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Wonkers! Who is confused about what the fuck is going on with The Case of the Muslim Ban? How can there be like 10 courts involved? What even is a TRO? And why do these Activist Judges hate America so much?

Okay, NERDS! Hudddle up for a Lawsplainer!

Way back on January 27, President Mar-a-Lago signed an Executive Order which was totally not at all drafted by Steve Bannon.

The Order banned refugees from Syria indefinitely, put a 120-day hold on other refugee admissions, and barred admissions of any non-US Citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days.

Because consultation with lawyers and bureaucrats is for pussies, Trump and his crack team brewed up their own moonshine cocktail of bullshit and told the Department of Homeland Security to start serving it up right away.

Would current visa-holders from the affected countries be turned away at the border? Would Lawful Permanent Residents (LPRs) be allowed re-entry to the United States? Who would train Immigration Officials on the implementation of such a radical change?

Shut up, Commie! Take it from our Fearless Leader.

“It’s working out very nicely… You see it at the airports. You see it all over. It’s working out very nicely and we’re going to have a very, very strict ban, and we’re going to have extreme vetting, which we should have had in this country for many years.”

Except that here on Planet Earth, ALL HELL BROKE LOOSE!! Which we are not going to discuss ATM, since all members of the Wonketariat are WOKE. On to the Lawyerspeak!

The Airport Cases

By Monday, January 30, federal judges in Brooklyn, Boston, Virginia, Seattle and Los Angeles had all issued rulings along the lines of, “Holy Fucking Shit! Stop That Right Now!” Because they applied nationwide, the most important holdings came out of Brooklyn and Boston Courts. Together, they temporarily forbade Immigration and Customs Enforcement (ICE) from sending back or detaining at the airport any valid visa-holder or LPR.

Fun Fact: Many of these cases were Habeas Corpus Petitions, which are literally asking the state to GIVE US THE BODY YOU ARE HOLDING.

On January 29, White House Chief of Staff Reince Priebus arglebargled something about letting in green card holders after all, so no harm no foul, right?

The ACLU responded with a Bitch, Please! Motion.

Judge Robart’s Court

On January 30, the State of Washington (later joined by Minnesota) filed a Motion for a Temporary Restraining Order in the United States District Court for the Western District of Washington.

In plain English, they argued that you can’t spend 18 months shit-talking about the awesome Muslim ban you’re planning, then pretend that your immigration order is not a Muslim ban. Also, too, we don’t discriminate on the basis of religion or country of origin. It’s kind of A THING here.

At first, the Justice Department was at a loss when Acting Attorney General Sally Yates (PBUH) refused to defend such a POS order. But then Trump fired her and got to work producing the awesomest legal brief ever!

“CAN, TOO!” He argued. “CUZ 9/11! AND I’M THE PREZNIT NOW!” Or words to that effect. Maybe they will come up with something better now that Jeff Sessions has been confirmed?

Spoiler Alert: They will not.

On February 3, Judge James Robart issued a Temporary Restraining Order (TRO) halting enforcement of the Executive Order nationwide and setting up a schedule for the Justice Department and States to present their arguments for and against it.

 

What can you expect from a Liberal, Activist GWB appointee?!?!

The Ninth Circuit

Normally, TROs are not appealable. But Trump’s SMRT legal team asked the Ninth Circuit to prettyplease pretend that Judge Robart’s TRO was actually a Preliminary Injunction, which is appealable. And it worked! The Ninth Circuit was like, “Eh, okay.” IRL Lawyers were like, WTF?!?! But, most importantly…

KellyAnne and Spicey were back in business! The NotBan was the legalest thing ever! SO. MUCH. WINNING.

EXCEPT…

After hearing oral arguments on February 7, the three-judge panel unanimously upheld the lower court’s ruling that the Order likely violated the Establishment Clause (*cough* Muslim Ban *cough*). Also, they found that the States DO TOO have standing to sue, because they have an interest in keeping families together and staffing universities.

Noted Legal Scholar Donald Trump drafted a reasoned response.

 

Shit Got Weird(er)

On February 9, the Ninth Circuit told the States and the Department of Justice to start prepping to brief the Court on their arguments. Having decided that the TRO was magically a preliminary injunction, they weren’t sending the case back down to the District Court for consideration.

The next day, Judge Robart also indicated that he’d like to see some briefs, too, thankyouverymuch.

The Clusterfuck Administration beat their chests about appealing to the Supreme Court for a while, then they made some noise about drafting a brand new Executive Order that would be the betterest yet. But they seem a little distracted the past couple days by the fact that their FORMER National Security Advisor may be a RUSSIAN SPY.

Fun Fact: The Ninth Circuit is “assigned” to Justice Kennedy for emergency motions. It’s his call whether there is sufficient likelihood of a reversal to take the case.

Meanwhile, an unnamed Judge on the Ninth Circuit has filed a motion to re hear the case en banc, which means as a larger panel of the Chief Judge and 10 other Judges chosen at random. Whaaaaaaa???? Can they even do that?

Yeah, it’s a thing. Mostly it happens at the request of the litigants, but very occasionally the judges ask for en banc review.

The wingnuttosphere has its own stupid theories about this one. The best explanation I have seen is that the Ninth Circuit is worried that Bannon and that little shit Stephen Miller will cook up a scheme to withdraw the Executive Order, thus mooting all the pending cases, and then replace it with something exactly the same. The Ninth Circuit can mull over its decision whether to rehear the case en banc indefinitely, which leaves the case “alive” to some degree, even if it is mooted by withdrawal of the original EO. So if the Trump Administration whips out a brand new EO that is substantially identical to this one, the Ninth Circuit gets first crack at it. Just a theory, but it’s as good as any other.

Finally, let’s all remember that NOT ONE OF THESE COURTS HAS ACTUALLY HAD A FULL HEARING OF THIS CASE ON THE MERITS YET!!! At every level, judges have ordered the government not to enforce the law for now. But one of these days, some Court is actually going to have to listen them argue this nonsense for reals.

Wonkette is one hundred percent supported by readers like you. SO COUGH UP, SUCKERS.

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  • Reximus

    all that winning must be quite tiring…

  • MynameisBlarney
    • Patriciadflowers

      Google is paying 97$ per hour! Work for few hours & have longer with friends and family! !dr186c:
      On tuesday I got a great new Land Rover Range Rover from having earned $8752 this last four weeks.. Its the most-financialy rewarding I’ve had.. It sounds unbelievable but you wont forgive yourself if you don’t check it
      !dr186c:
      ➽➽
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  • Msgr_MΩment

    OT: Trump reportedly very pissed about continuing leaking.
    He expects better bladder control from his ladyfriends.

    • Cousin Itt de La Résistance

      Donald is just frustrated because no matter how hard he tries, he just cannot fill the leak.

    • Reximus

      there’s a lot of leaking wherevers in the WH

  • schmannity

    And Trump’s ban would have kept those Tsarnaev Russian rascals from blowing up the Boston Marathon.

    Whut?

  • Bub the Hoohah! loving Zombie

    Excellent post over at LGM. Money quote for me, on whether institutions like the courts would act as a curb on Trump’s power:

    He never took them seriously, acts as if they don’t exist, and clearly wishes they didn’t. The story that Americans have told themselves from the moment he declared his candidacy for president, was that one institution or another would defeat him or at least change his behavior – he won’t get the nomination; if he gets the nomination, he will be a normal Republican; he will get defeated in the general election; if he wins the presidency will mature him (that was what Obama said). I never thought any of that was true. He doesn’t seem to care about the institutions and the laws except insofar as they appear as barriers to the goal of permanent kleptocratic authoritarianism and immediate personal gratification.

    http://www.lawyersgunsmoneyblog.com/2017/02/party-like-its-1939

  • Msgr_MΩment

    OT: Person on MSNBC just defended KaC as a “person of integrity.” Response: she has yet to tell the truth on teevee.

    BTW, can coffee damage my puter screen?

    • msanthropesmr

      What is your definition of integrity?

      • Msgr_MΩment

        A fully functioning integumentary system to cover her usual reptilian appearance.

        • Cousin Itt de La Résistance

          V libel.

      • PubOption

        She remains in one piece.

      • Khavrinen

        Inte-gritty: it’s what you get if you don’t wash your “where-ever” carefully after sunbathing at a nude beach.

  • Cousin Itt de La Résistance

    Also, too, we don’t discriminate on the basis of religion or country of origin.

    Oh for the days we would take anyone from west Africa.

    • Oblios_Cap

      And we all paid them exactly the same wages.

    • Michael Smith

      Hey, just because you’ll take someone doesn’t mean you won’t discriminate against him!

  • cleanfront

    I heard George Soros is behind all this.
    He was seen at a Pizza Hut with the Ninth District Court Judges. They got in a plane to visit Obama in Kenya and dumped chemtrails over DC as they left. That has made it hard for Bannon, Miller, and Trump to think.
    That’s why Trump now goes to Mar A Lego.
    Chemtrails … Bastards got Flynn with them.

    • Msgr_MΩment

      Shhhh. You’re not supposed to use your talking-out-loud voice.

    • exinkwretch

      You left out the part where Soros ate a live baby. Accuracy, please!

      • puredog

        Also too, Soros eats pizza exclusively at Comet Ping Pong. Really, who researched this drivel?

  • Michael R
  • Chadwells

    That little rat-faced cunt Chaffetz says no investigation of Flynn…WTFF. I hope he gets fucking tarred and feathered at one of his fucking town halls. I have much more evil I wish on that little cocksucker….but the internet has eyes.

    • Sardonicuss

      Since he will most likely never do a town hall again..they should move the town hall to his Washington residence.

    • The Wanderer

      Rat-faced cunt libel.

  • Oblios_Cap

    Next you’ll be telling me that are more than one branches of government.

  • Reximus
    • Oblios_Cap

      The Russians stole those islands fair and square, by entering the war against Japan in the last days. They’ll never give them up.

    • Celtic_Gnome

      When I first saw that headline, I thought it meant Donnie wanted Abe to push Trump’s ties with Vlad. Maybe his vodka as well.

  • Nounverb911
  • Hairstrike Alpha

    This is what winning and making America great again looks like to a shaved hairless Orangutan someone rolled in Cheeto dust and then stapled a dead Macao to the top of its head…

  • memzilla Ω
  • Msgr_MΩment
    • Cousin Itt de La Résistance

      Peeing and Nothingness – by Jean-Paul Trumpre.

  • Hairstrike Alpha

    He said “see you in court!” To.A.Court. I just…God white voters are fucking morons. Maybe it’s time to see if we white people should be allowed to vote after the smell of this asshole is fumigated out of the White House. Maybe some sort of competency test should be administered to white voters…

    • Raan

      “SEE YOU IN COURT”
      “Yes, that is where we work.”

      • Biel_ze_Bubba

        Where does he think his lawyers have been for the past two weeks?

    • TakingAmes

      Maybe bring back poll taxes, but just for white people. The Repubs will stop voting altogether.

  • MynameisBlarney

    Meanwhilst, at Teh Lesion of Dumb….

    https://media.giphy.com/media/93ZPzlHGZI8CY/giphy.gif

    http://www.esquire.com/news-politics/politics/news/a53124/michael-flynn-russia-details/

    To say that they’re in over their empty fucking heads is a massive understatement.

  • Chadwells

    Leaks…right. Those pesky leaks not allowing you to lie through your shit stained teeth. Not that it’s actually stopped you from lying, ignorant fuck.

    The problem is…Dampnut sees himself as “boss”
    when his actual title is mother fucking EMPLOYEE to the American people.

    I’m pissed. Gonna go smoke and calm down!!!!

  • Bill D. Burger

    Bunny sez: “This ‘Mooozlim Ban’ thingy has just fucking worn me out. I just can’t take….”

    https://uploads.disquscdn.com/images/78b6e312997792eca97f3305cdcc5188749fb0932fe7bddee567ac5e739a8a0c.gif

    • Spotts1701, Resistance Pilot

      I’m with you Mr. Bun.

  • Michael Smith

    From a strategic point of view, part of the virtue of the injunctions is that they delay enforcement of the orders and give Americans more time to sober up from their hate-binge (maybe), undermining support for the orders in the first place. We know that Trump is going to shoot himself in the foot constantly, maybe we can put his orders on hold as long as we can until Trump solves the problem for us by imploding.

    And if not, at least we have some breathing room to think about our next move.

  • exinkwretch

    All of the Trumpie clowns need to be deposed. Not necessarily in court.

    • Nounverb911
      • natoslug

        Mein Führer…! I can walk!!

    • Truck Fump

      All of the Trumpie clowns need to be deposeddisposed . Not necessarily in court.
      FIFY

    • At the crossroads, stay strong

      Well, Flynn’s out, Kellyanne may be on the block for her blatant ‘Buy Ivanka Stuff’, although ethics and the GOP seem to be mutually exclusive. Betsy ‘Grizzlady’ Devos had to run away from a school because of a huge number of protesters unfair protesters (five). The dipshits just keep getting dipshittier. It seems only a matter of time.

  • cmd resistor

    Also, too, the 9th Circuit has given the parties until Feb. 16 to file briefs with their positions on whether there should be an en banc hearing. Also, I read or heard on TV that there was a hearing in Judge Robart’s court yesterday. The DOJ had asked for an extension on things in HIS court, citing the 9th Circuit en banc thing. I couldn’t get a sense of whether they were actually filing something in the 9th C asking for en banc or just using the possibility as an excuse not to proceed in District Court. So I think So Called Judge Robart said nope, so his briefing schedule stands. Also, too, a district court in Virginia also issued a preliminary injunction yesterday, after a hearing on Friday at which the judge did not appear to be happy with the DOJ’s failure to come up with ANYTHING like evidence.

    • CogitoErgoBibo

      The Virginia decision was extremely fun. Found a likelihood of the plaintiffs succeeding on the merits of proving the EO is an actual Muslim ban. Trumpy warned about it and there it is!

      • cmd resistor

        I need to go look for it and read it. I know reading about the hearing sounded like the newest “so-called” judge was having none of the DOJ stuff.

        • Spotts1701, Resistance Pilot

          I particularly liked “maximum power is not the same as absolute power”.

          • cmd resistor

            Found it — great. But she’s not a “real” judge because, you know, female.

          • Was she bleeding out of her whatever like a common Megyn Kelly?

          • cmd resistor

            Well, probably.

        • ExecutorElassus

          Fun Fact: that same judge, Leonie Brinkema, was also instrumental in a number of trials surrounding the 9/11 hijackers, whether Gitmo detainees could be tried in federal courts, etc.. She’s a Clinton appointee and apparently pretty legit.

    • Fivedollarfeminist

      Impossible to keep up with this story! Here’s the VA decision. Judge Brinkema does not play!
      http://www.politico.com/f/?id=0000015a-3a0e-d784-a5fb-3ebe82c60000

      • cmd resistor

        That’s the thing — national security is not a really high threshold but to just say “national security – don’t question us” is not enough. They aren’t even claiming they have top secret shit.

      • ExecutorElassus

        Oh man, that is some delicious judiciary shade. My personal favorite:
        “It is a discriminatory purpose that matters, no matter how ineffectual the execution.”
        (trans: it doesn’t matter that your EO was written by imbeciles and completely failed, you still wrote it to ban Muslims, so it’s still illegal. LOL #rekt”)
        (I may have imagined the judges imagining that last part to themselves while writing this)

      • SweetDeeKat

        Oooh, federal judges do NOT like being told they don’t have jurisdiction. BURN. Nor do they like it when you have zero evidence.

  • Bill D. Burger
    • Khavrinen

      Amerika: Home of the “brave”.

  • Nounverb911
  • Bill D. Burger

    Valentine to Donald Trump from Lady Liberty:

    Roses are red
    Violets are blue
    The 9th Circuit Court
    Fucking ruled against YOU.

    Happy Valentines Day!

  • Jeffocaster in the desert

    Preznit does illegal things, courts stop him. That’s the way it is suppose to work, right?

  • Spotts1701, Resistance Pilot

    I gave up trying to convince someone on FB who claimed “It’s not a ban because it’s not permanent!” “The courts can’t hear the case because they don’t have security clearance!” “Obama identified the countries, so blame him!” “We need to do SOMETHING! So if you say this isn’t good, come up with an alternative!”
    I finally told her “I’m not arguing any further, so let’s agree to drop it.”

  • Nounverb911

    Bannon’s propaganda machine is gunning for Rinsed Prebus now…

    https://twitter.com/BreitbartNews/status/831515174066647040

  • Royal Ugly Dude

    I like how they keep trying to claim it’s not a “Muslim Ban.” It’s just like saying the Chinese Exclusion Act didn’t discriminate because it only targeted Chinese laborers.

  • Shibusa

    “If I did a tenth of what she did I’d be in jail now.” #LockHimUp

    • At the crossroads, stay strong

      If I did any of the things he did, I’d be in jail. Supermax for him.

  • chascates

    Life was so much simpler when Donald could just have his lawyers sue someone into submission.

  • proudgrampa

    Habeas Corpus is a bitch.

  • At the crossroads, stay strong

    Bannon and Trump sitting under a tree,

    K-i-s-s-i-n-g. and other thing we won’t talk about because they’re gross.

    http://images.dailykos.com/images/356378/story_image/steve_bannon_2.jpg?1485359026

    Made for each other, yes?

  • haroldpp

    What about people being detained at the airport until they unlock their phones? Verge has a chilling piece about an American born NASA scientist who was blocked entry until he unlocked his phone and agents had a good look around in his phone. I can’t even with the pithy comment.

    The ACLU needs to open branch offices in the airports, sheesh!

    http://www.theverge.com/2017/2/12/14583124/nasa-sidd-bikkannavar-detained-cbp-phone-search-trump-travel-ban

    • cmd resistor

      Yeah, but he had a funny foreign sounding name. You are right, that is scary.

    • phoenix00

      Not only that, CBP forced him to divulge the password to his NASA-issued phone. Who took the phone into the back and did heavens-knows-what. Which likely contained confidential info and now possibly contains malware.

      I hope NASA has EXCELLENT lawyers on staff.

      • haroldpp

        I somehow think they are going to be on this in a big way.

  • hendenburg2

    Another little thing to remember: Trump’s ban cost the travel industry approximately $185 million. In the span of a couple of weeks.

    • cmd resistor

      He’s make some deal with the airlines that will “fix” it for them. I read that on Friday coming up he will be stopping at Boeing in SC on his way to Mar-A-Lago. Some unveiling thing.

  • DuchessD’Orleans

    I argued with a wingnut about this for about six hours on Twitter yesterday (which consisted mainly of me providing facts and evidence and him rebutting “is not!” and “Muslims is SCAAAARRY though!”), for some reason. Eventually he conceded that while I may have “a world of knowledge” on the subject, that meant nothing because I lacked “wisdom.”

    Apparently “wisdom” is defined as “unfounded and irrational fear of the Other becaues of shit Sean Hannity says.” I get it now our PREZNIT is so wise! So much wisdom he has!

    • Weevie

      1. Wisdom is the ability to maintain your beliefs even if there’s no reason; the dumber your beliefs, the wiser you are.
      2. Wisdom is orange, seek the Orange.

      • HazooToo

        Strength is being able to crush a rock like a tomato.
        Dexterity is being able to balance a tomato on your nose.
        Constitution is being able to eat a fuzzy tomato and survive.
        Intelligence is knowing that a tomato is a fruit.
        Wisdom is not putting a tomato in a fruit salad.
        Charisma is selling tomato fruit salad as “salsa”.

        • Mike Rhodes

          As a long time rpg gamer, may I steal this?

          • HazooToo

            Roll a pickpocket check.

      • Mike Rhodes

        I think you misspelled wisdumb.

  • Charon_69

    What I still don’t get is there’s not enough attention to the fact it violates the 1965 law stating you can’t restrict (discriminate) based on the refugee’s country of origin-period.
    Now if the loofah-faced shitgibbon realized how laws are made he could likely get it amended or overturned (which the ’65 did to the ’52 law which previously allowed such shenanigans) since they control both houses but naaahhh……

  • DuchessD’Orleans

    The primary arguments by wingnuts on this are

    1) It’s not a Muslim ban!!!!
    and
    2) We have to have this because Islam is evil and they want to Shania Twain America!!!

    • DuchessD’Orleans

      But’s it NOT a Muslim ban (that we need to keep out Muslims)

    • Charon_69

      if there’s going to be any Shania Twain-ing going on, sign me up! /swoon

    • phoenix00

      3) It’s only for 90 days. What’s the big deal?

  • FlownOver

    “the Order likely violated the Establishment Clause (*cough* Muslim Ban *cough*)”

    and/or because Xtian preference. Either way.

  • SweetDeeKat

    Shit, I thought the headline said “Mansplainer” and I skipped over this. Very happy about the en banc explanation.

  • NotReallyHere

    Ok, wow. I’m a member, but this one definitely deserves a tip. Thanks!

  • TX Dept. of Space Tacos

    this is the kind of law education I can get into.

    I was interested in the TRO vs. Prelim Injunction part, cause it’s the part I understood least. But there was a passage buried in either the opinion or the briefs, basically (if I read it right) saying a TRO is not appealable cause they are by definition temporary…my interpretation was, “hey, this TRO is going to end in 14 days, so why go through all this appeals bullshit.” But I thought the opinion said they agreed to hear an appeal on this, cause it was clear it was going to last for longer than 14 days (i.e. the 30-120 days in the EO).

    Anyway, I’d be interested in hearing an explanation of that…although I’m sure VERY FEW others would. #LawNerd

    ; )

    • alpacapunchbowl

      My understanding is that TROs are more of an emergency measure and not subject to the level of judicial review that preliminary injunctions are. Which to my mind was a dumb move on the BannOJ’s part since their case is flimsy at best, but maybe was part of their strategy back when their plan was a S.Ct. appeal.
      So when you get down to it, more of a procedural distinction than anything, although the results (can) vary widely.
      BUT BIG CAVEAT I don’t do litigation so I am not an expert and hopefully someone will chime in with a more accurate splainer if I’m way off.

      • Fivedollarfeminist

        I think you’ve both got it about right. DOJ was gunning to get to SCOTUS, so they persuaded 9th Circuit to treat it as an appealable preliminary injunction. This got them one step closer to Justice Kennedy, but then they realized their case might be crap. So, we’ll see what happens Thursday when their briefs start to come in. Lawfareblog.com is required nerdball reading from here on out.

        • TX Dept. of Space Tacos

          yeah, I was thinking rewriting the thing to fit the obvious concerns by the district and circuit court would have been teh smart move…ala when Bush reclassified Padilla to prevent a loss.

          And thanks for the link.

          • Fivedollarfeminist

            We’re all enemy combatants now.

  • JParkerSD46

    Maybe I missed it that day I found two full bottles of Jack Daniel’s in the pantry, but has Dear Leader dumbsplained exactly what “extreme vetting” is yet? He keeps mouth-pooping the words but of what for does they mean? Also, too: massive voter fraud, 3 million illegal votes in California, bus loads of bad hombres (and possibly equally bad mujeres) voting in New Hampshire. True or alternative fact? Evidence? Bueller, Bueuller? Anyone?

    • TX Dept. of Space Tacos

      nope, I keep wondering the same thing, what is he doing or going to do, that we weren’t already doing? (Besides saying Muslim=out).

      No word on it from anybody.

  • Celtic_Gnome

    Gosh, Wonkette. The law just comes alive when you explain it that way.

  • Michelle Nappi

    How to Lasso a Runaway Executive
    Strange fact: through all the uproar of his first three weeks in office, President Trump only signed one bill into law, and that one only affected one person: Mattis’ waiver to serve as Secretary of Defense. But Trump issued several sweeping executive orders.
    Another strange fact: Congressional staffers, perhaps the most fiercely loyal people in Washington, signed nondisclosure agreements to “conceal from their bosses” that they were drafting those executive orders in violation of separation of powers.
    What does this tell you?
    Congress thinks it’s found a way to get around the laborious and potentially unpopular procedure of bicameral introduction, consideration, approval and presentment of bills – what we call passing a law. And if nobody stops them they may get away with it.
    Last week the Department of Justice claimed that as an executive order, the travel ban that is the subject of State of Washington v Trump not only has all the power of a law, it also has a power no law passed by Congress has: it can’t be reviewed by the courts. The authority behind it is unlimited. Neither its legality nor its constitutionality can be challenged.
    When Justice argued these extraconstitutional powers some Americans were angry and amazed. Others said, “Well, that settles it.” Judge Robarts of Washington’s Western District, and later the Ninth Circuit, were dryly incredulous. But Judge Gorton of Massachusetts in the First Circuit disagreed. And Congress and Trump are dead serious.
    The extraconstitutional powers they’re relying on are redelegation, plenary authority, and full sovereignty. While as concepts they’re archaic and some of the cases establishing them are anticanonical (no longer considered constitutional), the courts continue to let these powers gradually creep up.
    The Ninth Circuit may rehear State of Washington v Trump en banc, and it or a case on its replacement order may reach the Supreme Court. We need the High Court to shut down the underlying abuse by bringing United States law conclusively out of the nineteenth century.
    Redelegation
    Congress faces an ongoing problem of legislating without making themselves unpopular with voters, while parties add demands. Whenever it can it eagerly abdicates its powers to someone else.
    Neither Congress nor state governments can make new powers; that takes Article V amendment. Nor can they transfer to anyone else the powers the people vest in them. But the courts have gradually allowed it.
    It’s called by several names:
    • a statutory grant or delegation of rulemaking authority
    • a charter
    • discretion
    • a procedural right
    But the proper term for it is redelegation. And it’s unconstitutional.
    The fundamental premise underlying the separation of powers is that we vested particular powers in particular places not arbitrarily but after twelve years of consideration and debate, including six years of trying to make our first effort, the Articles of Confederation, work. Separation of powers assumes powers will stay where we placed them in the Constitution. Only the people may remove powers and delegate them to someone else.
    SCOTUS recently upheld the people’s power to do just that. In Arizona State Legislature vs Arizona Independent Redistricting Commission, the people of Arizona had passed a ballot initiative to remove districting from their state legislature and delegate that power to a commission. The legislature sued, and the people won. (The public may have given the foxes the keys to the henhouse in that case, but the confirmation is still important.)
    The Preamble, Article VI, and Amendments IX and X cover the hierarchy of legal powers:
    1. the people’s right and power to establish a Constitution
    2. the Constitution, treaties and federal statutes, and any inalienable rights or powers not mentioned in the Constitution
    3. state constitutions and statutes
    4. anything else, including executive acts
    Presidents issue three kinds of acts, in declining order of authority:
    1. executive orders
    2. presidential memoranda
    3. presidential proclamations
    Every President but William Henry Harrison, who died after a month in office, has issued at least one executive order. Even Washington issued eight.
    We have asserted limits. When Bill Clinton tried to redelegate to himself by adding a fourth kind of executive act, a line-item veto, Congress refused. George W. Bush achieved the fourth act with signing statements, but a leery public questioned their power to negate parts of a law.
    Laws are more powerful than executive orders. But once allowed, redelegation tends to creep. It started with internal discretion – and with immigration.
    “The Congress shall … make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Article I, section 8
    By a strict reading of the Necessary and Proper clause, even the purely internal administrative functions of the executive departments must be made by US law.
    We could stand on that but might be guilty of cruelty to Congress. Washington only had a couple of principal officers but more executive departments soon proved necessary. And after the Louisiana Purchase our holdings and population, and accordingly the legislative work, grew.
    “[H]e may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject related to the duties of their respective offices; …” Article II, section 2
    Article II, section 2 expects the President to consult with the principal officers of executive departments about their work.
    Since the text mentions these principal officers, Congress decided to allow them discretion – power to run the purely internal administration of their departments as they see fit – with minimal congressional involvement.
    Executive orders and department heads are redundant. If the President could govern the departments by orders, why have principal officers? And the Opinion clause suggests something fairly egalitarian, appropriate to a democratic republic. Government by decree is royalist in nature, the concept and form of government we fought the Revolution to leave behind.
    “He shall take care that the laws be faithfully executed …” Article II, section 3
    But Presidents needed to make sure those internal decisions didn’t violate the laws. The Constitution’s executive-department governance entirely by laws shifted to internal governance by principal officers under Presidential oversight.
    All policy affecting the public was still supplied by Congress as law. But the control Congress retained over executive policy affecting the public gradually degraded. Today, while it’s still considered and passed as law this is little more than oversight.
    (Congress would worsen the problem in 1929 by freezing the House at 435, limiting the work they could do, violating Article I, section 2’s Apportionment clause.)
    These creeping government rights and powers are called abdication and usurpation. That redelegation, abdication and usurpation are a problem for a democratic republic becomes clear when policy has the effect of law.
    Full Sovereignty
    Sovereignty is the right and power to act on the people’s behalf.
    Rights and powers we delegate to our government are quasi-sovereign: every power, and all government officers, remain subject to the public’s oversight not just by election but by our resort to the courts.
    The Department of State uses one quasi-sovereign power: they represent the American people with foreign powers. Prosecutors use another quasi-sovereign power: they represent the people in criminal cases.
    Full sovereignty is a right to act on the government’s behalf versus the people, or without concern for the people. It’s also called:
    • deference
    • sovereign immunity
    • executive privilege
    These are royal powers. They’re plenary powers. And they’re unconstitutional.
    “Congress shall make no law…abridging…the right of the people…to petition the government for a redress of grievances.” Amendment I
    The Constitution forbids the government from immunizing any offices or officers against the people.
    State and federal offices and officers would eventually claim sovereign immunity – a government right to immunity in cases filed by the people. This is an unconstitutional privilege, but it crept up gradually.
    In 1795 Amendment XI granted states full sovereignty in suits by foreign people or citizens of other states. These suits could no longer be filed in the Supreme Court but would be addressed in state courts, appealable to state appellate courts. The amendment couldn’t and didn’t try to grant states sovereignty over their own people.
    Meanwhile, the Supreme Court was the only federal court for a generation. When Congress created separate federal courts these agreed to a general rule of deferring cases involving both state and federal laws or policies to state courts.
    As the executive departments grew Congress made administrative courts to govern them, and federal and state courts deferred to them. The public retained the right to appeal their decisions to a federal court but only after exhausting administrative and state systems. This was prohibitively expensive for most Americans, and our control over executive policy faded.
    Plenary Power
    Plenary power and sovereignty were hot topics of public debate in the latter nineteenth century. This was the beginning of America’s age of empire, which would last until Alaska and Hawaii were admitted as states in 1948.
    Plenary authority is unlimited and unreviewable power, power that can be questioned or overridden by none. And it’s unconstitutional.
    Plenary power overlaps sovereignty, but its main effect is:
    • unreviewable power in an area of law
    • unlimited power in an area of law
    Because the two powers overlap, plenary powers are often mistakenly called sovereign powers, such as:
    • sovereign prerogative
    • fundamental sovereign attributes
    • inherent sovereign powers
    Since we the people empower the government, it can’t have unlimited or unreviewable power over us. The only unreviewable authority is our instrument the Constitution – and in its Article V we reserved the right and power to amend even it.
    Congress and state governments claimed plenary power over policies and rules that aren’t laws. The courts wrongly accepted this. No act of governance we authorize in the Constitution is exempt from compliance with it. No office created by it is immune against it.
    Even Congress’ internal rules, which Article I, section 5 authorizes Congress alone to determine, are subject to the Constitution that gives legal force to both the rules and the body that enacts them. If they weren’t, Congress could pass a rule that members would serve for life and the people couldn’t stop them.
    Article I, section 6 frees Congressional speech and debate from review anywhere but in Congress. This doesn’t make it immune from review. It just requires reviewing its legality and constitutionality in Congress itself. And the Speech or Debate clause doesn’t apply to laws or to orders, policies, rules, memoranda, proclamations, or any other act of governance. They’re not speech but acts.
    The nature and effect of an act of governance determines whether it must be a law or can be an order, policy, or other act. Neither labeling a law by some other name nor passing it by some other procedure changes its nature or effect.
    Read as a whole document, the Constitution makes clear that any act of governance that impacts any person’s
    • rights,
    • responsibilities,
    • powers,
    • privileges or
    • immunities
    is a law and must be introduced, considered, and approved by Congress, signed by the President, and subject to judicial review.
    Beyond purely internal function, is plenary power constitutional?
    How can it be?
    United States law can impact foreign nationals’ rights, powers, privileges and immunities in three ways:
    • treaty
    • declaration of war
    • immigration law
    Treaties must be approved by the Senate. Only Congress can declare war or make immigration law. We delegate to Congress the power to make national security policy or law. The President has power to conduct wars once declared, but Congress secures our borders.
    Article I, section 8 of the Constitution begins, “Congress shall have power to …” and continues with a list of powers exclusive to Congress, including:
    “…provide for the common defense…”
    “…provide for calling forth the militia to […] repel invasions…”
    “…define and punish piracies and felonies committed on the high seas, and offenses against the law of nations…”
    “… (under “declare war”) …make rules regarding captures on land and water…”
    The list also includes:
    “…establish a uniform rule of naturalization…”
    The notorious Promise of 1808 clause in Article I, Section 9 deferring the slavery question also confirms Congress’ power over entry:
    “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight…”
    Article II, section 2 delegates to the President the powers to:
    • make treaties with the Senate’s advice and consent
    • appoint ambassadors the same way
    • receive foreign ambassadors.
    He’s also Commander in Chief of the military when in active service, and commissions their officers.
    The President has this much delegated authority over foreign affairs, but immigration law isn’t about our relationships with foreign governments, it’s about the temporary and permanent composition of the United States population. And that begins at our own borders. Our borders are under Congress’ sole authority.
    Congress’ foreign powers and the Necessary and Proper clause have been ground down by degrees. Any veteran of one of our undeclared wars knows how warlike they can be.
    Although we limited the President’s role to execution, having a face for the United States proved popular and the concept of the President as leader grew through the years. Internal departmental orders gradually included some policy. It’s easy enough to word one to make officers follow a policy. The people gradually questioned the President’s authority to act less often.
    When we survived the Civil War intact and with our founding principles reaffirmed by the end of slavery, the western world had to admit a constitutional democratic republic could work. The giddy period that followed almost obliterated those founding principles as the United States government began conducting its affairs in ways more and more like the ones we’d left behind with English rule.
    Because the President serves as our sovereign representative to foreign nations, Presidents began to claim full sovereign power in foreign affairs. After all, if something was less than a treaty, declaration of war, or naturalization law it was just foreign policy, right? Somebody had to make those smaller decisions. The courts weren’t working with foreign powers and should stay out of it. And Presidents were dealing with kings and dictators. Wasn’t it good for America’s position that a President be their equal?
    Soon sovereignty, the plenary power of kings, began to creep up past quasi- sovereignty, the reviewable power of government in a constitutional democratic republic. Congress, the executive, the states and the courts began to use the word sovereignty in ways the Constitution doesn’t authorize.
    For almost our first 100 years, the United States’ borders were officially open. When states passed laws limiting the immigration of poor people the courts rejected them. But by 1875 we could see the Pacific from the Capitol and the sense of a space too large ever to fill was ending. Eastern cities had become as crowded as any city in Europe as the gold rush led to the myth of “streets paved with gold” – in a land of confirmed freedom from monarchy and theocracy.
    Empire was one response. Fear of sharing our power and resources with strangers was another.
    In 1889 Chae Chan Ping v United States brought presidential plenary power into caselaw, and did it in an immigration case. The uniform rule of naturalization no longer covered all matters of immigration. This infamous case is now anticanonical. It’s no longer eligible for use as precedent. This should invalidate any part of decisions since that rely on it as precedent. The President’s current claim relies on a long chain of such decisions.
    Presidential power over citizenship directly violated Article I, section 8 but Congress and the courts were no longer reading the text strictly. It didn’t directly affect most Americans, but Presidential plenary power had crossed the border.
    Congress took back its power over immigration in 1920’s National Origins Act but by that time was establishing a power to redelegate its own powers by statute. Sometimes to the states, sometimes to the executive branch. The courts allowed it. After all, it wasn’t as if policy would have the force of law.
    United States vs Curtis B Wright Export Company in 1936 found that powers delegated in the Constitution are inherent sovereign powers. Even when those powers are redelegated.
    This was awesome new power, entirely unauthorized by the Constitution. Inherent powers are not only plenary, they can reduce the public’s inalienable right and power to change our government. The Presidency gained the most by this upgrade. Remember, executive orders that make policy binding on the public under any circumstances were authorized by Congress and the courts with no support in the text.
    Congress redelegated its authority over immigration to the President in 1952’s Immigration and Nationality Act (often amended, most recently by 1996’s Illegal Immigration Reform and Immigrant Responsibility Act).
    1953’s Youngstown Sheet and Tube Co et al v Sawyer is famous for restraining a President’s creeping powers. In fact, it expanded them. President Truman was barred from using war powers to seize the factory, which was private property, but a concurring opinion by Justice Robert Jackson created a precedent allowing executive orders to have as much force as law if the President acts in accordance with the first level of a three-level scale. Below that it loses authority:
    1. with express or implied authority from Congress
    2. in an area where Congress has so far been silent
    3. in defiance of congressional orders
    In the mid-twentieth century the civil rights movement and other developments increased understanding of inalienable rights and civil liberties like Amendment V’s Due Process clause. Cases began to prove limits to each of the extraconstitutional powers, but old statutes and precedents remain and SCOTUS has yet to address them head on.
    How to Restore the Rule of Law
    Either Congress or the Supreme Court can end redelegation, full sovereignty and plenary power once and for all. Congress will resist this but the Court can do it because exercising these powers violates the Constitution.
    They’re unlikely to do this on this case. It can be decided on narrower grounds. And these violations are longstanding, have some precedent behind them, and are popular with the other branches. We should press the Court to address them anyway. This is not a common-law country but a constitutional one. The current trend towards populism emerges largely from a frustration with government caused by these creeping powers. And if not addressed in this case, President Trump’s stream of executive orders promise there will be other cases.
    We can’t let the Court declare the case unreviewable. That precedent would prevent any federal court from ever addressing any immigration order by a President ever again. Naturally the other extraconstitutional powers would then start to creep until executive orders covered everything Congress used to do, without being subject to challenge.
    Are we then supposed to put up with our gerrymandered, privately financed, voter-suppressed and possibly electoral-frauded-in Congress sneaking whatever they want over to the White House to be issued as an unreviewable executive order?
    And how can we keep these unlawful powers from creeping even more?
    If SCOTUS won’t address it now, they can establish a temporary middle ground.
    The following set of standards for executive action, consistent with the absolute most the Constitution might possibly be claimed to allow, can be used as a test. It’s rough and could probably be improved. The public needs to debate the concept of a test and these particular standards. Others may be needed.
    The first standard is compliance with the Constitution, United States and state law, and treaties. Even local ordinances. United States courts must have jurisdiction over all United States actions without exception. Even the military must be subject to United States law; federal or constitutional questions in military courts must be appealable to the Supreme Court.
    The second standard is narrow focus. If Congress can do it, the President is barred from it. An executive order must be as narrow as possible. This includes but is hardly limited to only making executive orders to officers under the President, and only ordering them to do something within their office’s jurisdiction. Anything that impacts any American or foreign person’s inalienable rights or powers, or their privileges or immunities, is a law and must be passed as a law unless a proven state of national emergency arises when Congress is unable to meet.
    The third standard is emergent necessity. The order must be needed to resolve an immediate state of national emergency or to stabilize the situation until Congress can meet.
    The fourth standard is expiration as soon as Congress next meets. Congress will have to pass it by the usual process.
    The fifth standard is a prior written opinion by the head of the relevant department. The President’s access to such written opinions is expressed in the text, which suggests that these principal officers have some authority.
    Plenary power and sovereignty have crept too far into US government. We have to shut them down. That means fighting for a ruling against all three unconstitutional powers, and not settling for less than the above even temporarily.

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