Monday, May 8, 2017

An Unusual Sunday Filing, In The Fourth Circuit...

Update: argument underway. 45's lawyer (Mr. Wall) being hammered -- right out of the box. He's doing an admirable job, with what are terrible facts.

LATER UPDATE @ 2 PM CDT: If I am hearing the competing voices clearly enough -- I've heard at least seven voices that are VERY skeptical of 45's claims here -- and there are only 13 jurists on the en banc panel. I think Mr. Trump's chances are evaporating -- we may see unity in both Circuits -- finding against the Muslim Ban. The rest of my updates will appear in the comment box below, as the plaintiffs lawyers get underway. End updated portion.

Overnight, the plaintiffs in the Muslim Ban 2.0 case (appeal set to be heard this afternoon) replied in an appropriately tart fashion (a four page PDF file) -- to the Trump Administration's earlier suggestion that it may "re-write the executive order" -- simply by saying that one date, set certain by the order. . . means. . . a different date.

This is endemic of 45's arguments on matters constitutional. He seems to think that he can simply make words mean something other than what they mean (a la "alternate facts"). Do go read it all, and I will post something later today, based on how the argument streams out.

And the list of able jurists, hearing argument today, En Banc: Chief Judge Roger L. Gregory; Judge Paul V. Niemeyer; Judge Diana Gribbon Motz; Judge William B. Traxler, Jr.; Judge Robert B. King; Judge Dennis W. Shedd; Judge G. Steven Agee; Judge Barbara Milano Keenan; Judge James A. Wynn, Jr.; Judge Albert Diaz; Judge Henry F. Floyd; Judge Stephanie D. Thacker; and Judge Pamela A. Harris.

Be well.

Be American.

Tell everyone you meet today, that the life sciences industry, in America (along with all other sciences, truth told) would be largely. . . non-existent, without our policies of pluralism.

To quote Lin-Manuel: ". . .Immigrants: they get the job done!"



Anonymous said...


condor said...

More evidence that the Trump Administration is facing very long odds, on current US constitutional case law, here -- so it reaches back to discredited law.

Mr. Wall (for 45) is being peppered by the en banc panel. He didn't get one sentence out, before the jurists were down his throat, with hostile questioning.

Hilarious -- he has about 20 minutes of his allotted 30 left to go.

Great find, Anon.!

condor said...

LATER UPDATE: If I am hearing the voices clearly enough -- I've heard at least seven voices that are VERY skeptical of 45's claims here -- and there are only 13 jurists on the en banc panel. I think Mr. Trump's chances are evaporating -- we may see unity in both Circuits -- finding against the Muslim Ban.

This Fourth Circuit appeal may end up going against Trump -- and I am virtually certain the Ninth will, too.

Of course, Mr. Trump may still seek review by the Supremes (even if both Circuits hold against him), but I'd say his Muslim Ban is nearly dead -- as of 3 PM Eastern; 2 PM Chicago time.

condor said...

The panel is letting Mr. Wall run much longer than his allotted time -- due to the various able jurists forcefully beating back his mantra that "courts aren't allowed to review executive action, on national security."

He hasn't been able to answer any question that aims at the President's actual intent in signing the executive orders.

Under Lemon, that will be. . . fatal.

And now, the Fourth Circuit (Judge Davis, I believe) is asking how it comports with the Johnson era amendments (we've discussed previously) -- those of 1965 -- it plainly does not.

It's. . . toast. [Condor predicts, of course.]


condor said...

The plaintiffs are underway now -- and I've heard at least three distinct voices that are skeptical of the claims. SO -- as of now, I have it 7-3 in favor of enjoining Muslim Ban 2.0.

That leaves three voices I cannot identify, or three who haven't asked questions.

Even if all three are pro Trump Administration votes, the case is likely to come out 7-6 AGAINST Mr. Trump.

We shall see.

Soon it will be on to the Ninth, next Monday -- then likely on to the Supremes, in all likelihood.

Again, I predict there are 5 (and maybe 6) solid votes in the US Supreme Court -- to strike 45's executive order permanently.


Namaste. . .

Anonymous said...

Thanks for the 'play by play.'

So, if the Trump camp thinks it is inappropriate for the courts to decide on EOs, where was that argument when the courts knocked down some of 44's EO?

condor said...

Thanks Anon. -- Great question.

Not that I agree with this argument, mind you, but the Trump Administration argues that this "no review" (or "rational basis" review, as a fall-back) of executive orders applies primarily to national security determinations by the President.

Mr. Obama's orders were not directly aimed at national security -- or so their argument runs.

But you would be right to suggest (as you have) -- by implication -- that Mr. Wall and "Orange Team 45". . . is simply clutching at straws, now.

They well-know they lose, and lose decisively -- if any court looks beyond the face of the order, at 45's actual intent.

And a long line of US Supreme Court cases holds that in First Amendment cases, especially ones where the establishment clause is in issue (like this one!), the motives of the state actor are extremely relevant.

In this regard, Justice Kennedy recently remarked in dicta, in an immigration case, that the motives of the state actor, in a visa setting, might be dispositive. That's my "fifth vote" -- at the Supremes -- to strike Muslim Ban 2.0, right there.

Less probably, but possibly, the Chief Justice might join -- making it 6-3 -- as well.

Do stop back!