MURDER, POLITICS, AND THE END OF THE JAZZ AGE
by Michael Wolraich
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MURDER, POLITICS, AND THE END OF THE JAZZ AGE by Michael Wolraich Order today at Barnes & Noble / Amazon / Books-A-Million / Bookshop |
The Ninth Circuit's 28-page decision does not address the ultimate merits of the president's executive order, but it is a powerful reaffirmation of the bedrock principles that the president's power is always subject to what is provided for in the Constitution, and that interpretation of constitutional authority is always a matter for judicial review. Briefly, here are what I see as the president's four options in response to the 9th Circuit's decision:
First, the Adminstration can immediately appeal to the Supreme Court to challenge the denial of the Administration's request to lift the stay. That would not be a decision on the merits, and would require the Administration to convince one of the four liberal justices to overturn the Ninth Circuit.
Second, it could request en banc reconsideration by a panel of 11 9th circuit justices, and then appeal that decision to the Supreme Court (which would leave the Administration in the same position as the first option--assuming the en banc panel were to reach the same decision as the initial 3-judge panel).
Third, the Administration can present its case to the district court on the merits and/or wait for a more favorable decision in a circuit other than the 9th circuit, and use that decision to defend the executive order by creating a split in the circuits warranting Supreme Court review on the merits.
Fourth, the Administration can tear up the current executive order and rewrite one that will: a) be indisputably lawful; b) have a real relationship to real terror threats; c) help to foster a consensus instead of dividing Americans like the current order is helping to do.
I'm not picking 4 if I'm a betting person.
Comments
Interesting, CNN is reporting that "nothing is off the table" when asked if the president would consider a redraft of his order:
by Bruce Levine on Fri, 02/10/2017 - 11:48am
Interesting, thanks for the expert analysis, Bruce. Let's not forgot that Trump is all about "winning." What his order actually accomplishes is essentially irrelevant to him as long as he can create the perception that he had defeated the judges who ruled against him.
So what counts as a win in this context? Certainly not backing down and amending the order. He wants a favorable ruling that validates (or appears to validate) his policy. Getting the 9th circuit panel overturned would be the clearest "win" but that seems unlikely. He could probably live with a split Supreme Court decision that enables him to rage against liberal justices, but a lopsided decision would be the 3rd straight loss. Not good. So I'll bet on option 3--trying to get a more favorable decision on the merits from another court.
PS Or he could just defy the courts, but I'm trusting that we have haven't reached that level of societal collapse (yet).
by Michael Wolraich on Fri, 02/10/2017 - 12:12pm
Thanks Michael, not much expert analysis at all, but I think it helps to consider what his options are. I don't really seeing the president stepping away from a challenge in the courts -- unless he sees a way that still (in his mind) makes him look good. On the other hand, under the chaos theory, and perhaps not inconsistent with prudence in this case, he could draft a new order and try to advance a more favorable court posture in another circuit at the same time. Stay tuned.
by Bruce Levine on Fri, 02/10/2017 - 12:39pm
Optimist!
by Flavius on Fri, 02/10/2017 - 12:42pm
P.S. On your P.S., no thank heavens, I don't think we're there yet, but at what point does erring on the side of over cautiousness become your best choice when demagogic (sp?) echoes become ordinary course.
by Bruce Levine on Fri, 02/10/2017 - 12:43pm
By the way, this is a very powerful sentence:
by Bruce Levine on Fri, 02/10/2017 - 12:53pm
Interesting, NBC reporting that a redraft is being prepared.
by Bruce Levine on Fri, 02/10/2017 - 1:04pm
If they indeed go the redraft route (which is an unsurprising in-the-back-pocket plan B), it's unclear how they could achieve an EO that would not still require judicial review. Not at this point, since muzzling Trump is apparently an alt-realistic possibility.
by barefooted on Fri, 02/10/2017 - 3:18pm
It's hard to see a scenario where the president would construct an executive order that would satisfy what most folks I think would be reasonable, because of who is as you note. On the other hand, I just think it will be more difficult for a court to strike down a revised order that appears to most Americans to have been "narrowed". There's likely to be quite a bit of dancing going on.
by Bruce Levine on Fri, 02/10/2017 - 4:14pm
Well this is an interesting twist. A single judge has, sua sponte (on his or her own) requested a vote as to whether the 9th circuit should give en banc reconsideration of the stay denial. I've never seen this happen before. Apparently the judge making the request is permitted to remain anonymous.
by Bruce Levine on Fri, 02/10/2017 - 6:26pm
Could that be a judge from the 9th Circuit, is this something someone in the same court can do? Because to me that would suggest that judge has a good inkling of what would happen if all voted. They all would presumably have a good bead on how their peers think politically, is what I am thinking.
by artappraiser on Fri, 02/10/2017 - 6:32pm
Good questions, only one I can answer is that it is a 9th circuit judge. I cannot see the entire panel reversing a unanimous decision, but it's hard to predict things these days.
by Bruce Levine on Fri, 02/10/2017 - 6:36pm
duplicate
by Bruce Levine on Fri, 02/10/2017 - 6:38pm
I should explain that there's a two-step process. First, the court will vote on whether to give en banc reconsideration, and then such reconsideration actually takes place, i.e. it's not like voting to reconsider en banc is a vote to reverse the decision of the 3-judge panel.
by Bruce Levine on Fri, 02/10/2017 - 6:37pm
thanks for answering, Bruce. I think that's useful information to know in general, not just for this case.
by artappraiser on Fri, 02/10/2017 - 6:41pm
Thanks for asking. . .
by Bruce Levine on Fri, 02/10/2017 - 6:42pm
What a relief! I was wondering what the fuck I thought I had heard (or maybe what I read in a passing chyron...) I understood to have happened, whch I didn't even know could happen...Isn't the judge, albeit one of the brethren or sistren (schwertzen?) a "stranger to the litigation"? Why should the losing appellant be forced in this direction, the more so as this particular litigant is such a putz that he can write is own order (literally....) and still is left stumbling around in the appellate thicket, in this case not even through tripping over his own dick as is his wont.
by jollyroger on Sat, 02/11/2017 - 8:09pm
Snopes Fact Check, Feb. 10:
Does the Supreme Court Overturn 80 Percent of Ninth Circuit Court Decisions?
Some confusing wording suggested the Ninth Circuit Court of Appeals' decisions almost never "stick."
The answer is nope, and they've done a lot of work to prove it.
The important takeaway, though, is that it's not true that it's any sort of "rogue" court:
by artappraiser on Sat, 02/11/2017 - 3:17pm
Interesting stats, AA. The other thing is that if the case were to be appealed in its current posture, the Court would be far less likely to overturn it (i.e. the stay), as compared to an appeal on the merits.
by Bruce Levine on Sat, 02/11/2017 - 3:21pm
Bruce: did you see that Trump's surfing took him to Lawfare blog! No kidding, he tweeted it:
by artappraiser on Sat, 02/11/2017 - 7:08pm
LOL, I'd like to say "great minds think alike. . ." but I don't want to say that!
by Bruce Levine on Sat, 02/11/2017 - 7:11pm
Apparently Morning Joe Scarface quoted the blog in defense of Trump (although the quote in context was not actually helpful) and within about 10-15 minutes Trump tweeted about it. It's his go-to morning show - Trump doesn't read blogs, or anything else.
by barefooted on Sat, 02/11/2017 - 9:40pm