The Morning Jolt

For Trump Foes, San Francisco’s Court of Appeals Is Cloud Nine

For Trump Foes, San Francisco’s Court of Appeals Is Cloud Nine

The Trump administration’s loss in the Court of Appeals of the Ninth Circuit — it might as well just be called “the San Francisco court” — isn’t surprising, and the tone of the decision isn’t really a surprise, either. What is surprising is how easily the question of whether Trump’s executive orders are good policy (debatable) and whether the president has the power to enact those orders (pretty clearly ‘yes’) have become so thoroughly blurred in the public debate, and how little the legal system and media care to separate them.

A federal appeals court on Thursday unanimously ruled against President Donald Trump’s executive order on immigration and refugees, saying such a travel ban shouldn’t go into effect while courts consider whether it goes too far in limiting travelers to the U.S.

The appeals court declined to take a position on the most pointed accusation leveled at the Trump administration—that the Jan. 27 executive order restricting immigration from seven predominantly Muslim countries discriminated on the basis of religion. Instead, the panel ruled the travel ban likely violated the due process rights of travelers.

Our David French points out ramifications of the decision that he finds “extraordinary” and “astonishing.”

This ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants — merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. While the standing ruling might be more credible if applied to individual immigrants whose exclusion from the country causes specific and identifiable harm to the state, here the court used the possibility of specific harm to confer general standing on states to act on behalf of immigrants as a class. This is extraordinary.

…The court is going to stop enforcement of a temporary pause in entry from jihadist and jihadist-torn countries (while in a state of war against jihadist terrorists) because there are “potential claims” regarding “possible due process rights” even of illegal aliens? That’s not deference. Moreover, if you actually follow the cited legal authorities, you’ll see that none of them are on-point with this case, and all of them deal with highly specific, individual legal claims. Yet the court used this “authority” to grant sufficient due-process rights to potential immigrants to halt enforcement of a wartime executive order motivated by the desire to protect America from the rising threat of jihadist terror. Astonishing.

Charles Krauthammer thinks this is bad policy, awfully implemented… but also perfectly legal under the president’s authorities.

The judicial challenge should have been given short shrift, since the presidential grant of authority to exclude the entry of aliens is extremely wide and statutorily clear. The judge who issued the temporary restraining order never even made a case for its illegality.

Ken Cuccinelli, the former state attorney general of Virginia, joined me on WMAL this morning and suggested that the smartest move for the administration could well be to put this executive order aside and instead enact “five or six more discreet executive orders.” He contends that now that the administration lawyers have seen the legal objections for each group addressed by the court,” they can rewrite it and “achieve 99 percent of what they wanted to have done with this executive order.”

Everybody Will See Everybody Else In Court!

Republican state attorneys general were a big part of the GOP pushback against the Obama administration, and it appears their Democratic counterparts are eager to play the same role in the Trump years.

Should a state attorney general sue the federal government without the approval of the governor? On the one hand, a state attorney general is elected separately, and can argue he speaks for the voters. On the other hand, a governor could be rightly irked if his state’s attorney general spends a significant portion of his time on the taxpayer dime litigating against policies he supports.

In Maryland, Democrats want their state attorney general to declare legal war against the Trump administration, and not wait for approval from Republican governor Larry Hogan – who’s no friend of Trump himself. And they’re not interested in letting GOP state legislators even weigh in:

Tensions over the Trump administration bubbled over on the floor of the state Senate on Thursday as Republicans walked out after losing a procedural vote on a resolution to expand the attorney general’s powers to sue the federal government.

The resolution, which would allow the state’s top lawyer to sue the federal government without the permission of the governor, received preliminary approval after the walkout.

About two-thirds of the Senate’s 14 Republican members left the chamber after the Democratic majority refused to grant them a delay to further study the legislation and prepare amendments.

Such a delay, known as a special order, is typically granted as a courtesy. But Democrats said it was important to move ahead with the current resolution so Attorney General Brian E. Frosh could respond to the actions of President Donald J. Trump as quickly as possible.

Senators voted 28-18 to reject the delay and proceed to a final vote expected Friday. A spokeswoman for Gov. Larry Hogan called the Senate’s action “exceptionally disappointing.”

“This despicable display of out-of-control partisanship is a new low for the self-interested politicians of the General Assembly, and does a deep disservice to the people of Maryland,” spokeswoman Amelia Chasse said.

Coming Up a Loser at Senate Confirmation Roulette…

So how’s Chuck Schumer’s strategy on the Trump nominations working out? Recall that the Senate Democratic leader set out to “aggressively target” eight of Trump’s nominees.

Rex Tillerson… who was confirmed.

Jeff Sessions… who was confirmed.

Betsy DeVos…. who was confirmed. Give the Democrats a little credit, they managed to reach 50 votes in opposition.

Tom Price… who was confirmed 52-47 last night.

Steve Mnuchin, who’s scheduled for a confirmation vote Monday.

Oklahoma attorney general Scott Pruitt is expected to get a full Senate vote next week, although Democrats may do the same “holding the floor overnight” objection for him that they did for DeVos.

Representative Mick Mulvaney of South Carolina, tapped to lead the Office of Management and Budget, who’s been confirmed by two committees in party-line votes and is likely to be confirmed by the full Senate on a party-line vote.

The one nomination that might be in genuine trouble is Andrew Puzder, a restaurant executive set to serve as labor secretary, who has had his confirmation hearings delayed several times because of issues in completing his ethics paperwork. His first confirmation hearing is scheduled for Thursday. Puzder admitted earlier this week he had employed an illegal immigrant as a housekeeper.

So what has Schumer’s strategy gotten him and his party? Would he have been better off if he and his party had picked just two or three nominees, and focused all of their efforts on those?

ADDENDA: As mentioned above, Ken Cuccinelli, the former state attorney general of Virginia, joined me on WMAL this morning and offered a few thoughts on the notion of Carly Fiorina running for Senate in Virginia in 2018.

He praised her as bright, energetic, and qualified, but pointed that she would need to become better-known outside of northern Virginia’s business community. Cuccinelli, who ran successfully for attorney general and unsuccessfully for governor in 2013, said running can be a “grueling undertaking. Virginia Republican activists like to get to know their candidates, so she’ll have to hit the road pretty widely.”

On a Virginia radio show, Fiorina said, “It’s a little early to be making that decision, we’re two weeks into a new administation.” Cuccinelli said he’s not sure.

There will almost certainly be a primary, and Cuccinelli mentioned that one potential candidate is radio talk show host Laura Ingraham, who’s “exciting to a lot of conservative candidates.”

Cuccinelli said he’s not running for any office in 2017 or 2018. He’s about to become a grandfather, and is enjoying the slightly easier schedule and extra time with his family.