Category Archives: Courts

A Federal Judge’s Mistakes

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US District Judge John Bates has ruled that President Donald Trump’s Executive Order rescinding the DACA program initiated by DHA memorandum under ex-President Barack Obama (D) is illegal.  He’s gone beyond that: he’s ordered the Trump administration to process new DACA applicants, not just renew existing ones.

Bates’ mistakes are two.  One is his ruling that, in effect, it’s illegal to rescind a Department Memorandum by Executive Order.  Of course, this is erroneous.  A Department Memorandum is not statute; it’s not even a Regulation.  It has no legal force beyond being a Cabinet-level equivalent of an EO.  As such, it’s subordinate to Executive Orders and available to cancelation by same.  At worst, the issue is a quibble, easily correctable by an EO instructing the subordinate DHS to rescind its Memorandum.

Bates’ next mistake is claiming the EO is illegal because it offered insufficient support to its claim that the DACA program is illegal.  This is simply irrelevant.  See above: it’s sufficient for the President to instruct a subordinate Cabinet to do a thing, so long as the thing itself is legal.  There are no statutes barring a President from instructing the rescission of a Department Memorandum; such a statute would be unconstitutional, anyway, trampling on the separation of powers as one would.  No explanation for why a Memorandum should be rescinded is necessary, however useful one might be.

A Mistaken Argument

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The Supreme Court heard oral argument earlier this week on the legality of President Donald Trump’s Executive Order producing a moratorium on entry into the US from certain selected nations.  Neal Katyal, representing those arguing to keep Trump’s EO blocked,

says Congress previously has rejected exactly the kind of nationality-based ban that Mr Trump has implemented.

Whether or not that’s true, though, is irrelevant.  All that the Court can consider (aside from what is in the Constitution, which is always before the Court, and what’s in the Executive Order before the Court today), is what Congress has done this time.  Past actions are irrelevant, particularly since what Congress does today that differs or outright contradicts what Congress did yesterday overrides yesterday’s action.

The “Muslim Travel” Moratorium Case

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The Supreme Court is hearing this case as it pertains to the current Executive Order that imposes a moratorium on entry into the US by persons coming from certain specified nations.  (In aside, I emphasize that calling the EO a “Muslim ban” is dishonest. It presents an impermanent moratorium on entry from nations representing a bare 10% of the world’s Muslims, and it presents the same impermanent moratorium on non-Muslim countries, like northern Korea.)

Lower courts have invoked campaign rhetoric, the clumsiness of the rollout of the first EO on the matter, a made-up permanence of the moratorium, and on and on, to create a court-manufactured policy determination that the EO was somehow prejudiced in some way.  With that fantasy, those lower courts have struck the EOs, one after another.

The lower courts have been imposing their own prejudices.

What’s in the text of the Executive Order? Is the EO itself legal? These are the only questions legitimately before the Justices. Campaign rhetoric is not in the EO, and so cannot be considered. The clumsiness of the rollout of the first EO had nothing to do with the EO—or with the one presently before the Justices—and so cannot be considered by the Justices.  The duration of the moratorium is a political decision, and so cannot be considered.

In Connecticut National Bank v Germain, the Supremes held

…time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.

The concept plainly holds for EOs as well.  If it’s not in the EO, the EO doesn’t say it.

Whether the EO’s moratorium on entry into the US from a selected set of nations is good or bad policy is certainly worthy of debate, but it’s strictly and solely a political debate to be had by We the People, and through us, our elected representatives. Politics and associated policy decisions are beyond the ken of courts.

“Special Prosecutor”

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The 9th Circuit has appointed one to “investigate” President Donald Trump’s pardon of ex-Sheriff Joe Arpaio last summer.  This was done in response to the fiction offered the court by the Perkins Coie law firm that the pardon, an explicitly named power of the President under Article II, Section 2, is somehow unconstitutional and a violation of due process.

Never mind that the due process—to the extent this…claim…is relevant to the matter of pardons—was supplied by the prior trial and conviction of Arpaio, a trial without which there would be no pardon to grant.

9th Circuit judges William Fletcher and Wallace Tashima, making their own claim that their Circuit “needs ‘the benefit of full briefing and argument’,” of the legitimacy of a President’s Constitutionally authorized pardon, appointed their “special prosecutor.”

Two things must flow from this usurpation of Executive Branch power.  One is that the Senate must get off its collective duff and confirm Trump’s nominees to fill the 9th Circuit vacancies.

Separately, judges William Fletcher and Wallace Tashima have violated their oaths of office, which include a promise to support and defend the Constitution. As they’re no longer hold[ing] their Offices during good Behavior, they need to be removed from the bench.

It Still Is

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The Supreme Court is hearing a case, South Dakota v Wayfair Inc, wherein South Dakota is looking to overturn a generation-old ruling that exempts out of state retailers from State sales taxes unless the retailers also have a physical presence in the State.  I wrote about one aspect of the matter here among other places.

Here’s another, more critical aspect of the matter [emphasis added].

In a 1992 mail-order catalog case [Quill Corp v North Dakota], the court held that, absent congressional approval, states could impose tax-collection duties only on retailers with a “physical presence” within their borders. Congress, with its constitutional power to regulate interstate commerce, was the place to balance state revenue needs with burdens on business, the court said at the time.

Congress still is the place for such a decision.  This is a political matter, not a judicial one, and the Supremes, by overturning their “precedent”—which was nothing more than a recognition of who has law-making authority and who has only law-applying authority—would be usurping law-making authority to themselves.

Unfortunately, it doesn’t end there.  South Dakota’s Attorney General, Marty Jackley, argued with a straight face that

the states—45 impose sales taxes, and nearly all support South Dakota’s case—wouldn’t make draconian demands of remote sellers….

Never mind that it’s already draconian to demand that retailers pay taxes they don’t owe.

And this from our favorite Living Constitution Justice, Ruth Bader Ginsburg:

If time and changing conditions have rendered it obsolete, why should the court, which created the doctrine say, “Well, we’ll let Congress fix up what turns out to be our obsolete precedent?”

Except for the small matter that the Court didn’t create this “doctrine,” our Constitution did.  That document says, in so many words, that all law-making authority resides in the Congress and nowhere else, and it says further that regulation of interstate commerce is one of the enumerated tasks of that same Congress and not any business of the judiciary.