'Skeptical' Ninth Circuit judges poised to block some or all of Trump's travel ban

The liberal judges sitting on the Ninth Circuit Court of Appeals peppered Trump administration attorney August Flentje with questions that suggested that the court is willing to severely curtail the president's executive order on temporarily banning refugees and issuing visas to citizens from seven Muslim-majority countries.  In fact, the judges appear prepared to precipitate a serious constitutional crisis by severely curtailing President Trump's powers as commander in chief.

For 230 years, courts have granted the president significant leeway in deciding how best to keep the American people safe from our enemies.  The court appears ready to substitute its own judgment on how best to address the security of American citizens, turning the Constitution on its head and destroying the balance between the executive and judicial branches.

Flentje came under fire immediately.

Politico:

After claiming that the courts should have little or no role in reviewing Trump's decision, Flentje quickly found himself on the defensive as two 9th Circuit judges pressed him on the potentially stark implications of that position.

"Could the president simply say in the order we're not going to let any Muslims in?" asked Judge William Canby Jr., an appointee of President Jimmy Carter.

"That's not what the order does here," Flentje replied.

"Oh, I know. Could he do that?" Canby asked again.

When the federal government lawyer again demurred, Judge Richard Clifton jumped in.

"We'd like to get an answer to that question," declared Clifton, an appointee of President George W. Bush.

Why is the court concerning itself with what President Trump could do when their job is to rule on what he's done?  It appears that the court may rule against the president based not on what he has proposed, but on a hypothetical of what he might order.

"I don't think you've answered the question asked earlier," said Judge Michelle Friedland, an appointee of President Barack Obama.

"If there were an executive order that ... banned the entry of Muslims, there would be people with standing to challenge that. I think that would raise Establishment Clause and First Amendment issues, but that's not the order we have here," Flentje said.

One judge, Clifton, expressed "serious concerns" about the scope of Robart's order and seemed inclined to rein it in. The other two judges on the panel were not clear about whether they shared Clifton's worries.

The judges did not immediately rule on the federal government's stay request, but Friedland said the appeals court would act "as soon as possible." If either side loses outright at the 9th Circuit, a further appeal to the Supreme Court is expected.

It's less clear what will happen if the three-judge panel cuts back Robart's order, perhaps allowing Trump to reinstate the suspension of refugees while exempting work or student visa holders from the president's directive, at least for now.

Trump's order unleashed what the states and at least one federal judge have called "chaos" at the nation's international airports. The directive led to hundreds or thousands of travelers being delayed or detained for hours, including so-called green-card holders who have lived in the U.S. for years.

Liberal or conservative, any court in the land would strike down any executive order that included those with green cards in any ban.  Although the Trump administration belatedly ruled that those with green cards are not affected by the ban, the judges questioned the instructions given by the White House counsel to the various agencies and departments that cleared green card holders from the affected countries for travel.

However, Clifton questioned whether McGahn's instruction had any legal weight. "Is there any legal authority for counsel for the president to have the power to instruct the other departments or to instruct us what [it] means?" the judge asked.

"The guidance from the White House counsel is the definitive interpretation of the order," Flentje replied. "The White House counsel speaks for the president in this context."

"Legal authority"?  Judge Clifton's ignorance of the Constitution is appalling.  Flentje had to give the judge a primer in the authority granted the president by the Constitution, reminding the court that the White House counsel speaks for the president, thus making his interpretation of the executive order the final word on the matter.

Incredible.

There are calls for Trump to defy the appeals court if they rule against him.  Even though any ruling against the president would be based on bad law, there is no reason to precipitate a constitutional crisis – yet.  Let the Supreme Court rule, if it comes to that.  And if the high court wishes to emasculate the president by altering the constitutional balance of power, then let Trump protect his office and the Constitution by ignoring the court.

That would be a crisis worth the trouble.

The liberal judges sitting on the Ninth Circuit Court of Appeals peppered Trump administration attorney August Flentje with questions that suggested that the court is willing to severely curtail the president's executive order on temporarily banning refugees and issuing visas to citizens from seven Muslim-majority countries.  In fact, the judges appear prepared to precipitate a serious constitutional crisis by severely curtailing President Trump's powers as commander in chief.

For 230 years, courts have granted the president significant leeway in deciding how best to keep the American people safe from our enemies.  The court appears ready to substitute its own judgment on how best to address the security of American citizens, turning the Constitution on its head and destroying the balance between the executive and judicial branches.

Flentje came under fire immediately.

Politico:

After claiming that the courts should have little or no role in reviewing Trump's decision, Flentje quickly found himself on the defensive as two 9th Circuit judges pressed him on the potentially stark implications of that position.

"Could the president simply say in the order we're not going to let any Muslims in?" asked Judge William Canby Jr., an appointee of President Jimmy Carter.

"That's not what the order does here," Flentje replied.

"Oh, I know. Could he do that?" Canby asked again.

When the federal government lawyer again demurred, Judge Richard Clifton jumped in.

"We'd like to get an answer to that question," declared Clifton, an appointee of President George W. Bush.

Why is the court concerning itself with what President Trump could do when their job is to rule on what he's done?  It appears that the court may rule against the president based not on what he has proposed, but on a hypothetical of what he might order.

"I don't think you've answered the question asked earlier," said Judge Michelle Friedland, an appointee of President Barack Obama.

"If there were an executive order that ... banned the entry of Muslims, there would be people with standing to challenge that. I think that would raise Establishment Clause and First Amendment issues, but that's not the order we have here," Flentje said.

One judge, Clifton, expressed "serious concerns" about the scope of Robart's order and seemed inclined to rein it in. The other two judges on the panel were not clear about whether they shared Clifton's worries.

The judges did not immediately rule on the federal government's stay request, but Friedland said the appeals court would act "as soon as possible." If either side loses outright at the 9th Circuit, a further appeal to the Supreme Court is expected.

It's less clear what will happen if the three-judge panel cuts back Robart's order, perhaps allowing Trump to reinstate the suspension of refugees while exempting work or student visa holders from the president's directive, at least for now.

Trump's order unleashed what the states and at least one federal judge have called "chaos" at the nation's international airports. The directive led to hundreds or thousands of travelers being delayed or detained for hours, including so-called green-card holders who have lived in the U.S. for years.

Liberal or conservative, any court in the land would strike down any executive order that included those with green cards in any ban.  Although the Trump administration belatedly ruled that those with green cards are not affected by the ban, the judges questioned the instructions given by the White House counsel to the various agencies and departments that cleared green card holders from the affected countries for travel.

However, Clifton questioned whether McGahn's instruction had any legal weight. "Is there any legal authority for counsel for the president to have the power to instruct the other departments or to instruct us what [it] means?" the judge asked.

"The guidance from the White House counsel is the definitive interpretation of the order," Flentje replied. "The White House counsel speaks for the president in this context."

"Legal authority"?  Judge Clifton's ignorance of the Constitution is appalling.  Flentje had to give the judge a primer in the authority granted the president by the Constitution, reminding the court that the White House counsel speaks for the president, thus making his interpretation of the executive order the final word on the matter.

Incredible.

There are calls for Trump to defy the appeals court if they rule against him.  Even though any ruling against the president would be based on bad law, there is no reason to precipitate a constitutional crisis – yet.  Let the Supreme Court rule, if it comes to that.  And if the high court wishes to emasculate the president by altering the constitutional balance of power, then let Trump protect his office and the Constitution by ignoring the court.

That would be a crisis worth the trouble.

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