Reckless Robart By now everyone will have heard about the ruling of Judge Robart. Leaving aside the fact that he made a nationwide ban on an issue raised by two states and the text of the relevant immigration law which gives plenary power to the President over immigration law, I find his decision legally problematic on three grounds. Not only is it the wrong decision here but the precedent it sets can be used by other judges, whether on the right or the left, in the future. Intent At your first year of law school one of the very first subjects you will discuss is something called statutory construction. In essence it is how to interpret laws and executive orders made by the executive and legislative. To simplify things for everyone, you first limit your view to the statute itself. If there are any ambiguities you then try to divine legislative intent, which the courts normally do by looking at the transcript of the deliberations. In rare situations when you still cannot get the intent by these methods then you go to other factors that may help you divine intent. In this case the muslim ban was not borne out by the text of the order as the word muslim does not appear there. In any case the travel ban was so limited in scope that most Muslim countries like Indonesia, Malaysia, or even Kuwait in the same region are not even affected by it. The judge did not even bother looking for any deliberations nor did he give any credence to the stated intent of the administration which was to ban travel from the most unstable countries in the region. Judge Robart immediately went to statements made by President Trump during the campaign trail to derive legislative intent. What is worse he even gave credence to statements by former Mayor Giuliani, a well known Trump ally, but one that is not part of the administration for corroboration. Think about the implications of this. Any president at any time can have his public statements, even before he became the president, taken and used to provide intent for a certain executive order to have that blocked. What is worse is even his allies can have their statements taken as legislative intent for the president. By the standard Robart is using any comments someone like President Obama even while he was a senator could be used to block his orders. Any comments by Soros, Emmanuel, or any other ally could be used to block executive.orders. By his standard you can block any thing you want. Effectivity In the courtroom the government argued that the travel ban protects the country from terrorists. Robart said he found no support for these claims. Instead of judging based on constitutionality Robart instead judged based on how effective the ban was. I believe this is something he has no right to do. Generally there are two sources where people draw their decision making legitimacy from. Electability or expertise. Congressmen, Senators, and the President make laws and executive orders that they believe is effective and are believed to have the right to do so because they have been elected by the people. The second one is expertise. The various heads of the government agencies and the people working under them are assumed to have expertise on the subject as they were appointed by the president and confirmed by the senate. Judge Robart has neither of these, which is why he was asked to ajudicate based on the constitutionality of the issue and nothing else. There is no limits to their power once the judiciary can strike things down based on effectivity. Do you have a judge that does not like Obamacare? Well he can find that they are not effective in reforming healthcare and strike it down. Do you have a judge that does not like social security? Well he can find that it is not effective at providing a social net and strike it down. Minorities One of the questions of the case was whether or not you could give priorities to religous minorities which were persecuted. The President would normally have the power to do this given that he has wide plenary powers given to him by the legislative to tailor immigration to national interest. Understand the implications of this. If the Germans decided to start gassing their jews again you would not be able to prioritize them for the refugee program. Given that religions are banned , the same argument can also be applied to other divisions such as nationalities or race. If the South Africans decided to massacre their white population you could not give them special treatment. If the Chinese did the same to Tibet you could not either. In fact arguing in this same line of thought it is arguable that you could not even give Syrians special treatment as that would discriminate against everyone else. I am actually stunned at these decisions and the massive judicial overreach that they represent. I do not see anyway they can hold but if they do then the precedent they cause will change our legal system forever.
It's the ninth circus I hope people aren't expecting a reasonable decision. Bring on the Supremes after Gorsuch gets confirmed Trump will get his way all they can do is delay.
And, more strongly, the EO was issued under the powers of the executive granted by standing immigration law. The ruling is nonsense; the 9th circuit is the king of same.
I'll give you likes because of your post but I think you have reached the wrong conclusion. The particular statute that Trump acted under has safe harbor provisions as to some parts of it for travelers in transit. The specific provision did not, but the reality on the ground is that there should have been. The Courts are not reacting so much to the legality of the Order so much as it is the consequences of the manner in which it was implemented. Maintaining the stay minimizes those harms, but does not indicate that merits of the President's powers will go in the way of immigrants. Congress gave the POTUS this power and the number of immigration cases the SCOTUS punts on this issue are legion.
my main problem though with it is that whether it is overturned or not it has already been done so it will have some value as precedent in other cases in the future. - - - Updated - - - if it was just that particular portion as to travellers already in transit they could have just done a stay as to that. I think other courts reached that decision as well.
If the district court's decision is overturned, the precedent stems from the fact that it was overturned.
I think everyone who has impartially looked at the stay ruling thinks it is legally shaky in the long-term. It just buys time. The other related issue seems to be people who have already been legally admitted but have not yet arrived. I posted the other they that I expect to see them to have a moratorium on new visas that is upheld but the ones already granted will come through.
uhm ive seen cases where the precedent used was from a overturned ruling stating that the overruling was wrong. Just like some people use dissent as precedent to argue stuff. - - - Updated - - - like i stated in my article i dont even see how the judge gets to it in the first place.
If you argue that (x) gives you precedent and your opponent notes that (x) was overturned, not only do you lose the argument, you look silly.
Epic job Tsuke, I actually learned alot from this post. Only those who have respect for the rule of law should be on the judiciary. The judiciary, if it exists at all should exist secondary to the Political State.
btw I just want to bring this up. Obama and his surrogates said multiple times that the nohealthcare penalty for the ACA was not a tax. The only way the justices could approve the law was to classify it as a tax. If we were to use the Robart standard on Obama then the justices would not look at the law for intent or deliberations but straight to the public statements and the ACA or at least the individual mandate would have been struck down. This is what the left is arguing for.
The left argues whatever it needs to argue to suit their purpose at hand; the fact that they argue against a position they took an hour or day or week or year ago means nothing to them.
Law is simply politics by another venue. James Robart, foisted upon George W Bush by Washington Senator Patty Murray (D) as a ready, warm, willing and receptive anus for any and all Dem, Liberal, progressive programs, policies and causes celebre. Washington State, the biggest US player in this scheme, gleans an extra 850 million or so per annum in extra foreign student tuition fees jeopardized by The Donald's putting the brakes on these students entry into the US. One reason why Washington State's AG was 'johnny on the spot' with the first lawsuit. The high tech giants, google, microsoft, facebook use the H1B immigrees to sidestep paying the higher salaries demanded by US citizens. It be all about the money. And dear little Chobani Yogurt brings them in by the cattle car load. That little five year old mentally challenged female raped by those pubescent Iraqi immigrees, children of Chobani yogurt immigrees. You can take the boy out of the Seventh century, but you cant take the Seventh Century out of the boy. Remember the chilling screams from the mouths of the Kouachi brothers echoing down the Parisian streets after they had finished their slaughter in the Charley Hebdo offices? "We have avenged the prophet!" If you don't convert to their cultural norms and beliefs, they simply kill you. Bataclan Concert Hall, the Hyper Cacher Market, Nice France on Bastille Day, and more of San Bernardino, Chattanooga, the Pulse Nightclub, and Fort Hood coming to America real soon.
Real Simple ... It has NO binding authority. This guy was hand-picked c/o The Unamerican escapades of Media Matters David Brock who Sean Hannity uncovered last night and his plans.A person got a hold of a meeting Brock held weeks ago, with around 100 very wealthy donors.That meeting was about how Brock intended to EVERY DAY do everything possible to confound and Irritate Trump's presidency.Including looking for a way to Impeach. That Seattle Judge was Not a Republican let alone any conservative.He was horse traded by Democrat Patty Murray for possible passage of other Bush endorsed Judges. Robart is a Radical activist judge and he was selected because he resides in the 9th Circuit Court of Appeals { The Most Radical in the Country }. They also picked him because he was a George Bush appointment. BTW ... Conservatives are uniting efforts to have Federal District Judge James L. Robart : Impeached
