- the appeals court hearing on Donald Trump’s Muslim ban.
- for more on the hearing, for a rather alarming story on trust in the media, for the outcome of the British parliament’s vote on Brexit, for the outcome (I missed this earlier) of the Scottish Parliament’s vote on the same issue, and for an article on why it’s right to call it a Muslim ban. On the latter point, I’d just point to that C-5A-sized loophole about how more—an unspecified number—countries might be added later. But perhaps we could start with Indonesia. Which we probably can’t tell from Pakistan anyway.
- for the outcome of the hearing and for the Sioux running out of legal options to stop the Dakota Access Pipeline.
I’m unclear on the point. We already know that Scotland’s electorate opposed Brexit and we have little reason to suspect that’s changed. But we also know that most Scots oppose another referendum on independence at this time, which suggests rather strongly to me that one would not pass. And finally, we know that, as an entity, Scotland is effectively invisible to the European Union, that it is entirely subject to whatever Article 50 deal Britain negotiates with the Union. So the only way that Scotland can negotiate access to the EU is to be independent, which its voters apparently do not want. I’m really not seeing the way forward here.
Deutschewelle, “Scotland to hold nonbinding vote on rejecting Brexit,” February 6, 2017, http://www.dw.com/en/scotland-to-hold-nonbinding-vote-on-rejecting-brexit/a-37425380
British Broadcasting Corporation, “Holyrood votes against triggering Brexit,” February 7, 2017, http://www.bbc.com/news/uk-scotland-scotland-politics-38880999
Steve Almasy, “Dakota Access Pipeline: Army issuing final permit,” CNN, February 7, 2017, http://www.cnn.com/2017/02/07/politics/dakota-access-pipeline-easement-granted/index.html
Ernest Scheyder and Terray Sylvester, “North Dakota tribe says running out of options to stop pipeline,” Reuters, February 8, 2017, http://www.reuters.com/article/usth-dakota-pipeline-idUSKBN15N2HP
The short version is that Trump “lost dramatically and completely.”
I previously discussed my surprise over the clumsy performance of the Justice Department in defending the Trump executive order on immigration. Those concerns were magnified after the oral argument before the Ninth Circuit that was made available on YouTube. The performance by August Flentje, special counsel to the assistant U.S. attorney general, was surprisingly lackluster and seemingly ill-prepared. The shaky start that I described earlier seems now to be seismic as the Justice Department stumbles toward a ruling that can come as early as today. As Flentje observed during his uninspired argument “I’m not sure I’m convincing the court.”
Jonathan Turley relies on a general rule that courts generally defer to the executive branch on national security matters. So far, that seems not to be holding this time, probably because, whoops:
The tendency by judges not to question the president on national security issues is rooted in the belief that the president, aided by national security advisors and the wealth of information at their disposal, is in the best position to make such decisions, said Matt Waxman, a national security law expert at Columbia University.
“But I’d argue that is a customary practice that is heavily reliant on the credibility of the executive branch,” said Waxman, who served on the National Security Council and in the State Department under President George W. Bush.
One thing I would not say about the Trump administration is that it is credible.
Trump, Waxman said, “squandered a lot of that credibility” with his “wild and shifting claims about national security” and his unorthodox decision not to seek input from national security experts before rolling out the travel ban.
“I think it is quite possible and even likely the courts will not show the president the same level of deference they have shown previous presidents on national security,” he said.
Shirin Sinnar, a national security expert at Stanford Law School, echoed Waxman.
“It is a unique situation here,” she said. “We know national security agencies were sidelined, so it is hard to see how this idea of the executive branch being entitled to deference would apply.”
And there is a more substantial defense of the order offered by Jonathan Hafetz. Then there’s Amy Davidson’s impression, in which the government’s performance at the hearing appears truly awful. Turley believes the order is defensible and he “believe[s] that the weight of binding authority on these trial courts favors President Trump,” and, to say the least, this is a high-profile case, which is to say that poorly-performing lawyers will surely be embarrassed.
That Justice Department lawyers are nonetheless performing so poorly in a high-profile case catches my attention. It’s true they had been told not to defend the order by an acting Attorney General who was subsequently fired and therefore may have had less time to prepare a defense of the order. But in my dealings with lawyers over the years, I have become suspicious that lawyers may not always actually act in their clients’ best interests, that sometimes when they believe when to do so would be to act in the interest of justice, they may intentionally lose a case. Trump can fire an acting attorney general; I’m not so sure he’s persuaded the attorneys at the Justice Department.
By the way, I suppose I should emphasize that all this is over a temporary restraining order. In theory, Trump might still prevail at trial. But he’s surely going to have to up his game to do that.
Devlin Barrett, Brent Kendall, and Aruna Viswanatha, “Court Grills Lawyers on Donald Trump’s Immigration Order,” Wall Street Journal, February 7, 2017, https://www.wsj.com/articles/donald-trumps-immigration-action-in-courts-hands-1486491207
Joel Rubin, “Courts rarely second-guess the president on national security. But that doesn’t mean they can’t, experts said,” Los Angeles Times, February 7, 2017, http://www.latimes.com/politics/la-live-updates-9th-circuit-arguments-courts-have-been-reluctant-to-1486509412-htmlstory.html
Amy Davidson, “The Ninth Circuit and President Trump’s Lies,” New Yorker, February 8, 2017, http://www.newyorker.com/news/amy-davidson/the-ninth-circuit-and-president-trumps-lies
Jonathan Turley, “Ninth Circuit Deliberates Appeal Over Trump Executive Order,” February 8, 2017, https://jonathanturley.org/2017/02/08/ninth-circuit-deliberates-appeal-over-trump-executive-order/
Austin Wright, “Top Democrat: U.S. allies see Trump order as Muslim ban,” Politico, February 8, 2017, http://www.politico.com/story/2017/02/trump-muslim-ban-us-allies-ben-cardin-234799
Josh Gerstein, “3 key Trump mistakes that led to the travel ban court defeat,” Politico, February 9, 2017, http://www.politico.com/story/2017/02/3-key-trump-mistakes-that-led-to-travel-ban-court-defeat-234884
Richard Primus, “Will the Supreme Court Back Trump?” Politico, February 10, 2017, http://www.politico.com/magazine/story/2017/02/will-the-scotus-back-trump-214763
Ariane de Vogue and Laura Jarrett, “Trump furious after court upholds block on travel ban,” CNN, February 10, 2017, http://www.cnn.com/2017/02/09/politics/travel-ban-9th-circuit-ruling-immigration
It seems to me that journalists need to get on top of this. Now.
Joe Concha, “Trump administration seen as more truthful than news media: poll,” Hill, February 8, 2017, http://thehill.com/homenews/media/318514-trump-admin-seen-as-more-truthful-than-news-media-poll
Angela Dewan and Simon Cullen, “House of Commons OKs Brexit bill,” CNN, February 8, 2017, http://www.cnn.com/2017/02/08/europe/brexit-bill-parliament-vote-article-50/index.html