Monday, February 20, 2017
Today is President’s Day, a holiday when we celebrate one of our greatest Presidents, George Washington. Then it became resident’s Day to celebrate both George Washington and Abraham Lincoln., and then perchance all our Presidents. But not to those who have celebrated today “He’s Not My President” Day. Today was to be an organized, nationwide “He’s Not My President Day.’ They turned out in New York City, Philadelphia, Chicago, and Los Angeles, as well as Ann Arbor, Atlanta, Augusta, Maine, Austin, Baltimore, Concord, New Hampshire, Dallas, Denver, Gainesville, Grand Rapids, Greensboro, Indianapolis, Kansas City, Las Vegas, Milwaukee, Missouri, Marquette, Michigan, Nashville, New Paltz, New York, Pasadena, Portland, Rapid City, Salt Lake City, San Diego, and Santa Barbara. They even showed up in Anaheim, near The Happiest Place on Earth. They were inflamed, energized, dedicated, intense. They marched, rallied, protested, demonstrated. They chanted and screamed. They held up signs: “Not My President” “Nyet My President” “Never My President” “Not My Values, Not My President” “Not My Cheeto” “Resist” “Revolt” “Impeach” “Trump is Treason” “Treason” “Dump Trump” “The Art of the Liar” “Impeach the Liar” “Impeach Trump and His Posse” “You Can’t Fix Stupid, But You Can Impeach” “Flush the Dump” “Arrest” “Uphold the Constitution Now” “We Are the People” “Repair and Replace Trump” “Trump is Brutal” “Orange Fever” “Uphold the Constitution” “Love Trumps Hate” “Just Say No to Fascist Pigs” “No, Refuse to Accept a Fascist America” “No Human is Illegal” “No Ban, No War” “History is Watching” “Happy President’s Day I Hope It’s Not Our Last One’ Two of the classier signs were: “Smart People Hate You” and “F U Trump” Yes, they were enthusiastic, boisterous, energized. But the sounds of silence were deafening. All that was missing were people. Not the millions of the Women’s March after the Trump Inauguration. Not hundreds of thousands. Not tens of thousands. Two dozen in Miami 200 in Salt Lake City Probably no more than 25,000 nationally, if that. The celebrities were missing. The unions were missing. The Democratic politicians were missing. BLM was missing. No mention of Hillary Clinton during the “Not My President Day” rallies. President Trump’s rally in Melbourne, Florida two nights ago drew 9,000. Here’s my personal view on “He’s Not My President.” President Obama was President for 8 years. President Obama was never my President – not even for a day. But he was our President. President Obama was America’s President. The United States only has one President at a time. I always recognized President Obama as America’s President. President Trump is both my President and our President. President Trump is America’s President.
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.