Day: March 17, 2017

Instant Analysis of New Concurrals and Dissentals in Washington v. Trump

Judge Bybee’s dissent from denying of rehearing en banc in Washington v. Trump (which I analyzed here) was but the mere opening salvo. Late Friday night, the 9th Circuit posted an “amended” opinion. Judges Reinhardt and Berzon issued statements concurring in denial of rehearing en banc. Judges Kozinski and Bea posted new statements dissenting from denial of rehearing en banc.

I summarized the opinions in this Twitter moment.

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“Any Reasonable, Objective Observer”

In Hawaii v. Trump, the court reasoned that “Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” The entire construct of the “reasonable, objective observer” is, of course, a fiction. In no sense does the court ever go on the street and ask random people what they think. Rather, as designed, the judge puts himself in the shoes of the “reasonable, objective observer.” Judges, who will usually view themselves as fair-minded individuals, no doubt consider themselves in all aspects of their jobs to be reasonable and object. If, for whatever reason, they couldn’t be reasonable and objective on a case, the remedy is recusal. Indeed, the court’s analysis admits as much: both the “reasonable, objective observe” and “the Court” reach the same conclusion!

Once we understand that the “reasonable, objective observer” standard is but a mere proxy for the judge’s own rule of reason, the wide-ranging debate over Hawaii v. Trump becomes clear. Two people, who both consider themselves reasonable, can look at the same record, and reach very different conclusions. To put a finer point on this conclusion, two people, who both consider themselves reasonable, can look at the same record, and vote for Donald Trump or Hillary Clinton, respectively. Whichever camp you find yourself in, in all likelihood, you think the voter in the other camp was unreasonable. (I won’t bother rehashing the merits of the election here).

In Politico, I attempted to capture this mentality by applying deference based on what cable news channel you watch.

Courts need not be blind to Trump’s awful past statements (call it Fox News deference). Judges can and should ask if there is a plausible reason why those seeking admission from these six war-torn countries should undergo heightened review. However, courts should not uncharitably read every piece of evidence in the most negative possible light (call it MSNBC deference). . . . Rather—and despite his own egregious and inexcusable attacks against the courts—judges should treat the 45th president like any other (call it C-SPAN deference).

A “reasonable, objective observer” could have drawn this conclusion, applying C-SPAN deference:

  1. On the campaign trail, Donald Trump proposed a ban on immigration of a billion Muslims from every nation in the world.
  2. A few months later, Trump said he abandoned that plan, and wanted to focus on “extreme vetting” for all aliens–regardless of religion–from certain dangerous “territories.”
  3. In several interviews, Donald Trump reiterated his support for the “territories” policy.
  4. After he is inaugurated, he expresses a preference for admitting persecuted Christians in majority-Muslim nations, such as Syria.
  5. The first executive order halted immigration from seven nations, subject to narrow exceptions. The order also provides a preference for members of persecuted religious minorities.
  6. Though the order applies to all aliens from those countries regardless of religion, each country is a majority Muslim nations, so this order will predominantly affect muslim.
  7. Only a handful of aliens from those nations have successfully engaged in successful terrorist attacks in the United States (In October 2016, an Iraqi refugee in Houston pleaded guilty of providing support to ISIS. One month later, a Somalian refugee engaged in a terror attack at Ohio State University with his car and a knife).
  8. One of his former advisers said: “So when he first announced it he said “Muslim ban.” He called me up, he said, “Put a commission together. Show me the right way to do it legally.” I put a commission together with judge Mukasey [Michael Mukasey, a former federal judge and Attorney General], with congressman McCaul [Texas Rep. Michael McCaul, chairman of the Homeland Security Committee], Pete King [New York Rep. Peter King, former chair of the Homeland Security Committee], a whole group of other very expert lawyers on this, and what we did is we focused on, instead of religion, danger—areas of the world that create danger for us. Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion, it’s based on places where there are substantial evidence that people are sending terrorists into our country.
  9. A federal court in Washington enjoined the order. The Ninth Circuit affirmed, and suggested that the order had Establishment Clause problems, but ruled that the order as drafted violates the Due Process Clause.
  10. In response to this order, the government drafts a new order that eliminates all references to religion, including the preference for members of persecuted religion minorities. The order also creates a systems of exemptions and waivers to ensure that those with interests to the United States should be allowed to enter. At bottom, the only people who would be affected are aliens who have never had an interest in the United States, or refugees.
  11. The rationale for the new order is that the six nations do not adequately cooperate with the United States on counterterrorism policies. Three of those nations are state sponsors of terrorism, and the other three have been impacted by war and terrorism.  None assist the United States with counter-terrorism measures. As a result, the government needs a pause to reassess screening procedures for aliens from those countries.
  12. The new order is challenged in court.

With that C-SPAN style recitation of facts, could a “reasonable, objective observer” conclude, in the words of McCreary County that “the secular purpose [is] genuine, not a sham, and not merely secondary to a religious objective.” Of course. There is more than enough to show in this “sequence” that there is a legitimate interest behind this policy. As for his adviser’s statements, one could conclude that the President was trying to find a legal way to keep terrorists from entering the country, and he abandoned a religious test, focusing on certain dangerous areas.

Whether you agree with it, or think it is wise, is a separate question from whether a “reasonable, objective observer” would find the stated purpose is a sham. A “reasonable, objective observer,” watching C-SPAN, would not conclude this is a sham. Hawaii v. Trump applied MSNBC deference to the executive order.

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Rush Limbaugh Discusses my Lawfare Post on Mindreading Judges

In this segment, Rush echoes many of my points about the dangers of judges attempting to read the President’s mind, and anoint him with a forever taint of bigotry.

So a lot of people are wondering, people who don’t follow these things and to whom legal maneuverings are also of a foreign language, why does this keep happening? As he attempts to freeze immigration from refugees and immigrants from predominantly Islamic countries, why does this keep happening? When the federal courts, local courts, they’re federal district courts, in this case in Hawaii and Maryland, the judges said that the record of statements by the president and his advisers mean that, in their view, the real purpose of the executive order is to discriminate against Muslims, and that violates the Constitution’s ban on favoring or disfavoring an election. Establishment clause of the First Amendment.

The only problem with this is, it is completely illegal and totally against all judicial practice to decide on the merits of a law or executive order based on what you think the author’s motivations are. And this conclusion — you know, I read a piece here by a guy named Josh Blackman at a website called Lawfare, which I find myself consulting more and more.

He said, “This conclusion will infect every establishment clause challenge ever brought against the president concerning Islam. Perhaps the president’s decision to use military force against a predominantly Muslim nation could violate the establishment clause. In other words, nothing Trump can do would ever eliminate that taint.” So his problem here is that if America’s courts are now holding that congressional action in areas of enumerated, exclusive authority, meaning the statute that allows Trump unilaterally and by proclamation to issue this ban, if America’s courts are holding that that authority is subject to noncitizens being given the rights of our constitution, then judicial review will have been extended to absolutely everything up to and including the decision to declare war.

Imagine that if Trump decides to send, let’s say to Yemen, on a military action and some leftist goes back to this Hawaii judge or any other favorable liberal judge and says, “Trump can’t do this because he’s a bigot. Trump said during the campaign he didn’t want Muslims coming into the country. He’s prejudiced, he’s biased against Muslims and this constitutes murder,” and the judge would say, “We think that’s right,” and the president therefore can’t send troops.

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Venezuelan Bakers Needs Lochnerism

While today most economic liberty cases are civil in nature, the grandaddy of them all, Lochner v. the People of New York, was a criminal case. As Justice Peckham recounted, after a trial, Lochner “was convicted of misdemeanor, second offense, as indicted, and sentenced to pay a fine of $50 and to stand committed until paid, not to exceed fifty days in the Oneida County jail.” Yes, the punishment for violating the hour law was a $50 fine, and if he refused up to 50 days in jail!

In 2017, the idea of throwing bakers in jail for running an effective business may seem like the subplot of an Ayn Rand novel. Alas, in Venezuela, truth is stranger than fiction.

Facing a bread shortage that is spawning massive lines and souring the national mood, the Venezuelan government is responding this week by detaining bakers and seizing establishments. In a press release, the National Superintendent for the Defense of Socioeconomic Rights said it had charged four people and temporarily seized two bakeries as the socialist administration accused bakers of being part of a broad “economic war” aimed at destabilizing the country.

In a statement, the government said the bakers had been selling underweight bread and were using price-regulated flour to illegally make specialty items, like sweet rolls and croissants. The government said bakeries are only allowed to produce French bread and white loaves, or pan canilla, with government-imported flour. However, in a tweet on Thursday, price control czar William Contreras said only 90 percent of baked goods had to be price-controlled products. Two bakeries were also seized for 90 days for breaking a number of rules, including selling overpriced bread.

Throwing people in jail for selling “underweight bread!” How dystopian! While most lawyers know about Lochner, few know about a related bakery case, Jay Burns Baking Co v. Nebraska. In that case, the Cornhusker State criminalized selling underweight bread!

An act of the Legislature of Nebraska, approved March 31, 1921 (Laws 1921, c. 2, p. 56)1 provides that every loaf of bread made for the purpose of sale, or offered for sale, or sold, shall be one-half pound, one pound, a pound and a half, or exact multiples of one pound, and prohibits loaves of other weights. It allows a tolerance in excess of the specified standard weights at the rate of two ounces per pound and no more, and requires that the specified weight shall be the average weight of not less than 25 loaves, and that such average shall not be more than the maximum nor less than the minimum prescribed. Violations of the act are punishable by a fine or imprisonment.

Plaintiffs challenged the law as “unnecessary, unreasonable and arbitrary.” The Court, finding that the permitted tolerance–only half an ounce or say–was unreasonable, and unconstitutional:

For the reasons stated, we conclude that the provision, that the average weights shall not exceed the maximums fixed, is not necessary for the protection of purchasers against imposition and fraud by short weights and is not calculated to effectuate that purpose, and that it subjects bakers and sellers of bread to restrictions which are essentially unreasonable and arbitrary, and is therefore repugnant to the Fourteenth Amendment.

Though similar to Lochner in facts, the case was not cited.

Justice Brandeis, joined by Justice Holmes, dissented. They would have upheld the criminal prohibition.

Venezuela could certainly use some Lochnerism!

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