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Appeals Court Upholds Restraining Order Barring Trump’s Muslim Travel Ban

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Late yesterday, the Ninth Circuit Court of Appeals declined to reinstate President Trump’s Executive Order barring travel from seven majority Muslim nations, upholding a Temporary Restraining Order entered by a Federal District Court Judge in Washington a week ago:

WASHINGTON — A federal appeals panel on Thursday unanimously rejected President Trump’s bid to reinstate his ban on travel into the United States from seven largely Muslim nations, a sweeping rebuke of the administration’s claim that the courts have no role as a check on the president.

The three-judge panel, suggesting that the ban did not advance national security, said the administration had shown “no evidence” that anyone from the seven nations — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — had committed terrorist acts in the United States.

The ruling also rejected Mr. Trump’s claim that courts are powerless to review a president’s national security assessments. Judges have a crucial role to play in a constitutional democracy, the court said.

“It is beyond question,” the decision said, “that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

The decision was handed down by the United States Court of Appeals for the Ninth Circuit, in San Francisco. It upheld a ruling last Friday by a federal district judge, James L. Robart, who blocked key parts of the travel ban, allowing thousands of foreigners to enter the country.

The appeals court acknowledged that Mr. Trump was owed deference on his immigration and national security policies. But it said he was claiming something more — that “national security concerns are unreviewable, even if those actions potentially contravene constitutional rights and protections.”

Within minutes of the ruling, Mr. Trump angrily vowed to fight it, presumably in an appeal to the Supreme Court.

“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Mr. Trump wrote on Twitter.

At the White House, the president told reporters that the ruling was “a political decision” and predicted that his administration would win an appeal “in my opinion, very easily.” He said he had not yet conferred with his attorney general, Jeff Sessions, on the matter.

The Supreme Court remains short-handed and could deadlock. A 4-to-4 tie there would leave the appeals court’s ruling in place. The administration has moved fast in the case so far, and it is likely to file an emergency application to the Supreme Court in a day or two. The court typically asks for a prompt response from the other side, and it could rule soon after it received one. A decision next week, either to reinstate the ban or to continue to block it, is possible.

(…)

Trial judges nationwide have blocked aspects of Mr. Trump’s executive order, but no other case has yet reached an appeals court. The case in front of Judge Robart, in Seattle, was filed by the states of Washington and Minnesota and is still at an early stage. The appeals court order issued Thursday ruled only on the narrow question of whether to stay a lower court’s temporary restraining order blocking the travel ban.

The appeals court said the government had not justified suspending travel from the seven countries. “The government has pointed to no evidence,” the decision said, “that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”

The three members of the panel were Judge Michelle T. Friedland, appointed by President Barack Obama; Judge William C. Canby Jr., appointed by President Jimmy Carter; and Judge Richard R. Clifton, appointed by President George W. Bush.

They said the states were likely to succeed at the end of the day because Mr. Trump’s order appeared to violate the due process rights of lawful permanent residents, people holding visas and refugees.

The court said the administration’s legal position in the case had been a moving target. It noted that Donald F. McGahn II, the White House counsel, had issued “authoritative guidance” several days after the executive order came out, saying it did not apply to lawful permanent residents. But the court said that “we cannot rely” on that statement.

“The White House counsel is not the president,” the decision said, “and he is not known to be in the chain of command for any of the executive departments.” It also mentioned “the government’s shifting interpretations” of the executive order.

In its briefs and in the arguments before the panel on Tuesday, the Justice Department’s position evolved. As the case progressed, the administration offered a backup plea for at least a partial victory.

At most, a Justice Department brief said, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future” should be allowed to enter the country despite the ban.

The appeals court ultimately rejected that request, however, saying that people in the United States without authorization have due process rights, as do citizens with relatives who wish to travel to the United States.

The court discussed, but did not decide, whether the executive order violated the First Amendment’s ban on government establishment of religion by disfavoring Muslims.

It noted that the states challenging the executive order “have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban.'” And it said, rejecting another administration argument, that it was free to consider evidence about the motivation behind laws that draw seemingly neutral distinctions.

But the court said it would defer a decision on the question of religious discrimination.

“The political branches are far better equipped to make appropriate distinctions,” the decision said. “For now, it is enough for us to conclude that the government has failed to establish that it will likely succeed on its due process argument in this appeal.”

The court also acknowledged “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,” the decision said. “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.”

“These competing public interests,” the court said, “do not justify a stay.”

Turning first to the opinion itself, it’s clear that the Judges found the arguments of the states far more convincing than the arguments of the Federal Government. One of the primary weaknesses in the Federal case that the opinion focuses on, for example, is the fact that there’s basically no evidence on the record to support the contention that the seven nations covered by the ban are particular points of danger for terrorists entering the United States. During the oral argument of this case, the attorney for the Federal Government essentially argued that the President’s determination that there was a national security threat from these nations alone, while ignoring potential threats from nations such as Saudi Arabia and Pakistan that actually had been the source of immigrants who had carried out terror attacks in the United States, was not reviewable at all by Courts. This was a position that clearly didn’t sit well with the Ninth Circuit panel during oral argument, and the fact that the Justice Department attorney cited no controlling legal authority for this position meant that it gave them an opening to pick his argument apart. From there, the outcome of this ruling was seemingly inevitable.

One odd part of the opinion issued last night is the fact that the Judges make reference to statements that President Trump made on the campaign trail when he was talking about a broader ban on immigration by all Muslims, something that the states challenging the order that was issued as evidence of the intent of the order and the question of whether or not it discriminated on the basis of religion or ethnicity. Writing at The Volokh Conspiracy, Eugene Kontorovich of the Northwestern University School of Law argues that this is a highly unusual and troubling step for judges to take:

The 9th Circuit’s ruling Thursday throws open a huge door to examinations of the entire lives of political officials whose motives may be relevant to legal questions. This introduces more uncertainty and judicial power into legal interpretation than even the most robust use of legislative/administrative history. Without a clear cutoff at assumption of office, attacks on statutes will become deep dives into politicians’ histories.

More broadly, constitutional structure supports examining only executive statements to interpret executive action. When Trump made his most controversial statements, he was private citizen. He had not sworn to uphold the Constitution, or to take care that the laws be faithfully executed. He was, in this sense, a legally differently obligated person. His policies and their relation to the Constitution would presumably be affected by his oath — that is why the Constitution requires it.

Moreover, the Constitution’s oft-forgotten opinion clause supports disregarding pre-inauguration statements. The Constitution puts at the president’s service the officials of the administration and requires they advise him as asked. What it means here is that the president must be seen as the unitary head of the executive branch and the pinnacle of a process of executive decision-making. That process is the only constitutionally recognized executive process. A candidate’s possible plans or promises are not part of the process. The opinion clause also suggests a president cannot be bound by the oral statements of federal officials (like Rudy Guiliani), especially when not “upon any Subject relating to the Duties of their respective Offices.”

By accepting the use of preelection statements to impeach and limit executive policy, the 9th Circuit is taking a dangerous step. The states’ argument is in essence that Trump is a bigot, and thus his winning presidential campaign in fact impeaches him from exercising key constitutional and statutory powers, such as administering the immigration laws.

This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.

Kontorovich’s colleague at Volokh Ilya Somin disagrees:

The Supreme Court has long held that facially neutral laws and regulations may be invalidated if the true purpose behind them is to discriminate on the basis of race, ethnicity, religion, or some other suspect classification. If facially neutral policies are exempt from scrutiny for discriminatory motive, then a wide range of prejudicial policies would have to be upheld. For example, many Jim Crow-era policies targeting African-Americans were facially neutral, including poll taxes and literacy tests intended to keep blacks from voting.

In determining whether discrimination was the motivation behind the challenged action, the Supreme Court requires judges to make “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” including “[t]he historical background of the decision” and “[t]he specific sequence of events leading up to the challenged decision.”

Despite Eugene Kontorovich’s contrary view, there is no reason to exempt campaign statements from this kind of inquiry. When a policy is a direct outgrowth of a major theme of a candidate’s campaign, as is surely true here, campaign statements are clearly part of “the historical background of the decision” and “”[t]he specific sequence of events leading up to [it].” As Trump himself likes to emphasize, campaign promises are often an important indication of political leaders’ intentions. For courts to ignore that would be to close judicial eyes to obvious political realities.

That does not mean that any Trump administration policy that seems to harm Muslims should automatically be ruled unconstitutional. A policy less clearly linked to his bigoted statements and backed by a stronger security justification than the extremely weak one here, would be more likely to be upheld. As the Ninth Circuit notes, the administration has presented only very flimsy evidence that its order is backed by legitimate security needs, which is one of the reasons why it refused to lift the trial court’s order staying implementation. Things might be different in a case where the government could more plausibly point to a genuine nondiscriminatory rationale for its policies.

It strikes me that Somin has the better argument here. While I don’t think that things a candidate says on the campaign trail should be controlling under all circumstances, the idea that they should not be considered at all in trying to determine whether there is discriminatory intent behind a particular statute or action makes little sense. A candidate who spent an entire campaign promising to pass a law that targets a particular minority group and then turns around and takes an action that only impacts a limited subset of that group should not be able to get away with the argument that what they said on the campaign trail is irrelevant for legal purposes. This is especially true when there is evidence to corroborate the argument that the limited version of the law in question grew out of a desire to fulfill the original promise. In this case, the Court had before not just Trump’s original comments on the campaign trail about a Muslim ban, but also comments by Rudy Giuliani, who has served as an adviser to Trump since the election, and who said in media interviews that Trump went to him and asked how he could pull off a limited version of his Muslim ban that might withstand immediate dismissal by the Courts. Such evidence doesn’t necessarily prove a discriminatory intent but it does provide at least some evidence on that topic for the Court to consider. Therefore, there’s no reason to exclude it. The fact that Trump’s own words ended up being used against him should teach him a lesson, but it probably won’t.

I noted in my post earlier this week that the tone of the oral argument led me to believe that the panel would uphold the Temporary Restraining Order and, ultimately, that’s what happened here. What was surprising upon reading the opinion last night is the fact that the case was a unanimous one, including not just the two Judges appointed by Democratic Presidents, but also Judge Richard Clifton, who was appointed by President George W. Bush. During the oral argument, Clifton seemed far more skeptical of the case presented by Washington and Minnesota than any of the other Judges. As a result, I was expecting that we’d see the TRO upheld by a 2-1 majority. The fact that the case was unanimous doesn’t have any immediate legal relevance, of course, but it does indicate that the Plaintiffs seem to have presented a far more convincing case so far than the Federal Government. It may, however, provide some indication of the direction of where the case may go in further proceedings unless the Trump Administration decides to take some steps to drastically change the situation on the ground.

As it stands, the Administration has several options available to it, some of which seem to have a better a chance of success than others.

One option would be to seek a review of this panel decision before the entire Ninth Circuit. An en banc appeal like this, however, is not a matter of right and would only be possible if a majority of the Judges agreed to take the matter up. More often than not, requests for en banc appeal are denied, so it seems unlikely the Federal Government will exercise that option. The second option, of course, would be to appeal the matter to the Supreme Court and hope that they can somehow create a majority to vacate the TRO out of a Court that is presently equally divided between its conservative and liberal branches. Were there a 4-4 tie in the Court, then the Ninth Circuit ruling would stand and the case would return to Judge Robart in the District Court for further briefing and a hearing on whether or not the TRO should be converted to a Preliminary Injunction that would remain in effect at least until a final ruling from the District Court, which could be months from now at the earliest. A third option would be to accept the Ninth Circuit ruling and return to District Court and argue over the imposition of a Preliminary Injunction. In this proceeding, the Federal Government would be able to present more evidence to the Court to support the President’s decision to ban travel from the seven countries in question, a weakness that plays a prominent role in the reasoning in both Judge Robart’s TRO and in the Ninth Circuit’s ruling.

As a final option, the Administration could decide to bypass the current legal controversy altogether by redrafting the original Executive Order in order to address many of the flaws that make it vulnerable to legal challenge. These vulnerabilities include the fact that the order does not provide any protection for people who are Permanent Residents of the United States, fails to account for people who had already cleared the review process and obtained visas to travel to the United States, and people who had previously passed this review process and been granted visas to the the U.S. in the past and traveled here. These are the three groups of people are the ones who have the strongest due process and equal protection claims against the order, and an order that specifically states that they are excluded from the ban would arguably have a better chance of withstanding scrutiny. This strategy has been suggested by several legal analysts in the wake of last night’s ruling since it seems as though taking the matter to the Supreme Court is most likely to lead to a 4-4 tie that keeps the Ninth Circuit ruling in place or, worse for the Administration, a 5-3 ruling due to the fact that Justice Kennedy ended up siding with the Court’s liberal wing.  Additionally. NBC News is reporting this morning that the Administration is considering this idea, but that it would still continue to defend the current Executive Order in court rather than withdrawing it:

Given the comments coming out of the White House, though, it seems as though the most likely outcome would be that the Administration takes the case to the Supreme Court even while attempting to draft a narrower order, meaning that next week will likely be another week of briefing and oral argument by the parties with a decision on the stay request coming from the Court late next week at the earliest.

Here’s the opinion:

Washington et al v. Trump et al Opinion by Doug Mataconis on Scribd

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. Daryl's other brother Darryl says:

    Another judicial bitch-slap at the Trump Administration.

    FTFY

    …the Administration could decide to bypass the current legal controversy altogether by redrafting the original Executive Order in order to address many of the flaws that make it vulnerable to legal challenge.

    Not. Ever. Going. To. Happen.
    For one…they aren’t smart enough, collectively, to do that. Two…that would require them to admit they were wrong.
    The Trump administration is made up completely of third-rate minds. (perhaps Mattis excluded, although the fact that he accepted the position makes me question this) The idea that they will ever conquer the learning curve of the White House is laughable. The down-side of that is the number of people who are going to die, needlessly, because of it.

    Like or Dislike: Thumb up 12 Thumb down 3

  2. Mu says:

    I’m not sure the quality of the minds matters, there’s only one mind that matters, and it’s watching TV. Trump tweeted about an article supposedly supporting his position, despite the fact that it ends complaining about the “incompetent malevolence of the order”. Turns out the article was mentioned on “Morning Joe”, and El Trumpremo went with it.

    Like or Dislike: Thumb up 8 Thumb down 2

  3. Gustopher says:

    it seems as though taking the matter to the Supreme Court is most likely to lead to a 4-4 tie that keeps the Ninth Circuit ruling in place or, worse for the Administration, a 5-3 ruling due to the fact that Justice Kennedy ended up siding with the Court’s liberal wing.

    Why do you think the decision will be split on ideological grounds? Is there something about Roberts, Alito and Thomas that makes you think they will defer to the executive, even in cases where the executive is clearly lying about intent, national security, etc.? Is it just that the executive is a Republican?

    I would like to think more of the court than I think of congress. Perhaps I am a crazy optimist.

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 1

  4. Pch101 says:

    At this point, it appears that the executive order may have been intended to throw a bone to the Trump fan club. (To put it another way, its purpose was to stir up s**t.)

    The fact that it isn’t legitimate and will not withstand court scrutiny seems to be secondary to the administration. What Trump et. al. are counting on is that the Trumpistas will blame the defeat on the courts, “liberal media”, etc. instead of the inept Bannon Trump White House for its failure to get it done. A ban on Muslims may not really matter; it’s the opportunity to slander them that counts.

    Like or Dislike: Thumb up 13 Thumb down 2

  5. Franklin says:

    @Gustopher: I think Roberts, at least, will rule on the merits. Maybe even Alito. I’m not sure what Thomas will do without Scalia.

    Like or Dislike: Thumb up 4 Thumb down 0

  6. Jake says:

    If you want actual law read this.

    http://www.frontpagemag.com/fpm/265765/ninth-circuit-dangerously-out-order-matthew-vadum

    That the problem with leftist judges they value their personal opinion over the Law

    Poorly-rated. Helpful or Unhelpful: Thumb up 3 Thumb down 26

  7. Pch101 says:

    @Jake:

    You sure spend a lot of time reading garbage.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 3

  8. Jen says:

    @Daryl’s other brother Darryl: The White House was asked today about a re-written EO, and the reply was “nothing’s off the table.” I read elsewhere this morning–I can’t find it now–that they were already in the process of looking at how to do this.

    It might run contrary to what we’ve seen with this administration, but it looks like they might go that route.

    Like or Dislike: Thumb up 4 Thumb down 0

  9. Jake says:

    @Pch101:

    Have fun in your echo chamber. Obviously you have no idea of the Law. All you are is hate.

    Poorly-rated. Helpful or Unhelpful: Thumb up 3 Thumb down 18

  10. Liberal Capitalist says:

    @Jake:

    Have fun in your echo chamber. Obviously you have no idea of the Law.

    The Ninth Circuit court and the Constitution of the United States would disagree with you on this.

    All you are is hate.

    Psychological projection much?

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 2

  11. Daryl's other brother Darryl says:

    @Jake:
    Stop linking to far right extremist web sites. If you choose to read them that’s your right. But they are polluting your brain with nonsense. For instance…the sub-heading:

    Black-robed politicians on the Left Coast handcuff Trump, keeping the borders wide open for terrorists.

    The borders are far from being wide-open for terrorists. As a point of fact the so-called presidents piss-poorly written EO would have done nothing to stop a single terror event in the US since before 9/11.
    I know you equate facts that don’t agree with you with hate…what we see here all the time is that it’s impossible to reason with someone like you…because you come to you views not thru reason but thru emotion.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 2

  12. Pch101 says:

    @Jake:

    Oh, I’m sure that you learned a lot about the law in your high school metal shop class.

    Here’s a hint: If you rely upon David Horowitz’s toxic waste pit of a website to learn about the law, then you are demonstrating that you know less than nothing about the law. You aren’t just uninformed, you’re misinformed.

    Like or Dislike: Thumb up 10 Thumb down 3

  13. Jake says:

    Read the Law and then come back.

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 18

  14. michael reynolds says:

    @Jake:

    The law is what the courts say it is.

    You seem to have missed out on middle school civics. Also high school in its entirety. You know that constitution you think only has one amendment? Try reading it some time.

    Like or Dislike: Thumb up 16 Thumb down 2

  15. Bob@Youngstown says:

    @Pch101:

    the executive order may have been intended to throw a bone to the Trump fan club.

    Of course it was.
    If extreme vetting (what ever that means) was the means to the goal of increasing national security that could have been accomplished very quietly (like Obama seems to have done in 2011).
    Two possible exceptions might exist, (1) Trump and his administration have no idea what “extreme vetting” actually means, short of a campaign slogan) or (2) Trump administration somehow knew that there were terrorists that were in flight or in thee process of boarding flights on Friday afternoon.

    I’m going with the campaign slogan rationale.

    Like or Dislike: Thumb up 3 Thumb down 0

  16. Liberal Capitalist says:

    Within minutes of the ruling, Mr. Trump angrily vowed to fight it, presumably in an appeal to the Supreme Court.

    “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Mr. Trump wrote on Twitter.

    1) If POTUS Trump is attempting to threaten Judges with legal action, I think he may be missing their home court advantage.

    2) If POTUS Trump is questioning the ability of Justices to review Executive and Legislative actions, then he is completely lacking the understanding of how our democratic republic is structured to function.

    3) If POTUS Trump is basing his security statement on limiting travel from countries unassociated with any US-based Terrorist activity… then I am at a loss. Based on this, we could limit travel from Italy based on the history of the Mafia, as that would have credence in that type of conversation, or for that matter Christians, for their long history of domination, torture and murder — but I am not suggesting that. Still, one could argue that various foreign governments could completely block Americans from travel from our aggressive tendencies, based on past verifiable actions.

    In sort: I am not sure how this benefits our international standing or improves our security at all, as we see our border agents handcuffing 5 year olds and detaining the elderly at the border for hours without rest, water, food, or legal advice.

    What’s the end game here?

    Like or Dislike: Thumb up 3 Thumb down 1

  17. CSK says:

    @Pch101:

    You should have left it at “Bannon White House,” because that’s what it clearly is.

    Like or Dislike: Thumb up 5 Thumb down 1

  18. Gustopher says:

    @Jake: wow, I have learned so much from that website. “Inside every progressive is a totalitarian screaming to get out” — and that’s just the banner!

    You do realize that you’re reading propaganda, not news, right? It feels good, but it’s not good for you.

    Like or Dislike: Thumb up 12 Thumb down 1

  19. Jake says:

    Read the Law . But you won’t.

    Like or Dislike: Thumb up 1 Thumb down 11

  20. michael reynolds says:

    @Liberal Capitalist:
    The end game with Trump has been, is, and always will be: the feeding of Trump’s desperately needy ego. His regime will never be about anything else. He is not capable of anything else. This is all the Trump we’re going to get: stupid, ignorant, malignant and so pathetically weak.

    Weakness in men of power is incredibly dangerous. Obama was strong; Trump is pathetic, and pathetic is dangerous.

    Like or Dislike: Thumb up 10 Thumb down 2

  21. michael reynolds says:

    @Jake:

    Hey, dummy. I know you think you’re saying something but you’re not. The law is WHAT THE COURTS SAY IT IS. That’s the way it has been since Marbury vs. Madison. Every school kid in America should know this, why don’t you?

    Like or Dislike: Thumb up 13 Thumb down 6

  22. Pch101 says:

    @Bob@Youngstown:

    What I meant was that they may not have cared at all whether it could actually survive a court challenge. Or if they were really cynical, then they went further and deliberately set it up for failure.

    If the goal had been to make this thing stick, then they would have wise to have taken a bit more time with it and gone through the usual channels in order to make it as robust as possible. What they got instead was something resembling Swiss cheese.

    Perhaps they wanted it to fail for the sake of the spectacle. Or perhaps they’re just morons who didn’t realize that their plan of attack was a loser. The former presumes that they are cunning (or are trying to be) and think that they can spin the failure to their advantage, the latter exposes them for being stupid.

    Like or Dislike: Thumb up 4 Thumb down 1

  23. Daryl's other brother Darryl says:

    @Jake:

    Read the Law

    I don’t have to…three judges read it for me.
    Tell me…what is it about the so-called president that earns such fierce servitude from you?
    Most everything he says is a demonstrable lie. He promised a ton of stuff that was going to happen on the first day and none of it has. His behavior is erratic and irrational. Was exactly is it that has you enraptured with him?

    Like or Dislike: Thumb up 9 Thumb down 2

  24. JKB says:

    @michael reynolds: The law is WHAT THE COURTS SAY IT IS.

    Well, it is mostly a semantics argument after the last couple hundred years of migration away from the law as something part of the culture, but the statutes are what the court says they are. Historically, before the very recent advent of statutes in Anglosphere law, judges determined what the law was based on the cultural norms, but even then the community imposed its discipline through grand juries and jury nullification.

    Statutes enjoy the results of inculcation that they are the same as law and they, like bureaucratic regulations are enforced like the law, but they are a very new invention by the State to justify it’s application of coercion and compulsion.

    How many of us have ever formulated in our minds what law means? I am inclined to think that the most would give a meaning that was never the meaning of the word law, at least until a very few years ago; that is, the meaning which alone is the subject of this book, statute law. The notion of law as a statute, a thing passed by a legislature, a thing enacted, made new by representative assembly, is perfectly modem, and yet it has so thoroughly taken possession of our minds, and particularly of the American mind (owing to the forty-eight legislatures that we have at work, besides the National Congress, every year, and to the fact that they try to do a great deal to deserve their pay in the way of enacting laws), that statutes have assumed in our minds the main bulk of the concept of law as we formulate it to ourselves. I guess that the ordinary newspaper reader, when he talks about ‘laws” or reads about “law,” thinks of statutes; but that is a perfectly modem concept; and the thing itself, even as we now understand it, is perfectly modem. There were no statutes within the present meaning of the word more than a very few centuries ago

    Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of “isms” and reforms — full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States — the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law passed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow.

    Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute
    by Frederic Jesup Stimson (1910)

    Like or Dislike: Thumb up 1 Thumb down 5

  25. Pete S says:

    @Pch101:

    Or if they were really cynical, then they went further and deliberately set it up for failure.

    I don’t think Trump could intentionally fail, he is not into planning that far ahead. But I don’t think Bannon is an idiot, and he has spoken over and over again about already being at war. No administration is going to be able to stop every possible terror threat no matter how competent they are. This sequence has given the Trump administration a scapegoat when that next attack happens. That could have been the plan all along. Trump fans like Jake will never see through that.

    Like or Dislike: Thumb up 5 Thumb down 0

  26. drach says:

    @michael reynolds: You appear to be the one that missed high school civics.
    “The judicial branch interprets the meaning of laws, applies laws to individual cases, and decides if laws violate the Constitution. The judicial branch is comprised of the Supreme Court and other federal courts. Supreme Court – The Supreme Court is the highest court in the United States.” According to this their function is not to make up laws.

    Like or Dislike: Thumb up 1 Thumb down 12

  27. michael reynolds says:

    @drach:

    Did I say they ‘made’ laws? Keep up, huh? The laws – the existing laws – are interpreted by the courts. Therefore the laws are what the courts say they are. Which would make me correct.

    Like or Dislike: Thumb up 10 Thumb down 2

  28. CSK says:

    @Mu:

    It was a 700-word blog post Trump quoted in the mistaken belief it supported his position.

    I mean, seven…hundred…words. You could hardly expect him to read the whole thing, could you? Or understand it even if he had.

    Like or Dislike: Thumb up 14 Thumb down 0

  29. Pch101 says:

    @Pete S:

    Your position supports the failure-by-design theory.

    In many respects, Trump is better off if the travel ban fails, as he can blame everyone else for the failure and attempt to claim an “I told ya so” if there is a terrorist attack.

    In contrast, it would be more difficult to deflect blame for an attack if he gets his way, as he has to own the policy.

    At this point, Trump’s fans are likely to blame everyone except him if his executive orders are killed by the courts, so a failure ends up becoming a sort of win, at least for now. (This winning-by-losing routine should eventually backfire if he fails at just about everything time and time again, but he isn’t there yet.)

    Like or Dislike: Thumb up 5 Thumb down 0

  30. michael reynolds says:

    Every time some Trumpie toddles up with his tiny brain full of some Breitbart bullshit and intersects with reality they get hammered. How many times do you have to be proven wrong before it begins to occur to you that neither you, nor your ‘sources’ know WTF they’re talking about?

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 2

  31. Daryl's other brother Darryl says:

    @Pch101:

    Trump’s fans are likely to blame everyone except him

    Of course…just like Bush kept us safe for 8 years according to his fans.
    And a Republican Congress will never do an unbiased investigation…like when they investigated 9/11 but refused to look at anything but intelligence failures.
    Truman’s idea of the buck stopping on the so-called presidents desk is laughable with this administration.

    Like or Dislike: Thumb up 4 Thumb down 0

  32. Daryl's other brother Darryl says:

    @michael reynolds:

    How many times do you have to be proven wrong

    de·lu·sion
    dəˈlo͞oZHən/
    noun
    an idiosyncratic belief or impression that is firmly maintained despite being contradicted by what is generally accepted as reality or rational argument, typically a symptom of mental disorder.

    A symptom of mental disorder, indeed.

    Like or Dislike: Thumb up 5 Thumb down 1

  33. Kev says:

    Angry accusations of racism, misogyny, political bullying, plus all the other deadly sins thrown at the new president, have two main sources. These people do not know how, or do not wish, to think for themselves; they depend for their opinions on the ‘authority’ of well-placed and influential intellectual gurus. This explains the cognitive dissonance sen o often on the Left; without it, how can you protest Trump’s sexism while making common cause with Islamic groups, whose sexism is wovn into their very fabric. The impending loss of this pre-programmed pattern of approved and endorsed intellectual functioning frightens and angers them. What we see, operating at a physiological or gut level, is a Pavlovian mass reflex.

    And there is another source, a philosophical one, which represents the profound, fundamental and irreconcilable difference in the weltanshauunung between the progressivistas — ‘dependents’, as I call them — and creative people like Donald Trump. This source has a name, a well-formulated philosophy, a body of literature and, what’s more, a substantial following. This particular philosophy and its followers were derided, denigrated and, as often as not, prohibited by the totalitarian regimes of both the Soviets and the Nazis. Needless to say, it was hated by progressives all over the world, who accused its followers of lack of empathy, of egotism and of a refusal to follow the directives of the Politburo.

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 22

  34. drach says:

    @michael reynolds:
    That is what we love about you, Michael. your complete inability to comprehend even the simplest of concepts.

    Poorly-rated. Helpful or Unhelpful: Thumb up 2 Thumb down 19

  35. Surreal American says:

    @Kev:

    — and creative people like Donald Trump.

    I guess that’s one way to look at Trump’s history of prevarication.

    Like or Dislike: Thumb up 12 Thumb down 0

  36. Pch101 says:

    @Kev:

    Word salad = empty calories. So sad. Terrible!

    You would be wise to find a new chef with some talent in the kitchen, along with some better ingredients.

    Like or Dislike: Thumb up 13 Thumb down 1

  37. slimslowslider says:

    @drach:

    What I love about Michael is that he drives you guys f’n nuts.

    3-0

    Highly-rated. Helpful or Unhelpful: Thumb up 24 Thumb down 1

  38. KM says:

    @Kev:
    Wow, that’s a lot of navel gazing to come up with nothing of substance. Somebody’s pretending to be an intellectual this morning.

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  39. gVOR08 says:

    @Jake: Sorry, couldn’t read your link past the subtitle:

    Black-robed politicians on the Left Coast handcuff Trump, keeping the borders wide open for terrorists.

    If the writer, and you, fell for this stupid strawman, why should I read any further? The choice is not between Trump’s Orders and Gross Wall and “wide open” borders, the choice is between our current tightly controlled borders or the same borders with silly, pointless gestures from Trump added on.

    Snap quiz, Jake:
    By roughly what percentage did the illegal immigrant population in the U. S. grow under Obama?

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 1

  40. Pch101 says:

    This Reynolds-Drach thing reminds me of an recent exchange with “Jack” in which he tried to rebut me by quoting a source that essentially said the same thing that I had said.

    Reynolds said that the courts determine the meaning of the law. “Drach” tries to prove him wrong by citing a passage that says that courts determine the meaning of the law, obviously thinking that this somehow contradicts Reynold’s point even though it actually supports it. What a maroon.

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 0

  41. michael reynolds says:

    @Kev:

    Oh, is that what you think, is it? Look at this:

    Angry accusations of racism, misogyny, political bullying, plus all the other deadly sins thrown at the new president, have two main sources. These people do not know how, or do not wish, to think for themselves; they depend for their opinions on the ‘authority’ of well-placed and influential intellectual gurus. This explains the cognitive dissonance sen o often on the Left; without it, how can you protest Trump’s sexism while making common cause with Islamic groups, whose sexism is wovn into their very fabric. The impending loss of this pre-programmed pattern of approved and endorsed intellectual functioning frightens and angers them. What we see, operating at a physiological or gut level, is a Pavlovian mass reflex.

    And there is another source, a philosophical one, which represents the profound, fundamental and irreconcilable difference in the weltanshauunung between the progressivistas — ‘dependents’, as I call them — and creative people like Donald Trump. This source has a name, a well-formulated philosophy, a body of literature and, what’s more, a substantial following. This particular philosophy and its followers were derided, denigrated and, as often as not, prohibited by the totalitarian regimes of both the Soviets and the Nazis. Needless to say, it was hated by progressives all over the world, who accused its followers of lack of empathy, of egotism and of a refusal to follow the directives of the Politburo.

    If you are too stoopid to write your own thoughts, at least don’t insult us by assuming we can’t sense a bit of plagiarism, or quickly locate its source.

    Christ Trumpies are dumb.

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

  42. Kev says:

    @michael reynolds:

    If I put a link people here are so closed minded they would never read it. It’s an echo chamber here.

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 24

  43. slimslowslider says:

    @Kev:

    BUSTED

    Like or Dislike: Thumb up 14 Thumb down 1

  44. Daryl's other brother Darryl says:

    @Kev:

    people here are so closed minded they would never read it.

    No, not at all. But most rational people do consider the source. I can only speak for myself but I’m not going to waste my time reading radical extreme right wing nonsense…e.g. Jakes link to a post that said “the borders are wide open for terrorists”. Easily debunked nonsense.
    As for your piece of plagiarism…I didn’t get past the first sentence,.

    Angry accusations of racism, misogyny, political bullying,

    Those aren’t accusations…they are easily provable facts…provable by the so-called presidents own actions and words.

    It’s an echo chamber here.

    I suspect the truth is that you are used to, and most comfortable in, the right wing echo chamber where you hear exactly what you want to hear…and not unpleasant facts.

    Highly-rated. Helpful or Unhelpful: Thumb up 18 Thumb down 0

  45. michael reynolds says:

    @Kev:

    Gee, if we’re too dumb to follow a link I wonder how I was able to out you as a plagiarist in about a minute?

    Duuuuuuh.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 2

  46. al-Alameda says:

    @Kev:

    If I put a link people here are so closed minded they would never read it. It’s an echo chamber here.

    That’s interesting. The modern conservative movement is an echo chamber of half-truths, alternative-news, and talking points.

    Like or Dislike: Thumb up 11 Thumb down 1

  47. Kylopod says:

    @Kev:

    This explains the cognitive dissonance sen o often on the Left; without it, how can you protest Trump’s sexism while making common cause with Islamic groups

    Right, because the only people who should be permitted to enter the country are people one agrees with on everything, and anyone who doesn’t hold by this principle is guilty of “cognitive dissonance.”

    Like or Dislike: Thumb up 5 Thumb down 0

  48. Neil Hudelson says:

    @Melania:

    If I put a link people here are so closed minded they would never read it. It’s an echo chamber here.

    Uh huh. And your reason for not attributing it to an author or source? You know, the standard:
    “Quote”
    -[Author]
    ?

    Sure, you definitely weren’t trying to pass it off as your own.

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 0

  49. Mu says:

    BTW Kev, it’s Weltanschauung, next time copy from someone who can spell them for’n words.

    Like or Dislike: Thumb up 9 Thumb down 0

  50. Kev says:

    Try this for cognitive dissonance.

    https://www.youtube.com/watch?v=vln9D81eO60

    Like or Dislike: Thumb up 0 Thumb down 7

  51. Kev says:

    @Mu:

    Your mother must be proud of you. Such hate.

    Like or Dislike: Thumb up 0 Thumb down 9

  52. Kylopod says:

    @Kev:

    If I put a link people here are so closed minded they would never read it.

    If we’re that close-minded, why would we read it either way?

    And FYI, I have taken the time to read links posted here to articles on far-right sites. I did so just a few days ago.

    Like or Dislike: Thumb up 7 Thumb down 0

  53. Daryl's other brother Darryl says:

    @Kev:
    Shorter Kev:
    Here’s something that sounds impressive, but I’m not smart enough to even question the facts it is based upon. (surely you won’t notice that I plagiarized it.)
    And, hate.

    Like or Dislike: Thumb up 8 Thumb down 0

  54. michael reynolds says:

    @Kylopod:

    If we’re that close-minded, why would we read it either way?

    No, stop! We’re going to get one of those early Star Trek situations where a computer presented with a conundrum explodes in a shower of sparks! Do we want Kev exploding and spraying the place with pumpkin shrapnel? Well, do we?

    Hmmm. Yeah. Kinda do.

    Like or Dislike: Thumb up 9 Thumb down 0

  55. Paul L. says:

    Shorter Ninth Circuit Court of Appeals: Aliens (Illegal or Otherwise) have the same Rights as US Citizens.

    Poorly-rated. Helpful or Unhelpful: Thumb up 0 Thumb down 16

  56. Pch101 says:

    @Paul L.:

    Are a hereditary monarch of the kingdom of idiots, or did you stage a coup in order to take the crown?

    Like or Dislike: Thumb up 8 Thumb down 0

  57. HarvardLaw92 says:

    @Jake:

    I have, in exhaustive detail, for over two decades now

    Would you like to actually make an argument about the law, since you (like Jack) seem to believe yourself qualified to do so?

    Like or Dislike: Thumb up 14 Thumb down 0

  58. Franklin says:

    @Kylopod: Also, not discriminating based on religion is not remotely the same as “making common cause with Islamic groups.” I almost think the person who wrote that is dumber than Kev, if possible.

    Like or Dislike: Thumb up 8 Thumb down 0

  59. Ebenezer_Arvigenius says:

    As if we needed a link. That special form of conceited intellectual mediocrity is instantly recognizable as Randianism by its stench alone.

    Like or Dislike: Thumb up 7 Thumb down 0

  60. Tyrell says:

    Those judges just opened the gates:
    “Another horse, fiery red went out. And it was granted to the one who sat on it to take peace from the earth, and that people should kill one another; and there was given to him a great sword”
    Revelation 6: 4 NKJV

    Poorly-rated. Helpful or Unhelpful: Thumb up 0 Thumb down 15

  61. slimslowslider says:

    @Tyrell:

    Oh good lord.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 0

  62. Blue Galangal says:

    @slimslowslider:

    slimslowslider says:
    Friday, February 10, 2017 at 16:09
    @Tyrell:

    Oh good lord.

    Seriously: the best and only response to that.

    Like or Dislike: Thumb up 9 Thumb down 0

  63. Liberal Capitalist says:

    @Neil Hudelson:

    Sure, you definitely weren’t trying to pass it off as your own.

    Well, they wouldn’t be the only ones that have been caught plagiarizing. Our new bitter-winner conservatives are cut-and-paste patriots

    And apparently, the Republican Congress is okey-doke with it. Betsy DeVos has set a fine example for students nationwide that plagiarism is the way to succeed.

    source: http://www.cnn.com/2017/01/31/politics/betsy-devos-plagiarism-obama-official/

    Like or Dislike: Thumb up 5 Thumb down 0

  64. grumpy realist says:

    @drach: I suggest you look up the definition of “Common Law country” before spilling any more verbiage.

    Like or Dislike: Thumb up 4 Thumb down 0

  65. Mr. Bluster says:

    @Tyrell:..The Bible was written by human beings.
    Human beings make mistakes.

    Like or Dislike: Thumb up 3 Thumb down 0

  66. Kev says:

    Too funny.

    https://theconservativetreehouse.com/2017/02/10/ninth-circuit-court-now-demands-it-be-protected-from-itself/#comments

    Oh, the winning… it’s often too funny. The Ninth Circuit Court of Appeals is now independently, on its own impetus, requesting an internal vote on a full panel en blanc hearing to review its own decision.

    Additionally, the full ninth are asking the Trump administration to file an additional brief telling the court why the three member original appeals ruling authority was wrong. In essence, the smart judges know what wasn’t considered, and are now looking for an out.

    You just can’t make this stuff up.

    Like or Dislike: Thumb up 0 Thumb down 11

  67. HarvardLaw92 says:

    @Kev:

    You (and your armchair blogger source) clearly have zero comprehension of 9th Circuit rules of procedure, which isn’t surprising given how regularly you guys seem to misinterpret things.

    Helpful hint: This is NOT the 9th Circuit requesting an internal vote with regard to en banc process on its own impetus. 9CCoA rules of procedure make it mandatory that a sua sponte request from a single judge (important concept, so write that down & read it until you understand it) be submitted to the active judges (currently numbering 25) on the court for a vote. The briefings from the parties are also requested according to those rules of procedure.

    So, what you actually have here is mandated by the court’s rules and has been set into motion by a single judge (my guess is Kosinski or Bybee) on the court. In order for an en banc hearing to actually be held, 13 of those 25 have to vote in favor.

    The bloc of active judges on the court is currently comprised of:

    1 Carter nominee

    1 Reagan nominee

    10 Clinton nominee

    6 Bush II nominees

    7 Obama nominees

    18 out of those 25 who will be voting were nominated by Democrats, so I hope you didn’t order your champagne just yet.

    Like or Dislike: Thumb up 12 Thumb down 0

  68. michael reynolds says:

    @Kev:

    So, again, your interface with reality is not going well for you. The question now is whether you’re a stupid bird or a smart bird. A stupid bird slams into the glass again and again until it’s dead, removing itself from the gene pool. A smart bird thinks, “Ouch, let’s not do that again.”

    So far you’ve slammed your beak into the glass twice.

    Like or Dislike: Thumb up 8 Thumb down 0

  69. Pch101 says:

    I see that the right-wing media is having a meltdown over this ruling, which explains a lot.

    Kev is a good obedient follower, trying to educate the world about something that he does not understand because he’s an order taker who is doing what he has been toldd. It’s kinda cute, but it would be more useful if he would bring fries, instead.

    Like or Dislike: Thumb up 3 Thumb down 0

  70. HarvardLaw92 says:

    @michael reynolds:

    You should read the commentary on the blog that this nimrod cited. It’s highly amusing.

    99% of these idiots don’t have the slightest idea what is going on – they actually seem to think that this would be an en banc hearing on the merits as opposed to an en banc rehearing of an application for a stay of a TRO that’s going to expire soon anyway.

    Like or Dislike: Thumb up 6 Thumb down 0

  71. HarvardLaw92 says:

    @michael reynolds:

    My favorite one:

    He could possibly go over SCOTUS and bring it to FISA Court

    :roll:

    These people are 100%, bona fide, dyed in the wool stupid.

    Like or Dislike: Thumb up 8 Thumb down 1

  72. gVOR08 says:

    @michael reynolds: I just skimmed Kev’s little essay. I thought he might be going for von Hayek or Glenn Beck’s muse, Skousen, or one of the justifiably obscure writers surfacing with the Alt-Right.. But Ayn Rand? As Lilly von Schtupp said, “Oh… how ordinawy.”

    Like or Dislike: Thumb up 5 Thumb down 0

  73. michael reynolds says:

    @HarvardLaw92:
    The problem with attempting to discuss issues with these people is their utter cluelessness. It’s like teaching algebra only to discover that the class can’t add or subtract.

    Like or Dislike: Thumb up 4 Thumb down 0

  74. Jen says:

    @HarvardLaw92:
    @michael reynolds:

    I’m pretty sure that Conservative Treehouse is where people who don’t understand what’s being said on Infowars end up. I’ve had discussions with a few of friends-of-friends who cite that source on FB, and they seem to fall under the “I’ve worn dresses with higher IQs” category cited in A Fish Called Wanda.

    Like or Dislike: Thumb up 1 Thumb down 0