychology, 1998

    If you google “USA Total Fertility Rate,” you will see a graph from the World Bank, with the most recent data showing 2015 TFR of 1.84

    https://www.cdc.gov/nchs/nvss/vsrr/natality.htm
    showing a total fertility rate of about 1.82

    NIST:
    Declining birth rate in Developed Countries: A radical policy re-think is required
    https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4255510/
    By definition replacement is only considered to have occurred when the offspring reach 15 years of age. The replacement fertility rate is roughly 2.1 live births per woman for most industrialised countries. [snip] The fertility of the population of the United States is below replacement among those native born, and above replacement among immigrant families and the socially deprived (Singh et al., 2001)

    Again, what happens to the movement when the people find out what they been tricked into doing to themselves with knowledge of what would happen?

    read the paper up there and it has tons of pro-natal policy putting blame on things that have nothing to do with it… in my case? couldnt get raises due to that, and my wife and i could no afford kids… others just put off, like the ladies freezing eggs, who are now getting really angry that the eggs died, there is no one and they are basically extinct waiting for the last breath of their last family member!!!!

13. A Record-Setting Decade of Immigration: 2000-2010
    https://cis.org/Report/RecordSetting-Decade-Immigration-20002010

    The nation’s immigrant population (legal and illegal) reached 40 million in 2010, the highest number in the nation’s history.

    The nation’s immigrant population has doubled since 1990, nearly tripled since 1980, and quadrupled since 1970, when it stood at 9.7 million.

    Of the 40 million immigrants in the country in 2010, 13.9 million arrived in 2000 or later making it the highest decade of immigration in American history, even though there was a net loss of jobs during the decade.

    -=-=-=-=-

    40 million? where did the children go?

    As of 2010, about 48% (3.3 billion people) of the world population lives in nations with sub-replacement fertility.

    the racialists power has taken over because the majority of the “vanguard of the culture revolution” (feminists) didn’t have enough babies to be a political force that could stand with that… not only that but the immigrants ladies vote with their way, not against it..

    Here’s Why Europe Really Needs More Immigrants FORBES

    If Western Europe wants to keep its social benefits, the countries of the E.U. are going to need more workers. No place in the world has an older population that’s not into baby making than Europe. No wonder policy planners are doing what they can to encourage immigration.. Eastern Europe is old. The U.K.’s median age is approaching a mid-life crisis, currently at 40.5. With fertility rates expected to hit zero in Europe in the next decade, the only way the European Union can fight elderly poverty and maintain its expensive entitlement programs is to increase immigration. Another option is to provide incentives to convince 20 and 30-something-year-olds to have more than one baby.

    they didn’t have babies… their policies did the same thing to them as to us, as to Russia who tried it first…

    while everone is yelling from the 70s there are too many people, world populatoin is to hit below replacement after 2050.. not just western states, as the ideas of these places are going to other places.. (look at adverts for having fewer children in indonesia…)

    median age
    Sweden & France 41.2
    Portugal 41.8
    Switzerland 42.2
    Spain 42.3
    Finland 42.4
    Holland 42.5
    Austria 43.8
    Slovenia 44.1
    Italy 45.1
    Germany 46.8
    The demographic picture for Europe, meanwhile, with an average age of 42.7, is not looking good. Immigration is their “baby boom.”

    Germany’s birthrate hits 33-year high after arrival of 900,000 refugees

    IF they admit their ideas and changes to society resulted in this, what would the dinosaurs dying out do to them? what would happen to the movement? etc.

14. We absolutely must NOT forget that the Senate stalled the confirmation of Obama’s appointee because of strong, lingering suspicions that Scalia had been murdered. They blocked the confirmation as the last-ditch stand to protect the Constitution from the people who would use the Court to destroy what remained of it, who might reasonably be suspected of murdering a Justice to effect their nefarious ends.

    The lawfare cases in all the media are skirmishes, and, if Republicans hold the House in November, we’ll remember them as the Communists’ rear guard action. If not, they will become a holding action, until the Social democrats can, to use the words of a young Obama courtier in 2009, “Take power and rule.”

15. On the news, I heard some of the questions the Justices asked, and that led me to wonder how much trouble could have been avoided if only someone had just asked, “Who does this country belong to?”

    Because the answer is self-evident, and it is the same answer as for any other country in the world: its citizens. The people of this country, the citizens of this nation, get to decide who to let in, and who to keep out. And you are either a citizen, or you are not. It is that simple.

    The elected officials make immigration policy, and the Judicial Branch has no role in what that policy is. This nation belongs to its citizens, and they decide whom to let in, or whom to keep out, for any reason or for no reason at all. This is a very basic matter of national sovereignty, and a nation that does not belong to its citizens will soon cease to be a nation at all.

    Compare also what is happening in Europe, with not just immigration and refugees, but also Brexit and the European Union. These questions of nationalism and sovereignty are not going away anytime soon. And in the end, the elected officials will have the final word, not the courts, regardless of what this current Supreme Court may rule on.

16. Yankee Says:
    April 27th, 2018 at 10:26 am
    On the news, I heard some of the questions the Justices asked, and that led me to wonder how much trouble could have been avoided if only someone had just asked, “Who does this country belong to?”

    Because the answer is self-evident, and it is the same answer as for any other country in the world: its citizens.
    * * *
    So simple, and yet so profound; and something a judge ought to know.

    First rule of juries: don’t worry about penalties until you decide the verdict.

    Obviously, they already assume they know the answer, and it isn’t the one Ymar gave.
    Which may be the reason we cannot agree on a mutually acceptable immigration policy.

    “It doesn’t matter how far you climb the ladder, if it’s leaning against the wrong house.”

17. One of the things that really bothered me during my one horrible year of law school was the fact that it seemed pretty obvious that the judges in many of the cases we studied–and we used the standard law school textbooks that contained the standard list of cases pretty much everyone studies—-had a conclusion/verdict they wanted to reach, and that they (more likely their law clerks) searched around for a decision, case, or line of cases, no matter how obscure, or passed by as the law moved forward in time, because they had not been viewed as sensible, well-argued, or logical–that they could cite as a reason for their decision.

    So, the game was, first, come to your conclusion, then, hunt around for a line of cases or a particular decision you could hook up with to justify that conclusion.

    It could be very tenuous, it didn’t have to be logical, just switch that ol’ legal train onto a new line of track, and head off in a new direction.

18. Snow: cf Alice in Wonderland.

    “Sentence first—verdict afterward.”

19. Adding to my earlier comments:

    I recall hearing Sonia Sotomayor blathering about the First Amendment during the hearing. That may indicate what position she will take, and the reasoning she will use, but it will be one that is completely wrong. She will end up arriving at a decision that has no basis in the law because it leads to the outcome that she wants. If Justice Sotomayor rules that the First Amendment prohibits the “Muslim ban”, then she will turn the concept of national sovereignty upside down, over-ride every precedent of immigration law and previous examples of restriction of immigration, and will still be completely oblivious to the long-term consequences of such a ruling. That’s how bad it could get.

    As for the mention of Mr. Trump’s various tweets, and how that might indicate antipathy toward Muslims, the Supreme Court has judicial review, but that in no way extends to Twitter posts. A tweet is not the law. Only the American people can pass judgment on any politician’s tweets, and they already did for Donald Trump, voting for him as President in 2016.

20. American jurisprudence, as we know it today, was profoundly re-routed by Progressive Rosco Pound at Harvard, starting in the early 20th century, when he proposed that instead of working from the Constitution and first principles, judges should practice “sociological jurisprudence,” should consider “the public interest,” “social facts,” and current ideas in their decisions.

    Up until Pound showed up, U.S. legal education was modeled on the English System, and followed the Common Law, and the Constitution–they were the fixed beacons, and what was to be consulted first, and to govern.

    After Pound, more and more it was case law–which enabled judges and lawyers to propose more and more novel legal theories, and to to move further and further away from what the Constitution said, and what our Founders actually intended.

    Thus, we’ve driven deeper and deeper into the territory of the ”living,” ever changing Constitution.

21. Snow on Pine:

    I’ve actually been thinking about that issue lately, and about writing a post (or a book—it’s so long and complicated it could be a book!) about it.

    It’s one of the criticisms of the legal system originally mounted by the critical legal studies folks, and of course critical studies is the leftist POV that law is not about legal principles at all but about power, and that there is no truth.

    So I don’t completely agree with the idea that judges come to the conclusions first and then work the reasoning out to get there. I understand that that’s often the way it looks, but I think there’s a meta-principle of law at work that drives the whole thing, and that could be called a judge’s general legal philosophy.

    Also, sometimes judges rule the opposite of the conclusion they want, because they are trying to follow the law.

    It’s very complicated, but that’s the very simplified version.

22. First rule of juries: don’t worry about penalties until you decide the verdict.

    Obviously, they already assume they know the answer, and it isn’t the one Ymar gave.

    You were replying to Yankee, not me, in case you were doing what I thought you were doing.

    Supporters of the Red team will get on my case for dropping a letter off Trum’s name as my personal nickname for him. They’ll start labeling it as an insult and trying to tell me what to think, via some kind of political police thing.

    This is how normal neutral people react, in case people had forgotten how to be neutral in Red vs Blue.

    I like watching Pine’s self transformation as he realizes what the world is like now.

    It’s almost like flash back to 2007 for me.

23. I’m also not a Yankee. If a label must be used, it would be Southerner. Although the Southerners say I am not a Southerner because I don’t have their views on Sherman being a Butcher….

    It’s okay, being the enemy of the world was part of the contract.

24. Ymar Sakar Says:
    April 27th, 2018 at 10:05 pm

    Begging your pardon — didn’t look past the Y 🙂

25. Names starting with “Y” is getting more popular perhaps. The “Y” may soon take over the world, although the crazy already has to a certain extent.

26. As a critic of McConnell, I have by no means forgotten Garland. It’s one of the good things he’s done, and there have been others.

    BUT…perspective. Yes, he blocked Garland, but he was facing the problem that the Congress of 2014 had managed to control both chambers for 2 years and had done nothing that was popular with the voting base. Business priorities, yes, pretending to fight Obama while actually giving in, yes, but nothing accomplished that the voters really cared about.

    So he had to do something, and blocking Garland was a pretty darned good something.

    Likewise, finishing the rules changes Reid had started to get Gorsuch confirmed. That was something.

    But McConnell has been making a habit of doing the absolute bare minimum he can get away with doing, while working away behind the scenes at his real agenda. That’s catching up with him. The recent omnibus spending bill is a classic example. So is his active sabotage of GOP candidates in various elections.

    McConnell is not as bad as Schumer, but the GOP base has plenty of solid reason to distrust him.

HTML tags allowed in your comment: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>