Special to the Cape Charles Mirror by Paul Plante.
What a time it is to be alive, people! There is major-league history being made all around as I write these words in here, the kind of history that makes and breaks nations like twigs in a wind storm, and here, I am specifically referring to the twenty-nine (29) page per curium Order of the federal 9th Circuit Court of Appeals in STATE OF WASHINGTON; STATE OF MINNESOTA, Plaintiffs-Appellees, v. DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA, Defendants-Appellants, No. 17-35105, D.C. No. 2:17-cv-00141, Motion for Stay of an Order of the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding Argued and Submitted February 7, 2017, Filed February 9, 2017 Before: William C. Canby, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges, which essentially makes the president of the United States of America look like an ignorant, clueless fool and blithering idiot on the world stage and in the eyes of the whole candid world which, of course, does wonders for our national security in this country, a fact which should have wanna-be terrorists in other countries literally dancing in the street in a frenzy of ecstatic joy.
It also makes his so-called “legal” team look like a pack of rank amateurs who know absolutely nothing whatsoever about this nation, or its laws, or its history, for that matter.
And by labeling the United States of America a “Constitutional Democracy,” the Court makes it incandescently clear that our Republic, which once was, is now no more, having been relegated to the trashcan of history some time in our past, although the Court makes no mention of when that might have been, and how it came to be without an amendment of our United States Constitution, which guarantees us in the country a Republican frame of government, not a democracy.
To understand this case and its implications on our collective future in this country, both those of us who were born here and are citizens, and those who are not citizens of this country, we start at page 2 of the February 9, 2017 Appeals Court Order where we have the basic background of the case as follows:
At issue in this emergency proceeding is Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries.
Two States challenged the Executive Order as unconstitutional and violative of federal law, and a federal district court preliminarily ruled in their favor and temporarily enjoined enforcement of the Executive Order.
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At p.3, we are given further background as to the issues at stake in the matter as follows:
On January 27, 2017, the President issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (the “Executive Order”).
Citing the terrorist attacks of September 11, 2001, and stating that “numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes” since then, the Executive Order declares that “the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.”
It asserts, “Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States.”
“The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”
The Executive Order makes several changes to the policies and procedures by which non-citizens may enter the United States.
Three are at issue here.
First, section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Second, section 5(a) of the Executive Order suspends for 120 days the United States Refugee Admissions Program.
Upon resumption of the refugee program, section 5(b) of the Executive Order directs the Secretary of State to prioritize refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality.
Third, section 5(c) of the Executive Order suspends indefinitely the entry of all Syrian refugees.
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Those, people, are the purported “national security” issues at stake here.
To understand the competing and opposing “State’s Rights” perspective, we have as follows beginning at p.5, to wit:
Three days later, on January 30, 2017, the State of Washington filed suit in the United States District Court for the Western District of Washington, challenging sections 3(c), 5(a)-(c), and 5(e) of the Executive Order, naming as defendants the President, the Secretary of the Department of Homeland Security, the Secretary of State, and the United States (collectively, “the Government”).
Washington alleged that the Executive Order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities in violation of the First and Fifth Amendments, the INA, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act.
Washington also alleged that the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a “Muslim ban” as the President had stated during his presidential campaign that he would do.
Washington asked the district court to declare that the challenged sections of the Executive Order are illegal and unconstitutional and to enjoin their enforcement nationwide.
On the same day, Washington filed an emergency motion for a temporary restraining order (TRO) seeking to enjoin the enforcement of sections 3(c), 5(a)-(c), and 5(e) of the Executive Order.
Two days later, Washington’s Complaint was amended to add the State of Minnesota as a plaintiff and to add a claim under the Tenth Amendment.
end quote
At p. 6, the Appeals Court informed us as follows with respect to the State’s Rights issues in this matter:
The district court preliminarily concluded that significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an Executive Order that the States were likely to be able to prove was unlawful.
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Consider those words well, people: “significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States.”
Focus especially on the phrase, “to the detriment of the States,” which is critical here as it relates to a legal concept known as “standing to sue,” which concept the Appeals Court dealt with at p.7, as follows:
The Government argues that the district court lacked subject matter jurisdiction because the States have no standing to sue.
We conclude that the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings.
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Citing Massachusetts v. EPA, 549 U.S. 497, 516 (2007) at 517, which in turns quotes from Baker v. Carr, 369 U.S. 186, 204 (1962), the Appeals Court at p.8 informed us that the “gist of the question of standing” is whether the plaintiff has a sufficiently “personal stake in the outcome of the controversy” to ensure that the parties will be truly adverse and their legal presentations sharpened.
The Court then resolves the “Standing” issue in favor of the States at p.9 as follows:
To establish Article III standing, a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.”
Because standing is “an indispensable part of the plaintiff’s case,” it “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”
At this very preliminary stage of the litigation, the States may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden.
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With respect to meeting that burden, the Court provides the following justification for standing to sue Trump and his seemingly incompetent and inept administration being granted to the States beginning at p.9, as follows:
The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law.
Specifically, the States allege that the teaching and research missions of their universities are harmed by the Executive Order’s effect on their faculty and students who are nationals of the seven affected countries.
These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit.
Some have been stranded outside the country, unable to return to the universities at all.
The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.
According to declarations filed by the States, for example, two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa.
Similarly, the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States.
The University of Washington also sponsored two medicine and science interns who have been prevented by the Executive Order from coming to the University of Washington.
The University of Washington has already incurred the costs of visa applications for those interns and will lose its investment if they are not admitted.
Both schools have a mission of “global engagement” and rely on such visiting students, scholars, and faculty to advance their educational goals.
Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons.
Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the rights of the students, scholars, and faculty affected by the Executive Order.
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At p.11, the Court went further with that explanation of standing for the States as follows:
The students’ educational success is “inextricably bound up” in the universities’ capacity to teach them.
And the universities’ reputations depend on the success of their professors’ research.
Thus, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.
We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order.
The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.
And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement.
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As a song from the VEET NAM times once said, “There’s battle lines being drawn, nobody’s right if everybody’s wrong, it’s time we stop, hey, what’s that sound, everybody look what’s going down,” and that is what this essay is all about, people – what exactly are those battle lines?
Jumping ahead to page 20 of the twenty-nine (29) page per curium Order of the federal 9th Circuit Court of Appeals in this matter, we have as follows with respect to what is going down here, this time around:
The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens.
Rather, they “apply to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent,” citing Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
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As a loyal American citizen and twice-wounded combat veteran who himself has been denied those supposed “procedural protections” provided by the Fifth Amendment’s Due Process Clause by the federal 2d Circuit Court of Appeals in New York City courtesy of now-U.S. Supreme Court Justice Sonia Sotomayor, who labels herself a Latina, not an American, and accordingly, is wondering just what the hell is really going on here where non-citizens from other countries here unlawfully or illegally have more Constitutional protections and safeguards than do Americans citizens who are born here, I think it behooves us all, regardless of what side of the immigration issue we might be on, to consider the import of those words in connection with the obverse of immigration policy, which is national security.
If, as the Appeals Court has just ruled in this case, the procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens, but instead “apply to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent,” then what does that really say about the ability of the federal government in this country to protect us from external threats emanating from other countries, such as Yemen, where we were just informed in the 7 February 2017 New York Times article “After Flawed Raid, Yemen Forbids U.S. Ground Missions” by David E. Sanger and Eric Schmitt as follows concerning terrorists in Yemen, specifically:
The Pentagon has said that the main objective of the raid was to recover laptop computers, cellphones and other information that could help fill gaps in its understanding of Al Qaeda in the Arabian Peninsula, whose leaders have attempted at least three attacks on the United States.
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With that thought before us, in light of the language of the Appeals Court at p.26 of the Order that “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” which truly sounds surreal and bizarre to me, I am going to leave off here, as this essay presents the basic issues of this dispute now facing us as a nation that is seemingly disintegrating before our eyes.
With the courtesy of the Cape Charles Mirror, I will then present further salient points from this lengthy decision in subsequent essays.
Paul Plante says
One of the many things that is truly historical here, people, is that after sixteen (16) years of greatly expanding presidential powers, first by George W. Bush and the federal government after 9-11-2001 with respect to the Patriot Act and extraordinary renditions by the CIA to places like Syria where prisoners could be tortured at will, and CIA “black sites” and waterboarding and drone strikes in other countries to kill people, including American citizens, without due process of law afforded, in the name of some nebulous undeclared and undefined “WAR AGAINST TERROR” that gave George W. Bush and then Barack Hussein Obama incredible power, dictatorial power, actually, to wage war in other countries, including Yemen, where we just had a Navy SEAL killed, against anyone perceived by the U.S. president as a threat to America, supposedly to keep this nation safe, although that is highly questionable after 15 years in Afghanistnam, where we have barely managed to battle the Taliban to a stalemate, we have just witnessed three federal judges in the Ninth Circuit Court of Appeals greatly curtail the power of a sitting American president to keep this nation safe in the estimation of that president without judicial supervision., as if the Ninth Circuit Court of Appeals judges just mandated training wheels for the Trump administration.
With respect to that power being exercised only recently by the Barack Obama administration, the use of which has given the world the Syrian Refugee Crisis that is at the heart of this recent Ninth Circuit per curium Order discussed above, and thus, the huge mess the Trump administration has inherited with respect to Syria today, in a December 8, 2016 Press Release, it was announced that Rep. Tulsi Gabbard (HI-02) introduced the Stop Arming Terrorists Act, which legislation would prohibit the U.S. government from using American taxpayer dollars to provide funding, weapons, training, and intelligence support to groups like the Levant Front, Fursan al Ha and other allies of Jabhat Fateh al-Sham, al-Qaeda and ISIS, or to countries who are providing direct or indirect support to those same groups.
The legislation was cosponsored by Reps. Peter Welch (D-VT-AL), Barbara Lee (D-CA-13), Dana Rohrabacher (R-CA-48), and Thomas Massie (R-KY-04), and supported by the Progressive Democrats of America (PDA) and the U.S. Peace Council.
In introducing that legislation, Rep. Tulsi Gabbard said, “Under U.S. law it is illegal for any American to provide money or assistance to al-Qaeda, ISIS or other terrorist groups.”
“If you or I gave money, weapons or support to al-Qaeda or ISIS, we would be thrown in jail.”
“Yet the U.S. government has been violating this law for years, quietly supporting allies and partners of al-Qaeda, ISIL, Jabhat Fateh al Sham and other terrorist groups with money, weapons, and intelligence support, in their fight to overthrow the Syrian government.”
“The CIA has also been funneling weapons and money through Saudi Arabia, Turkey, Qatar and others who provide direct and indirect support to groups like ISIS and al-Qaeda.”
“This support has allowed al-Qaeda and their fellow terrorist organizations to establish strongholds throughout Syria, including in Aleppo.”
“A recent New York Times article confirmed that ‘rebel groups’ supported by the U.S. ‘have entered into battlefield alliances with the affiliate of al-Qaeda in Syria, formerly known as al Nusra.’”
“This alliance has rendered the phrase ‘moderate rebels’ meaningless.”
“Reports confirm that ‘every armed anti-Assad organization unit in those provinces [of Idlib and Aleppo] is engaged in a military structure controlled by [al-Qaeda’s] Nusra militants.’
“A recent Wall Street Journal article reported that many rebel groups are ‘doubling down on their alliance’ with al Nusra.”
“Some rebel groups are renewing their alliance, while others, like Nour al-Din al-Zinki, a former CIA-backed group and one of the largest factions in Aleppo are joining for the first time.”
“The Syria Conquest Front—formerly known as the al-Qaeda-linked Nusra Front—is deeply intermingled with armed opposition groups of all stripes across Syria’s battlefields.”
“The CIA has long been supporting a group called Fursan al Haqq, providing them with salaries, weapons and support, including surface to air missiles.”
“This group is cooperating with and fighting alongside an al-Qaeda affiliated group trying to overthrow the Syrian government.”
“The Levant Front is another so-called moderate umbrella group of Syrian opposition fighters.”
“Over the past year, the United States has been working with Turkey to give this group intelligence support and other forms of military assistance.”
“This group has joined forces with al-Qaeda’s offshoot group in Syria.”
“This madness must end.”
“We must stop arming terrorists.”
“The Government must end this hypocrisy and abide by the same laws that apply to its’ citizens.”
“That is why I’ve introduced the Stop Arming Terrorists bill—legislation based on congressional action during the Iran-Contra affair to stop the CIA’s illegal arming of rebels in Nicaragua.”
“It will prohibit any Federal agency from using taxpayer dollars to provide weapons, cash, intelligence, or any support to al-Qaeda, ISIS and other terrorist groups, and it will prohibit the government from funneling money and weapons through other countries who are directly or indirectly supporting terrorists,” concluded Rep. Tulsi Gabbard.
end quotes
Stop the madness, people, except this Ninth Circuit Court of Appeals per curium Order, as will be seen, makes it almost impossible, if not completely impossible, to not only stop the madness in Syria, but to keep that madness from then coming to these shores to do this nation harm, as these American-backed terrorist groups Barack Obama and Hillary Clinton were using in Syria in their failed bid to unseat Basher Assad get stronger and stronger, while our ability to keep them out of this country has just been greatly diminished by this per curium Order.
As to Yemen, from the New York Times by Eric Schmitt on 29 January 2017, we have as follows:
One American commando was killed and three others were injured in a fierce firefight overnight with Qaeda militants in central Yemen, the military said Sunday morning.
Commandos from the Navy’s SEAL Team 6 carried out the surprise dawn attack in Bayda Province in a ground raid that lasted a little less than an hour.
The target was a headquarters for Al Qaeda’s branch in Yemen that counterterrorism officials had deemed valuable enough to warrant a ground operation rather than an airstrike, a senior American official said.
Gen. Joseph Votel, the head of the Pentagon’s Central Command, said in a statement: “We are deeply saddened by the loss of one of our elite service members.”
“The sacrifices are very profound in our fight against terrorists who threaten innocent peoples across the globe.”
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“Innocent peoples across the globe” who are threatened by these terrorists in Yemen presumably would include we, the American people, although from reading this per curium Order, which I have done, word for word, from front to back several times now, one would never know from the wording of the Order that there were terrorists in Yemen intent, so we are told anyway by the federal government, are intent on causing us harm.
So what really is going on here, people, besides a giant power struggle between the judiciary and the states on the one hand versus the office of the chief magistrate on the other over who is really responsible for protecting national security in this country?
That, people, is a critical question facing us in this highly divided nation today.
With respect to that power struggle over control of this nation’s foreign policy, at p.27 of the per curium Order, in footnote 7, the Court states as follows:
Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.
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At p.28, the Court goes further in that regard when it says:
The Government suggests that the Executive Order’s discretionary waiver provisions are a sufficient safety valve for those who would suffer unnecessarily, but it has offered no explanation for how these provisions would function in practice: how would the “national interest” be determined, who would make that determination, and when?
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Are you kidding me, people?
Here we are in 2017, sixteen years after the debacle of 9-11-2001 and the impossible happening when foreign terrorists were able to hijack not one, not two, not three, but four airplanes and then fly three of them with pinpoint accuracy into three very high-value targets in this country, and the Ninth Circuit Court of Appeals is still wondering how the “national interest” would be determined, who would make that determination, and when?
That, people, is nothing less than incredible.
Who the hell is on first, here?
Does anyone even have a clue?
Do we have a functioning central government in this nation capable of securing its borders against the terrorists it has created in other countries, or do we have a silly clown show incapable of even coming in out of the rain?
Getting back to the percurioum Order and based on all of that, at p.28, the Court concluded as follows:
Finally, in evaluating the need for a stay, we must consider the public interest generally.
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.
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And there we have it, people, quite succinctly – the public’s interest in the free flow of travel, in avoiding separation of families, and in freedom from discrimination trumps the public’s powerful interest in national security and in the ability of an elected president to enact policies.
That is something that should have us all sleeping a ,lot better tonight, knowing nobody is on guard when it comes to keeping this nation safe, unless the judges of the Ninth Circuit Court of Appeals give them permission to do so.
In the next installment, we shall take a look at how the Court gave itself the power to curtail the power of a sitting American president when it comes to foreign policy and national security, so please, stay tuned, and thank you for your interest!
andy zahn says
Mob rule. Protest everything. No RESOPNSIBILITY. Don’t earn your keep. Don’t support your family. Don’t be a father to your kids.
Some like it as it is. Don’t want a job. Don’t want an education. Prefer life in the ghetto.
The mob protests the findings of the Grand Jury and the verdict of the court and the jurors. The mob protests the results of a legal election. The mob wants a re-do.
The mob is NOT leaderless. There is a Fifth Column at work here. Well financed, well coordinated, well organized.
These “protests”, like in Benghazi, are not spontaneous. They suddenly spring up all over the place, not only in America but world wide. The theme is the same: “WE HATE TRUMP”.
There is more hatred for our president, Donald J Trump, than there ever was for Adolph Hitler and what, pray tell, has President Trump done to deserve this hatred?
What the left fears is that America will become great again. That jobs will return and that wages will rise. That millions will return to the middle class and that we will all be raised up. God forbid our streets will become safe and that even Chicago ill be serene.
Paul Plante says
Before I begin this installment of the truly historic nature of the times that we now find ourselves in, in which we shall take a look at exactly how these three judges of the 9th Circuit Court of Appeals have quite literally set themselves up in a supervisory capacity over Trump as president in connection with matters of national security and in doing so, have given themselves the literal authority to curtail the power of a sitting American president when it comes to foreign policy and national security, in a quick response to Andy Zahn above, I would first like to refer back to a previous thread entitled “FROM ABSURD TO INSANE IN AMERICA TODAY AT FASTER THAN THE SPEED OF LIGHT; or, who can believe this stuff is even happening?,” where I quoted a comment made by Laurence Henry “Larry” Tribe in the Guardian about Laurence Tribe, a constitutional law professor at Harvard University, telling MSNBC’s Rachel Maddow Show “It is as if history is being collapsed into a black hole and everything is happening faster than the speed of light.”
I refer to that quote because it is so apt to these times we now find ourselves in, here in America, which appears to be rapidly heading towards anarchy and disunion, as we read in the Washington Times article entitled “Left uses violence but decries ‘speech as violence’” by Robert Knight, on February 5, 2017, as follows:
Anarchy takes many forms.
There is street violence, like that at the University of California at Berkeley last Wednesday, a microcosm of the anti-Trump rioting all over the country.
A mob protesting a planned speech by Breitbart writer and self-styled iconoclast Milo Yiannopoulos turned ugly as 1,500 gathered.
Some were coaxed there by Occupy Oakland, whose website called for people to “Shut Down Milo at UC Berkeley.”
Some protesters wore black, used paramilitary tactics, threw bricks and fireworks at police, committed vandalism and started a fire.
Two hours before the speech, the college administration pulled the plug.
But the mob was not done.
“Even after the event’s cancellation, hundreds of protesters spilled off campus into the city streets, where the violence continued as they confronted drivers, engaged in fights, smashed storefront windows and set fires,” the San Francisco Chronicle reported.
Several of the “fights” were beatings of suspected Trump supporters.
That evening, Occupy Oakland’s twitter feed proclaimed: “We won this night.”
“We will control the streets.”
“We will liberate the land.”
“We will fight fascists.”
“We will dismantle the state.”
“This is war.”
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“We will dismantle the state,” people!
“We will fight fascists.”
“We will liberate the land.”
HUH?
That sounds as if we have literally jumped back in time to the 1930s in Europe in the bleak days leading up to WWII, so no wonder Laurence Henry “Larry” Tribe, a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University who also works with the firm Massey & Gail LLP on a variety of matters, a liberal scholar of constitutional law and cofounder of American Constitution Society, who is the author of American Constitutional Law (1978), a major treatise in that field, and who has argued before the United States Supreme Court 36 times, is being quoted in the Guardian telling MSNBC’s Rachel Maddow Show “It is as if history is being collapsed into a black hole and everything is happening faster than the speed of light.”
Like James Wilson before him, who George Washington nominated to be an Associate Justice of the United States Supreme Court on September 24, 1789, after the court was implemented under the Judiciary Act of 1789, and who was confirmed by the United States Senate on September 26, 1789, and commissioned by Washington on September 29, 1789, Tribe is one of the most prominent lawyers of our time, and as a fellow delegate in the Constitutional Convention of 1787 in Philadelphia assessed James Wilson, so too Laurence Tribe in our times today, to wit:
“Government seems to have been his peculiar study, all the political institutions of the world he knows in detail, and can trace the causes and effects of every revolution from the earliest stages of the Grecian commonwealth down to the present time.”
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The future is becoming the past, is what Tribe is saying, and Andy Zahn is observing, which takes us to this excerpt from p.191, “World Wars And Revolutions” by Walter Phelps Hall, PhD, of Princeton, copyrighted 1943, entitled “Blum and the Popular Front,” as follows:
Finally came the national election of 1936.
Thoroughly frightened by the rampant onsurge of fascism, Radicals, Socialists, and Communists buried their disagreement for once and worked together.
This Popular Front was politically successful since the Socialists for the first time in French history won a plurality of seats, and, when combined with the Radicals and Communists, had a slight majority over all.
It was not only slight but extraordinarily shaky, since it rested on the support of seventy-one Communists who were too suspicious to enter the cabinet, and on that of so-called radicals, wedded by tradition to property rights.
Nevertheless, for the time being the advent of fascism was stayed.
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How like today that sounds with sides being taken, lines being drawn, and nobody’s right if everybody is wrong!
With respect to those revolutions that Tribe would be well aware of at the time he was quoted in the Guardian telling MSNBC’s Rachel Maddow Show “It is as if history is being collapsed into a black hole and everything is happening faster than the speed of light,” we also have from pp. 654,655 of “A Short History Of Western Civilization” by Charles Edward Smith, Louisiana State University, and Lynn M. Case, University of Pennyslvania, copyright 1948, as follows:
One of the greatest contributors to socialist thought was a German scholar, Karl Marx.
Instead of devising Utopian panaceas, he attempted to systematize the whole socialist concept in his principal works, The Communist Manifesto and Capital.
Every social class, he asserted, has had its opposing class: freeman and slave, patrician and plebian, gildmaster and journeyman, noble and bourgeois, industrialist employer and factory worker.
History is therefore the record of the struggle between these contending classes.
Marx predicted a class struggle between the capitalist employer and the proletarian worker in which the proletariat would be the victor because, by the concentration of wealth, the capitalists would become fewer and the exploited workers ever more numerous.
By the ballot or by force the great majority would eventually succeed in overthrowing the capitalists’ control of political and economic institutions.
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That said as we read in the GOTHAMIST article entitled “New Yorkers Put Schumer On Blast: ‘Stand Up Or Get Out Of The Way’” by Raphael Pope-Sussman on February 1, 2017, as follows:
Hundreds of New Yorkers braved freezing temperatures Tuesday night on Brooklyn’s Grand Army Plaza at a rally calling upon U.S. Senate Minority Leader Chuck Schumer to take a firm stand against the Trump administration.
Hae-Lin Choi, of the Democratic Socialists of America and Resist Trump NY, took the stage first, announcing herself as an immigrant and telling the crowd why organizers had called for the protest.
“Senator Schumer must be bold and stand with the working class,” she cried over the loudspeaker.
“He has to champion the resistance or get out of the way and we’ll find someone that will.”
end quotes
Power struggles, Andy Zahn, and the times, they are a’changing, which is exactly what happened here, between Trump and the Court!
First, we have from p.8 of the per curium Order the grant of authority the Court granted to itself to assume a supervisory role over Trump, as follows:
The States argue that we lack jurisdiction over the Government’s stay motion because the Government’s appeal is premature.
A TRO is not ordinarily appealable.
We may nonetheless review an order styled as a TRO if it “possesses the qualities of a preliminary injunction.”
We are satisfied that in the extraordinary circumstances of this case, the district court’s order possesses the qualities of an appealable preliminary injunction.
end quotes
With that issue as to its authority to be involved in the matter resolved to its own satisfaction, the Court gets right to the heart of the power struggle that Trump lost at p.13, under the heading Reviewability of the Executive Order, as follows:
The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.”
The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence.
Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections.
The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.
end quotes
There we are at the heart of the dispute between team Trump and the Appeals Court, people, right above here.
At p.14 of the per curium Order, the Court takes up that challenge to its authority, or perceived authority, as follows:
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
end quote
Note that the Court right there has literally changed our form of federal government, converting it from a Republic to a democracy.
Getting back to the Court’s assertion of its power of review of the Trump administration, we have:
Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches.”
We are called upon to perform that duty in this case.
Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution.
To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.
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.”
end quote
That is after citing at p.13 Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) which recognizes 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” quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977) and Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010) which explained that courts should defer to the political branches with respect to national security and foreign relations.
At p.15, the Court discards that legal reasoning and further slaps down the arguments of the Trump administration concerning the Court’s right to review the actions of the Trump administration as follows:
The Government cites Kleindienst v. Mandel, 408 U.S. 753 (1972) for the proposition that “‘when the Executive exercises’ immigration authority ‘on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.’”
The Government omits portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority.
In fact, the Mandel standard applies to lawsuits challenging an executive branch official’s decision to issue or deny an individual visa based on the application of a congressionally enumerated standard to the particular facts presented by that visa application.
The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application.
Rather, the States are challenging the President’s promulgation of sweeping immigration policy.
Such exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard; as cases like Zadvydas and Chadha make clear, courts can and do review constitutional challenges to the substance and implementation of immigration policy.
This is no less true when the challenged immigration action implicates national security concerns.
We are mindful that deference to the political branches is particularly appropriate with respect to national security and foreign affairs, given the relative institutional capacity, informational access, and expertise of the courts.
Nonetheless, “courts are not powerless to review the political branches’ actions” with respect to matters of national security.
To the contrary, while counseling deference to the national security determinations of the political branches, the Supreme Court has made clear that the Government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war.
Indeed, federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict, citing Aptheker v. Sec’y of State, 378 U.S. 500 (1964), which held unconstitutional a statute denying passports to American members of the Communist Party despite national security concerns.
As a plurality of the Supreme Court cautioned in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”
In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.
end quotes
And that was that, people, the Court one, the Trump team zero.
In the next installment, then, we will review what appears to be gross incompetence by the Trump legal team that resulted in the Appeals Court giving the team Trump the judicial beat-down in the matter, so, please, stay tuned.
Paul Plante says
Before we tackle the issue of the seeming incompetence on the part of the Trump legal team, the New York Post has reported in the article “Trump appealing Ninth Circuit court ruling on immigration ban” by Mark Moore published Feb 13, 2017 that President Trump plans to appeal the decision that halted his ban on immigration from seven countries, according to a report on Fox Business on Monday.
According to that article, Trump’s lawyers will seek an en banc hearing — meaning the court would select 11 judges at random from a judicial pool of about 30 judges in that circuit to hear the appeal.
As of now, only three of the 9th Circuit judges have heard the case and not only did all three rule against the administration, but they mocked it as incompetent, as well.
Speaking of mocking team Trump, in an article in the Washington Post entitled “The 9th Circuit deals a blow to the imperial — and incompetent — president” by Jennifer Rubin on 10 February 2017, we were provided as follows:
In a unanimous, 29-page opinion, three judges with the U.S. Court of Appeals for the 9th Circuit flatly rejected the government’s argument that the suspension of the order should be lifted immediately for national security reasons and forcefully asserted their ability to serve as a check on the president’s power.
The opinion tells us much about the hubris and sheer incompetence of the new administration as the court rebuked it at every turn, pointing to errors in law and lawyering.
The administration made the argument that the case was not even reviewable, despite ample precedent from the George W. Bush years.
In its most memorable line of the opinion the judges held, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
end quotes
What is most memorable about that line, of course, is the fact that in the United States of America under our Constitution, we do not have a “constitutional democracy,” we have a Republic, which is a different form of government altogether, a point one would have thought the highly esteemed Washington Post would have picked up on, but hey, I guess they were too busy that day to notice such subtlety.
The Washington Post article then continues as follows:
Given the president’s recent public hectoring and threats to hold the court responsible for any terror attacks if it upheld the lower court’s order, the court had every reason to eviscerate the claim of what amounts to executive supremacy.
(One wonders if the president’s noxious attack on the judiciary also encouraged the three-judge panel to make the ruling unanimous.)
end quotes
Indeed, one not only does wonder, but must wonder, given that on the other side of the continent, in Boston, in Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17, United States District Court, District of Massachusetts, Arghavan Louhghalam et al., Plaintiffs, v. Donald J. Trump, President of the United States, et al., Defendants, U.S. District Judge Nathaniel Gorton refused to extend a temporary ruling blocking its enforcement.
According to Bloomberg, in the article “Boston Judge Declines to Extend Order Blocking Trump Ban” by Erik Larson and Janelle Lawrence on February 3, 2017, we have:
“The public interest in safety and security in this ever-more dangerous world is strong,” Gorton said in a 21-page ruling that also acknowledged the country’s “rich immigrant history.”
“This court declines to encroach upon the ‘delicate policy judgment’ inherent in immigration decisions,” Gorton said.
end quotes
Of interest to this thread is this following sentence from that same Bloomberg article:
The decision contradicts those of federal judges in Alexandria, Virginia, and Brooklyn, New York, where the bans on enforcement of parts of Trump’s order were extended.
end quotes
Yes, people, Virginia has joined the parade of those across the country who are suing Trump over this order, which truthfully reminds me of the story of Gulliver and the Lilliputians who are described in the Cliff Notes as men six inches in height but possessing all the pretension and self-importance of full-sized men in that they are mean and nasty, vicious, morally corrupt, hypocritical and deceitful, jealous and envious, filled with greed and ingratitude — in fact, completely human.
But that, of course, is a story for another time.
In the article in The Hill entitled “Massachusetts judge won’t renew order halting Trump travel ban: reports” by Mark Hensch on 02/03/17, we are informed as follows with respect to the number of lawsuits pending against team Trump with respect to this travel ban:
Religious groups, state attorneys general, residents and visitors to the U.S. have filed more than 50 lawsuits challenging Trump since he issued his controversial directive a week ago.
Lawsuits have been filed at U.S. district courts in 14 states.
The legal challenges range from those questioning the detention of specific individuals to others focused on the order’s impact on Muslims in general.
Democratic state attorneys general in Virginia and Washington have also accused the order of negatively impacting their jurisdiction’s businesses and educational institutions.
Trump’s decision has sparked global debate, with Democrats and human rights organizations calling it unconstitutional and biased against Muslims.
The president has rejected those assertions, countering that his order protects national security by preventing radical Islamic terrorism in the U.S.
end quotes
Oh, but we cannot talk about “radical Islam,” of course, because if we do, we are going to make people feel bad about themselves, and in this day and age of political correctness rules, we simply cannot have that, so silence is the best policy on that subject.
As to Virginia’s assault on the beleaguered Trump administration by Virginia Attorney General Mark Herring, a Democrat, which administration does not appear to know whether it is afoot or horseback here in its opening days, we have as follows from the Associated Press article “Opponents of Trump’s travel ban look to score another win” by Jessica Gresko, 11 February 2017, the following:
Opponents of President Donald Trump’s travel ban sought Friday to rack up another legal victory against the measure, believing they have the administration on the defensive after a federal appeals court refused to reinstate the order.
end quotes
As we think about the Lilliputians and Gulliver, note carefully those words “believing they have the administration on the defensive.”
Does it somehow remind anyone of bear·baiting, a form of entertainment that involved setting dogs to attack a captive bear, with Trump as the captive bear?
Getting back to that Associated Press article:
The San Francisco-based 9th U.S. Circuit Court of Appeals sided Thursday with the states of Washington and Minnesota in refusing to reinstate the ban, opening the possibility that the case could advance to the U.S. Supreme Court.
On Friday, a federal judge in Virginia also seemed inclined to rule against the administration in a different challenge.
In Virginia, a lawyer for the state asked a judge to impose a preliminary injunction barring the government from enforcing a portion of Trump’s Jan. 27 executive order that bars anyone from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the U.S. for 90 days.
Judge Leonie Brinkema, who was appointed to the federal bench by President Bill Clinton in 1993, did not seem satisfied with answers about the executive order from an administration lawyer.
Brinkema said that the order “clearly has all kinds of weaknesses,” and she asked the government to explain the justification for the ban, saying courts have been “begging” for that explanation.
Virginia’s Solicitor General Stuart Raphael said the government has been unable to answer the charge that the ban was targeted at Muslims.
Brinkema, who did not say when she will rule, said that there was strong evidence that the order is harmful to national security.
She quoted from a joint declaration filed in the case by former national security, foreign policy and intelligence officials, including former secretaries of state Madeline Albright and John Kerry, former Homeland Security Secretary Janet Napolitano and former CIA Director and Secretary of Defense Leon Panetta.
“In our professional opinion, this Order cannot be justified on national security or foreign policy grounds.”
“It does not perform its declared task of ‘protecting the nation from foreign terrorist entry into the United States,” the declaration states.
The group continued that Trump’s executive order “could do long-term damage to our national security and foreign policy interests.”
A lawyer for the administration, Erez Reuveni, countered that the group is not in the current administration.
end quotes
Has failed presidential contender and ex-secretary of state John “Jack” Kerry also been put in a supervisory position over Trump?
My goodness, this gets more and more bizarre as the days go by.
People who are not in our government are now deciding what our foreign policy should be?
In all truth people, WTF?
Which takes us back to the Washington Post article “The 9th Circuit deals a blow to the imperial — and incompetent — president” by Jennifer Rubin on 10 February 2017, as follows, with respect to the seeming incompetence in court of the team Trump lawyers, to wit:
The White House realized after the executive order was issued that green card holders were a problem, but then made a stupid legal error.
Rather than issue a new order the White House counsel issued “guidance” to say the order was not intended to affect green card holders.
The court scoffed, “The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President.”
The government lawyers failed to show that the modification was even binding.
In then weighing the “irreparable injury” that might be done by staying the ban, the court observed that the administration provided “no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”
In biting criticism the court found, “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.”
This too was a complete failure of lawyering.
Not a single affidavit or other showing attesting to the imminent harm to American national security was produced.
The White House seemed to believe that issuing an executive order was no different than putting out a campaign white paper.
This is a humiliating defeat for the White House, revealing just how amateurish the president and his advisers are.
The frightful part is that if they cannot handle a simple executive order, what makes anyone think they can handle far more difficult challenges?
end quotes
With that question put before us for our consideration, there I will end this installment, but believe me, with this story, there is much more to come, so again, please stay tuned, and thank you for your interest.
It is, afterall, our country too.
Paul Plante says
As we continue to ponder what is going on here with this judicial slap-down of a sitting American president in matters involving national security by the three judges of the 9th Circuit Court of Appeals on the west coast of the continent in the light of Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17, United States District Court, District of Massachusetts, Arghavan Louhghalam et al., Plaintiffs, v. Donald J. Trump, President of the United States, et al., Defendants, where U.S. District Judge Nathaniel Gorton on the east coast has refused to extend a temporary ruling blocking its enforcement, it behooves us all as rational, thinking people who are responsible citizens of the United States of America to consider that all federal judges are political, or they would not be federal judges in the first place, for if they were not political, the politicians who put them on the federal bench would have no idea who they even were, as can clearly be seen in this following excerpt from the Federal Register, EXECUTIVE SESSION – NOMINATION OF GARY L. SHARPE TO BE UNITED STATES DISTRICT JUDGE, as follows:
The PRESIDING OFFICER. The junior Senator from New York.
Mrs. CLINTON. Madam President, I rise in very strong support of the nomination of Magistrate Judge Gary Lawrence Sharpe who has been nominated to the United States District Court for the Northern District of New York.
I ask all of my colleagues to support this nomination.
I think he will not only serve with distinction in New York but demonstrate clearly that this is the kind of conservative Republican nominee whom we could be unanimously confirming.
I commend him to the Senate.
I thank the Chair.
end quote
“This is the kind of conservative Republican nominee whom we could be unanimously confirming.”
A conservative Republican nominee for a federal judgeship is a political person, plain and simple, or they would not be identified as a “conservative Republican;” to the contrary, they would be identified as an American citizen.
If politics did not matter in the selection of federal judges, Hillary would never have brought up the fact that this person was a conservative Republican, as the appellation would be irrelevant.
So politics most definitely enter into these various judicial decisions with regard to Trump’s executive order, and we as loyal citizens would be foolish to think otherwise, although in truth, a politically-motivated judicial decision is still a judicial decision and for better or worse, we as citizens are stuck with it, because in the United States of America, it is federal judges who write our political history in their decisions.
As we try to make heads or tails out of these conflicting judicial decisions on the Trump executive order from one federal judge in Boston versus three federal judges in San Francisco, there are a couple of background documents we should consider in trying to determine how this immigration mess came to be a mess in the first place.
The first is an excerpt from a newsletter of U.S. Congressman from New York Chris Gibson on November 21, 2014, wherein was stated as follows with respect to our broken immigration policy that Trump inherited on coming into the White House in January of this year, to wit:
Dear Friend,
First, let me take a few moments to share my views on President Obama’s announcement of unilateral action on immigration.
Clearly, our immigration system is broken, but we need to work together to change the law, using the process outlined in our Constitution.
I have long supported securing our borders and fixing all aspects of this broken system.
Instead, the President is selectively choosing not to enforce the law, something he is duty-bound to do by his oath of office.
end quote
Trump has a problem today, and regardless of what side of the issue you are on, we American citizens have a problem today because in his arrogance, Barack Hussein Obama decided he would not enforce our laws, and as this matter continues to play out, that is something none of us should forget – presidents of any party who think they are above the law are a danger to our internal tranquility as a people and our national security as a nation.
The second document we must keep in mind as we follow this matter is the 2016 Democratic Party Platform July 21, 2016 As Approved by the Democratic Platform Committee July 8-9, 2016 – Orlando FL, where we have the following with respect to immigration policy and Trump:
Fixing our Broken Immigration System
The United States was founded as, and continues to be, a country of immigrants from throughout the world.
It is no coincidence that the Statue of Liberty is one of our most profound national symbols.
And that is why Democrats believe immigration is not just a problem to be solved, it is a defining aspect of the American character and our shared history.
We reject attempts to impose a religious test to bar immigrants or refugees from entering the United States.
It is un-American and runs counter to the founding principles of this country.
Finally, Democrats will not stand for the divisive and derogatory language of Donald Trump.
His offensive comments about immigrants and other communities have no place in our society.
This kind of rhetoric must be rejected.
end quotes
Wow, people, big surprise, isn’t it?
The Democrats do not like how Donald Trump speaks, so they are going to take away his ability to do so, notwithstanding that he happens to be the sitting president of the United States now, which takes us back to Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17, United States District Court, District of Massachusetts, Arghavan Louhghalam et al., Plaintiffs, v. Donald J. Trump, President of the United States, et al., Defendants, where U.S. District Judge Nathaniel Gorton ruled as follows with respect to Trump’s right as president to do exactly what he did with that executive order, to wit:
On January 27, 2017, the President of the United States Donald J. Trump, issued Executive Order No. 13,769 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO”).
The EO directs changes to the policy and process of admitting non-citizens into the United States purportedly to protect national security and to provide a period of review for relevant agencies to evaluate current procedures and to propose and implement new procedures.
C. The Immigration and Nationality Act
The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., was originally enacted in 1952 and has been amended several times, including in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act “IIRIRA”).
The INA governs immigration, naturalization, refugee assistance and removal procedures and defines the circumstances that govern the admission of aliens into the United States.
The relevant provision of the INA provides that:
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. 8 U.S.C. § 1182(f).
In light of the government’s clarification that the EO will not be applied to lawful permanent residents, the claims for injunctive relief by plaintiffs Louhghalam, Tootkaboni, Sanie, Fatemeh Moghadam and Babak Moghadam are moot.
With respect to those individuals, there is “no ongoing conduct to enjoin”.
2. The claims for injunctive relief by the plaintiffs who hold F-1 Visas
a. Count I: Equal Protection claim
There is a distinction, however, between the constitutional rights enjoyed by aliens who have entered the United States and those who are outside of it.
The decision to prevent aliens from entering the country is a “fundamental sovereign attribute” realized through the legislative and executive branches that is “largely immune from judicial control.”
Plaintiffs contend that the EO discriminates on the basis of religion and was designed to exclude Muslims from the United States.
They further allege that it singles out citizens of seven different countries.
At oral argument, plaintiffs relied on “astonishing evidence of intent” from President Trump which, in their view, demonstrates that EO was “substantially motivated by improper animus.”
Because the EO involves federal government categorizations with respect to non-resident aliens, rational basis review applies.
According to the EO, its purpose is to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists . . . .
The EO specifically asserts that permitting aliens from the countries identified in section 217(a) of the INA, 8 U.S.C. § 1187(a)(12), to enter “would be detrimental to the United States.”
The order provides a reasonably conceivable state of facts [which concerns national security and] that could provide a rational basis for the classification.
Accordingly, this Court declines to encroach upon the “delicate policy judgment” inherent in immigration decisions.
end quotes
With respect to the so-called “Muslim Ban” everybody is harping about, the Boston judge ruled as follows:
Moreover, the language in Section 5 of the EO is neutral with respect to religion.
Plaintiffs submit in their amended complaint that Section 5 favors Muslims over Christians, in violation of the Establishment Clause.
The provisions of Section 5, however, could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian.
Nothing in Section 5 compels a finding that Christians are preferred to any other group.
end quotes
So the hue and cry about the Muslim ban is pure horse crap, according the one federal judge, anyway.
As to due process, the Boston judge ruled as follows:
c. Count III: Due Process claim
The power to admit or exclude aliens is a sovereign prerogative” and aliens seeking admission to the United States request a “privilege.”
It is “beyond peradventure” that “unadmitted and nonresident aliens” have no right to be admitted to the United States.
There is no constitutionally protected interest in either obtaining or continuing to possess a visa.
Thus, because an alien does not enjoy a property right in a visa, he has no due process right that protects the manner in which a visa is revoked.
end quotes
On compliance with the Administrative Procedures Act, the Boston Court ruled as follows:
d. Count IV: Administrative Procedure Act claim
The Court concludes that plaintiffs have not shown a likelihood of success on the merits with respect to Count IV, in which plaintiffs allege that the EO violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.
Courts have interpreted Franklin to prohibit review under the APA of actions by the President when he is exercising discretionary authority.
Here, Congress has granted the President authority to suspend entry for any class of aliens if such entry would be “detrimental to the interests of the United States.” 8 U.S.C. 1182(f).
Pursuant to, and without exceeding, that grant of discretionary authority, the President issued EO 13,769 and suspended entry of aliens from the seven subject countries.
The President’s action is thus unreviewable under the APA.
end quotes
Bottom line, people, three federal judges on the west coast are saying Trump is in violation of the law while a federal judge in Boston is saying Trump is in compliance with the law as Congress has written it.
Who is right?
Well, people, we are going to have to just wait and see.
In the meantime, the story is far from over, so please, stay tuned and don’t touch that dial!
Paul Plante says
Tumults, defined as a loud, confused noise, especially one caused by a large mass of people, or confusion or disorder; and convulsions, people, where convulsions are defined as a violent social or political upheaval.
We have not heard those words in this country in quite some time, actually, at least since the VEET NAM times in this country when people were marching in the streets and singing songs and carrying signs that said hooray for their side, and lining up in airports to spit on veterans like myself returning to this country from VEET NAM, where we were fighting and bleeding and dying to keep the IRON CURTAIN from closing on this country and the dreaded COMMIES or “RED MENACE” from coming here to take away the First Amendment right of those people in the airports to jeer at us returning veterans and spit at us.
God bless the U.S. Constitution and all those who died in VEET NAM to keep those people free, ain’t it!
With respect to tumults and convulsions and foreign influence in this country, in FEDERALIST No. 68, entitled “The Mode of Electing the President” to the People of the State of New York from the New York Packet on Friday, March 14, 1788, Alexander Hamilton, known to us today as a HIP-HOP star or RAPPER from a Broadway musical in New York City, but back then a statesmen or “founding father,” had this to say on the subject:
THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.
It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.
This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.
A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder.
This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States.
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.
These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.
end quotes
Think on these words for a moment if you will people, “These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils,” this as we literally wallow in cabal, intrigue, and corruption today in Washington, D.C., ostensibly this nation’s capital, although in truth it far more resembles a lunatic asylum, in the light of an article in the U.S. NEWS & WORLD REPORT entitled “Immigrant Protests Planned for Thursday – Protests call for immigrants in the U.S. to stay home from work, school.” on February 16, 2017, by Joseph Ax and Liza Feria, where we are informed as follows:
Activists are calling on immigrants to protest President Donald Trump’s tough stance on immigration by staying home from work or school on Thursday, not shopping and not eating out, in an effort to highlight the vital role they play in U.S. society.
end quotes
How about that, people?
We, the American people, those of us who were born here regardless of where some ancestor may or may not have been born, are going to be punished by people who are in this country as a matter of privilege according to U.S. District Judge Nathaniel Gorton in Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17, United States District Court, District of Massachusetts, Arghavan Louhghalam et al., Plaintiffs, v. Donald J. Trump, President of the United States, et al., Defendants, where Judge stated in clear and unequivocal terms that:
The power to admit or exclude aliens is a sovereign prerogative” and aliens seeking admission to the United States request a “privilege.”
It is “beyond peradventure” that “unadmitted and nonresident aliens” have no right to be admitted to the United States.
There is no constitutionally protected interest in either obtaining or continuing to possess a visa.
end quote
We are going to be punished, people, by these immigrants who are trying to shut down our economy, because we happen to be a nation of laws, and one of those laws these people from other countries who are not American citizens do not like, along with the Democrat party, is the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq. which was originally enacted in 1952 and has been amended several times, including in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act “IIRIRA”).
By way of review, until properly amended to say something else, which to date has not happened in this country, the INA governs immigration, naturalization, refugee assistance and removal procedures and defines the circumstances that govern the admission of aliens into the United States.
The relevant provision of the INA which has these foreigners livid and the Democrats foaming at the mouth is a rage provides as follows:
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. 8 U.S.C. § 1182(f).
end quotes
Now, people, truthfully, how unfair is that law to people who are not citizens of this country?
What does it take from them that they never had in the first place?
Getting back to the U.S. NEWS & WORLD REPORT article, it further states:
“A Day Without Immigrants,” which has been largely driven by word of mouth on social media, arose in response to Trump’s vows to crack down on illegal immigration and his executive order, since suspended by a federal judge, to temporarily block entry to people from seven Muslim-majority countries.
“Mr. President, without us and without our contribution this country is paralyzed,” read a poster promoting the protest that was widely shared online.
end quotes
“Without us and without our contribution this country is paralyzed!”
And you know what, people?
It might well be, which will be a real testament to the candid world as to exactly how weak we have become as a people, that we cannot function in this country without immigrants to keep the vital machinery running, as was the case in Rome back around 410 A.D. when a dude named Alaric came to town to visit.
It is entirely possible that these immigrants who are protesting President Donald Trump’s tough stance on immigration by staying home from work or school on Thursday, and not shopping and not eating out, in an effort to highlight the vital role they play in U.S. society, can indeed paralyze this country, and what a statement to the candid world that is going to be, and that as we go back in time a couple of weeks to a GOTHAMIST article entitled “New Yorkers Put Schumer On Blast: ‘Stand Up Or Get Out Of The Way’” by Raphael Pope-Sussman on February 1, 2017, where we have as follows with respect to the voice immigrants now have in what used to be our federal government in this country, as follows:
Hundreds of New Yorkers braved freezing temperatures Tuesday night on Brooklyn’s Grand Army Plaza at a rally calling upon U.S. Senate Minority Leader Chuck Schumer to take a firm stand against the Trump administration.
Hae-Lin Choi, of the Democratic Socialists of America and Resist Trump NY, took the stage first, announcing herself as an immigrant and telling the crowd why organizers had called for the protest.
“Senator Schumer must be bold and stand with the working class,” she cried over the loudspeaker.
“He has to champion the resistance or get out of the way and we’ll find someone that will.”
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Above here, we have Alexander Hamilton telling us how we are to be assured of no foreign influence permeating the selection of our chief magistrate, and right above here, we have foreign influence co-opting the minority leader of the United States Senate and making him their creature.
What a time to be alive, people, if you like drama!
And again getting back to the U.S. NEWS & WORLD REPORT article, we have:
Celebrity chef Jose Andres, locked in a legal battle with Trump after backing out of a deal to open a restaurant at the businessman-turned-politician’s new hotel in Washington, said he was supporting the strikers on his staff.
“People that never missed one day of work are telling you they don’t want to work on Thursday,” the Spanish-born Andres said in an interview at his restaurant Oyamel, which will be closed on Thursday.
“They want to say: ‘Here we are,’ by not showing up.”
“The least I could do was to say: ‘OK, we stand by you.'”
Dozens of restaurants, which rely heavily on immigrant workers, and other businesses in cities such as Philadelphia, New York, Houston and Raleigh, North Carolina, have vowed to shut their doors on Thursday in solidarity with no-show workers.
In New York, the owners of the Blue Ribbon restaurant chain said they would close several eateries despite the economic impact.
“It’s really a show of support for our staff, and as a team and a family as a whole,” said co-owner Eric Bromberg.
More than a dozen restaurants in Washington were planning to close on Thursday, according to social media.
“You have millions of Latinos, millions of immigrants, that somehow feel under attack,” Andres said.
“They feel like they’re being pushed aside.”
“They want to be part of the American dream.”
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The “American Dream?”
What American dream?
What on earth is this “American Dream” we keep hearing about, as if we were a land of lotus eaters?
I have read all 85 Federalist Papers, and there is not one word about an American dream in any of them, and if there is an implied American dream, it is this: tranquility at home and security from foreign intrigue.
With respect to peace and security in this nation, in “An Address to the People of the State of New-York On the Subject of the Constitution, Agreed upon at Philadelphia, The 17th of September, 1787” by John Jay, a member of the New York State Convention and this nation’s first chief justice, we were told as follows:
If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men every where, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security.
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Peace and security, people, that is what the real American dream is all about, as we can see from these following words of Alexander Hamilton to the People of the State of New York in FEDERALIST No. 85, “Concluding Remarks,” from MCLEAN’s Edition, New York, to wit:
The additional securities to republican government, to liberty and to property, to be derived from the adoption of the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and on the ambition of powerful individuals in single States, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the people; in the diminution of the opportunities to foreign intrigue, which the dissolution of the Confederacy would invite and facilitate; in the prevention of extensive military establishments, which could not fail to grow out of wars between the States in a disunited situation; in the express guaranty of a republican form of government to each; in the absolute and universal exclusion of titles of nobility; and in the precautions against the repetition of those practices on the part of the State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breasts of all classes of citizens, and have occasioned an almost universal prostration of morals.
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Time is a loop, people, and the future is the past, which is why Jemmy Madison said “Do not separate text from historical background; if you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”
As to the term “the American Dream,” that was coined James Truslow Adams, an American writer and historian who was not an academic, but a freelance author who helped to popularize the latest scholarship about American history, in 1931, and his definition was that “life should be better and richer and fuller for everyone, with opportunity for each according to ability or achievement” regardless of social class or circumstances of birth.”
Ah, how grand that sounds, and it should, but as Oreste A. Brownson, LL. D. informed us in “THE AMERICAN REPUBLIC: ITS CONSTITUTION, TENDENCIES, AND DESTINY” at the close, of the War of Northern Aggression in 1866:
The republics of Plato, Sir Thomas More, Campanella, Harrington, as the communities of Robert Owen and M. Cabet, remain Utopias, not solely because intrinsically absurd, though so in fact, but chiefly because they are innovations, have no support in experience, and require for their realization the modes of thought, habits, manners, character, life, which only their introduction and realization can supply.
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Which takes us back to FEDERALIST No. 6, “Concerning Dangers from Dissensions Between the States” for the Independent Journal to the People of the State of New York by Alexander Hamilton, where I will conclude as follows with respect to American dreams and utopias on earth::
THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations.
I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind—those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions.
These have been already in some instances slightly anticipated; but they deserve a more particular and more full investigation.
A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other.
To presume a want of motives for such contests as an argument against their existence, would be to forget that men are ambitious, vindictive, and rapacious.
Paul Plante says
As this bizarre chapter, or perhaps paragraph, of our American history comes to a close with the 9th Circuit Court of Appeals announcing this morning that it was postponing a decision on whether to hold an en banc hearing on the Trump executive order in the light of the Trump administration’s decision to simply issue a new executive order, we need to visit the Order of U.S. District Judge Nathaniel Gorton in Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17, United States District Court, District of Massachusetts, Arghavan Louhghalam et al., Plaintiffs, v. Donald J. Trump, President of the United States, et al., Defendants, one last time, where Judge informed us as follows:
e. Count V: First Amendment claim
Finally, in Count V, Oxfam claims that the EO has violated its First Amendment rights to freedom of speech, association and petition by barring entry of aliens, including visa holders, into the United States.
Here, the President has exercised his broad authority under 8 U.S.C. § 1182(f) to suspend entry of certain aliens purportedly in order to ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks. Exec. Order 13,769 § 3(c).
Such a justification is “facially legitimate and bona fide” and therefore Oxfam’s First Amendment rights are not implicated.
Although at oral argument plaintiffs directed this Court to American Academy of Religion v. Napolitano, 573 F.3d 115, 137 (2nd Cir. 2009), which held that a “well supported allegation of bad faith” could render a decision not bona fide, that is not the standard in the First Circuit.
Therefore, in light of the “plenary congressional power to make policies and rules for exclusion of aliens,” Kleindienst, 408 U.S. at 769, which pursuant to 8 U.S.C. § 1182(f), has been delegated to the President, the Court concludes that the government’s reasons, as provided in the EO, are facially legitimate and bona fide.
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The relevant language there is “the President has exercised his broad authority under 8 U.S.C. § 1182(f) to suspend entry of certain aliens purportedly in order to ensure that resources are available to review screening procedures and that adequate standards are in place to protect against terrorist attacks,” and “in light of the ‘plenary congressional power to make policies and rules for exclusion of aliens,’ which pursuant to 8 U.S.C. § 1182(f), has been delegated to the President, the Court concludes that the government’s reasons, as provided in the EO, are facially legitimate and bona fide, which means that in enacting the executive order, Trump acted within the law as written, and thus, did not violate the United States Constitution.
To conclude this, that judicial language from a federal judge in Boston, Massachusetts must be contrasted with this following language from the twenty-nine (29) page per curium Order of the federal 9th Circuit Court of Appeals in STATE OF WASHINGTON; STATE OF MINNESOTA, Plaintiffs-Appellees, v. DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA, Defendants-Appellants, No. 17-35105, D.C. No. 2:17-cv-00141, Motion for Stay of an Order of the United States District Court for the Western District of Washington, James L. Robart, District Judge, Presiding Argued and Submitted February 7, 2017, Filed February 9, 2017 Before: William C. Canby, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges, as follows:
Likelihood of Success—Religious Discrimination
The First Amendment prohibits any “law respecting an establishment of religion.” U.S. Const. amend. I.
A law that has a religious, not secular, purpose violates that clause, Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), as does one that “officially prefer(s) [one religious denomination] over another,” Larson v. Valente, 456 U.S. 228, 244 (1982).
The Supreme Court has explained that this is because endorsement of a religion “sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community.’”
The Equal Protection Clause likewise prohibits the Government from impermissibly discriminating among persons based on religion.
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims.
In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order.
It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.
The States’ claims raise serious allegations and present significant constitutional questions.
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That finding of the judges of the 9th Circuit Court of Appeals must then be considered in light of this finding of the federal judge in Boston:
Moreover, the language in Section 5 of the EO is neutral with respect to religion.
Plaintiffs submit in their amended complaint that Section 5 favors Muslims over Christians, in violation of the Establishment Clause.
The provisions of Section 5, however, could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian.
Nothing in Section 5 compels a finding that Christians are preferred to any other group.
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Seriously, people, this is ridiculous!
Can’t those judges in the 9th Circuit Court of Appeals understand the basic English language?
And to conclude, those findings by the federal judge in Boston that Trump acted within the law as written, and thus, did not violate the Constitution of necessity take us back to the article in THE HILL entitled “Clinton: ‘This is not who we are'” by Brooke Seipel on 29 January 2017, where we have as follows:
Former Democratic presidential nominee Hillary Clinton on Saturday tweeted in support of numerous protests that sprang up Saturday over President Trump’s executive order banning many refugees and others from predominantly Muslim nations.
“I stand with the people gathered across the country tonight defending our values & our Constitution.”
“This is not who we are,” Clinton tweeted.
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Ah, okay, Hillary, sure thing, anything you say, Hillary, because you are Hillary Clinton and everybody knows that Hillary Clinton is never wrong about anything, she is so perfect and special.
And that article then continued:
A bipartisan group of lawmakers has denounced the executive action over the weekend, as the Trump administration defended the directive and Trump insisted during remarks in the Oval Office that it was not a “Muslim ban.”
Rep. Justin Amash (R-Mich.) railed against the order on Twitter, arguing it undermined the Constitution and was too extreme.
Democratic Sens. Charles Schumer (N.Y.), Kamala Harris (Calif.) and Chris Murphy(Conn.) also blasted the order.
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Truthfully, people, this is nothing short of bizarre, given a federal judge in Boston ruled that the executive order was not a Muslim ban.
How a law passed by congress, of which Hillary Clinton was a member, and Rep. Justin Amash and Democratic Sens. Charles Schumer (N.Y.), Kamala Harris (Calif.) and Chris Murphy(Conn.) are members, which has been held to be constitutional, that being the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., which was originally enacted in 1952 and has been amended several times, including in 1996 by the Illegal Immigration Reform and Immigrant Responsibility Act “IIRIRA”), a federal law which governs immigration, naturalization, refugee assistance and removal procedures and defines the circumstances that govern the admission of aliens into the United States and provides that “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” can at the same time undermine the Constitution and be too extreme has me stumped.
As to the en banc hearing, we have from the Law News article “9th Circuit Judge Wants Another Vote over Trump Travel Ban Decision” by Rachel Stockman on February 10th, 2017, we have this following, which only serves to illustrate just how bizarre this drama really is:
In a rare move, one of the judges on the Ninth Circuit of Appeals has made a request that a vote be taken as to whether the order issued by the three judges Thursday night should be reconsidered en banc, which means before 11 federal judges of the Ninth Circuit.
It’s not clear if this means that this judge (who was not named in the order) believes that there are enough votes to overturn the lower court’s decision which put a temporary halt on Trump’s controversial travel ban or if the judge simply wasn’t satisfied with the panel’s decision.
Regardless, it is an interesting move that could bode well for President Trump, and throws yet another legal twist into the ongoing court battle between Trump and those trying to prevent his controversial immigration ban from being enforced.
Regardless, federal judges are allowed to call for an en banc vote themselves even if neither party petitions for a rehearing.
To get a rehearing, a majority of the 29 active judges on the court would need to vote in favor.
Some legal experts contend however that it is unlikely that a majority of judges (most of whom were appointed by Democrats) would agree to this.
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And there, people, we have it – partisan politics in action, the silly Democrats versus the ridiculous Republicans, and Jemmy Madison told us this republic was supposed to put an end to faction in this country.
Silly Jemmy for thinking it and even more silly us for believing it.
Sally says
Thank God this was all settled rightfully at the Supreme Court! All these wannabe unelected power stealing legislators in robes have disgraced the nation and themselves!! WTP didn’t elect some nobody in a little no town somewhere to subvert our Will and our Presidents for their own greed and abusive narcissistic agenda’s. How dare any of them still be practicing after putting our country in danger and delaying our Presidents rightful duty to keep safe this nation from illegal alien threats! Dripping with the same smug bias and egotistical sarcasm of this article is the fact in the end you all lost! But you lost more then a case, you lost your dignity and credibility with Americans for thinking you were more important to this cause that the respect and will of Americans who elected Trump as their representative and President. You never learned how to lose with grace, but only how to be seditiously corrupt and waste $$ and lives.
Todd Holden says
They are going to awaken a sleeping giant before this page in this nation’s his-story is turned.