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February 7, 2017


I have seen the authorizing statute and Trump does have the authority to exclude people from other countries who are deemed to be threats to our national security. However, the power given must be implemented constitutionally and such power does not and never did inhere in the office of the president, otherwise if the power were subsisting the Congress would not have needed to grant it via statute. In my opinion the argument in the Ninth Circuit Court is not about such power but rather in its implementation unless there is an issue between the parties as to the constitutionality of all or parts of the statute itself, in which case it will take longer than a few days for the court to make its decision on the merits after having either extended or dissolved the stay issued by the federal district court in Seattle. I understand that the present issue requiring an early finding only relates to whether the stay should be extended.

I could be wrong in identifying the specific issues at stake since I represent none of the parties and am calling this shot from afar and have been wrong before about such matters when in the practice, but that is my current assessment of the situation now that briefing has been filed on the preliminary issue of whether the stay should be ended or extended pending the court’s decision on the merits.

There is much TV and internet speculation on whether this case however determined will be appealed to the Supreme Court. My guess is that that will depend upon who wins in the Ninth Circuit Court of Appeals. I think that if the Ninth Circuit’s decision is well-reasoned on sound interpretation of the law and Constitution and the DOJ wins that the State of Washington’s AG will not appeal, but I think that if the narcissistic-bound Trump loses in the Ninth Circuit that the DOJ will appeal. As before, I could be wrong; these are only guesses from a retired lawyer who hasn’t even read the briefs, and it could be argued that my opinion is no better than that of a randomly chosen person in the streets.

Perhaps as disquieting and worrisome as the issues involved in this exercise of judicial authority to reverse the likely unconstitutional use of executive power is the associated drama and framing Trump brings to the scene. He has unnecessarily tweeted such language as “this so-called judge” in putting down the district judge of the federal district court in Seattle, a Republican appointed by Bush II and who was affirmed by the Senate by a 99-0 vote.

We are told later by Pence in defense of such a juvenile tweet that “The president of the United States has every right to criticize the other two branches of government.” Of course all of us have First Amendment rights to criticize Mother Teresa if we please and even Scalia agreed that we could burn flags as a matter of protected political speech, but what is legal and what is appropriate are two different things. Trump would have been well advised to criticize the judge’s decision, not the judge.

The judiciary is an independent branch of government along with the executive and legislative branches bequeathed to us by Madison and Hamilton. Maligning the dignity of those who serve its constitutional purposes is a no-no and if you or I said what Trump tweeted in the courtroom of the maligned we would be subject to jail time for contempt of court.

In my view the bottom line here is not the breathless drama being played out in the land of thoughtless tweets and cable TV outlets; it is how this drama is resolved to best protect our national security. Trump now tweets in a show of grotesque logic that if anything bad happens in this country it will be the fault of the federal judge in Seattle. Wrong. It is not the judge but Trump with his thoughtless and ill-considered executive order who has fueled recruitment for ISIS, and ISIS must be ecstatic with such an unlikely tool for recruitment being handed to them on a platter. Trump, who knows everything and is never wrong and who plays his national security card on every imaginable issue, needs to escape from his narcissistic haze long enough to see and admit that he has helped compromise our national security with his myopic issuance of an executive order framed as made in the interest of national security but which is in fact feeding the ranks of those who would do us great harm. Thanks for your help in keeping us safe, Don.       GERALD


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