Thursday, February 9, 2017

Ninth Circuit rules against Trump Administration on Travel Ban: What's Next?


I can't say I am surprised. Not clear why the 9th Circuit ruled one way, while the US District Court in Massachusetts ruled in the Trump Administration's favor.  Zero Hedge lays out some options for the Trump Administration:
1. Do nothing.
2. Seek an emergency stay
3. Petition for certiorari before judgment, in the Supreme Court of the United States
Legal Insurrection notes the 9th Circuit goes too far. Powerline makes the case for taking it up now to the Supreme Court (even though it would likely result in a tie or loss--both which would result in the 9th Circuit ruling standing).

How about a different option: Why not withdraw the Executive Order and issue a new one?

Arguably there are some flaws with the first one (the ambiguity of dealing with Green Card Residents for example). Volokh Conspiracy also reads the opinion tea leafs and notes suggestions that formal editing might have helped the Administration's position. Why not fix them and reissues a new EO?  The left will challenge it again, but if it is rolled out right the Administration's legal position is that much stronger.

It would also buys time for Gorsuch to be on the Supreme Court bench.  Although some fear that might not work out so well for Trump (see comments), I suspect Gorsuch would follow the law.

Update: 

Hot Air: Moot and Reboot!
Rich Lowry: Rewrite works for Trump
Jonah Goldberg: Never Go Full Ninth Circuit
Powerline: A Ninth Circuit Footnote (with update)
Legal Insurrection: Chris Matthews is skeptical of 9th Circuit?
Right Scoop: Morning Joe: Trump Administration will redraft EO
National Review: 9th Circuit Power Grab and Dangerous Ruling by Court

If true, this makes a lot of sense. Rewriting the EO (essentially playing Akido with the leftist opposing the first EO) is a wise move by Team Trump.  

Don Surber: Disappointed!

Hot Air: 9th Circuit Rules Against Trump Admin

TOM: Appeals Court Upholds Judge's Ban on Trump's EO

Powerline: 9th Circuit Opinion is Wrong, but it's impact is limited...

Roger Simon: Marco Rubio versus the Show Trials of the Ninth Circuit

Instapundit: Trump's Iran Policy WorkingShow Trial9th Cir Dangerous Precedence Use of Campaign Statements and Perfect Timing

Update: 

90 Miles from Tyranny: Salem Hysteria 

2 comments:

  1. I think reissuing makes sense, but I also think Trump has made the political point. Whether he does something or not; there is high likelihood of another attack within CONUS. He can afford politically to do nothing until then, and at that point, re-issue with better language. If no attack comes, it will almost certainly be because of other efforts by Trump. In the meantime, he has plenty of options for dealing with these recalcitrant cities and states that think they own the national borders.

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  2. He will issue a new order invoking the law on which the original was based. The Lefties, up to and including the 9th Circus, acted as if Trump was just concocting something out of thin air.

    It's occurred to me he might have done it this way (remember how "badly" everybody said it was done?) to draw the Lefties out and show the country what a joke the appellate courts are (remember, that 37 dimension virtual stealth ninja chess he played all last year).

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