Sunday, February 12, 2017
A liberal judge and a circuit court outside the judicial mainstream put the kibosh, at least temporarily, on the President’s Executive Order. I still believe the enjoined order is constitutional, but the rollout was poorly executed. Any decision and action taken needs to set forth the factual and legal basis for the order. The Administration and Justice Department need to detail the legal authority for the Order, the President’s discretion, and the court’s lack of jurisdiction: No longer should the U.S. attorneys have to say they don’t know. Several refugees from the 7 proscribed countries have either committed terrorist acts, or HAVE been arrested prior to committing terrorist attacks, both in Europe and the United States. What are the options? Let’s start with a presumption that no matter what course the Administration chooses, it will be prepared this time. The law and facts support the Executive Order, but neither the Order itself or the government’s lawyers presented a good case for it. The new filings will consist of the 1) 1948 Supreme Court decision in Citizens & Southern Air Lines case 2) The Immigration Nationalization Act of 1952 (The McCarran-Walter) Act 3) The December 2015 Visa Waiver Program Improvement and Terrorist Travel Prevention Act, which listed the 7 countries of Iran, Iraq, Libya, Somalia, Sudan Syria, and Yemen, the 7 countries in the Executive Order 4) President Obama’s 6 month halt in processing visa applications from Iraq, 5) The list in the United States and overseas of the terrorist attacks and planned attacks by refugees from the 7 named countries 6) The Muslin countries representing 85% of the world’s Muslims, which were not named in the Executive Order. They include Egypt, Indonesia, Malaysia, Pakistan, Saudi Arabia, Turkey, the non-Muslim country of India, and the list goes on. It is not an anti-Muslim executive order. 7) Quote Syria’s President Assad about terrorists hiding amont the refugees The normal action would be a quick appeal to the Supreme Court since time is of the essence. These though are not normal times. That approach has its risks. Justice Kennedy hears the emergency appeals from the Ninth Circuit. He’s increasingly unpredictable, plus the standard 4-4 split on the Supreme Court could result in another loss for the President. Tie votes automatically affirm the lower court ruling. The Justice Department could request an en banc hearing from the Ninth Circuit, but the odds are against the government. The Justice Department could proceed to the preliminary injunction hearing scheduled by Judge Robard. Presumably the government’s attorneys would be better prepared this time. If they are, they could present an overwhelming legal and factual case. The judge should reverse his earlier order, but would still probably hold against the Administration. That would clearly appear as a political and not judicial decision. An appeal to the Ninth Circuit panel would probably meet the same fate. This approach will take time. The easiest solution is to withdraw the existing executive order followed by issuing a new order, narrowly tailored and carefully drafted. The only problem with that approach is that it leaves on the books the dangerous precedence of the Ninth Circuit. A fifth approach would be to have the Justice Department request Chief Justice Roberts to consolidate all the pending cases in one court, preferably outside the Ninth Circuit. The Chief Justice has the power to do so. The Democrats should not rejoice. It is only a temporary, pyrrhic victory. We can view it as a rookie mistake. The Justice Department was in transition at the time. President Trump is very smart. He won’t make the same mistake twice. He will be more prepared in the future, His Administration will be dotting the “I’s” and crossing the “t’s” on future orders. The Ninth Circuit has four vacancies. President Trump will name conservatives to those positions.
Thursday, February 9, 2017
The Democrats are struggling to find a successful strategy to confront President Trump and the Republicans. Boycotts, marches, demonstrations, the occasional riot, speeches, petitions, filibusters, slow walking cabinet nominees, threats have failed to stop the Republicans. They won. As President Obama once said: “I won.” He also said “Elections have consequences.” Daily attacks by the media, celebrities, late night TV hosts, and academics as well Saturday Night Live have not dented the President’s agenda. The teacher unions did not block the confirmation of Betsy DeVos as Secretary of Education. The Civil Rights Movement did not stop the Senate’s approval of Senator Sessions as Attorney General. Andrew Puzder will undoubtedly become Secretary of Labor, Congressman Tom Price as Secretary of Health and Human Services, Greg Pruitt as EPA Administrator, Dr. Ben Carson to Housing and Urban Development, Steve Mnuchin to Treasury, and Judge Neil Gorsuch will be on the Supreme Court soon. Accusations, calumnies, contempt, defamation, denunciations, expletives, excoriations, fact checkers, fear, harangues, mischaracterizations, misrepresentations, rants, raves, and threats will not stop the process. Elections have consequences. Cries of fascism, racism, and sexism don’t change the outcome. The Republicans held the Senate last November. The votes may often be along party lines, but 52 will beat 48 every time. 50 with the Vice President will defeat 50 without. The Democrats have been flailing for three weeks, but may have now found the strategy to trump Trump. The party of trial lawyers will unleash the lawyers, led by a few state attorney generals. They will file scores of law suits in favorable jurisdictions, preferably in the Ninth Circuit, looking for a pliant district court judge and court of appeals. The Ninth Circuit is notoriously liberal. Both the district court and appellate judges in the coastal states, whether appointed by Democrat or Republican Presidents, veer to the left, the far left, of the political spectrum. The reason is because of the Senate custom known as Senatorial courtesy. The two Senators from each state have a veto power over the appointment of federal judges who will sit in their states. California, Hawaii, Oregon, and Washington have consistently elected liberal Democrats for decades. California last saw a Republican Senator in 1992, Oregon in 2009, and Washington in 2001. Very few conservatives made it through their gauntlet in recent years. Conversely, conservative judges emerge from Alaska, Arizona, Idaho, Montana Nevada, and Utah, but the population and the largest number of federal judges are in California. The Ninth Circuit sits in San Francisco, Pasadena, Portland, and Seattle. The liberal/progressive judges do not believe in the Rule of Law but rather what until recently was referred to as the Rule of Man. They do not feel bound by the Constitution, which they will meld to their wishes and whims. They are not restricted by statutes or precedence. Nor often by the facts. They believe they can judicially legislate as they wish, which is usually on the progressive side. Thus, they have become politicians masquerading as judges. The bias was clear in the unreasoned, specious decision by Judge James Robart in issuing an injunction against the temporary immigration ban after only a few minutes of a hearing. The bias was further made clear by the hostile questioning by the two liberal judges on the appellate panel hearing the appeal. These three judges were not interested in the law, either constitutional or statutory, which grants the President vast powers in immigration cases. The starting legal premise is simple. Non-citizens have no constitutional or statutory right to enter the United States. The second premise is that both the Constitution and statures bestow power on the President to exclude aliens from entering the United States. My guess, based on the makeup of the three judge panel and the harsh interrogation of the government’s attorney, is that the decision will be 2:1 in upholding Judge Robart’s injunction. The Ninth Circuit was the most conservative when I was in law school, but that flipped under President Carter, and has only become increasingly more progressive since then. It is often to the left of the Supreme Court’s progressive wing. The Ninth Circuit has a well-earned reputation as being consistently, but not always, the most overruled court of appeals by the Supreme Court – not just in the number of decisions, but in the percentage. Here’s some statistics that tell the story about reversal rates of the Ninth Circuit by Supreme Court term: 2015-16 8/11 80% 2014-15 10/16 63% 2013-14 10/11 92% 2012-13 10/12 86% 2011-12 17/24 71% 2010-11 19/26 79% 2009-10 15/18 60% 2008-09 13/16 81.3% 2007-08 8/10 80% 2006-07 18/21 85% 2005-06 15/18 83.3% 2004-05 16/19 84% 1998-99 13/18 72% 1997-98 28/29 96.6% Roughly 80% of the Ninth Circuit’s opinions reviewed by the Supreme Court from 1999-2008 were reversed by the Supreme Court, A large number of the Supreme Court reversals were unanimous or per curium (also unanimous opinions), which means that not even one of the liberal justices on the Supreme Court could agree with the Ninth Circuit opinionsThe ninth Circuit was that far outside of the judicial mainstream. The obvious question is why do the Ninth Circuit judges persist in consistently being outside the judicial mainstream? The answer is because the Court usually decides between 90-100 opinions annually. Judge Steven Reinhardt, the most activist and reversed judge on the circuit, said it best “They can’t catch them all.” His wife is the former executive Director of the ACLU of Southern California. My predictions for the Ninth Circuit: 1 There are currently 4 vacancies on the court. President Trump will not appoint and the Republican Senate will not confirm liberal Democrats to the Court; 2 Momentum is building to break up the Ninth Circuit. It will succeed.
Tuesday, January 31, 2017
President Trump had no choice but to quickly terminate Sally Yates. He would have doomed his Presidency had he not done so. Her act of defiance, if it stood, would have sent out a message to the world that President Trump is an empty suit, the second political coming of Arnold Schwarzenegger. President Trump is both a man of action and a good negotiator. He is not a fool who will tolerate her behavior in office. She not only openly called out the President on one of his priorities, but also ordered her staff at the Attorneys General Office to not enforce his executive order. An act of insubordination, Yes!, but also possibly an open act of rebellion. It was a direct slap in the face of the President. A subordinate does not usually call out her employer, much less embarrass the President. Such action is normally employment suicide in the private sector. She could easily have quietly resigned for any number of reasons, ranging from the standard “personal reasons” to the honest disagreement over policy. That’s not what she did. She publicly “called out” the President. Cabinet officials serve at the will of the President, who can fire them at any time for any reason. Theirs is an employment at will, the will of one. A standard, common sense rule of life, is that you don’t publicly take on and embarrass your boss. She ordered the Justice Department to not defend in court President Trump’s immigration Executive Order with which she disagreed. That act was one of open insubordination. She had to know that there could only be one outcome – termination. Yet she proceeded, like the Charge of the Light Brigade. Even if she succeeded for a few days in blocking defense of the executive order, her decision would have been overruled within minutes after Senator Jeff Sessions is sworn in as the Attorney General of the United States. Whatever could she have been thinking? Her act was always going to be a self-fulfilling, but futile protest. Her replacement Dana Boente was sworn in at 9:00PM and issued a directive at 11:42PM rescinding her order. What was she thinking? She was going to be out of a job anyway in a few days, so why not go out with a message. Her 30 years as a prosecutor at the Department of Justice abruptly ended last night. She can now claim her 15 minutes of fame. She has become a martyr for the Democratic Party and will be well taken care of. It might last longer than the 15 minutes of Sandra Fluke and Texas Senator Wendy Davis, who conducted a futile filibuster against a Texas abortion bill. Sally Yates will have a long run of chicken dinners coming up.
Monday, January 30, 2017
FDR set off the precedence of the first 100 days. President Trump has done in his first ten days what some Presidents needed 100 days to accomplish. That should not be a surprise. He proved during the campaign that he is indefatigable. He showed during his career that he gets things done. His cabinet appointments were all solidly conservative. His actions carry out his campaign promises. Here’s what we have witnessed. President Trump is the same Donald Trump, the candidate. The media is on a daily diet of castigating President Trump on anything he does or doesn’t do. They hate him more than President Nixon. He loves jousting with and baiting the media since his supporters loathe the media. President Obama governed through executive orders. President trump is using executive orders to undo much of the damage of the Obama Administration. Executive orders on building the Wall, internal security, and entrants to the United States. Staring the demise of ObamaCare Executive order on reducing regulations. Ending the catch and release program Threatening to cut off federal funds to sanctuary cities Reviving the Keystone XL and Dakota Access Pipelines Nullifying the Trans Pacific Partnership Agreement Restructured the National Security Council and the Homeland Security Council Executive orders draining the swamp – extending the time former officials can work as lobbyists: 5 years for government officials and a lifetime ban on White House officials lobbying for foreign governments A hiring freeze on government employees What else has President Trump done? Canned the top remaining officials at the State Department, including the hapless Patrick Kennedy Terminated the CIA Director Dismissing the Border Patrol Chief Cutting of funding to international organizations that fund abortion The Bully Pulpit to bring jobs back to America and to retain jobs. Meeting labor officials and business leaders, who may have opposed his election. Meeting with Prime Minister Teresa May of Great Britain. Retrieving the Churchill Bust. The return of the Bust illustrates the anti-trump media frenzy. A reporter noticed the Bust’s return, but did not see the Martin Luther King Bust placed in the White House by President Obama. The media was in conniptions that he had removed the King Bust. The original reporter quickly realized the mistake and apologized profusely, but that did not stop the media from lambasting President Trump The rebirth of the Special Relationship with England and mending fences with Israel. All the while the Democrats only strategy seems to slow walk appointees, express outrage on President Trump’s acts, and demonstrate in front of the Supreme Court.
Emoluments have seemingly become ubiquitous. But what is an emolument? A dessert in an upscale restaurant” Or is it a monument in a cemetery? A monument, such as “The Emolument of Hamilton”? The Emolument National Park in the Southwest? A car emblem? A medal for bravery? An ideal word for a spelling bee? A new video game: “The Emoluments Man” The misspelling of monument? A skin cream? A yuppie’s puppy – “Sit, Emolument”? A pet rock? A street name in the town of Emoluments? A museum in London? The name of a motorcycle gang, The “Emoluments”? The focus of a new TV series, “Bad Day in Emoluments” A recently discovered Bob Hope/Bing Crosby movie, “The Road to Emoluments”? A species of lawyers? The subject of the most boring law review article ever written? A term so beloved by our Founding Fathers that they used it twice in the Constitution, and still no one ever heard of it till now? The plaintiffs don’t expect to win. They’ve said they want to force disclosure of President Trump’s tax returns. That’s a loser
Friday, January 20, 2017
Hail to the Chief; Hail to the President; Hail to President Trump! Make no mistake about it, Donald trump is President of the United States and of the people of the United States. His is a true populist campaigning for the people. He understood that the American people wanted a change, and needed a change. He offered the change. His inaugural speech was for the people, the American people who elected him. Donald Trump, the candidate, is Donald Trump the President. He reached out to the people. What an amazing concept in modern America. The President remains the same as the Presidential candidate. The campaign speech became the inaugural address. No hidden agenda. He said the American carnage will stop now. He said he will “Make America Great Again,” looking to the future. Not “Hope and Change”, but “America First.” “We will bring back our dreams” We will “rebuild our country with American hands and American tools,” and bring back jobs. He will also eradicate Radical Islamic Terrorism. He spoke to the military and to law enforcement. His Administration will not be waging a War on the Police. He spoke to the American people, the American people who elected him. He spoke to the “forgotten” men and women of America, his voters. He did not speak to the elites. He did not speak to the media. He did not speak to the academics. He did not speak to the Never Trumpers. He did not speak to the sufferers of the Trump Derangement Syndrome. These groups still do not understand him. His people do. He did not speak to the 60 Democratic members of Congress who boycotted his inauguration. He spoke to the people. He spoke to the American people as the President of Change. He spoke to all Americans, and reached out to all Americans, but the speech was to his people, the middle class and blue collar workers. He spoke to us deplorables. He consistently used the word “We’ – not “I.” His is the Presidency of “We the People.” He knows who his voters are. How ironic that a billionaire builder who never worked for the government and never served in the military, is the President of the people. Madame Tussauds has replaced President Barack Obama with President Donald Trump. The transition is complete. Here’s what we can expect. Donald Trump proved in New York City that he gets things down. Donald Trump showed during the campaign that he is indefatigable. His 4:00am tweets indicate he does not sleep. He will get things down in the White House. Much of President Obama’s “Legacy” may be rendered asunder in President Trump’s First 100 Days, but not the most important legacy of President Obama in American history, the election of an African American as President of the United States. President Obama did not, and could not, end the racial divide in America, but his election was an important milestone in American history. President Obama gave us President Trump just as President Carter gave rise to President Reagan.
Thursday, January 19, 2017
The Ringling Brothers, Barnum & Bailey Circus, the icon of three ring circus, is closing up shop later this year. The once great Big Apple Circus is auctioning off its assets in bankruptcy. The Cole Circus closed last year. The traditional American Circus is no more. Fear not though, the American Circus is coming to Washington, D.C. tomorrow for a long run. No, it is not the Trump Administration. Nor is it the populist deplorables. Nor is it the Trump Cabinet. The performance of the cabinet appointees so far in the Senate Hearings has been outstanding. President Elect Trump has nominated highly successful military leaders, business leaders, and politicians. They have proven themselves to be intelligent, thoughtful and articulate, sometimes more so than their interlocutors. President Elect Trump has nominated competent conservatives to his Cabinet, so conservative that the Democrats would like to vigorously oppose every one of them, perhaps even Elaine Chao, the wife of Senate Majority Leader Mitch McConnell. They can’t; they must pick and choose their battles. The teacher unions ardently oppose Betsy DeVos for Secretary of Education. Her heresy is her support of charter schools. The unions in general abhor Andrew Puzder as Secretary of Labor. The position normally goes to a representative of the unions. Donald Trump’s view is that the Department should represent the interests of the workers, which are not necessarily those of the unions. The Civil Rights Movement rejects out of hand Senator Jeffry Sessions of Alabama. Environmentalists are repelled by Scott Pruitt, the Oklahoma Attorney General, nominated to head the Environmental Protection Agency. Advocates of ObamaCare are scared of Congressman Tom Price, a doctor fiercely opposed to ObamaCare. How good are these nominees? Little soundbites have emerged from their hearings. The Democrats can’t make anything stick. The Circus coming Friday is a combination of the protesters, media, and Democrats who still can’t understand they lost. They will act like screaming banshees. The mainstream media hasn’t learned from its failed, biased coverage during the general election. It will seemingly stop at nothing to delegitimize Trump, even taking off on typos, but nary a peep about Senator Obama campaigning in all 57 states with one to go. They’re acting like a one trick pony. If the protestors don’t get violent, then it will be quite a spectacle to watch. Watch an army of fact checkers twist in contortions as they back flip to try to find even minute, out of context, mistakes by President Trump. Watch Rosie O'Donnell continue to bemoan President Obama for not declaring martial law and postponing President Trump's inauguration. Watch the Hollywood celebrities occasionally slip out of their Beverly Hills, Brentwood and Malibu cocoons, fly over the deplorables in Fly Over Country to “bravely” speak out at Democratic events and Hollywood events. Speaking of “Deplorables,” the DeploraBall Friday was attacked by demonstrators Thursday. Watch the White House Press Corps play musical chairs in the tiny press room. Watch some D.C. universities offer perpetual safe spaces and comfort zones to students unable to co-exist so close to the Trump White House for the next four years. Watch the California Democrats try to make themselves relevant with more boycotts and demonstrations as more businesses leave California for Trump Country. Watch the media yell outrage after outrage, not noticing the declining circulation and layoffs among their publications. Watch the vitriol over President Trump’s Supreme Court appointments. It will be a mud fight as the Democrats attempt to Bork the nominees. Watch President Obama stay in D.C. and constantly lambaste the policies of the Trump Administration. See if any one actually listens aside from the usual suspects. Watch Justice Kennedy’s vote become irrelevant after two President Trump appointments to the Supreme Court Watch President Trump refill Gitmo Enjoy the Twitter battles. Enjoy Judy Collins’ song, “Send in the Clowns.”