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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, May 25, 2017

4CA Decides Travel Ban Case

[There is also the special election in Montana, the end result more depressing after eventual winner attacked a reporter on election eve.  The positive is that it was a lot closer than it really had every right to be and we are not talking swing-vote territory in 2018.  The guy did lose a state-wide race for governor, but that's a more important position than one of many.  It also is a continual chain around the Republicans' neck. Still, depressing.]
Additionally, Judge [Roger] Gregory places a great deal of weight on the fact that Trump did not consult with his own agencies before announcing a sweeping change to the nation’s foreign policy. The Trump administration's claim that the Muslim ban was necessary for national security reasons “is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, and that those agencies only offered a national security rationale after [this executive order] was enjoined,” Gregory wrote.
The ruling en banc (10-3, two conservatives recused, one having a family connection to the government advocate) in the travel/Muslim [to make a conclusion] ban case accelerates the trip to the Supreme Court.  The Think Progress piece might not fully address the possibilities (see below), but is a helped summary.  See also, here and related links. I admit to leaning toward advocacy here so these links lean in a certain direction.

First, the author of the main opinion is notable as the first black judge to serve on the Fourth Circuit  and conclusion of a long fight during the Clinton Administration.  Clinton finally recess appointed him at the end of his term and President Bush re-nominated him as an early sign of comity (the Senate not yet in the Democrats' hands).  Republicans argued that there were enough judges already, apparently the number of slots advisory based on need or something. This approach was appealed to again during the Obama Administration and factored in to the filibuster rule change (whatever it was technically, that is what it was in practice). 
Except that, if four years from now the United States is looking at President Rand Paul and Senate Judiciary Chair Chuck Grassley, the question of whether Chairman Grassley honors the single-senator veto will not be up to anyone other than Grassley himself.
The confirmation of Judge Gorsuch continued that rule change policy, if without similar credible justifiable grounds except for raw power.  The practice of blue slips continues to be a question, but that earlier warning appears to have been prescient except for the "Rand Paul" part (too optimistic). Somewhat as suggested in the earlier linked discussion, the concept of a blue strip (which the "blue" party now appreciates, but maybe long term might not) is not really absurd.  It is how it is carried out so that one senator (or two) has a full effective veto instead of in effect providing a sort of rebuttable presumption that something is wrong with a nominee that is of specific concern of the senator's state.  This to be is a possibly useful division of labor if not abused.  But, like the filibuster, it has been.

Moving on from this relevant aside (note the membership of the 4CA), see also here (various comments) for discussion on the travel ruling.  As I repeatedly do, find fault with the suggestion by the self-labeled Never Trump conservative author of the piece (if one who at times is in "well it's done" mode, including calling it absurd or silly to cite emoluments, possibility of 25A removal and other things)  that the case at the earliest would be heard in December. The full court of appeals addressed the revised order by late May.  It is remarkable really how quickly some of these court rulings are coming down though it might be a mixed bag on this specific matter.  If they wanted to, the Supreme Court need not wait that long.  Of course, it might be moot to some degree by then. Also, though the end result is probably expected, there is a 9CA case to be decided.

The professor elsewhere rejected the idea of using campaign statements, which is addressed in a comment. But, it's useful to note that there is a middle path here.  One concurring opinion, e.g., argued that we should and could merely rely on statements after he took his oath to reach the same result.  Candidates might change their mind or the like once they are in office, and once they are their words and actions have an additional level of importance.  Likewise, by my count, more than one concurring judge here argues Trump lacked the power to do what he did on statutory grounds.

This provides the Supreme Court a possible means to set forth a limited judgment, even if they makes some references to concerns about the religious animus point.  The specifics on that point is beyond my expertise but it has been offered as a grounds of judgment here and in the process furthers process and separation of powers ends.  As noted early on, Trump here rushed the order in a way criticized as slipshod though advancing his overall goals perhaps of making things more personal.  To the degree this is allowed, it still is a perilous approach especially by a this buffoon.

The broader approach argues that under Justice Kennedy's (with Alito though he might not go along if it is used to overturn the government) concurrence in Kerry v. Din, executive discretion involving entry on non-citizens has to meet some sort of minimum legitimate purpose test. This is a favored device of Kennedy in particular as seen in multiple cases involving the rights of homosexuals.  And, those cases also show that it has some bite, at least in cases held to be extreme.  This also gets around a 1970s case that gives broad discretion though one might [especially in respect to 1A interests] push against its validity today.

The statutory argument might be harder to make since constitutional avoidance principles counsel applying it not in the best way but in a reasonable way that avoids such problems.  But, there is comparable concern about avoiding a decision that the government is acting unconstitutionally.  Thus, the more limited judgments here are intriguing. As a whole, there are a lot of eloquent remarks, including the first few sentences of the main opinion itself.  Events meanwhile continue to occur.

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