Thursday, June 15, 2017

Gosh -- Mr. Bannon's Lack Of Even Rudimentary Drafting Abilities On FULL Display, Tonight...

The White House just put out an official memo -- ostensibly to "interpret" various dating infirmities (created by that dopey Steve Bannon) in Muslim Ban 2.0. [March 22, 2017 backgrounder here.]

So -- let us take a moment now, in the wee hours of Thursday morning -- to thoughtfully consider what happens when a sitting President allows an ex-Goldman banker, and hack alt right wanna be media mogul (who also happens to dabble in conspiracy-theories and traffic in white supremacy themes), to draft. . . Executive Orders. One sees a laughable freshman's drafting contortion -- all caused by using actual calendar dates, rather than reference dates (i.e., ones measured by time periods past a certain event's occurrence -- but not a specific date on a calendar, like say "March 16, 2017").

And so, for the world to see -- better lawyers on Team 45 have had to put out an embarrassing subsequent memo, under the President's name to clarify what they say was the President's actual intent. Now, they say, the order won't be mooted until 90 days after all injunctions are lifted (but they may well never be so lifted, of course).

Nope. It won't ultimately matter -- at all, I predict -- but here it is, and a bit:

. . . .Various provisions of sections 2 and 6 of the Executive Order (as well as sections 3 and 12(c), which delineate the scope of the suspension contained in section 2(c)), refer to the Order's effective date. Section 14 of the Executive Order provides that the Order was effective at 12:01 a.m., eastern daylight time on March 16, 2017. Sections 2 and 6, however, were enjoined before that effective date, and the courts of appeals have affirmed the injunctions with respect to certain provisions of sections 2 and 6. As a result, under the terms of the Executive Order, the effective date of the enjoined provisions (as well as related provisions of sections 3 and 12(c)) is delayed or tolled until those injunctions are lifted or stayed.

In light of questions in litigation about the effective date of the enjoined provisions and in the interest of clarity, I hereby declare the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision. To the extent it is necessary, this memorandum should be construed to amend the Executive Order. . . .

Of course, Mr. Trump hopes that this all gets buried by the coverage of today's shooting on the baseball diamond. Ever an opportunist, that guy.

Nonetheless, for my part, I'd like the Supremes to say they will allow this memo to effectively amend Ban 2.0 (though strictly speaking that is not, as a matter of law a particularly rock solid view) -- and thus not have to hold it mooted, as of sometime in the morning on June 15, 2017 -- by its own rather obvious drafting infirmities. You see, I want the Supremes to strike it on the merits -- not mere technicalities. Ban 2.0 richly deserves to be stricken by a unanimous opinion, 9-0 in the Supreme Court, and to lose overall, something like 0-11 -- in the federal courts. Now you know. Off now, to let sleep try to find me. . . why do I write like I'm running out of time. . . like I'm running out of time. . . because we all are. . . . we are.


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