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Appeals Court Judges Appear Skeptical Of Federal Government’s Defense Of Muslim Travel Ban

Gavel And Scales Of Justice

Late yesterday, a panel of the Court of Appeals for the Ninth Circuit Court of Appeals heard oral argument in the Federal Government’s appeal of the stay issued last Friday issued last Friday by a Federal District Court in Washington against President Trump’s Executive Order barring most travel from seven majority Muslim countries, and the argument did not appear to go very well for the attorneys defending the Executive Order:

WASHINGTON — A Justice Department lawyer on Tuesday said courts should not second-guess President Trump’s targeted travel ban, drawing skepticism from a three-judge federal appeals panel weighing the limits of executive authority in cases of national security.

But even August E. Flentje, the Justice Department’s lawyer, sensed he was not gaining ground with that line of argument. “I’m not sure I’m convincing the court,” Mr. Flentje said.

It was a lively but technical hearing on an issue that has gripped much of the country’s attention — and that of foreign allies and Middle East nations — for the past week. Issued without warning on Jan. 27, just a week after Mr. Trump took office, the executive order disrupted travel and drew protests at the nation’s airports by suspending entry for people from seven predominantly Muslim countries and limiting the nation’s refugee program.

No matter how the United States Court of Appeals for the Ninth Circuit rules — in a decision that is expected within days — an appeal to the United States Supreme Court is likely. That court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.

The appeals court judges sometimes seemed taken aback by the assertiveness of the administration’s position, which in places came close to saying the court was without power to make judgments about Mr. Trump’s actions.

“This is a traditional national security judgment that is assigned to the political branches,” Mr. Flentje said.

“Are you arguing, then, that the president’s decision in that regard is unreviewable?” Judge Michelle T. Friedland asked a few minutes later.

Mr. Flentje paused. Then he said yes.

“There are obviously constitutional limitations, but we’re discussing the risk assessment,” he said.

Judge Friedland asked what those limitations were, and Mr. Flentje did not provide a direct answer.

Several courts around the nation have blocked aspects of Mr. Trump’s order, but the broadest ruling was the one at issue in Tuesday’s arguments in front of the Ninth Circuit. The panel was considering an earlier ruling by Judge James L. Robart of the Federal District Court in Seattle, which allowed previously barred travelers and immigrants to enter the country.

Judge William C. Canby Jr., appointed by President Jimmy Carter, asked Mr. Flentje a hypothetical question meant to probe the limits of his position. “Could the president simply say in the order, ‘We’re not going to let any Muslims in?'”

Mr. Flentje said the two states that have sued over Mr. Trump’s executive order, Washington and Minnesota, would be powerless to challenge that scenario. He said other plaintiffs might be able to sue on religious discrimination grounds.

Noah G. Purcell, Washington State’s solicitor general, fared little better in fending off questions from Judge Richard R. Clifton, appointed by President George W. Bush. Judge Clifton said the states’ evidence of religious discrimination was thin, adding that “the concern for terrorism with those connected with radical Islamic sects is kind of hard to deny.

Judge Friedland, who was appointed by President Barack Obama, did not seem persuaded that immediate suspension of travel from the seven countries was necessary.

“Has the government pointed to any evidence connecting these countries with terrorism?” she asked Mr. Flentje.

He responded that the government had not had an opportunity to present evidence in court given the pace of the litigation. “These proceedings have been moving quite fast, and we’re doing the best we can,” Mr. Flentje said.

With that, Judge Friedland said, the government’s appeal may be premature.

The case, State of Washington v. Trump, is in its earliest stages, and the question for the appeals court on Tuesday was a narrow one: Should it stay Judge Robart’s temporary restraining order and reinstate the travel ban while the case proceeds?

The argument, which lasted about an hour, was conducted over the telephone and was streamed live on the appeals court’s website. In a media advisory issued before the argument, the court said that “a ruling was not expected to come down today, but probably this week.”

Mr. Flentje said the travel ban was well within Mr. Trump’s legal authority. A federal statute specifically gave presidents the power to deny entry to people whose presence would be “detrimental to the interests of the United States,” he said.

He added that the court should not question Mr. Trump’s motives, and should confine itself instead to “the four corners of the document.” He said the executive order did not, on its face, discriminate on the basis of religion.

Mr. Purcell, the lawyer for Washington State, responded that the underlying purpose of the executive order was religious discrimination. As a candidate, Mr. Purcell said, Mr. Trump had “called for a complete ban on the entry of Muslims.”

(…)

As he closed his argument, Mr. Flentje, perhaps sensing that he was unlikely to achieve a complete victory, offered the court a middle ground. He asked, at a minimum, for the court to reinstate a part of the ban against people who have never been in the United States, calling this a “really key point.”

Reading from a brief, he conceded that those who could be allowed entry are “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”

Judge Clifton said that the administration might be in a better position to narrow its executive order. “Why shouldn’t we look to the executive branch to more clearly define what the order means?” he asked.

Mr. Purcell also said that it was hard to tell precisely what distinctions the government meant to draw. “They’ve changed their mind about five times” since the executive order was issued, he said.

Judge Friedland said that if the executive order violated the Constitution’s ban on government establishment of religion, the court could block it completely.

As I’ve said many times before, one should always be careful in attempting to draw conclusions regarding how a Court is going to decide a particular case based on oral argument. In many cases, Judges ask questions for reasons that don’t necessarily have anything to do with how they might feel about the legal merits of a particular case and which don’t ultimately square with how they end up ruling. Sometimes, for example, it’s done to attempt to influence other Judges on a particular point of law in an effort to bring them over to their side of a particular argument. Other times, it’s done to shine a light on what the Judge, based on the papers that have been filed, believes to be a strength or weakness in the lawyer’s argument or to simply clear up some ambiguity in the arguments between the two sides. And sometimes, questions are asked because a Judge simply wants to force the argument in a particular direction because they believe this is a more crucial part of the argument than what the lawyer speaking may be talking about. From the advocate’s point of view, it can be frustrating because questioning fro the bench inevitably makes it difficult to stick to whatever game plan you may have regarding oral argument, and the deeper into a particular point of law or the facts that may not be completely relevant to the core of your argument you get, the less time you have to make the points you consider crucial to your case. All of this is magnified when you’re arguing before more than one Judge. Add into this the somewhat disconcerting factor of oral argument via telephone as occurred in this case, which often makes argument more difficult because you lose the ability to “read” how a Judge may be responding to your argument since you can’t see them, and it’s easy for even the best attorney to get thrown off.

With all that being said, I do have to agree with the assessment of the account in The New York Times and some other news outlets that the lawyer arguing the case for the Federal Government did seem to face more skepticism from the Judges than the Solicitor General from the State of Washington, who was arguing on behalf of both his stage and the other Plaintiff in the case, the state of Minnesota. It began fairly early in the proceedings when one of the Judges asked him if he believed the issues before the court were even reviewable by the judiciary and he essentially said that they weren’t and that the question of whether or not the President’s assessment that the seven countries included in the ban was a national security issue left to the President’s sole discretion or one shared by Congress and the President to the extent Congress may define the criteria to be used by the President in making a decision to limit travel from particular countries for reasons of national security. He held to this position even when asked if this position would change if the order said that no Muslim’s at all could come into the United States regardless of where they came from. As a general rule, it’s often a mistake to tell a Judge that they shouldn’t even be ruling in a particular case, especially when it’s clear that they are skeptical of this claim, and it was clear from the tone of the Judge that raised this question that she was indeed skeptical. In any case, this seemed to set the tone for the remainder of the Federal Government’s side of the argument as the lawyer spent the balance of his time dealing with what often turned into a barrage of questioning, principally from Judge Fitzgerald and Judge Canby who both seemed skeptical of the scope of the argument that the Federal Government  was making. Additionally, when the Federal Government’s attorney appeared to concede at least part of the Plaintiff’s case by arguing that the Court could respond to it by essentially rewriting the Executive Order to make clear that it doesn’t apply to people who already have Permanent Residency or people with visas who have previously entered the United States, they asked him directly why the Court should assume the authority to rewrite the Executive Order if this is something that the President hasn’t done. The third Judge on the panel, Judge Clifton, appeared to be more sympathetic to the Federal Government’s argument, but even he was skeptical about their argument at this stage in the case and asked the Justice Department lawyer why the panel shouldn’t wait for further proceedings in the District Court, and a broader ruling on a Preliminary Injunction, before ruling on the request for a stay. By the time the Federal Government’s side was over, the Court seemed to be very skeptical of the Executive Order and the Federal Government’s argument.

While the attorney for the Plaintiff’s in the case had a seemingly easier time before the panel than his Federal counterpart, that shouldn’t lead one to believe that his argument didn’t also come under criticism during questioning. One of the areas where Plaintiff’s counsel ran into trouble was over his assertion that the Executive Order was effectively a ban on Muslim’s traveling to the United States and the argument that this was barred under the Establishment Clause of the First Amendment, an argument that appeared to bother Judge Clifton in particular. Plaintiff’s counsel also came under fire on the issue of what gave the states standing to challenge the order as opposed to an immigrant or someone seeking to come to the United States. This point became clearer when Judge Clifton, who appeared to be the most skeptical of the Plaintiff’s argument, questioned the scope of Judge Robart’s TRO and the question of how many Muslims, or residents of Washington and Minnesota, the Executive Order actually impacted. Plaintiff’s counsel stumbled under questioning a few times, which is natural for even the best of attorneys, but on the whole seemed to fare better than the attorney for the Federal Government. Whether that means anything for the outcome of this appeal on the narrow issue of whether or not to grant a stay of Judge Robart’s ruling is something we’ll have to wait until the decision comes down to find out.

At the conclusion of the hearing, the Court said that a decision would be issued as soon as possible and made it clear that the Judges would do their best to get it done before the end of this week. Realistically speaking, I’d say the earliest we can probably expect a written ruling would be some time before the close of business on the West Coast today. As for the outcome, that’s anyone’s guess. Based on the way questioning went it appears to me, though, that Judge Fitzgerald seems to be the most sympathetic to the Plaintiff’s argument while Judge Clifton seems as though he’d be more likely to agree with the Federal Government’s position on imposing a stay against Robart’s order. That would leave Judge Canby, a Carter appointee who has been on the bench since 1980, in the middle and while he did question both attorneys aggressively it seemed as though he was more inclined to be sympathetic to the Plaintiffs in this case than the Federal Government. If that’s an accurate read, that would mean a 2-1 ruling in favor of keeping Judge Robart’s TRO in place and returning the case to the District Court for further proceedings. In reality, though, this hearing and the subsequent ruling will just be the first step in the appeal of the TRO. Whichever side loses is likely to appeal the ruling to either the full Ninth Circuit, which could agree to consider the request for a stay en banc if it chooses to do so, or to the Supreme Court. Given the fact that the Supreme Court currently still standings at eight members, though, means that how the 9th Circuit decides this case could be vitally important to what happens going forward with respect to this Executive Order since a divided Supreme Court, which would be inevitable unless Justice Kennedy sides with the Court’s liberals on the question of granting a stay, means that the 9th Circuit’s ruling would stand as the final ruling on the issue of a stay.

All of that, though, will have to wait for the ruling of this three-judge panel. When it is posted, it will be available at the public access page the Court has set up for the case.

You can listen to the oral argument yourself here:

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. KM says:

    “Are you arguing, then, that the president’s decision in that regard is unreviewable?” Judge Michelle T. Friedland asked a few minutes later.

    Mr. Flentje paused. Then he said yes.

    “There are obviously constitutional limitations, but we’re discussing the risk assessment,” he said.

    Well then. You heard it here folks – the president’s decisions are not to be questioned or reviewed because in the name of national security. Believe him – he’s got this. It’s gonna be yuuuuge so don’t worry your pretty little head about how faulty a risk assessment that doesn’t include countries with actual terrorists in them was used. It’s not like he’s gonna be held accountable, amirite?

    “Has the government pointed to any evidence connecting these countries with terrorism?” she asked Mr. Flentje.

    He responded that the government had not had an opportunity to present evidence in court given the pace of the litigation. “These proceedings have been moving quite fast, and we’re doing the best we can,” Mr. Flentje said.

    With that, Judge Friedland said, the government’s appeal may be premature.

    So you filed with no evidence? It’s super urgent but that urgency means you can’t present a coherent argument so just roll with it? Yes, that’s a great way to convince a judge. Screw up the EO rollout and now screwing up the appeal – that’s the Trump way.

    Highly-rated. Helpful or Unhelpful: Thumb up 25 Thumb down 1

  2. Daryl's other brother Darryl says:

    Of course they are skeptical…if they have half a brain in their heads.
    Trump’s ban on Muslims would do absolutely nothing to stop any terrorist attack on our soil since and including 9/11.
    Beyond being tactically ineffectual all it stands a chance of accomplishing is to give terrorist organizations terrific recruiting propaganda…although certainly Trump has already done a great deal of damage on that front…I doubt the courts actions can undo it.
    The bigger issue here is if Trump specifically and Republicans in general are even close to being smart enough to fight against terror? They seem bent on giving radial extremists exactly what they want…a culture war…a clash of civilizations…a 21st century christian crusade.
    These Keystone Kops apparently never have heard of Sun Tzu.

    Like or Dislike: Thumb up 9 Thumb down 1

  3. Pch101 says:

    And Trump is already complaining about yesterday:

    http://thehill.com/homenews/administration/318451-trump-attacks-judges-weighing-travel-ban

    He’s going to be the Whiner In Chief. Like a Tea Partier on steroids or a bratty kid, he is going to whine and whine and whine and then whine some more in the hopes of getting his way. He will bully who he can, and submit to those who he fears (read: Putin.)

    The appropriate way to respond to him is to snub and belittle him and to reject him for his lack of legitimacy. Never give him any respect, ever. He simply has no business being president, and should be treated accordingly.

    Like or Dislike: Thumb up 12 Thumb down 1

  4. KM says:

    @Daryl’s other brother Darryl:

    These Keystone Kops apparently never have heard of Sun Tzu.

    Rumor is Bannon considers himself quite the devotee. Clearly whatever game he thinks he’s playing is not the one the rest of world is in.

    Like or Dislike: Thumb up 4 Thumb down 1

  5. michael reynolds says:

    IANAL but my very inexpert worry is standing. I didn’t thought Purcell was weak there. I assume that has to be step one in the decision.

    Like or Dislike: Thumb up 2 Thumb down 0

  6. Daryl's other brother Darryl says:

    BTW…what Mitch McConnell did to Elizabeth Warren yesterday is both atrocious, and a serious affront to Democracy.
    Dark days are upon the Republic…

    Like or Dislike: Thumb up 10 Thumb down 1

  7. Jake says:

    You should listen to on of yours.

    https://www.youtube.com/watch?v=heNmLMgo0OQ

    Like or Dislike: Thumb up 0 Thumb down 5

  8. Bob@Youngstown says:

    If returned to District Court, it would be interesting to see Rudy and his “commission” deposed.

    Like or Dislike: Thumb up 4 Thumb down 1

  9. Hal_10000 says:

    This will go all the way to SCOTUS. But I have a bad feeling they will find in Trump’s favor. As Scalia used to say, “Stupid but Constitutional”.

    The thing that really needs to happen is for Congress to exert their authority and reign in … pffft … snicker … guffaw … sorry, I can’t maintain a straight face while typing that.

    Like or Dislike: Thumb up 11 Thumb down 1

  10. @Hal_10000:

    For SCOTUS to find in Trump’s favor would require one of the liberal Justices to join Roberts, Thomas, Alito and Kennedy.

    Like or Dislike: Thumb up 10 Thumb down 0

  11. JKB says:

    @Daryl’s other brother Darryl: both atrocious, and a serious affront to Democracy.

    Hey, the rules are simple, you can disparage some common citizen on the Senate floor, but you cannot do the same to a member of the Senate. And that includes reading the disparaging remarks a previous Senator said about the a person before they became a Senator.

    Where do you find this “affront to Democracy” or democracy since the Senate rules were agreed to by a majority vote of the Senate members?

    Like or Dislike: Thumb up 2 Thumb down 15

  12. Pch101 says:

    @JKB:

    You are a very good German.

    Like or Dislike: Thumb up 13 Thumb down 1

  13. JKB says:

    Meanwhile, back at the bat cave, the development of new vetting procedures continues apace. DemProgs and ‘activist judges” have taken on full responsibility for near-future Islamist attacks.

    And for us all, we finally, after 8 years, see the media and courts willing to take action against a President’s use of Executive Orders.

    Question is, is it or is it not all going according to plan.

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 17

  14. Daryl's other brother Darryl says:

    @JKB:
    Sessions is a racist…as are you.
    I don’t expect you to be able to grasp the fact that the “Worlds Greatest Deliberative Body” no longer is…and that is a serious affront to form of Government. You will watch the Republic crumble as long as your team is in charge of the dismantling.
    If democrats did that to a Republican you would be beyond apoplectic. You have already shown your true colors…principals matter not when it comes to the so-called president and republican power. You have zero credibility.

    Like or Dislike: Thumb up 10 Thumb down 2

  15. James in Bremerton says:

    @JKB: @JKB: Five other Senators — all men — got up and read the same letter in the same tone.

    They weren’t women, so Mitch and the GOP aren’t completely terrified of them.

    Highly-rated. Helpful or Unhelpful: Thumb up 29 Thumb down 1

  16. Daryl's other brother Darryl says:

    @JKB:
    Apparently JKB is willing to give up his rights and any sense of the rule of law because he is so afraid of brown people who pose no actual threat.
    What a fwcking pu$$y.

    Like or Dislike: Thumb up 14 Thumb down 1

  17. Pch101 says:

    @JKB:

    You must devote several hours each day applying your clown makeup.

    At least you can show us where the idiots are going with this: If there is a terrorist attack, you will blame the liberals; if there isn’t, then you’ll credit Trump as being your great protector. Predictable and dumb.

    Like or Dislike: Thumb up 9 Thumb down 1

  18. pylon says:

    @JKB: One can only wonder why the rule was not applied when, for example, Cruz called McConnell a liar (on the floor). Or when Cotton described Reid’s “cancerous leadership”.

    Like or Dislike: Thumb up 13 Thumb down 1

  19. Daryl's other brother Darryl says:

    @Pch101:

    then you’ll credit Trump as being your great protector.

    Yes…like Bush and Cheney were.
    People like JKB are so afraid…their emotions cloud their already dubious judgement.

    Like or Dislike: Thumb up 5 Thumb down 1

  20. James Pearce says:

    @Pch101:

    The appropriate way to respond to him is to snub and belittle him and to reject him for his lack of legitimacy.

    I really, really wish I could communicate to you the many ways in which this is not the appropriate response to Trump.

    Trump is the Keyser Soze of politics — willing to do what the other guy wouldn’t– and you think he can be taunted into submission?

    I mean, I know you guys don’t really want to hear this, but Trump is going to continue legitimately (he is the prez, after all) rolling all over everything you care about until the Democrats and their progressive supporters get serious.

    Example:
    Elizabeth Warren: Now, I will read a strongly worded letter….
    Republicans: (Shutting off the mic) No, you won’t.
    Democrats and Lefties Everywhere: (shocked gasp) You can’t do that.
    Republicans: I already did.

    Now watch as all of this energy gets expended defending Elizabeth Warren’s reading of a letter as Jeff Sessions gets sworn in as our new AG.

    Throughout the campaign, I never once thought Trump was smarter than the left. Since he was elected, though, I have this sinking suspicion that maybe he is.

    Like or Dislike: Thumb up 3 Thumb down 9

  21. JKB says:

    @pylon:

    Well, maybe someone should have stood up citing the rule? Apparently, the Senator being disparaged doesn’t make the objection, someone else does.

    In any case, Warren got her fundraising op and bit of the news cycle.

    I just find it amusing that disparaging is fine on the Senate floor for us commoners but, not if the person subsequently becomes a Senator.

    Like or Dislike: Thumb up 1 Thumb down 8

  22. JKB says:

    @Daryl’s other brother Darryl: Sessions is a racist…as are you.

    So not racist at all. Good to know.

    Like or Dislike: Thumb up 2 Thumb down 8

  23. Guarneri says:

    So !! What outrage of existential proportions has been perpetrated by the Trump Administration today that will keep this group of sad sacks fully outraged today?? Is the diaper supply holding out? Anyone in need of a Prozac run? Dry goods and water for the underground shelter?

    Like or Dislike: Thumb up 3 Thumb down 11

  24. Daryl's other brother Darryl says:

    @JKB:
    You support Trump…in your case, blindly…you are a racist. Period.

    Like or Dislike: Thumb up 4 Thumb down 1

  25. Daryl's other brother Darryl says:

    @James Pearce:
    I almost agree with you.
    But the speech would have been barely watched on C-Span. Today it’s had millions of views and Session’s abject racism is at the forefront of the discussion again.
    Any individual protest of the 60’s was a nothing-burger. But they added up to great advances of civil rights. Trump and his sycophants want to turn back the clock on our rights. Already we are less free that we were before he took office. The only way to fight it is by constant protestation.
    drip, drip, drip…

    Like or Dislike: Thumb up 8 Thumb down 1

  26. Moosebreath says:

    @Doug Mataconis:

    “For SCOTUS to find in Trump’s favor would require one of the liberal Justices to join Roberts, Thomas, Alito and Kennedy.”

    Or for the case to be heard after Gorsuch is confirmed. I am sure that in a couple of weeks, we will hear from the same people who refused to give Garland a hearing how not confirming Gorsuch immediately is an outrage, because the Court cannot have only 8 members for any length of time.

    Like or Dislike: Thumb up 5 Thumb down 1

  27. Daryl's other brother Darryl says:

    Trump using the bully pulpit of the so-called presidency for his families financial gain…
    https://twitter.com/realDonaldTrump/status/829356871848951809
    And then there is his 3rd wife’s attempt to build her brand on that very same power…
    http://www.chicagotribune.com/news/nationworld/politics/ct-melania-trump-lawsuit-20170207-story.html
    The hypocrisy of Republicans, to stand by and watch this, is awe-inspiring.

    Like or Dislike: Thumb up 4 Thumb down 1

  28. Daryl's other brother Darryl says:

    @pylon:

    One can only wonder why the rule was not applied when

    The rule is rarely applied…the last time was 1979…but McConnell is a Republican and is thus afraid of women, or anyone who isn’t an old rich white rural male.

    Like or Dislike: Thumb up 5 Thumb down 1

  29. Jack says:

    @JKB:
    You support Trump…in your case, blindly…you are a racist. Period.

    Definition of Racist – Anyone who schools a liberal during and argument.

    Like or Dislike: Thumb up 1 Thumb down 11

  30. michael reynolds says:

    @James Pearce:

    It is not about ‘taunting him into submission.’ It is about denying him legitimacy.

    The presidency has few statutory powers. The real power of a POTUS is the bully pulpit, and ‘authority.’ De-legitimizing Trump is exactly the right tack to take at this time. He is being made to look weak and ridiculous – presidents seen as weak and ridiculous have less power than those seen to have a mandate or broad support.

    We aren’t out to impeach him, we’re out to castrate him. And it’s working.

    Like or Dislike: Thumb up 13 Thumb down 1

  31. michael reynolds says:

    @Jack:
    Definition of a sucker: anyone who supports Trump.

    Like or Dislike: Thumb up 13 Thumb down 1

  32. Pete S says:

    @KM:

    Rumor is Bannon considers himself quite the devotee. Clearly whatever game he thinks he’s playing is not the one the rest of world is in.

    A devotee of Sun Tzu, or a devotee of the Keystone Cops? After the first 2 weeks of his co-presidency it is legitimately hard to tell which he is following.

    Like or Dislike: Thumb up 5 Thumb down 0

  33. Daryl's other brother Darryl says:

    @Jack:
    Hey…Jack took a break from beating his Mexican wife to grace us with his wisdom.

    Like or Dislike: Thumb up 1 Thumb down 1

  34. Jack says:

    @Daryl’s other brother Darryl: Yawn.

    Like or Dislike: Thumb up 1 Thumb down 1

  35. Jack says:

    @michael reynolds: 62,979,636 and growing.

    Like or Dislike: Thumb up 1 Thumb down 3

  36. Daryl's other brother Darryl says:

    Here is how Trump is aiding and abetting the enemy:
    http://talkingpointsmemo.com/livewire/rukmini-twitter-thread-mosul-travel-ban
    The question is if he is too stupid to understand this…of if he is intent of beginning WW3.
    Bannon, his brain, is a renowned apocalypticist.

    Like or Dislike: Thumb up 3 Thumb down 1

  37. James Pearce says:

    @Daryl’s other brother Darryl:

    Trump and his sycophants want to turn back the clock on our rights.

    Yes, yes, they do. They openly brag about it.

    Already we are less free that we were before he took office.

    Yes, and you can expect to be less free 3 months from now and less from 4 years from now.

    Because this….

    The only way to fight it is by constant protestation.

    This is BS. Every protest diminishes the left’s power. Persuadable non-racist, non-xenophobic conservatives see the endless protests and they think, “Damn, Daniel, back at it again…” and not in a complementary way.

    Peaceful protests are toothless and safe to ignore. Get violent, and you’re a “rioter,” undermining your own cause.

    The only way to fight Trump is to abandon protest entirely as a method of fighting Trump. We need strategy, not performance art.

    Like or Dislike: Thumb up 0 Thumb down 9

  38. The problem is that you can’t do anything against Trump with a minority in Congress. There is relatively very little that can be done with demonstrations and protests, and there is very little use to try to block minor cabinet-level nominees.

    2018 should be the main target for Democrats. Two more years of Trump with a majority in both houses in Congress is a huge risk for the World.

    Like or Dislike: Thumb up 2 Thumb down 2

  39. Daryl's other brother Darryl says:

    @James Pearce:

    The only way to fight Trump is to abandon protest entirely as a method of fighting Trump. We need strategy, not performance art.

    What do you suggest?
    You are turning your back on our entire history…the Boston Tea Party, Selma to Montgomery, Kent State…c’mon…

    Like or Dislike: Thumb up 5 Thumb down 0

  40. James Pearce says:

    @michael reynolds:

    De-legitimizing Trump is exactly the right tack to take at this time.

    I have see no evidence that Trump is being “de-legitimized.” He has the full support of the Republican Party and their voters. He has Congressional majorities, and soon a SC majority.

    It took about 7 years for Republicans to realize you can’t “delegitimize” an elected president. You can only run out the clock and build for tomorrow.

    He is being made to look weak and ridiculous

    Honestly….this is only true within to liberal bubble. The Trump supporters I know IRL certainly don’t think so. In fact, if you ever wondered why they’re willing to look the other way on some of Trump’s more egregious controversies is because they view him as a tough guy who isn’t going to take any shit from liberals, Aussies, Muslims, or Mexicans.

    Time to stop fooling ourselves. Time to take a real hard look at where we were, where we’re at, and how we got here, and maybe…just maybe, try something else.

    Like or Dislike: Thumb up 2 Thumb down 7

  41. Jack says:

    @Daryl’s other brother Darryl: What do you suggest?

    You could have your representatives make statements about Putin invading North Korea or about George Bush still being president.

    More Democrat Assclownery will be sure to win you some more voters.

    Like or Dislike: Thumb up 1 Thumb down 7

  42. KM says:

    @James Pearce:

    The only way to fight Trump is to abandon protest entirely as a method of fighting Trump. We need strategy, not performance art.

    Well then let’s have it. You’ve been complaining on numerous threads that protests are ineffective and Democrats need to do something else.

    So what is it you recommend.? Let’s hear your detailed plan. Tell us your strategy. Because honestly? Hearing “protest aren’t working, try something else!” is exactly the same as hearing “repeal and replace” being bleated for 8 years – not helpful and passive-aggressively harmful. Unless you have a better idea, please stop getting in the way of what is working (just not the way you like). The lawyers are working on it, polticians are working on it, grassroots and petitions are working on it. We have little actual, political power left and our “performance art” is proving surprisingly effective at trolling the master troll. Sometimes, if your opponent is bigger, stronger and outclassing you in a fight, you’re best bet is to tease and frustrate them into making a mistake. If nothing else, we’ll manage to piss him off every step of the way while we’re dragged down.

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  43. KM says:

    @James Pearce:

    he Trump supporters I know IRL certainly don’t think so. In fact, if you ever wondered why they’re willing to look the other way on some of Trump’s more egregious controversies is because they view him as a tough guy who isn’t going to take any shit from liberals, Aussies, Muslims, or Mexicans.

    Then they are not persuadable. I’m sorry but someone who thinks we’re taking shit from the Aussies because Trump tweeted about it is not functioning in the same world as the rest of us. These are people who think being a jerk is authoritative behavior and nothing short of being a BIGGER jerk will change their minds. The GOP suffered from this in the primaries: be the biggest loudmouth on stage and suck the energy from your opponents.

    We have to wait until Trump ruins enough of their lives for them to come to the conclusion that if it acts like an asshat, it’s probably an asshat. They will still vote (R) BTW but Trump might be the first sitting president in recent history to not get renominated. Meanwhile, the sane ones who voted for him solely on jobs will have reached this conclusion far sooner and be ready to talk. The endless protests may frustrate them….. or they may join in once it’s a topic they care about. The whole selling off federal lands thing? Conservatives took the lead on protesting that and it worked. We have allies, not on everything but enough things.

    Some places will always be red. We need to get the blue defectors back, not flip Texas.

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  44. michael reynolds says:

    @James Pearce:

    Dude: Read the polls.

    Every previous POTUS had a bump following election, Trump has taken a drop. Of course he has the support of most of his voters, but that’s irrelevant. It’s not about them. Not yet. It will be, but his voters are behind the curve. In order to keep his supporters he has to deliver, and delegitimizing him makes it harder for him to deliver anything.

    In fact, use your own example: was Obama hamstrung to a degree by GOP efforts to delegitimize him? Clearly yes. And we have an infinitely stronger case, and we control the culture, and unlike Obama, Trump has zero skills for enlarging his base.

    Any political strategy has to be judged in terms of its objectives. This is not about 2018 – we’re not getting anything in 2018 unless there is a complete GOP meltdown. The goal is to achieve that meltdown, which starts by reducing Trump to political impotence.

    Like or Dislike: Thumb up 8 Thumb down 1

  45. HarvardLaw92 says:

    The overwhelming likelihood here is that they kick it back to the DC as a pending issue which is not ripe for review. Then the DC rules (or not) on a PI, then we maybe end up back at the 9th for a ruling on the PI, or maybe we proceed to trial on the merits at the DC, then we head back to the 9th.

    Point being most of the operative push of this EO – the immediate ban – is limited to a finite period and will expire on its own accord long before this particular lawsuit gets anywhere near SCOTUS. From an operative standpoint, the EO’s initial provisions are dead.

    Then there will be the lawsuits yet to be filed challenging the subsequent provisions – the ones which havent activated yet.

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  46. Pch101 says:

    @James Pearce:

    Trump is the Keyser Soze of politics — willing to do what the other guy wouldn’t– and you think he can be taunted into submission?

    The goal isn’t to persuade Trump. Why you keep believing that it is, I don’t know.

    When was the last time that the Tea Party tried to persuade a liberal about anything?

    Like or Dislike: Thumb up 9 Thumb down 1

  47. ptfe says:

    @Pch101: Indeed. People who like Donald Trump just want a bomb-thrower. They don’t particularly care what the consequences of his policies are, as they’re convinced they’ll be insulated from those consequences. They won’t be persuaded by any action on the left, just destruction of their way of life by the right — which will several months or even years to realize.

    But people who are/were on the fence about him can be convinced to see a brash and ugly politician lying and weaseling at every opportunity. The more these fence-sitters associate “Trump” with “liar” or “unfit” or “un-American”, the more likely they are to tune him out entirely. And when you have limited political power (c.f. the current left), you use the resources available: your own time and money.

    Protests aren’t about convincing the opposition, they’re about convincing the people who aren’t yet on your side. Crowds give people a sense of belonging and a sense of security, and when a crowd shows up to support something you believe in, you feel that affinity. What matters most about the protests is that the messages are as targeted as possible to appeal to the broadest audience that can be convinced to oppose the president. (The Tea Party protests of “taxation is theft!” were in that vein; the left needed to counter-protest with “old people shouldn’t die in the streets!” instead of pointing and laughing and mocking. But instead we pointed and laughed and mocked, and those assholes are basically in charge now.)

    And let’s not forget that Trump’s supporters haven’t been seen since the inauguration, when the opposition protest blew their showing out of the water. @James Pearce: Do you think Team Trump, now a DC-ensconced clique of ugly white guys led by a Twitter-crazed combover, is going to attract more customers on its own?

    Like or Dislike: Thumb up 5 Thumb down 1

  48. Joe says:

    I assume this thread is about dead, but I will say this anyway because I am tired of reading political shit on my FB feed so I won’t put it there.

    Trump’s EO is abject laziness disguised as strength.

    It is absolutely true that part of the president’s job is to secure our borders and our safety. President Obama and Presidents before him have worked to do that through the efforts of State Department, Homeland Security, etc. Not only have they been limited by the Constitution and American values, they have been limited by trying to maintain America’s ability to participate in the world, including the free movement of business people, academics, families, etc.

    Have prior administrations done a perfect job? I doubt it. Could there be improvements? I am sure. So Trump campaigns first on his Muslim Ban and then on extreme vetting. What is extreme vetting? No one knows because its simply the shadowy brother of Trump’s real claim – that there is no vetting now. That’s the real hidden bullshit remark, no vetting now. (“People are pouring in!”)

    If Trump’s administration was remotely interested in extreme vetting they would have been studying the current vetting process, both before the election and certainly during the transition (just like the Republicans have had 6 years to come up with an alternative to Obamacare). If Trump or his people have ideas to improve vetting, good on them! Atta boy! Good! Because that is your goddamn job. Hard work? You bet. Worth the effort? Entirely. (Extreme vetting is the close cousin of “repeal and replace.” All Republicans assume its out there, but none have the slightest idea where to find it.)

    But maybe studying and working to implement improvements in vetting is too much work. Wouldn’t it just be easier to shut immigration down and kick the can down the road? Yes it would. So let’s pound on the table, say we are strong and just shut it down. Then when the Courts say we failed to do our work, we turn around and say now it’s on you – you have failed, not us! It’s like the kid who blames the teacher for grading him down because he failed to follow the rules of the assignment.

    I am quite sure Trump is setting up everybody around him, the Courts included, to take the fall for his fail. I am worried about what happens when he succeeds in that dodge too.

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  49. Neil Hudelson says:

    @James Pearce:

    Time to stop fooling ourselves. Time to take a real hard look at where we were, where we’re at, and how we got here, and maybe…just maybe, try something else.

    The only way to fight Trump is to abandon protest entirely as a method of fighting Trump. We need strategy, not performance art.

    You’re excellent at telling everyone who is actively fighting Trump that they are doing it the wrong way. Yet you haven’t offered up one single idea of something that should be changed–only vague notions. “We need strategy!” “Try something else!” “What you are doing is just making people like Trump more!”

    And yet his approvals are plummeting. As has been pointed out, the liberals knee-jerk reaction to McConnell’s antics have ensured that millions of people have now watched his speech. Millions of protestors flooded airports after is last Executive Order and wouldn’t you know it he scraps the next EO he was going to issue.

    So how about this. Instead of complaining that, darnit, the opposition just isn’t oppositioning the way you want them to opposition, you STFU and actually do something yourself? Or at the very least suggest tactics and strategy that’s a little more detailed than “just maybe, try something else?”

    Like or Dislike: Thumb up 11 Thumb down 0

  50. Pch101 says:

    @ptfe:

    Protests aren’t about convincing the opposition, they’re about convincing the people who aren’t yet on your side.

    I would submit that their best use is for rallying the base. Democrats need relatively high turnout, and Dems are wise to stop being afraid and to start being angry. (Angry people vote, frightened ones curl up in a ball and don’t see the point in showing up.)

    These attacks on Trump also play an indirect role in helping to chip away at those independents who chose him. You won’t necessarily reach all of them, nor will you be able to use liberal causes in order to appeal to that group. However, creating the momentum for Trump’s overall illegitimacy and setting him up for failure makes it easier to get some of them to blow him off in 2020 simply because he looks weak and failed to keep his promises.

    This is death by a thousand cuts: Some people don’t like losers. Turn Trump into an abject failure, and rejecting him will become a natural response. Nobody should care what the Tea Party thinks.

    Like or Dislike: Thumb up 7 Thumb down 1

  51. dxq says:

    The only way to fight Trump is to abandon protest entirely as a method of fighting Trump. We need strategy, not performance art.

    Obviously protesting can work. Protests have even brought down entire governments in many places.

    If you can’t figure out what we should do instead, can’t we keep protesting til you do?

    Like or Dislike: Thumb up 9 Thumb down 1

  52. @michael reynolds:

    Every previous POTUS had a bump following election, Trump has taken a drop. Of course he has the support of most of his voters, but that’s irrelevant.

    I hope so. Relying on Trump unpopularity/doing dumb things did not work out last year. And he was extremely unpopular and he made lots of dumb things last year.

    Like or Dislike: Thumb up 3 Thumb down 0

  53. wr says:

    @James Pearce: “The only way to fight Trump is to abandon protest entirely as a method of fighting Trump. We need strategy, not performance art.”

    Yawn. Yet again the “oh my god don’t do what you’re doing now even though it’s clearly having multiple positive effects — do the thing that is much better and more effective as soon as someone comes up with it. Nah, I don’t have a clue about what’s right, but I can explain every reason why I know everything is wrong — me and David Brooks, the only wise men in America! Until then, do nothing!!!”

    Like or Dislike: Thumb up 3 Thumb down 0

  54. wr says:

    @James Pearce: “just maybe, try something else”

    You be sure to drop us all a line when you’ve got a clue of what that might be, possums.

    Like or Dislike: Thumb up 2 Thumb down 0

  55. James Pearce says:

    @Neil Hudelson:

    So how about this. Instead of complaining that, darnit, the opposition just isn’t oppositioning the way you want them to opposition, you STFU and actually do something yourself? Or at the very least suggest tactics and strategy that’s a little more detailed than “just maybe, try something else?”

    We just elected the most corrupt, venal president in our nation’s history, a guy that actually used to be a Democrat.

    His biggest vulnerability is on the right. If anything, it will be his empty promises that bring him down, not any protest.

    Like or Dislike: Thumb up 1 Thumb down 5

  56. gVOR08 says:

    @James Pearce:

    If anything, it will be his empty promises that bring him down, not any protest.

    Nope. He certainly will fail to deliver on his promises. But his supporters, firmly ensconced in the Conservative Echo Chamber, will never know it; or will blame it on Obama, or elites, or the Chinese, or Mexicans, or the boogeyman. Anyone but Trump.

    Like or Dislike: Thumb up 6 Thumb down 0

  57. Trump’s vulnerabilities are not on the right or on the left. His main vulnerability is his lack of experience, so, his vulnerabilities exist on a economic and political level, that can be attacked both from the right and the left. He is a crappy leader, a caudillo/coronel, but a pretty incompetent one. Paul Ryan is also an easy target.

    I do agree with Luigi ZIngales that Trump should be defeated as a normal politician. Most coroneis(The Brazilian version of the caudillo) that I know that were successfully defeated were defeated on a economic message.

    The Democrats need a economic message that can increase turnout among minorities and that can increase their share of the white vote. Maybe Democrats can’t flip Texas, but you need enough White Male voters to win elections in Maine, Iowa, Ohio, Pennsylvania.

    By the way, lots of people here among the OTB commentariat were worried with Hillary’s prospects. at least since 2014, 2015. The response was the same, Hillary was winning and everything was fine.

    Like or Dislike: Thumb up 2 Thumb down 0

  58. michael reynolds says:

    @Andre Kenji de Sousa:
    I was not among those saying everything was fine, I’ve been whining about Democrat’s lack of a message for a long time. We’ve become about narcissism and virtue signaling and offense-seeking as substitutes for an actual message.

    But there’s a big difference between the US and Latin America. We never went through what I suppose we could call ‘Late Bolivar.’ George Washington walked away, Bolivar (a great man, a visionary, not to mention just plain cool) could not leave well enough alone. And in much of SA and CA there is a history of caudillo-ism which would turn many people off, but which would also seem to be on the menu, so to speak.

    I think we’ve got a decent shot at castrating this bull. Street action, financial action (destroying anyone who does business with Trump), signaling the world that he speaks only for 46%, ridicule, baiting, playing on his fragile neediness, fighting him in the courts and in the states, I think we can weaken him. It’s a bullfight. You need the tercio de varas and the tercio de banderillas to weaken and daze the bull.

    Like or Dislike: Thumb up 6 Thumb down 0

  59. @michael reynolds:

    But there’s a big difference between the US and Latin America. We never went through what I suppose we could call ‘Late Bolivar.’

    But Caudillismo/ Coronelismo has nothing to do with Simon Bolivar. It has to do with reactionary politicians posing as populists and as men of the people.

    Hugo Chavez, a Lieutenant-Colonel from the Army was not caudillo. Caudillos/Coroneis were rich landowners that used authoritarianism and personalistic politics to control entire regions, not would be revolutionaries.

    One can argue that’s not so different from politics in the Old American South, where REAL populists like Estes Kefauver were an anomaly. Latin America is not Mars, it’s more similar to the United States than Americans would realize.

    Trump can’t be defeated on personality alone. You need an economic message, that the Democrats don´t really have.

    Like or Dislike: Thumb up 0 Thumb down 0

  60. Mr. Bluster says:

    @Andre Kenji de Sousa:..Latin America is not Mars,..

    I suspect that there are more United States Citizens that think New Mexico is a foreign country than believe that Latin America is on another planet.

    But I could be wrong…

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  61. @Mr. Bluster: I’m not talking about common Americans. Many American intellectuals and political scientists think that political conditions on Latin America are very different than in the United States, so you can’t make comparisons between the two regions(That’s why Mexico and Brazil are absent on discussions about proportional representation or term limits).

    Then the Americans elected a personalist and demagogue as President, the typical “Latin America” leader.

    Like or Dislike: Thumb up 1 Thumb down 0

  62. Tyrell says:

    Does that mean that there are no searches, checks, or other security measures allowed concerning people entering this country while these judges make up their minds ? If that is the case, there will be hoards of terrorists flocking to this country.

    Like or Dislike: Thumb up 0 Thumb down 4

  63. Joe says:

    @Tyrell:
    No. It does not mean that. Not remotely.

    Like or Dislike: Thumb up 4 Thumb down 0

  64. grumpy realist says:

    @Tyrell: Sigh. No, it means that we use the system we had up to now, which seems to have done a nice balance between security and not cowering in fear under the bed.

    If we had any brains, we would place the bar, not at :”no one from outside does anything nasty to us”, which is ridiculously impossible, but at “the guys we admit from the outside aren’t any more dangerous to our citizenry than the average American citizen is.”

    Here’s something I posted over at TAC that you might read:

    The sort of people who get terrified of hearing a foreign language aren’t going to be very competitive in the world, methinks.

    I wonder how much of the anti-immigration feeling is due to effects that should more logically be placed on increasing automation? We can shut down the borders so tightly that a mouse wouldn’t enter in, lose our status as a gathering spot for the best and the brightest of the world–and I’m afraid that this still wouldn’t solve the problems that we’re seeing.

    Britain is going through their own fit of anti-immigrant insanity, and will probably come out the other side discovering that they have turned themselves into a location no one wants to come to and no power–and they’ll still have all the complaints that they now are blaming on Johnny Foreigner.

    Looks like we’re going down the same path. Oh well, we’ve lived long enough off the European brains that fled here during WWII.

    Like or Dislike: Thumb up 2 Thumb down 0

  65. al-Alameda says:

    @Guarneri:

    So !! What outrage of existential proportions has been perpetrated by the Trump Administration today that will keep this group of sad sacks fully outraged today?? Is the diaper supply holding out? Anyone in need of a Prozac run? Dry goods and water for the underground shelter?

    You guys exhausted the supply of diapers over your outrage concerning the ‘crowd size’ ‘popular vote loss’ ‘illegal votes’ and ‘Nordstrom’ issues.

    Per ZeroHedge, I’ve purchased Dry Cleaning Futures because evidently there is no end to the outrage conservatives can manifest concerning criticism and dissent of their minority-elect president.

    Like or Dislike: Thumb up 3 Thumb down 0

  66. Tyrell says:

    @grumpy realist: Is that what is happening in Germany ? Chancellor Merkel is worried and trying to get the immigration stopped and some people shipped out.

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  67. Matt says:

    @Tyrell: What is happening in Germany is people either making shit up or only partially reporting the truth. OMG IMMIGRANT CRIME HAS INCREASED 79%!!!! Yes and the number of immigrants themselves increased over 400% meaning a 79% increase in the number of crimes is not only surprisingly low but also means immigrants are committing crimes at a much lower rate than native Germans.

    http://www.dw.com/en/report-refugees-have-not-increased-crime-rate-in-germany/a-18848890

    https://www.welt.de/politik/deutschland/article148812603/Straftaten-im-sehr-niedrigen-sechsstelligen-Bereich.html

    Let me guess you also believe that crime in the USA has been skyrocketing and that police are dying at rates never seen before….

    The FBI crime database and the national law enforcement officers memorial fund’s database both disagree with any such statement.

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