The 9th Circuit deals a blow to the imperial -- and incompetent -- president - by Jennifer Rubin

[DonViejo]

By Jennifer Rubin February 9 at 10:07 PM

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.

-snip-

The opinion tells us much about the hubris and sheer incompetence of the new administration as the court rebuked it at every turn, pointing to errors in law and lawyering.

The administration made the argument that the case was not even reviewable, despite ample precedent from the George W. Bush years. In its most memorable line of the opinion the judges held, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” The court pointed out that even in the immigration and national security realms the political branches are subject to judicial review. Given the president’s recent public hectoring and threats to hold the court responsible for any terror attacks if it upheld the lower court’s order, the court had every reason to eviscerate the claim of what amounts to executive supremacy. (One wonders if the president’s noxious attack on the judiciary also encouraged the three-judge panel to make the ruling unanimous.)

The executive order — drafted, we are told, during the campaign — was so sweeping and egregiously dismissive of constitutional niceties that the court made easy work of it. The most fatal flaw was the inclusion of green card holders, which the Department of Homeland Security apparently warned the White House not to include. This gave the court a significant group of people with due process rights who would be subject to presidential whim without any procedural recourse. Both green card holders here in the U.S. and those seeking to come back into the country were affected.

The White House realized after the executive order was issued that green card holders were a problem, but then made a stupid legal error. Rather than issue a new order the White House counsel issued “guidance” to say the order was not intended to affect green card holders. The court scoffed, “The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President.” The government lawyers failed to show that the modification was even binding. Along with green card holders, the court found those with visas also are entitled to due process.

While the court chose not to rule directly on First Amendment grounds, it did dismiss the argument this was not a Muslim ban. The court found that “the States have offered evidence of numerous statements by the President about his intent to implement a ‘Muslim ban.'” On this, Trump dug his own legal grave.

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https://www.washingtonpost.com/blogs/right-turn/wp/2017/02/09/the-9th-circuit-deals-a-blow-to-the-imperial-and-incompetent-president/?utm_term=.0f1015a59e4d&wpisrc=nl_headlines&wpmm=1

[PJMcK]

1. Fascinating article

Thanks for posting the link, DonViejo.

The last paragraph is scathing:

This is a humiliating defeat for the White House, revealing just how amateurish the president and his advisers are. The frightful part is that if they cannot handle a simple executive order, what makes anyone think they can handle far more difficult challenges?

Donald Trump is an idiot and he has no idea how the government and the Constitution work.

[n2doc]

2. Interesting. Rubin is normally a conservative asshat

But I guess Trump is too much for even her.

[MBS]

3. Conservative she is,

but she's been consistently anti-Trump, since the primaries. And her analyses have been uniformly scathing.

[murielm99]

4. If this was drafted during the campaign,

they had plenty of time to work out the problems.

Bannon is just as incompetent as trump.