Hawaii judge blocks new travel ban
As I pointed out long ago, this was inevitable. There are more than 2700 federal district court judges out there, and you can always find one who will take the position you want. They are all political appointees. That's just reality.
It was also inevitable that the challenge would occur in the territory of the 9th Circuit Court of Appeals, where the district court ruling is unlikely to be overturned. (Although it might, because there are five judges in the 9th Circuit who have publicly criticized their colleagues' handling of Trump's first ban.)
The Prez says he will take this case to the Supreme Court, but I think he may be playing a losing hand. If his new nominee had been confirmed, he might be able to count on the Supreme Court overturning the 9th, but as it currently stands, I think he's going to end up with a 4-4 deadlock at some point, which will allow the decision of the 9th to stand.
Legal Eagle Alan Dershowitz does not agree with me on the last point. He says, "I think the Supreme Court will uphold it even if Gorsuch is not yet on the Supreme Court." (Dershowitz continues, "I'm opposed to it (the ban). But I think there's a difference obviously between not supporting an order on policy grounds and finding it unconstitutional. I do not think it's unconstitutional.")
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ReplyDeleteDershowitz is way past his prime. I wouldn't give an eyetooth for what he says and I an an attorney. Reasonable minds can differ on Trump's first travel ban. His second most likely passes muster.
ReplyDeleteIf it looks like it will be a 4-4 vote on the Supreme Court, all the more reason for Democrats to filibuster Gorsuch's nomination.
ReplyDeleteThe weak link is the claim that this has anything to do with national security. If he doesn't have to give evidence of that, he's home free.
ReplyDeleteYes, that fits what I wrote about this earlier. The tension between any executive and its judiciary going back to the Magna Carta over which the degree to which the executive can pass rules without a rational basis, I.E to make arbitrary laws. This is a longstanding tension, but from what I've seen, in many Western Democracies, the judiciary is increasingly assertive in striking down laws that the executive can't justify.
DeleteI think the way around that for Trump would be for the Republican Congress to pass this as legislation rather than have these new rules be an executive order. The Republicans control both Houses, so why Trump is even doing all these executive orders has nothing to do with legislative roadblocks. I assume virtually every Republican in Congress supports this executive order.
If this order was passed as legislation the Republicans could hold hearings on it. Even if the hearings were a complete sham, they would be able to argue to the courts 'we held hearings that pointed out the national security basis as the reason for the legislation. It's not the job of the courts to rule on the quality of the testimony at those hearings, that's the job of the legislature. The job of the courts is solely to ensure that hearings were held.'