Sunday, February 12, 2017
What's President Trump to do with the Invigoration Order and the Ninth Circuit?
A liberal judge and a circuit court outside the judicial mainstream put the kibosh, at least temporarily, on the President’s Executive Order. I still believe the enjoined order is constitutional, but the rollout was poorly executed. Any decision and action taken needs to set forth the factual and legal basis for the order. The Administration and Justice Department need to detail the legal authority for the Order, the President’s discretion, and the court’s lack of jurisdiction: No longer should the U.S. attorneys have to say they don’t know. Several refugees from the 7 proscribed countries have either committed terrorist acts, or HAVE been arrested prior to committing terrorist attacks, both in Europe and the United States. What are the options? Let’s start with a presumption that no matter what course the Administration chooses, it will be prepared this time. The law and facts support the Executive Order, but neither the Order itself or the government’s lawyers presented a good case for it. The new filings will consist of the 1) 1948 Supreme Court decision in Citizens & Southern Air Lines case 2) The Immigration Nationalization Act of 1952 (The McCarran-Walter) Act 3) The December 2015 Visa Waiver Program Improvement and Terrorist Travel Prevention Act, which listed the 7 countries of Iran, Iraq, Libya, Somalia, Sudan Syria, and Yemen, the 7 countries in the Executive Order 4) President Obama’s 6 month halt in processing visa applications from Iraq, 5) The list in the United States and overseas of the terrorist attacks and planned attacks by refugees from the 7 named countries 6) The Muslin countries representing 85% of the world’s Muslims, which were not named in the Executive Order. They include Egypt, Indonesia, Malaysia, Pakistan, Saudi Arabia, Turkey, the non-Muslim country of India, and the list goes on. It is not an anti-Muslim executive order. 7) Quote Syria’s President Assad about terrorists hiding amont the refugees The normal action would be a quick appeal to the Supreme Court since time is of the essence. These though are not normal times. That approach has its risks. Justice Kennedy hears the emergency appeals from the Ninth Circuit. He’s increasingly unpredictable, plus the standard 4-4 split on the Supreme Court could result in another loss for the President. Tie votes automatically affirm the lower court ruling. The Justice Department could request an en banc hearing from the Ninth Circuit, but the odds are against the government. The Justice Department could proceed to the preliminary injunction hearing scheduled by Judge Robard. Presumably the government’s attorneys would be better prepared this time. If they are, they could present an overwhelming legal and factual case. The judge should reverse his earlier order, but would still probably hold against the Administration. That would clearly appear as a political and not judicial decision. An appeal to the Ninth Circuit panel would probably meet the same fate. This approach will take time. The easiest solution is to withdraw the existing executive order followed by issuing a new order, narrowly tailored and carefully drafted. The only problem with that approach is that it leaves on the books the dangerous precedence of the Ninth Circuit. A fifth approach would be to have the Justice Department request Chief Justice Roberts to consolidate all the pending cases in one court, preferably outside the Ninth Circuit. The Chief Justice has the power to do so. The Democrats should not rejoice. It is only a temporary, pyrrhic victory. We can view it as a rookie mistake. The Justice Department was in transition at the time. President Trump is very smart. He won’t make the same mistake twice. He will be more prepared in the future, His Administration will be dotting the “I’s” and crossing the “t’s” on future orders. The Ninth Circuit has four vacancies. President Trump will name conservatives to those positions.