Day: February 9, 2017

The “No Evidence” Standard in Washington v. Trump

One of the most remarkable aspects of the oral arguments in Washington v. Trump, and the ensuing unanimous opinion, was the court’s demand that the government provide satisfactory evidence to justify the executive order. Generally, in the sphere of national security, the courts take the government’s representations on their face.(See my earlier post on second-guessing on national security). That was not the approach employed in Washington v. Trump. The panel imposed a “no evidence” standard on the government. Consider this discussion concerning the balance of hardships:

The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.

Here, taking Washington’s assertions of fact in its complaint about national security as true, the court found that the government did not meet its burden to rebut that evidence.(In another area of schedfreude, I’ve argued for some time that courts should accept the facts as pleaded in a TRO). More to the point, Washington’s assertions were based on newspaper clippings, whereas the government had access to classified information. (The statement from numerous national security officials, who received briefings as recently as a month ago, could serve a different purpose).

The court repeats that there is no evidence that any aliens from these countries has “perpetrated a terrorist attack.” This is a much higher burden than whether any aliens were arrested, the question pose during oral arguments.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.7

Why is this the standard? Does the government really need to wait for an alien from one of these countries to kill Americans before such a ban is justified? I am totally unsympathetic to the ban, but this standard of review is bonkers.

Further, in a footnote, the government asserts that Congress’s decision to impose heightened visa restrictions does not justify a far greater ban on entry.

7 Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.

This sentiment goes far behind saying there is “no evidence.” Now, the evidence provided–that is, supported by the President and Congress–is not adequate.

Finally, in another footnote, the court urges the Executive to submit classified information (through the Classified Information Procedures Act) for the court’s review.

Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.8

In addition, the Government asserts that, “[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that. 28 C.F.R. § 17.17(c) (describing Department of Justice procedures to protect classified materials in civil cases); 28 C.F.R. §17.46(c) (“Members of Congress, Justices of the United States Supreme Court, and Judges of the United States Courts of Appeal and District Courts do not require a determination of their eligibility for access to classified information . . . .”); W.D. Wash. Civ. L.R. 5(g) (providing procedures governing filings under seal).

And what if that evidence is still not adequate? I fear the court is opening a door that it will promptly slam shut. The judges have already determined this ban is inadequate. Now, the government needs to provide dossiers to persuade the court that the policy is proper. It’s not enough to produce some evidence. They must produce satisfactory evidence. That is why the phrase “no evidence” is not entirely accurate. The court wants “adequate evidence.”

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Instant Analysis of Washington v. Trump

Here is my Twitter thread on Washington v. Trump. I apologize that I do not have time to format it, as I need to run to the studio to get ready for hit on Lou Dobbs Tonight (around 7:30 ET). I’ll have more analysis tonight.

ConLaw Class 9 – Scope of Federal Powers IV

Class 9 – 2/9/17

Scope of Federal Powers IV

  • The Spending Power (242 – 243)
  • South Dakota v. Dole (243 – 247).
  • New York v. United States (351 – 364).
  • Printz v. United States (364 – 379)

The lecture notes are here.

South Dakota v. Dole

This case involved Secretary of Transportation Elizabeth Dole, whose husband (Viagra spokesman) Bob Dole, was a long-time Senator from Kansas, and Republican nominee for President in 1996.


Printz v. United States

The case of Printz v. United States was brought by two sheriffs. Sheriff/Coroner Jay Printz of Ravali County, Montana, and Sheriff Richard Mack of Graham County, Arizona. Both were the Chief Law Enforcement Officers (CLEO), subject to the background-check mandate of the Brady Act’s National Instant Criminal Background Check System. Printz was represented by Stephen Halbrook, and Mack represented by David Hardy.

I’ve spoken to both plaintiffs, and they are very interesting officers–they certainly look the part of CLEOs. Mack insists that the case should be called Mack v. United States, because his name came first alphabetically (docket numbers be damned!).

Following this case, Jay Printz would serve as Sheriff until 1999, and then became a member of the Board of the National Rifle Association. Richard Mack ran unsuccessfully for Congress in Arizona and Texas.

From left to right: Atty. Dave Hardy; Sheriff Richard Mack, Arizona; Sheriff Sam Frank, Vermont; Atty. Stephen Hallbrook; Sheriff Printz, Montana.


Sheriff Richard Mack at the Utah Capitol.


Stephen Halbrook arguing Printz v. United States. Note Justice Scalia has a hipsteriffic beard.


More pictures of Sheriff Printz







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Prop 1 Class 9 – Estates I: Fee Simple

Class 9 – 2/9/17

Estates I: Fee Simple

  • The System of Estates, 207-208
  • The Nature of Judicial Process, 208
  • Possessory Estates, 208-215
  • Seisin, 243-244
  • Video of Seisin:
  • Fee Simple, 215-219
  • Problems, 219

(Read these few pages very, very carefully).
The lecture note are here.

This is Justice Oliver Wendell Holmes, Jr., who famously wrote “It is revolting to have no better reason for a rule than that it was laid down in time of Henry IV (1594-1610).It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from imitation of the past.”


This is Justice Benjamin Cardozo, who served on the New York Court of Appeals (the highest Court in New York) from 1927-1932. In 1932, Cardozo replaced Holmes on the United States Supreme Court, and would serve until 1938. Cardozo was replaced by another famous Justice, Justice Felix Frankfurter.


The feudal system began after the Norman Conquest of 1066.


(Note, in London, they do not refer to William as the Conqueror–he did not conquer London, after all!).

Picture No. 10044093a

This diagram helps to explain the feudal structure.


This drawing represents a cleric, a knight, and a serf.


Serfs were all the way at the bottom of the pyramid.


Here are several diagrams of the feudal manor.


feudal manor




Here is Magna Carta–the great Charter. Forced upon King John by the Barrons at Runnymede in 1215, this document served as the basis for many of the oldest forms of constitutional freedom–including the due proces clause (then known as the law of the land clause). And there’s lots of other useless stuff. In particular, section 12 limits instances where lords can collect aid (or scutage) from tenants.

 (12) No `scutage’ or `aid’ may be levied in our kingdom without its general consent, unless it is for the ransom of our person, to make our eldest son a knight, and (once) to marry our eldest daughter. For these purposes ouly a reasonable `aid’ may be levied. `Aids’ from the city of London are to be treated similarly.

Here is a restored copy of it.


This diagram represents fee simple. Like Buzz Lightyear, this estate endures to infinity, and beyond.

fee-simpleThis diagram represents the fee simple’s restrictive cousin, the fee tail.


This drawing illustrates the livery of seisin.



William Penn performed the livery of seisin on October 27, 1682 upon his arrival in what is now New Castle, Delaware, but became part of Penn’s Woodlands (also known as Pennsylvania). There is a historical marker commemorating the event.

Near here October 27, 1682, William Penn first stepped on American soil. He proceeded to the fort and performed Livery of Seisin. “He took the key, thereof,…we did deliver unto him 1 turf with a twig upon it, a porringer with river water and soyle, in part of all.”

Here is a  photo of a statue of Penn holding a twig and turf.

This video illustrates the Livery of Seisin.

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