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Sunday, February 12, 2017

Trump's en banc robbery

For a nation on the brink of losing its Republic to a judicial junta, America sure is calm this weekend. Perhaps that is a wise course of action.

First, let us review the facts.

As commander-in-chief as well as the chief executive officer of the $4 trillion federal government, President Trump ordered the border patrol to restrict for 90 days travel from six war-torn nations and Iran. He also suspended for 120 days the intake of refugees.

Democrats appealed, and a Democratic judge in Washington state issued an edict blocking the C-in-C from protecting the nation. This was a political decision that asserted judicial authority in a policy decision, a power the Constitution does not grant the court.

Trump blistered the judge on Twitter, and appealed. A three-judge panel on the 9th Circuit Court upheld the unconstitutional blocking.

Then Trump changed the game. He refused to appeal the case to an en blanc panel of 11 judges in the 9th Circuit (which has 29 judges).

That was unexpected.

The court blinked.

From Dan Abrams of LawNewz reported:
In a rare move, one of the judges on the Ninth Circuit of Appeals has made a request that a vote be taken as to whether the order issued by the three judges Thursday night should be reconsidered en banc, which means before 11 federal judges of the Ninth Circuit. 
It’s not clear if this means that this judge (who was not named in the order) believes that there are enough votes to overturn the lower court’s decision which put a temporary halt on Trump’s controversial travel ban or if the judge simply wasn’t satisfied with the panel’s decision.
Regardless, it is an interesting move that could bode well for President Trump, and throws yet another legal twist into the ongoing court battle between Trump and those trying to prevent his controversial immigration ban from being enforced.
Scott Johnson of Powerline has little hope for common sense prevailing and the court gracefully honoring the balance of power among the three branches of government.

Wrote Johnson:
The Ninth Circuit gets a lot wrong in its 29-page opinion, but can it be rectified by this court? Not bloody likely. Nevertheless, hope springs eternal. Cooler heads should prevail. Unfortunately, cooler heads are in short supply on the court.
As a supporter of the president’s prerogative to act in defense of the national security under relevant provisions of immigration law, I can’t suppress my unsophisticated reaction to the Ninth Circuit order: Somebody get me out of here.
Ah, but the ball is still in President Trump's hands.

He can play nice and let the appeals run their course. Likely.

He can vacate his executive order and craft a replacement that complies with the first court order. Doubtful.

He can vacate his executive order and craft a replacement that shoves the temporary restraining order right back at the court, the media, and the Democratic Party. Oh that would be so cool.

We are witnessing "The Art of the Deal."

President Trump is negotiating with the judiciary. He is playing in their court and under their referees, and yet somehow this weekend, he wound up with the better position.


My money, as always, is on Donald Trump. Those 3,500 lawsuits he's filed or fought over the last 45 years provided him a very practical legal education.


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  1. Mr. Trump knows what to do to get a knee-jerk reaction from the Dems.

  2. Sloppy, intemperate and ill-considered. Not Trump, the court. And now the colleagues of the ones who made the mess are trying to find a way to salvage the wreck. Trump is merely following the rule that you don't interrupt or interfere when your opposition is screwing up big time. Let them thrash.


      Same general idea.

  3. I think it's Door #3, Monty.

    He made mention of the fact the finding never mentioned the US law on which the EO is based.

  4. If Democrats want their party localized to the coasts and Great Lakes, championing illegal aliens and prospective terrorists is a great strategy.

  5. If Democrats want their party localized to the coasts and Great Lakes, championing illegal aliens and prospective terrorists is a great strategy.

  6. You notice the Fake News Media is castigating Trump for attacking the judge who made the ruling but was silent when Obungler attacked the Supremes in a SOTU address.

  7. I'm not so sure this whole affair was planned by Trump, but in effect he now has from the "so-called" Court of Appeals a declaration by them of all the parameters he needs to satisfy for a revised EO to pass further legal review by the same 3-judge panel should the revised EO be challenged by the same parties again, in which case a full 11-member panel of the 9th Circuit would have no reason or opportunity to review it. Perhaps one of the other judges of the court realized the rest of the robes are in danger of not getting THEIR chance to stick a legal shiv into the hated Trump, so he acted on behalf of the full court.

  8. Yes, the elites and Dems and even some so called Republicans say that Trump really messed up. That this a punch in the face to Trump. I am hoping that he punches back twice as hard. There is a good chance that Trump will be able to appoint two more SC judges. I hope that they are Very Conservative.

  9. I sense there is a much larger game afoot than just this EO. I think there are a whole bunch of his opponents who aren't sleeping well these days.

  10. I know it's picky-picky, but it's driven me nuts for years hearing folks refer to the President as "our commander in chief." The President is commander in chief of the military, not of the federal government or "the country."

    Several Presidents have been my commander-in-chief. Now I'm retired, and the President is no longer my Commander In Chief. My CinC sleeps next to me and she has for thirty-some-odd years now.

    1. I agree wholeheartedly with Dan (though I can claim zero military experience). The idea of the president and others in government as "our leaders" is just wrong. See Gene Healy's 2008 book _The Cult of the Presidency_. And here's a great brief quote from Kevin Williamson:

      "The entire idea of politicians as society’s leadership is an inversion of the real order of things: Government is not here to lead anybody anywhere — it is here to serve us in the important but limited role of coordinating collective action toward such ends as physical security and the enforcement of contracts."