The president bullies on: Saturday must be Bully the Federal Courts Day

Submitted: Feb 05, 2017
By: 
Badlands Journal editorial board

 Donald J. Trump 

@realDonaldTrump

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

5:12 AM - 4 Feb 2017

 

But, Mr. President, judges' opinions, in a legal system based on English Common Law, "essentially" make the law and enforce it. The executive branch of the federal government is "essentially" co-equal with the legislative and judiciary branches. There is no "essential" authority in the Constitution for executive orders, however, because they are a source of law they are subject to judicial review. At the juncture of the executive order and the court, things get a little muddy, which leaves things, inescapably, to the discretion of judges -- their "judgment," you might say.

 

This Note argues that, in the absence of a thicker jurisprudential conception of the executive order, doctrinal asymmetries that heavily favor executive power have emerged. These asymmetries carry costs and therefore merit closer attention. -- Erica Newland, "Executive Orders in Court," Yale Law School Journal, April 20151.

Some commentators have begun to mention the shape of the judicial situation in which this executive order and the federal district court restraining order issued to stop it occurs.  The decision of the U.S. District Court for the Western District of Washington will be appealed by the US Department of Justice to the  United States Court of Appeals for the Ninth Circuit. From there it could go for a final ruling to the US Supreme Court. There, if the nominee for the ninth seat on the bench has not been approved yet by the US Senate, the decision could be decided along party lines, leading to an evenly split court, which would mean that the appellate court's decision would hold. Given the Ninth Circuit Court's reputation, the odds could be in favor of a decision against the executive order, against the travel ban and against the president.  The game appears to be on: Trump and Whoever is behind the curtain vs. the U.S. Constitution. -- blj

 

2-4-17

New York Times

Trump Officials Move to Appeal Ruling Blocking Immigration Order

 

https://www.nytimes.com/2017/02/04/us/politics/visa-ban-trump-judge-james-robart.html?_r=0

PALM BEACH, Fla. — A day after a federal judge temporarily blocked the White House’s immigration order, the government on Saturday began opening the nation’s doors again to refugees and travelers from seven predominantly Muslim nations even as President Trump unleashed a fusillade of criticism against the court ruling and the Justice Department moved to have it overturned.

On another day of chaotic developments over the week-old order, the State Department reversed its cancellation of visas for people from the seven affected countries and restarted efforts to admit refugees. Aid groups scrambled to take advantage of what they acknowledged might be a brief opportunity for refugees to enter the United States, and small numbers of travelers from the previously banned countries began their journeys, knowing that the judge’s ruling could be reversed at any time.

The developments led Mr. Trump to lash out throughout the day on Saturday, prompting criticism that he failed to respect the judicial branch and its power to exert a check on his authority

In an early-morning Twitter post from his waterfront Florida resort, where he is spending the first getaway weekend of his presidency, Mr. Trump wrote, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

Late Saturday, the Justice Department filed papers notifying the District Court that it would seek to have the United States Court of Appeals for the Ninth Circuit block the lower court’s action. The White House had said earlier that it would direct the Justice Department to file for an emergency stay of the ruling, by Judge James Robart of Federal District Court in Seattle, that would allow continued enforcement of the president’s order.

Judge Robart, who was appointed by President George W. Bush, declared in his ruling that “there’s no support” for the administration’s argument that “we have to protect the U.S. from individuals” from the affected countries — Iran, Syria, Iraq, Somalia, Yemen, Sudan and Libya.

Judge Robart Rules on Immigration Ban

On Friday, Judge James Robart of Federal District Court in Seattle declared that “there’s no support” for the administration’s argument that “we have to protect the U.S. from individuals” from seven predominantly Muslim countries: Iran, Syria, Iraq, Somalia, Yemen, Sudan and Libya.

The judge also barred the administration from enforcing its limits on accepting refugees. The State Department said on Saturday that refugees, including Syrians, could begin arriving as early as Monday. Syrians had faced an indefinite ban under the executive order. His ruling applied nationwide.

Despite Mr. Trump’s vehement criticism of the ruling and the certainty that it would be appealed, the government agencies at the center of the issue, the State Department and the Department of Homeland Security, moved quickly to comply.

Lawrence Bartlett, the State Department’s director of refugee resettlement, wrote in a departmental email that officials were working to rebook travel for refugees who had previously been scheduled to leave for the United States over a three-week period that will end Feb. 17. A State Department official said the extended time frame accounted for the fact that some refugees will have to make difficult journeys back to airports from refugee camps.

Until there is a new order from the courts, the official said, the department will go back to vetting refugees, booking their travel and bringing them to the United States. A United Nations spokesman, Leonard Doyle, said about 2,000 refugees were ready to travel.

Airlines, citing American customs officials, were telling passengers from the seven countries that their visas were once again valid. Those carriers, however, have yet to report an uptick in travel, and there appeared to be no rush to airports by visa holders in Europe and the Middle East intent on making their way to the United States.

Etihad Airways, the United Arab Emirates’ national carrier, said in a statement: “Following advice received today from the U.S. Customs and Border Protection unit at Abu Dhabi Airport, the airline will again be accepting nationals from the seven countries named last week.” Other Arab carriers, including Qatar Airways, issued similar statements.

Seattle Judge Blocks Executive Order

Washington state officials spoke at a news conference outside Federal District Court in Seattle after Judge James Robart temporarily blocked President Trump's immigration order.

A group of advocacy organizations that had worked to overturn the executive order and help immigrants and refugees stranded at airports issued a statement on Saturday afternoon encouraging travelers “to rebook travel to the United States immediately.”

“We have been in contact with hundreds of people impacted by the ban, and we are urging them to get on planes as quickly as possible,” Clare Kane, a law student intern at the Jerome N. Frank Legal Services Organization at Yale Law School, one of the groups involved, said in a statement.

But some officials were being more cautious, advising travelers to wait for further clarity. The American Embassy in Baghdad said it was waiting for additional guidance from Washington. “We don’t know what the effect will be, but we’re working to get more information,” the embassy told The Associated Press in a statement.

The Department of Homeland Security said it had suspended implementation of the order, including procedures to flag travelers from the countries designated in Mr. Trump’s order. It said it would resume standard inspection procedures. But in a statement, the department defended the order as “lawful and appropriate.”

In his first statement on the matter on Friday evening, the press secretary, Sean Spicer, described the judge’s action as “outrageous.” Minutes later, the White House issued a new statement deleting the word outrageous.

Mr. Trump’s Twitter post showed no such restraint. It recalled the attacks he made during the presidential campaign on a federal district judge in California who was presiding over a class-action lawsuit involving Trump University.

Democrats said the president’s criticism of Judge Robart was a dangerous development. Senator Patrick J. Leahy of Vermont, a member of the Judiciary Committee, said in a statement that Mr. Trump seemed “intent on precipitating a constitutional crisis.” Gov. Jay Inslee of Washington, whose state filed the suit that led to the injunction, said the attack was “beneath the dignity” of the presidency and could “lead America to calamity.”

Senator Chuck Schumer of New York, the Democratic leader, said in a statement that Mr. Trump’s outburst could weigh on the confirmation process for Judge Neil M. Gorsuch, the president’s nominee for the Supreme Court.

Until now, Mr. Trump had been comparatively restrained about the multiple federal judges who have ruled against parts of his immigration order, even as he staunchly defended its legality. Some analysts had speculated that he did not want a repeat of the storm during the campaign when he accused Judge Gonzalo P. Curiel of having a conflict of interest in the Trump University case because the judge’s family was of Mexican heritage. Mr. Trump, who had painted Mexicans as rapists and criminals, settled that case after the election.

But on Saturday, Mr. Trump let loose, and in the afternoon he unleashed another volley of attacks on the ruling. In one Twitter message, he questioned why a judge could “halt a Homeland Security travel ban,” which would allow “anyone, even with bad intentions,” to enter the country. An hour later, he complained about the “terrible decision,” saying it would let “many very bad and dangerous people” pour into the country.

Earlier, Mr. Trump had asserted, without evidence, that some Middle Eastern countries supported the immigration order. “Interesting that certain Middle-Eastern countries agree with the ban,” he wrote. “They know that if certain people are allowed in it’s death & destruction!”

The Washington State case was filed on Monday, and it was assigned to Judge Robart that day. He asked for briefs on whether the state had standing to sue, with the last one due on Thursday. On Wednesday, Minnesota joined the suit.

On Friday evening, after a hearing, Judge Robart issued a temporary restraining order, saying it was required to maintain the status quo as the case moved forward. He found that the states and their citizens had been injured by Mr. Trump’s order.

“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax base.

Still, Judge Robart’s order left many questions, said Josh Blackman, a professor at South Texas College of Law in Houston.

“Does the executive order violate the equal protection of the laws, amount to an establishment of religion, violate rights of free exercise, or deprive aliens of due process of law?” Professor Blackman asked. “Who knows? The analysis is bare bones, and leaves the court of appeals, as well as the Supreme Court, with no basis to determine whether the nationwide injunction was proper.”

An appeal was to be filed in the United States Court of Appeals for the Ninth Circuit, which includes the Seattle district where Judge Robart sits. Federal judges in other jurisdictions around the country have issued more limited rulings that temporarily struck down parts of the order, though a federal judge in Boston on Friday upheld it.

While large crowds had yet to materialize at airports, there were individual stories of people trying to enter the country.

Nael Zaino, 32, a Syrian who had tried unsuccessfully for nearly a week to fly to the United States to join his wife and American-born son, was allowed to board a flight from Istanbul and then Frankfurt late Friday. He landed in Boston around 1 p.m. Saturday and emerged from immigration two hours later, said his sister-in-law Katty Alhayek.

Mr. Zaino was believed to be among the first revoked visa holders to enter the United States since the executive order went into effect. His advocates had sought a waiver for him from the State Department, citing family reunification. “Mine must be a very special case,” Mr. Zaino said by phone from Istanbul.

It was, in a sense. But it was also a case of good fortune. As his advocates were pressing the State Department for a waiver, the federal judge in Washington State issued his order.

Iranians, many of them students on their way to American universities, also rushed to book flights to transfer destinations in other Persian Gulf countries, Turkey and Europe. Pedram Paragomi, a 33-year-old Iranian medical student bound for the University of Pittsburgh, who had been caught up in the initial chaos over the travel ban, flew to Frankfurt on Saturday, where he was to transfer to a flight to Boston.

“I’m anxious,” he said from Frankfurt. “The rules keep on changing, but I think I will make it this time.”

The Washington State case, filed by the state’s attorney general, Bob Ferguson, alleged sweeping damages to the state’s economy and communities, but declined to name any individual residents as plaintiffs, as had been the case in the narrower previous cases.

The state made no secret of its intentions with the suit: Mr. Ferguson said that it was intended to neuter Mr. Trump’s order. Standing beside the governor, Mr. Inslee, Mr. Ferguson said his goal was “invalidating the president’s unlawful action nationwide.”

The White House order, the Washington State complaint said, “is separating Washington families, harming thousands of Washington residents, damaging Washington’s economy, hurting Washington-based companies, and undermining Washington’s sovereign interest in remaining a welcoming place for immigrants and refugees.”

Mr. Ferguson phoned several other Democratic attorneys general before filing suit and throughout the week, though none immediately backed his litigation. On Thursday, the Minnesota attorney general, Lori Swanson, announced that her state would join Mr. Ferguson’s suit as a second plaintiff.

Multiple states that wanted to challenge the president’s order spent several days designing narrower legal strategies than Mr. Ferguson’s, worrying that such a broad attack might founder over questions of standing.

Rob McKenna, a former Washington State attorney general, likened Mr. Ferguson’s approach to the legal offensive that Republican state attorneys general mounted against the Affordable Care Act under President Barack Obama.

Mr. McKenna, who is a Republican, said before the judge’s ruling that Mr. Ferguson’s action reflected the more confrontational role state legal officers have played in recent years.

“I think he has a steep hill to climb, to overcome the president’s constitutional and statutory authority to control immigration,” Mr. McKenna said. “But it raises valid questions.”

Reporting was contributed by Alexander Burns, Russell Goldman, Nicholas Kulish and Somini Sengupta from New York; Adam Liptak, Gardiner Harris, Ron Nixon, Eric Lichtblau and Noah Weiland from Washington; and Thomas Erdbrink from Tehran.

 

 

 

2-4-17

The Hill

Trump attacks 'so-called judge' over travel ban ruling

http://thehill.com/homenews/administration/317899-trump-attacks-so-called-judge-over-travel-ban-ruling

President Trump on Saturday issued a new defense of his controversial travel and refugee restrictions, defending the “ban” from the “so-called judge” who halted the order on Friday.

Federal Judge James Robart, appointed by former President George W. Bush and approved by a 99-0 Senate vote in 2004, issued an immediate nationwide restraining order against Trump’s action, which had cut off citizens from seven Muslim-majority nations from entering the U.S.

Civil liberties groups applauded the ruling, but Trump vowed it would be overturned.

Despite the White House insisting this week the Trump order did not constitute a travel ban, Trump defended it as such on Saturday morning:

Donald J. Trump 

@realDonaldTrump

When a country is no longer able to say who can, and who cannot , come in & out, especially for reasons of safety &.security - big trouble!

4:59 AM - 4 Feb 2017

 

Donald J. Trump 

@realDonaldTrump

Interesting that certain Middle-Eastern countries agree with the ban. They know if certain people are allowed in it's death & destruction!

5:06 AM - 4 Feb 2017

 

Donald J. Trump 

@realDonaldTrump

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

5:12 AM - 4 Feb 2017

It’s not the first time Trump has publicly attacked a judge with whom he disagreed.

During last year’s presidential campaign, Trump was criticized by both Republicans and Democrats for citing the “Mexican heritage” of Indiana-born Judge Gonzalo Curiel as a reason he should recuse himself from lawsuits regarding Trump University.

 

2-3-17

The Hill

Federal judge halts Trump travel ban nationwide

 Brooke Seipel

http://thehill.com/blogs/blog-briefing-room/news/317884-washington-state-judge-halts-trump-immigration-ban-nationwide3,759

3.9K

             

A federal judge in Seattle issued a temporary nationwide restraining order Friday stopping President Donald Trump's executive order banning citizens of seven countries from entering the United States.

Judge James Robart, who was appointed by former President George Bush in 2003, ruled the executive order would be stopped nationwide, effective immediately.

“The Constitution prevailed today,” Washington Attorney General Bob Ferguson said in a statement after he ruling. “No one is above the law — not even the President.”

"It's our president's duty to honor this ruling and I'll make sure he does," Ferguson added.

The ruling, made at the request of Washington and Minnesota, is the broadest to date against Trump's executive order.

Ferguson, a Democrat, filed the lawsuit three days after Trump signed the executive order. The suit argued that the travel ban targets Muslims and violates constitutional rights of immigrants and their families.

Lawyers for the government had argued the states lacked standing to sue, 
according to the Seattle Times, and that the order was within Trump's executive powers.

But the judge rejected that argument, saying the states had already suffered harm from the travel ban. He also said the lawsuit challenging the legality of the order has a good chance of succeeding.

"It's a wonderful day for the rule of law in this country," said Washington state solicitor general Noah Purcell, 
according to Reuters.

Trump's action bans people from Iraq, Iran, Syria, Yemen, Libya, Sudan and Somalia from entering the U.S. for 90 days, and temporarily halts the United States' refugee resettlement program for 120 days, while indefinitely suspending resettlement for refugees from Syria.

The order, issued last Friday, immediately stirred controversy when travelers who were en route to the U.S. when it was signed were detained at airports. Protesters demonstrated at airports across the county last weekend.

Trump has argued that the move is necessary to preserve national security.

Critics say the order amounts to a de facto ban on Muslims entering the country.

More than 50 lawsuits have been filed against the order so far, with federal judges issuing temporary injunctions in several states 
to stop the deportations of people impacted by it.

But Robart is the first judge to issue a nationwide injunction, raising the stakes and potentially putting the case on a fast track to the Supreme Court.

The number of people who have been affected by Trump's order remains a point of contention.

During a court hearing in Virginia Friday, a lawyer with the Justice Department said more than 100,000 visas had been revoked under Trump's order, despite the temporary nature of the ban.

The State Department disputed that number, saying less than 60,000 people have had their visas rescinded.

The higher figure was mentioned during a hearing in a lawsuit filed on behalf of two Yemenis who arrived at Dulles International Airport but were sent back to Ethiopia.

The administration has sought to clarify that permanent legal residents of the United States are not subject to the ban, which was a point of confusion in the days after the order was signed.



2-1-17

The Guardian

Trump travel ban

Four states sue Trump administration over 'un-American' travel ban

New York, Massachusetts and Virginia joined Washington state in launching legal challenges against executive order that wreaked havoc at airports at the weekend

Joanna Walters in New York

 

 

 

https://www.theguardian.com/us-news/2017/jan/31/trump-travel-ban-state-lawsuits

 

Four US states are suing the Trump administration over the president’s executive order banning refugees and travelers from a list of predominantly Muslim countries from entering America.

New York, Massachusetts and Virginia on Tuesday joined Washington state on a growing list of states challenging the travel ban that caused chaos at airports in those states and beyond at the weekend as people with valid immigration documents were detained or deported after arriving on flights from overseas.

On Tuesday New York joined a federal lawsuit against Trump’s executive order brought by the American Civil Liberties Union Foundation, the Urban Justice Center and others.

Eric Schneiderman, the New York state attorney general, described the order signed last Friday as “unconstitutional, unlawful, and fundamentally un-American”.

Washington became the first state to sue the White House on Monday. Online retail behemoth Amazon, which is headquartered in Washington, pledged support.

Later on Tuesday, the state of Virginia became a plaintiff in a federal lawsuit filed over an incident on Saturday where two Yemeni brothers arrived at Dulles airport from east Africa with residency green cards, planning to join their father in Michigan, but were blocked by agents enforcing the travel ban and put on a flight back the way they had come. The lawsuit seeks to restore the immigration rights of the brothers and up to 60 others whom lawyers say suffered a similar fate at Dulles at the weekend.

But the state’s intervention also has broader aims, claiming the enforcement of the executive order in general is unlawful and threatens the “health and wellbeing, both physical and economic” of its residents, and its public universities and colleges in particular.

“Virginia has a substantial interest in protecting its public universities and their faculty and students from the academic and fiscal disruption posed by the executive order,” according to the state’s motion.

It complains that the order hampers students who are residents or on student visas from continuing to attend Virginia’s public colleges and universities, and will disrupt academics trying to travel for work, resulting in difficulty in attracting talent to the state and “significant loss of tuition revenue to the commonwealth [Virginia]”, the motion, filed in federal court in Alexandria, stated.

Massachusetts also joined the growing legal effort to block Trump’s order on Tuesday. The state joined a federal lawsuit that had been filed in Boston at the weekend as a result of travelers being detained at Logan airport, including two Iranian academics from the University of Massachusetts Dartmouth.

And the Massachusetts attorney general, Maura Healey, said the state was also filing its own case seeking to have the ban struck down.

“The executive order is harmful, discriminatory and unconstitutional. It discriminates on the basis of religion and national origin,” Healey said at a press briefing at her office.

She used Twitter to declare the travel ban unconstitutional.

“By filing this suit today, we are fighting for the principles that have made America a beacon of hope and freedom for the world,” she added, saying she hoped other states across the country would do the same, reiterating the sentiments in another tweet.

Healey was joined at the press conference by several local academic, business, medical and advocacy leaders, including the University of Massachusetts president, Marty Meehan, who said the executive order undermined the university’s mission and tweeted his support for the federal challenge.

The Massachusetts governor, Charlie Baker, also issued a statement of support for the attorney general’s action.

Friday’s abrupt executive order, signed by Trump around 4.30pm, banned refugees from entering the US for four months and banned refugees from Syria indefinitely. It also barred travelers, initially including permanent US residents, who are citizens of Iran, Iraq, Libya, Somalia, Sudan, Yemen and Syria or dual citizens of those countries and another non-US country from entering America.

Many who were already flying to the US when the order was signed were detained on arrival at US airports, in New York, Los Angeles, Atlanta, Houston, Boston, Seattle and elsewhere. Many were denied boarding on to US-bound flights or were taken off the planes by security officials before the flights took off, citing instructions relayed from border agents in the US, sparking protests in the US at the weekend.

“We are seeing progressive states that want to stand up for their communities and it’s a really powerful action,” said Melissa Keaney of the National Immigration Law Center, which was involved in the federal lawsuit filed against the executive order on Saturday night in New York.

 

NOTE: 

(1) Newland, Yale Law School Journal, April 2015, www.yalelawjournal.org/note/executive-orders-in-court

 

 

 

 

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