It’s Sunday morning, February 5. In the wee hours of last night, two members of a three judge Ninth Circuit panel, having had the opportunity to read a lengthy government brief, (1) temporarily denied the government’s emergency motion to overturn so-called Judge Robart’s injunction, and (2) ordered the plaintiff states to reply by midnight tonight, Pacific time, with the government to reply to the reply by 3:00 PM on Monday, also Pacific time.
For those of you who might be confused by time zones, that’s 3:00 AM Monday and 6:00 PM Monday, World Time.
I expect we will see a decision on Monday evening or some time Tuesday. I make no prediction about which side will win.
The government’s opening brief was plainly written by the varsity team and is well crafted. It takes the same approach Aardvark would take, were he tasked with the detestible obligation to justify Trump. Rather than trying to defend the actual necessity for the executive order, the brief hops up and down about separation of powers, judicial second guessing of national security determinations, and wide legal authority to bar any “class of aliens” that the President deems, in his unfettered discretion, to pose a threat to national security.
Abstract arguments of that nature beg to be tested by hypothetical questions.
So, Mr. Government Counsel, the President can bar all Muslims if he deems all Muslims to be a threat, is that your position?
So, Mr. Government Counsel, the President could bar all black immigrants if he somehow determines that black folks are a threat, is that your position?
Though they are unlikely to take counsel from Aardvark, he is confident that the same kinds of thoughts will occur to the panel. Again, I make no prediction about the outcome.
The panel, by the way, consists of three judges appointed, respectively, by so-called Presidents, Carter, Bush Junior, and Obama. Mr. Bush Junior appointee did not sign his name to last night’s order. It is not known whether that’s because he disagreed with it, or, perhaps, because, like Aardvark, last night he was enjoying a visit with his good friend Jack Daniels and was in no shape to read legal briefs.