<http://readersupportednews.org/opinion2/277-75/41851-the-ninth-circuit-and-
president-trumps-lies>
Davidson writes: "If there was a single question at the center of Tuesday
afternoon's hearings on President Trump's executive order keeping people
from seven Muslim-majority nations and all refugees out of the country, it
was this: Do the courts, or the American people, have any recourse when the
President lies?"
Donald Trump. (photo: Bill Clark/RollCall)
<http://www.newyorker.com/news/amy-davidson/the-ninth-circuit-and-president-
trumps-lies>
The Ninth Circuit and President Trump's Lies
By Amy Davidson, The New Yorker
08 February 17
If there was a single question at the center of Tuesday afternoon's hearings
on President Trump's executive order keeping people from seven
Muslim-majority nations and all refugees out of the country, it was this: Do
the courts, or the American people, have any recourse when the President
lies? Judge James Robart, of the U.S. District Court, in Seattle, had
granted the states of Washington and Minnesota a temporary restraining order
that put a hold on Trump's ban, pending further hearings in the next two
weeks. The Justice Department had gone to the Ninth Circuit Court of Appeals
to ask for an emergency stay of that order, meaning that it could continue
to keep people out and revoke tens of thousands of visas before any court
had a say-and even then, the Trump Administration argued, the courts were
not allowed to say much. The three judges on the appeals court-Michelle
Friedland, Richard Clifton, and William Canby-wanted to know what, exactly,
the emergency was.
August Flentje, a special counsel to the Assistant Attorney General, who was
arguing the case for the Trump Administration, said, in effect, that the
emergency was that the restraining order got in the way of the President's
power to say that there was an emergency-to announce that the country was in
danger. Putting a hold on the ban "overrides the President's
national-security judgment about the level of risk," he said. It was the
President's job to make that determination, not any court's. And the court
also needed to put aside any talk about this being a Muslim ban, because
that was not, technically, what the language of the order said. The judges
had to believe the President when he said it was all a matter of the country
being in immediate peril, and not about his views of any religion or about
the demographic future of America. And they certainly shouldn't pay
attention to any reports that the President had, indeed, cited those very
reasons for instituting a ban-Flentje dismissed those as "some newspaper
articles." The judges should just look at the language of the order and
believe.
From the beginning of the hearing, which took place by conference call at 3
P.M. Pacific Time, with half an hour allotted to each argument, the
judges-who said that they would move quickly to make a decision-pushed
Flentje on his claims. "Have you offered any evidence to support this need
you're describing for the executive order, or are you really arguing that we
can't even ask about whether there's evidence because this decision is
non-reviewable?" Judge Friedland asked, a few minutes in.
Flentje said that "numerous foreign individuals" had committed crimes since
September 11, 2001, and that the President had determined that there were
"deteriorating conditions in certain countries." When he was asked if the
government had pointed to any evidence connecting those particular countries
to terrorism, he rejected the idea that it had to. "These proceedings have
been moving very fast," Flentje said. He noted that President Barack Obama
had once cited these countries in making changes to the visa-waiver program.
(Steve Coll has written about why this is a false analogy
<http://www.newyorker.com/news/daily-comment/the-many-dangers-of-donald-trum
ps-executive-order> .) Why shouldn't President Trump get to do even more?
But there were immigration processes in place, Judge Clifton said. Where was
the evidence "that there's a real risk, or that circumstances have changed?"
"Well, the President determined that there was a real risk," Flentje said.
It was, he added, "understandable" that he had done so, because "the
President understands" these matters.
Friedland pressed him again: Was he saying that the President's
determination was "unreviewable"?
"Yes," Flentje finally said, within "obvious" constitutional restraints. Any
judicial review was "limited" and confined to the "four corners of the
document"-that is, the court was allowed to make sure that the order was
"facially" legitimate, meaning correct in form and citing real laws and
deploying the right legal jargon in the right places, a test he said that
the executive order "easily" passed. And that was all. They might, in some
cases, hear out American citizens who were directly affected, but even there
the review was extremely limited.
"We're not acknowledging any review on the facts of the case," Flentje said.
Immigration law does give latitude to the President when the country is in
danger. But what happens when you have a President who the courts, and any
objective person, know tells lies? How should the assertions of danger then
be regarded in light of other laws saying, for example, that religion should
not be a reason for excluding people? For that matter, how should they be
regarded in light of not only the Constitution's Establishment Clause, which
precludes religious tests, but any number of other passages in that
document?
As it happens, this question has come up before in our jurisprudence,
because Donald Trump is not the first politician to lie. Our courts have
dealt with the prospect of dissembling and misstated motives, particularly
in the area of racial discrimination. (A recent book by David Rudenstine
looks at some of this history
<https://global.oup.com/academic/product/the-age-of-deference-9780199381487?
cc=us&lang=en&> .) Judges seem to believe that Presidents will lie about
many things, but that they might have some shame when it comes to the
nation's safety, particularly as they have access to classified information
that the public does not. Friedland reminded Flentje of the court's role.
"Haven't there been allegations here of bad faith?" she asked Flentje. "And
doesn't Mandel and Din, the concurrence in Din, envision that that is
something that we would need to look at?" She was referring to two
immigration cases that were heard by the Supreme Court, in 1972 and 2015,
respectively. The government had seized on the cases' affirmation that the
courts ought to take its decisions on visa denials at face value. But, as
Washington and Minnesota had noted in their filings, "Justice Kennedy's
controlling opinion in Din held that courts should look behind the stated
motives for exclusion even as to a nonresident alien if the plaintiff
'plausibly alleged with sufficient particularity' 'an affirmative showing of
bad faith.' "
Flentje had no real answer at that point, trying to shift the discussion to
the question of "standing," the legal doctrine that a case can't just be
brought into court by anyone who walks in off the street: a plaintiff has to
show harm, and the sort of harm that the law recognizes and can fix. He
hoped that, even if the judges ruled against him on most points (and he was
getting the sense that they might), they would drastically narrow the
restraining order. But under questioning from the judges on why Washington
wouldn't have standing-on the grounds that, to name one reason cited, the
University of Washington, a state agency, had seen its students and scholars
stranded and effectively banished-Flentje just floundered.
"Could the President simply say in the order, we're not going to let any
Muslims in?" Judge Canby asked, at that point.
Flentje tried to answer by saying, repeatedly, that that wasn't what this
executive order said. Pressed, he acknowledged that the right plaintiff
might have standing to at least challenge it, but that "this is a far cry
from that situation."
When the ban's opponents got their turn, Noah Purcell, Washington State's
solicitor general, argued that this was indeed that sort of situation, and
the states were as proper plaintiffs as anyone to bring the case. "It has
always been the judicial branch's role" to serve as a check on abuses, he
began, but the President had asked them "to abdicate that role here, to
reinstate the executive order without meaningful judicial review, and to
throw this country back into chaos." The chaos was the disorder and
uncertainty occasioned by Trump's action. The appeals court should let the
district court do its work-as it "absolutely" would. To get its stay, the
government had to show irreparable harm, and "it was the executive order
itself that caused irreparable harm" to families in his state and to its
many interests. If there was an emergency, in other words, it was entirely
of the President's creation, if not a product of his imagination.
There had, Purcell said, been about five contradictory statements from the
Trump Administration on basic questions, such as the order's application to
green-card holders. As a result, the question of how it affected long-time
legal permanent residents of his state and others was not moot. Nor was the
effect of an Establishment Clause violation on every citizen, or other
statutory concerns. "The court can review this order; the court should
review this order," Purcell said. (Whichever side prevails, this case is
almost certainly headed for the Supreme Court, which is short a Justice at
the moment.)
As for the question of bad faith, Purcell noted that there was already
"rather shocking evidence of intent to discriminate against Muslims."
Trump's first articulation of the order, in a campaign statement in
December, 2015, and at subsequent rallies, posited it as nothing more than a
Muslim ban. And he and his aides had made multiple statements making their
mendacity and their discriminatory "animus" clear. "We've presented an
enormous amount of evidence" on the intent of the order, Purcell said,
especially given that the discussion was just about a temporary restraining
order, and that there hadn't been any real substantive legal proceedings
yet. Indeed, he said, "It's remarkable to have this much evidence of intent
without any discovery." If the judges, or any Americans, look for the
lies-if they acknowledge that they have a right to recognize what is the
truth and what is not-they will find them, all around. And in this White
House, lies resonate.
<http://e-max.it/posizionamento-siti-web/socialize>
Error! Hyperlink reference not valid.Error! Hyperlink reference not valid.
Donald Trump. (photo: Bill Clark/RollCall)
http://www.newyorker.com/news/amy-davidson/the-ninth-circuit-and-president-t
rumps-lieshttp://www.newyorker.com/news/amy-davidson/the-ninth-circuit-and-p
resident-trumps-lies
The Ninth Circuit and President Trump's Lies
By Amy Davidson, The New Yorker
08 February 17
f there was a single question at the center of Tuesday afternoon's hearings
on President Trump's executive order keeping people from seven
Muslim-majority nations and all refugees out of the country, it was this: Do
the courts, or the American people, have any recourse when the President
lies? Judge James Robart, of the U.S. District Court, in Seattle, had
granted the states of Washington and Minnesota a temporary restraining order
that put a hold on Trump's ban, pending further hearings in the next two
weeks. The Justice Department had gone to the Ninth Circuit Court of Appeals
to ask for an emergency stay of that order, meaning that it could continue
to keep people out and revoke tens of thousands of visas before any court
had a say-and even then, the Trump Administration argued, the courts were
not allowed to say much. The three judges on the appeals court-Michelle
Friedland, Richard Clifton, and William Canby-wanted to know what, exactly,
the emergency was.
August Flentje, a special counsel to the Assistant Attorney General, who was
arguing the case for the Trump Administration, said, in effect, that the
emergency was that the restraining order got in the way of the President's
power to say that there was an emergency-to announce that the country was in
danger. Putting a hold on the ban "overrides the President's
national-security judgment about the level of risk," he said. It was the
President's job to make that determination, not any court's. And the court
also needed to put aside any talk about this being a Muslim ban, because
that was not, technically, what the language of the order said. The judges
had to believe the President when he said it was all a matter of the country
being in immediate peril, and not about his views of any religion or about
the demographic future of America. And they certainly shouldn't pay
attention to any reports that the President had, indeed, cited those very
reasons for instituting a ban-Flentje dismissed those as "some newspaper
articles." The judges should just look at the language of the order and
believe.
From the beginning of the hearing, which took place by conference call at 3
P.M. Pacific Time, with half an hour allotted to each argument, the
judges-who said that they would move quickly to make a decision-pushed
Flentje on his claims. "Have you offered any evidence to support this need
you're describing for the executive order, or are you really arguing that we
can't even ask about whether there's evidence because this decision is
non-reviewable?" Judge Friedland asked, a few minutes in.
Flentje said that "numerous foreign individuals" had committed crimes since
September 11, 2001, and that the President had determined that there were
"deteriorating conditions in certain countries." When he was asked if the
government had pointed to any evidence connecting those particular countries
to terrorism, he rejected the idea that it had to. "These proceedings have
been moving very fast," Flentje said. He noted that President Barack Obama
had once cited these countries in making changes to the visa-waiver program.
(Steve Coll has written about why this is a false analogy
<http://www.newyorker.com/news/daily-comment/the-many-dangers-of-donald-trum
ps-executive-order> .) Why shouldn't President Trump get to do even more?
But there were immigration processes in place, Judge Clifton said. Where was
the evidence "that there's a real risk, or that circumstances have changed?"
"Well, the President determined that there was a real risk," Flentje said.
It was, he added, "understandable" that he had done so, because "the
President understands" these matters.
Friedland pressed him again: Was he saying that the President's
determination was "unreviewable"?
"Yes," Flentje finally said, within "obvious" constitutional restraints. Any
judicial review was "limited" and confined to the "four corners of the
document"-that is, the court was allowed to make sure that the order was
"facially" legitimate, meaning correct in form and citing real laws and
deploying the right legal jargon in the right places, a test he said that
the executive order "easily" passed. And that was all. They might, in some
cases, hear out American citizens who were directly affected, but even there
the review was extremely limited.
"We're not acknowledging any review on the facts of the case," Flentje said.
Immigration law does give latitude to the President when the country is in
danger. But what happens when you have a President who the courts, and any
objective person, know tells lies? How should the assertions of danger then
be regarded in light of other laws saying, for example, that religion should
not be a reason for excluding people? For that matter, how should they be
regarded in light of not only the Constitution's Establishment Clause, which
precludes religious tests, but any number of other passages in that
document?
As it happens, this question has come up before in our jurisprudence,
because Donald Trump is not the first politician to lie. Our courts have
dealt with the prospect of dissembling and misstated motives, particularly
in the area of racial discrimination. (A recent book by David Rudenstine
looks at some of this history
<https://global.oup.com/academic/product/the-age-of-deference-9780199381487?
cc=us&lang=en&> .) Judges seem to believe that Presidents will lie about
many things, but that they might have some shame when it comes to the
nation's safety, particularly as they have access to classified information
that the public does not. Friedland reminded Flentje of the court's role.
"Haven't there been allegations here of bad faith?" she asked Flentje. "And
doesn't Mandel and Din, the concurrence in Din, envision that that is
something that we would need to look at?" She was referring to two
immigration cases that were heard by the Supreme Court, in 1972 and 2015,
respectively. The government had seized on the cases' affirmation that the
courts ought to take its decisions on visa denials at face value. But, as
Washington and Minnesota had noted in their filings, "Justice Kennedy's
controlling opinion in Din held that courts should look behind the stated
motives for exclusion even as to a nonresident alien if the plaintiff
'plausibly alleged with sufficient particularity' 'an affirmative showing of
bad faith.' "
Flentje had no real answer at that point, trying to shift the discussion to
the question of "standing," the legal doctrine that a case can't just be
brought into court by anyone who walks in off the street: a plaintiff has to
show harm, and the sort of harm that the law recognizes and can fix. He
hoped that, even if the judges ruled against him on most points (and he was
getting the sense that they might), they would drastically narrow the
restraining order. But under questioning from the judges on why Washington
wouldn't have standing-on the grounds that, to name one reason cited, the
University of Washington, a state agency, had seen its students and scholars
stranded and effectively banished-Flentje just floundered.
"Could the President simply say in the order, we're not going to let any
Muslims in?" Judge Canby asked, at that point.
Flentje tried to answer by saying, repeatedly, that that wasn't what this
executive order said. Pressed, he acknowledged that the right plaintiff
might have standing to at least challenge it, but that "this is a far cry
from that situation."
When the ban's opponents got their turn, Noah Purcell, Washington State's
solicitor general, argued that this was indeed that sort of situation, and
the states were as proper plaintiffs as anyone to bring the case. "It has
always been the judicial branch's role" to serve as a check on abuses, he
began, but the President had asked them "to abdicate that role here, to
reinstate the executive order without meaningful judicial review, and to
throw this country back into chaos." The chaos was the disorder and
uncertainty occasioned by Trump's action. The appeals court should let the
district court do its work-as it "absolutely" would. To get its stay, the
government had to show irreparable harm, and "it was the executive order
itself that caused irreparable harm" to families in his state and to its
many interests. If there was an emergency, in other words, it was entirely
of the President's creation, if not a product of his imagination.
There had, Purcell said, been about five contradictory statements from the
Trump Administration on basic questions, such as the order's application to
green-card holders. As a result, the question of how it affected long-time
legal permanent residents of his state and others was not moot. Nor was the
effect of an Establishment Clause violation on every citizen, or other
statutory concerns. "The court can review this order; the court should
review this order," Purcell said. (Whichever side prevails, this case is
almost certainly headed for the Supreme Court, which is short a Justice at
the moment.)
As for the question of bad faith, Purcell noted that there was already
"rather shocking evidence of intent to discriminate against Muslims."
Trump's first articulation of the order, in a campaign statement in
December, 2015, and at subsequent rallies, posited it as nothing more than a
Muslim ban. And he and his aides had made multiple statements making their
mendacity and their discriminatory "animus" clear. "We've presented an
enormous amount of evidence" on the intent of the order, Purcell said,
especially given that the discussion was just about a temporary restraining
order, and that there hadn't been any real substantive legal proceedings
yet. Indeed, he said, "It's remarkable to have this much evidence of intent
without any discovery." If the judges, or any Americans, look for the
lies-if they acknowledge that they have a right to recognize what is the
truth and what is not-they will find them, all around. And in this White
House, lies resonate.
http://e-max.it/posizionamento-siti-web/socializehttp://e-max.it/posizioname
nto-siti-web/socialize
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