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Judges Do Not Make National Security Policy

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FW:  Feb. 9, 2017

Trump’s Immigration Executive Order Is Both Legal and Constitutional

If you want to see the difference between a federal judge who follows the rule of law and a federal judge who ignores laws he doesn’t like in order to reach a preferred public policy outcome, just compare the two district court decisions issued in Washington state and Massachusetts over President Donald Trump’s immigration executive order.

Despite what Judge James Robart of the Western District of Washington says, Trump acted fully within the statutory authority granted to him by Congress. The temporary restraining order issued by Robart on Feb. 3 is unjustified and has no basis in the law or the Constitution.

This fact is obvious from an examination of his seven-page order, which contains absolutely no discussion whatsoever of what law or constitutional provision the president has supposedly violated. 

Unlike Robart, who totally ignored the federal statute (8 U.S.C. §1182(f)) cited by Trump in his executive order, Gorton bases his decision denying the temporary restraining order on an examination of the extensive power given to the president under that statute, which gives the president the authority to suspend the entry of any aliens or class of aliens into the U.S. if he believes it “would be detrimental to the interests of the United States.” And he can do so “for such period as he shall deem necessary.”

Analysis Of Today’s Court Argument On Trump’s Immigration Order, Or, Trump Needs To Shut His Yap

Standing — It sounds to me as though there are not two votes for standing based on parens patriae doctrine, but there are likely at least two (possibly three) votes for standing based on the states’ proprietary interests.

Scope of the order — A lot of time was spent (and possibly wasted) discussing whether the court was going to treat the District Court’s order as a TRO (temporary restraining order), as the District Court characterized it, or as a preliminary injunction, due to the length of the stay already ordered. This probably is not too significant an issue, but may have some relevance as to the length of the injunction if it is left in place. I think the Court may treat it as a preliminary injunction and write what they called a “reasoned opinion” so this can be taken to the Supreme Court with a full legal analysis in place for review.

Merits — So will the stay remain in place or not?

I’m not sure, but I think it will.

Trump Travel Ban in Federal Appeals Court - Full Hearing - Audio Only

Trump Addresses Law Enforcement Leaders

Even a “bad high school student” would understand the law permitting the president to restrict the entry into the country of people he deems a threat, President Donald Trump said Wednesday morning in Washington, D.C., condemning legal challenges to his travel ban.

“You can be a lawyer or you don’t have to be a lawyer, if you were a good student in high school or a bad student in high school, you can understand this,” Trump said in remarks to a meeting of the Major Cities Chiefs Association. “And it’s really incredible to me that we have a court case that’s going on so long. Again, a bad high school student would understand this. Anybody would understand this.”

The president has signaled earlier that he expected to find allies among police chiefs and other law enforcement officials against the “horrible, dangerous and wrong” legal testing of his controversial executive order.

At the chiefs’ conference, he read a section of the Immigration and Nationality Act of 1952 to a receptive audience while criticizing a panel of federal appeals court judges who are currently challenging the legal basis of his travel ban.

“They are interpreting things differently than probably 100 percent of people in this room,” Trump said.

Earlier in the morning he had tweeted: “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!”

Dershowitz: Overturning Order on Trump Ban Would 'Create Chaos'

"The key issue here is the very narrow one," the Harvard Law School professor emeritus told Erin Burnett on CNN. "Are they going to now say that we withdraw the Washington state injunction and create chaos at the airport, not telling people whether they can stay or go, before we decide this issue?"

"When the United States government decided to act and say to the people coming into the country and to the airport people, act as if this order had never been issued, they sealed their fate," he added. "It was over.

"No court is going to overturn that and create chaos.

"I will bet you anything that this court is going to uphold that injunction," Dershowitz said. "How do they decide on the merits? How they decide on the merits, I don't know.

"But no court — conservative, liberal, Democrat — is going to throw it back and say, 'chaos, chaos.' That's not how they behave."

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Appeals Court Rejects Immigrants’ Right to a Lawyer in Expedited Cases

Immigrants who are caught entering the U.S. illegally have no right to legal representation, a federal appeals court in San Francisco ruled on Tuesday.

The Ninth U.S. Circuit Court of Appeals upheld the deportation of a Mexican immigrant who was arrested while crossing into the U.S. in 2012 and returned to his country the following day.

The ruling, from a three-judge panel, came hours before a different Ninth Circuit panel was set to consider an executive order by President Donald Trump that temporary suspended travel from seven countries and halted the admission of refugees.

The ruling Tuesday dealt with whether immigrants caught entering the U.S. illegally have due process rights to legal counsel under the Fifth Amendment, an issue separate from those raised in the executive-order challenge.

Under a 1996 federal law, Customs and Border Protection officers can use a process called “expedited removal” to swiftly deport immigrants who are caught within 100 miles of the border without valid entry documents and who have been in the U.S. fewer than 14 days.

Immigrants subject to expedited removal receive no hearing, see no judge and have no right to appeal. Nearly half of all removals from the U.S. follow this process, according to the Department of Homeland Security.​

Senate Votes To Gag Elizabeth Warren After Anti-Sessions Outburst


Following a scathing speech against Trump's nominee for Attorney General, Senate Majority leader Mitch McConnell said Senator Elizabeth Warren had "impugned the motives and conduct of our colleague from Alabama," violating the so-called 'Rule 19'. By a vote of 49-43, Senator Warren was then barred from speaking on the floor until Senator Sessions nomination debate is complete (likely tomorrow evening).

“The senator has impugned the motives and conduct of our colleague from Alabama,” McConnell said from the Senate floor.

“I call the senator to order under the provisions of Rule 19.”

Under the Senate’s “Rule 19,” senators are not allowed to “directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator."