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Are there any adults in the room?

February 10, 2017

In a ruling on the legal appropriateness of a stay granted by a lower court judge, the Ninth Circuit ruled against the government. The opinion  cited case law in a number of prior decisions as proof that lower courts have the right to curtail actions by the government even when those actions are normally reserved to the executive branch of the Federal government.

Although the decision was hardly unexpected, given the tone, scope and tenor of the Court’s questioning of the government’s counsel, the real question is where does the President, i.e. the government go now?

As noted in a previous post, the government’s attorney was clearly unprepared to argue the appellate case, especially given that the appeals court decided not to even consider the oft-cited statute on which the government based its defense.

The state’s standing to sue seemed to be established based on which side could prove the most immediate threat of harm, not whether they had the constitutional ability to bring the action in the first place.

As odd as that is, what is just as odd although less clear, is whether the opinion intended to confer constitutional protections afforded to legal citizens of the United States unto persons who are not citizens and indeed have never even set foot in the country.

A visa is not a green card.  It is essentially a ticket to enter and travel within the borders of the country, subject to certain restrictions.

Then there is the question of intent.

Washington State and the other plaintiffs introduced into evidence certain statements made by candidate Trump during the campaign as proof that his intent as President was to effect a de facto religious ban.

The government argued that because the order affects members of any religion who live only in the seven identified nations, it is geographically based.

The appellate panel seemed to give more weight to the state’s interpretation.

That seems somewhat beyond the scope of the basis for ruling on whether (a) the states had standing to bring the suit and (b) whether the President has an overarching constitutional right to issue the order that overrides the rights of the states of Washington and Minnesota to object to it, particularly when the objection was based on the economic impact on the states.

Whatever.  The question is, should the President make this into a Supreme Court-level case just to prove a point, or should the government simply re-issue the order with the changes made on the fly incorporated into the new order?

Given that the Supreme Court is currently ideologically tied, and will probably still be that way before nominee Gorsuch can be confirmed, the latter course might be preferable.

Although President Trump immediately indicated via his personal Twitter account his intention to go forward with legal challenges, in a subsequent statement, he said he had not consulted with his newly confirmed Attorney General, making one wonder if he forgot he has one now.

There are any number of reasons to pursue the case, but there are an equal number of reasons to just drop the thing now, not the least of which is the precedent-setting nature of the argument.

Whatever the reasons, pro or con, it seems that the way this is handled now is going to set the judicial tone for the next four years and beyond.

As noted in a previous post on Tuesday, going to court without all your ducks marching in formation is not a good way to prevail, and the Justice Department attorney clearly was under-prepared.

Unless the Justice Department can do a better job of trial preparation in the future, maybe this is the time to take a deep breath and start over.

The President was elected to put the brakes on the leftward slide of the country.

One might compare that task to parents trying to get their kids back in line after they had spent a week being spoiled rotten by their doting grandparents.

What the country has seen so far from the left is the mother of all temper tantrums. It remains to be seen whether the administration has the maturity necessary to change that behavior so that it creates the  lasting change necessary to preserve the United States as its founders conceived it.

This issue is somewhat akin to a pedestrian who steps out in front of traffic just because the light was green for him.

Having the legal right-of way doesn’t protect you from being run over by a truck.

From → op-ed

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