This is how I feel
Thank you, Ninth Circuit.
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Me + Richard Armitage 
Yes!
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Indeed!
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Did some very quick homework and pulling on my memory – I think the gov’t has to file a writ of certiorari To their justice ( in this case Kennedy) who has four criteria to weigh in deciding whether to move the writ up to SCOTUS – including, and even then, SCOTUS could decide to dodge the bullet, and deny the cert – so there would be no Supreme Court review at all. Also, I am not sure on these facts, in this case, that court would split 4-4. I think the gov’ts case at this stage is very weak.
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You know way more than I do, but the judgment the 9th circuit issued said the government was “unlikely to succeed” at least three times. Do you think there’s a reversible error?
As far as what SCOTUS would do if they did hear the case — which would be at least a year off at this point — most of the papers have been saying that there’s a good chance it would go 4-4 and in that case, the 9th Circuit’s decision stands.
I know this isn’t the end of this and I can imagine there are people trying to write legislation right now, but we at least temporarily dodged a really destructive bullet.
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At this stage, I think SCOTUS has nothing to gain by hearing the petition. “Likelihood of success on the merits” together with “irreparable injury” are the key factors to get a TRO, or even a Preliminary Injunction ) pending decision after full litigation, which is why the phrase appeared so often in the decision. Likelihood of success is more of a problem (for states) here than irreparable injury, in my view. No way in hell the US proved or can prove irreparable injury if a temporary stay or even a PI is not granted. I say this because without this Executive Order, there have been no terrorist attacks or foiled attacks from these 7 for all these years, so in 14 days, there can’t now be irreparable injury to the US.
Irreparable injury is a question of fact (not law) therefore SCOTUS would only reverse those findings if it found them clearly erroneous ( not likely since the gov’t had so few facts.) Nevertheless, the 9th circuit said during argument, they were giving the case a de novo review ( fresh start) , not taking into considering lower court ruling or reasoning – it was strange to me that they did, but as you heard, they asked if there were other facts not already in the record – which they might have considered ( there were none))
Anyway, surreally, and aren’t most things right now – the Supreme Court could decide the matter is important enough for them to weigh in on – mainly because of the issue whether the E.O. is reviewable by the courts, which is a question of law, not fact.
So, in my opinion, the Supreme Court should decline to even hear the matter. You need 4 justices to agree to hear the matter. If I were the US government, I would not take the appeal, but I think Trump will, as he has said.
Sorry, I got a little excited here
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I hadn’t thought about the judicial review issue so much — but yeah, that would be a ground for them to want to hear it. I was just thinking this is a TRO / stay of TRO case, so it’s not even necessarily directly about whether the order itself is Constitutional, just about whether a court can order a TRO about it. I think if I were a liberal I would definitely, and if I were a conservative I would probably, wait for the other cases around the EO to wind their way through the courts. The liberals are going to be worried they won’t win, and the conservatives (the real conservatives anyway) should be worried about the severe crisis of conscience they might be subjected to. They’ve been the heroes of the populist mob up till now, but if they actually followed the law they might not be. But judicial review — I can see them wanting to reassert that. I would. And they might be able to get a bigger majority on that, don’t you think? Or are they that politicized?
re: would I take this case? I think everyone thought Sally Yates was making a political stand, but it’s just as probable she realized there was almost no way to defend the case on the merits.
I haven’t felt this positive about life since … well, at least Jan 20.
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Just read a tweet about Conway – it looks as though the WH may decide not to appeal, and to wait for a full hearing on the merits ( and as you pointed out – other decisions in other circuits). But the TRO/ stay of TRO is a constitutional issue now, because the unlikelihood of success on the merits is based on the alleged unconstitutionality of the order under the fifth and first amendments ( as well as the immigration act).
I agree the US gov’t was unprepared – a poor showing. I know that they switched lawyers on argument last minute ( from private to gov’t) and it may have been that the lawyers who had to argue were not as familiar. As to Yates, I think she saw what many lawyers saw – that the E.O. is unlawful and indefensible as written.
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About your judicial review comment and conservatives – they think the courts do too much already to inhibit executive and legislative decisions – but in this case, and in my view, I think the weight of authority is strong that these types of orders are reviewable – if nothing else, because of the constitutional implications. Which brings us to reading beyond the four corners of the E.O. ( for other readers – this means taking into account circumstances and evidence not actually in the written order itself). Will a reviewing court decide that press and campaign statements should be discounted? I think not. Also, there’s the Christian waiver issue, which really works against the government when it comes to violating the Immigration Law – which, of course, could be amended. ( no national origin or religious discrimination in visa application approvals)
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re: thinking the courts do too much — interesting. I suppose I can see that point of view. In that case, definitely they should refuse to hear it, if they think the point was sufficiently made in the 9th Circuit ruling. (It was pretty empathic.)
I think what Giuliani said was pretty damning (and he’s an attorney, he should probably know better) on top of the statements the President has made. That was the part of the ruling that I thought was least likely to be comprehensible to a layman (“facial discrimination” — I remember what that was after I thought about it for a second but I bet a lot of people will have no idea, including the President). They didn’t mention the Christian waiver, and they essentially backed off on that one, stating that the due process issue was bigger.
Tangentially — I read this week that the population of Syrian immigrants and refugees entering the US is more Muslim than the Syrian population at large (it’s not a huge difference, b/c the vast majority of Syrians is Muslim).
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Sorry, by ” their justice” I meant to say that the petition goes to the Justice with oversight of the 9th circuit – in this case, Kennedy.
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I quickly read up on this – and this stood out to me: “a unanimous panel decision”. I understand why you feel like a Honigkuchenpferd.
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It does really help, rhetorically, that it was unanimous and that the justices were appointees of three different presidents, one of them from the GOP. Also (presumably because the government was apparently completely unprepared to argue this case) I’m hoping it helps that the judgment is so clean and uncomplex (I was able to read it twice in thirty minutes and understand it, so not a lot of tiny fine points). There are three points of Constitutional law and all of them are pretty simple (again, things I’d heard of or could understand easily although I am not a jurist).
Honestly, I figured when there was no ruling yesterday that it would go for the plaintiffs, but these days …
[ETA: that was poorly stated by me. For the original plaintiff. I guess the government was the plaintiff in the request for a stay.]
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I agree that it was an easy to understand decision, even with the footnotes ( or in my case, especially for the footnotes). One good thing about it was that the court only had to dismiss two factors to find against the gov’t on likelihood of success, but decided to address all four factors all of which went against the gov’t.
Maybe Trump is better off not appealing at all because he is surely being advised that he will lose and that’s probably worse for him than coming up with a lying excuse why he decided not to authorize an appeal.
As to Guylty’s comment about the unanimous decision, I know the Republican Judge sounded harsh during argument – but not on every issue – or even the key ones. Great day for the U.S. Constitution.
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I thought that was an interesting decision too (deciding to discuss all four factors) and enhanced the clarity of the decision. They clearly decided they weren’t going to just do the minimum groundwork.
Imagine you’re Jeff Sessions right now … #jobsiwouldnotwantinthisstrangenewworld
To me the judges in these things always sound harsh.
And yes: Great Day for the Constitution. #reasonsservetusisapatriot
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I think one little thing to worry about is the government’s argument in the circuit court that the District court’s stay was overbroad ( too far-reaching) and they wanted the circuit court to tailor it or narrow the scope of the stay of the entire Executive Order. This was the part I was most worried about when I listened to the argument – but the 9th circuit refused to mess with the original stay. Their reasoning on the green card holders was a delight to read – basically – we don’t trust what the White House has said about enforcement.
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I found the point convincing about enforcement — you can’t control where anyone is going to enter the country or where they will reside once they are here.
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and I think they knew they were writing for history. Let’s hope.
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That’s exactly what I took from it. The fact that it was unanimous, reads for me as “there was no question; the decision was clear, despite differing political affiliations; the constitution still applies”. It restores my faith in the power of the constitution. At least somewhat.
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It may also reduce the likelihood that SCOTUS will even want to hear it — this is what Perry’s talking about with certiorari. SCOTUS only hears about 1 percent of the cases appealed at that level. That would be ideal.
The concrete problem, of course, is that EO is not the only way to limit immigration. We could end up with another law like the 1924 immigration act or the Chinese Exclusion Act, although they would certainly be challenged in court and we’d go through this appeal / restraining order / stay / injunction process again.
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I knew this had been weighing heavily on my mood, but not just how much. Wow. What a feeling of relief.
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I am sorry I don’t understand what everybody is talking about on this post (ninth circuit), but the picture you have of Mr. Richard Armitage is great. he looks so adorable and he truly looks happy (wherever he was at), you can tell this because his smile is very sincere, genuine, real.
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The US federal court just reversed the travel ban against Muslims indefinitely (until or unless it can be appealed).
And indeed, I picked this photo because it looked like a genuine smile to me!
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Thank you for telling me what this post was about
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you have only to ask — a lot of times I don’t realize who may or may not understand what I am referring to 🙂
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Gosh! You are attractive, Serv 😀
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My face has totally changed shape 🙂
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This is how I smile when I see any photo of you, Mr. Armitage or, even better, when I think of you 😉
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love that smile!
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What a relief to know some sense still prevails and some people will still uphold the constitution even against “pressure”.
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I really hope belief in the ideas of the Constitution will unite all Americans.
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