In The Ninth Circuit and President Trump’s Lies, Amy Davidson of the New Yorker does a good job of walking us throught the oral argument last night. I hope you tuned in.
Temporary restraining orders and preliminary injunctions are intended for circumstances where justice cannot wait for the courts to proceed in an orderly fashion to try the case and allow time for appeal.
Here, El Presidente has articulated a claimed pressing need for action, namely, that inadequate vetting procedures are letting in dangerous people.
To support this claim, you would need to point to some specific dangerous people who have passed through the filter. Failing that, you would at least articulate a coherent account of what vetting procedures are now being followed and why those procedures are (or plausibly might be) inadequate. Failing that, you would want to come up with some facts that can be made to look as if they support the claimed emergency.Failing even that, you would want to find someone whom you could present as an “expert” and have her opine that the procedures are inadequate.
Counsel for the government had nothing. He and his team couldn’t even make something up. It shows a striking failure of imagination.
We now learn there will be no decision today. Three thoughts.
- I previously remarked that the statutes and legal precedents under debate were not created on the assumption that the president would be a delusional, bigoted jerk.
Courts have some legitimate leeway in reading the case law. With (at least) an extra day for consideration, the honorable court will have the opportunity to read even more presidential tweets that prove he is a bigoted, delusional jerk. This may provide invaluable help in interpreting the precedents supporting broad presidential leeway in foreign affairs and immigration.
- Given the increasingly loud presidential denunciations of their forthcoming decision, I expect the three judges are trying to agree on a common analysis. This may involve some compromise.
- The members of the panel are located respectively in Honolulu, Phoenix, and San Jose. Even in the internet age, it’s a little awkward to agree on a common text when they are in different places.