Category Archives: Courts

Judge James Robart’s TRO

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Some of you may have heard that Judge Robarts, of the Western District of Washington, has issued a Temporary Restraining Order in favor of Washington and Minnesota (which joined the case after its initial filing by Washington) blocking the Federal government from enforcing President Donald Trump’s Executive Order delaying entry into the US of immigrants from seven terrorist or terror-sponsoring nations in the Middle East.  The EO was intended to create a pause in the flow of people from that area into the US until our vetting procedures could be examined and improved as much as might be.

As Robart described in his order, a TRO must meet all of four criteria, and it’s on the plaintiffs (Washington and Minnesota) to prove that each of those criteria are met.  Those criteria are (Robart cited two sets of criteria; they’re functionally the same, per Robart; below is the more detailed description) [quotes omitted]:

(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and ( 4) that an injunction is in the public interest.

Robart then ruled that the plaintiffs had met these criteria:

The court finds that the States have satisfied these standards and that the court should issue a TRO. The States have satisfied the Winter test [the more detailed test described above] because they have shown that they are likely to succeed on the merits of the claims that would entitle them to relief; the States are likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favor the States; and a TRO is in the public interest.

So far, so good.  Then Robart provided his rationale for this finding.

Specifically, for purposes of the entry of this TRO, the court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing. Accordingly, the court concludes that a TRO against Federal Defendants is necessary until such time as the court can hear and decide the States’ request for a preliminary injunction.

That’s it.  No substantiation, nor even claim, that the plaintiffs are likely to succeed on the merits, no substantiation, nor even claim, that balance of equities tips in favor of the plaintiffs, no substantiation, nor even claim, of public interest.  Only a claim that irreparable harm is likely absent a TRO—but even here, there’s no real substantiation, just a repeat of the States’ claims.

We’re simply supposed to accept the single, superficial claim of harm as by itself satisfying the other three criteria.  But what about that (I’ll come back to the claimed harm in a bit)?

Likely to succeed on the merits?  Based on what? Robart has failed to present any merits other than his repetition of plaintiffs’ claims.

Balance of equities tips in favor of the plaintiffs?  Suppose, arguendo, that the claimed harms are real.  There was no investigation into balance, no presentation in this TRO that the Federal government’s interest in the nation-wide public’s welfare, the nation’s security, is outweighed by this harm.

And that public interest: see above; Robart didn’t even look into that, or if he did, he chose to omit the outcome of that enquiry from his order.

Now about those harms the States are alleging and that Robart apparently simply accepted withut question.  The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.  In what way?  Robart declined to say.  Further, a 90- to 120-day delay in reentry into the US imparts no serious education harm, only a delay for those students involved.  This is an inconvenience, not a harm.  To the extent the delay impacts employment (unidentified, but lets assume of the delayed immigrants), that’s a matter between the employee and employer, and to the extent legal relief is appropriate here, that is a separate case.  Freedom to travel?  That’s what borders are: no non-citizen has freedom to travel across borders; noncitizens—even visa holders—must have the permission of the receiving nation prior to entering.  Furthermore, existing permission—those visas—can be suspended or revoked at the receiving nation’s discretion.  Family relations?  Sure, these will be interrupted, and that’s a serious inconvenience.  But it’s only an interruption, and it cannot outweigh the Federal government’s interest in the welfare of all of the public or its interest in the nation’s security.

The extension of these individual harms to the States is too far a reach.  The States by virtue of their roles as parens patriae of the residents living within their borders, indeed, but the people whose travel is being interrupted aren’t known to be residents.  Many of them may well have established residency, but there was no showing that all of them have or even a showing that a significant fraction of them have.  (From this, it’s even not clear that the States have standing to bring their suit—another matter unsubstantiated here.)

Clearly, these matters affect only a subset of the delayed travelers, to the extent they affect any—yet Robart’s order lets in, without delay, those unaffected, too; the TRO is not properly limited to those claimed to be harmed.

The States themselves are harmed by virtue of the damage…inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds?  This is an even bigger reach.  Any students affected by the EO are so few in number as to be a drop in the bucket compared to the schools’ populations.  Nor are the States’ governments’ or government facilities’ materially harmed—nor even trivially harmed—by the delayed entry of these travelers.  Robarts declined even to say how these delays impact public revenues.

This is a bad, wholly unsubstantiated TRO, and it should be dismissed out of hand.

Whose Seat Is It, Again?

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A “journalist” asked then-Senate candidate Scott Brown (R, MA) whether he was willing to sit in Teddy Kennedy’s seat and block the Democrats’ health care bill.  Brown answered in pertinent part,

With all due respect, it’s not the Kennedy’s seat, it’s not the Democrats’ seat, it’s the people’s seat.

What brings that up is Senator Jeff Merkley’s (D, OR) claim in the aftermath of President Donald Trump’s announcement of his nominee for the Supreme Court, 10th Circuit Court Judge Neil Gorsuch.

This is a stolen seat. This is the first time a Senate majority has stolen a seat[.]

Stolen from whom?  Who owns this seat, exactly?  In the feverish minds of the Democrats in the Senate, a Supreme Court seat belongs to the Democrats, or maybe if we take Merkeley’s claim literally, it belongs to the minority party.  Or the seat belongs to a Liberal/Progressive wing of…somebody.  (Never mind that the liberal wing of the Supreme Court doesn’t even support the Constitution, holding that it lives through judicial rulings and not through Article V.)

And this, from Juan Williams, author of the piece at the second link:

[I]f a liberal now sitting on the court retires or dies and Trump has another nomination, get ready for fireworks if not all out war on the nomination.

Because somehow, that seat belongs to a liberal, if not a Democrat, or the “right” to pick who sits in that seat “belongs” to Democrats or other liberals.

And here’s that so-familiar view of morality, this time as articulated by Williams, and concerning the Republicans’ block of ex-President Barack Obama’s (D) nominee, DC Circuit Court Judge Merrick Garland, made in a Presidential election year.  Keep in mind that the purpose of the block was because Senate Republicans believed that the people in the upcoming election should have a voice in who the nominee should be.

Turnabout is fair play, acted on with glee in these politically polarized times.

There it is: the morality of a behavior isn’t at all intrinsic in the behavior, it’s strictly in whether someone else did it or is doing it.  Morality is strictly situational, the Democrat says, it’s whatever is politically convenient in the present case.  And that’s the immorality that the Democrats are applying to justify their opposition in the present case: payback’s a bitch, and we’re gonna be bitches.  Nothing at all on whether Gorsuch is qualified for the Supreme Court.

And this little detail.  By the Democrats’ logic, the vacant seat—Scalia’s seat in the Democrat lexicon—belongs to the conservative wing of…somebody, or it belongs to a Conservative, if not a Republican, or the “right” to pick who sits in it “belongs” to Republicans or other Conservatives.  Yet these Democrats in that election year demanded to install their left of center candidate into “Scalia’s seat,” and they’re determined to block the Republicans’ “right” to pick “their” judge for the seat.

But the question of whose seat the vacant one on the Supreme Court is—indeed whose seat each of the nine is—has been answered quite clearly, and the answer was plainly stated in the block of Garland.  Just as with all of the seats anywhere in the Federal government, we the People own the seats on the Supreme Court, including any vacant ones.  Not Democrats.  Not Republicans.  We the People.

Did I say feverish minds?  No, that’s wrong.  These Democrats know exactly what they’re doing, and the sad thing about it is that they’re doing it anyway.

Hurted Feewings

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…don’t make for lawsuits, even in New Jersey.

Former Democratic Councilman Dennis Kleiner quit his elected position in 2012. He then sued the municipality, the mayor, and another councilman claiming he had been forced to resign because of the rumors and false charges they made about him.

Fortunately, the New Jersey courts are a bit more grown up than this little boy.

The judge overseeing the case said Kleiner’s “complaints over his hurt feelings, damaged reputation, and potential embarrassment fall far short of violation of his First Amendment rights.

“This court will not condone this pointless litigation over [his] disappointments in the world of politics to linger….”

And he tossed the case.  So Kleiner appealed.

The appellate panel upheld the lower court’s toss and further noted that “another politician may not have resigned under the same circumstances.”

“How Barack Obama rescued the US economy”

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That’s the headline on a recent Financial Times piece (sorry, the FT has a paywall) by Martin Wolf.  It’s a silly headline, for a silly article.

How should we assess the economic success or failure of Barack Obama’s presidency?

This is a difficult question to answer.

No, the question is easy to answer.  Obama’s economic policies have been abject failures.  It’s also straightforward to lay the bulk of responsibility on Obama and his administration.  While it’s true that the Panic of 2008 began in the prior administration, it was Obama’s “stimulus” package that both blew up the nation’s debt and failed in its purpose of stimulating our economy with shovel ready jobs in a massive so-called Keynesian stimulus and its bailout of failing large banks.  It was his Federal Reserve’s policies (yes, yes, the central bank is supposed to be independent, but it was Obama’s Ben Bernanke, extended at Obama’s decision, and his Janet Yellen appointment) that degraded money discipline with their decisions to ease the money supply and hold interest rates artificially low.  It was his excessive—explosively so—regulation that limited business’ ability to function in the market, that limited small business’ ability to get started, that limited job growth and employment recovery.

It was the Obama administration’s Dodd-Frank, with its too big to fail policy that distorted those big business’ risk-taking decisions, decisions that used to be made in a free market but that under Dodd-Frank are made with the perception—courtesy of that “stimulus” bailout—that if the business messed up, Government would bail them out.

[S]hockingly, most congressional Republicans opposed all significant monetary, financial and fiscal actions taken to deal with the crisis.

This isn’t shocking at all; what’s shocking is the blind, knee-jerk rejection of free market principles by a Democratic Party (soon to become a Progressive-Democratic Party) suddenly in complete control of our government and cut loose from any restrictions on their power.  Absent the “stimulus,” the Panic might have been steeper, but it also would have been much shorter.  One only has to compare the Depression of 1920-21 with the Great Depression to see the efficacy of government non-response compared with Government intervention, and the Panic of 1907 with both to see another example of the efficacy of private response compared with Government intervention.  Of course, the Democrats knew—and know—this history, yet they acted as they did, anyway.

He tried to move the US closer to the universal health insurance taken for granted in other high-income countries. The Affordable Care Act (“Obamacare”) has added an estimated 20m adults and 3m children to the insurance rolls.

He didn’t try, he did it by Party fiat and then by Executive diktats—lots and lots of diktats.  Further, while Obamacare has provided health welfare to those adults and children, it also has thrown millions more out of their health insurance plans and denied them access to their doctors in direct—and knowing—contravention of Obama’s explicit promises that these denials would not happen.  The claim of cost growth reduction is a cynical one, also, being limited as it is to the cost of selected groups of Americans.  In fact, the cost has exploded, with premiums rising in double-digit per centages, deductibles going to 10s of thousands of dollars—an annual expense—the departure of heretofore health insurance companies from the health welfare plan “market,” and the cost to taxpayers similarly growing rapidly to pay for the subsidies of those given essentially free access to this health welfare.

Wolf’s discussion of our “jobs” recovery is misleading, also. Labor force participation rate is at historic lows, held back by those policies’ suppression of job creation.  Even the male labor force participation rate, which has been in a declining trend since its early ’50s peak, is farther below that long-term trend than it ever has been in that time frame.

Finally, this graph summarizes the efficacy of the Obama administration “recovery” as compared to post-WWII economic dislocation recoveries.

Even at the end of 2016 rate of 4.7% unemployment of 4.7%, the Obama administration’s economic policies have held back the recovery by years.

Failure of Hate Laws

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The failure stems from an inability to define hate, but mostly it fails from the irrelevance of hate as anything other than a motivator for committing a crime.  Motive, though, belongs solely in the jury box during the punishment phase given a conviction of a crime; it should not be foreordained by a Government’s attempt to define the hate or by Government’s more evident attempts to discriminate among groups of Americans and single some out for favorable treatment at the expense of other groups of Americans.

That’s demonstrated by Illinois and Ohio law, which comes up from case of the four blacks who attacked a white disabled man and live streamed it on Facebook, as discussed by Eugene Volokh in his Washington Post article.  For instance,

The focus, then, isn’t on “hate.” For instance, if a thief selects a physically disabled victim simply because he thinks it’s less likely that the victim will fight back, that too is covered as a hate crime under Illinois law.

And

Similarly, the Amish beard-cutting case was prosecuted as a hate crime on the theory that the targets were chosen by fellow Amish perpetrators because of the targets’ dissenting religious beliefs within the Amish community.  …  Choosing someone for attack based on his religion would be a hate crime whether the motivation is hatred, theological disagreement, or whatever else.

You see the irrelevance of hate in such crimes, yet Government, in these instances Illinois’ and Ohio’s, arbitrarily tacks it on, just because.

As Volokh put it,

But the Illinois statute and the federal statute [another of his example laws], like most other hate-crime statutes that I’ve seen, focus on discriminatory selection, not the underlying emotion behind the selection.

Indeed.  I pick you for my crime victim because I think I’m more likely to get away with it than if I’d selected someone else or because I’ve decided (legitimately or not) that you’d done me wrong, and I was determined to get you back, and I do the crime.  But if you happen to belong to a government-favored group of Americans, my crime—completely unchanged in its nature or motivation—becomes much more serious solely because of Government’s own discrimination: it has chosen to favor your group over other American groups and so to discriminate against those other American groups.

Which also is an argument for doing away with Governments favoring, for any purpose, this or that group of Americans over other groups of Americans, which Government has decided should be disadvantaged by that favoring.  That’s hate crime by Government.