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By Tom Cushing

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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply...  (More)

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“See you in Court?”

Uploaded: Feb 10, 2017

What would You do with the immigration order?

After yesterday’s unanimous federal appellate ruling that extended last week’s trial court injunction against the Trump Administration’s temporary immigration order (whew), some folks seem to think the Prez has tele-tweeted his next punch. Several options present themselves, however.

1 – Onward to appeal this interim ruling to the Supremes. This choice seems to be expected. It’s also in-line with that special feeling to which narcissists are prone, that whatever they want just has to come true. But it’s complicated (more so than a CEO’s -- or an Emperor’s -- unfettered discretion usually entails). To even get to the Court, one of the following must happen:

o The feds can seek an emergency review of the new ruling, but that requires Justice Kennedy and four others to agree to it.

o They can try for something called ‘certiorari before judgment’, which only needs four Justices, but requires that the “case is of such imperative public importance as to justify deviation from normal appellate practice.” Sounds good, but it has only been granted a few times in the last century or so. And this Order doesn’t fit neatly among those cases. Although it concerns international relations, such grants have related to the President’s War Powers, and we’re not there with anyone – not even Australia -- yet.

o They could wait for the trial court to issue a final judgment in this case, and appeal through normal channels (if necessary).

The Supreme Court is now divided 4 – 4 between its liberal and conservative leaners, but it must be acknowledged that Kennedy often departs from the Tories when Equal Protection claims are afoot. That puts both the first two options in-peril. The third way might not be heard this term. That could mean a friendly ninth Justice would be in-place to hear the appeal – but it also moots it for an Order, temporary on its terms, that would have expired.

2 – The feds could seek a re-hearing of the current judgment ‘en banc’ by a larger panel of the 9th Circuit. While it’s true that our home circuit tends toward the liberal, it’s not all ‘out-of-control’ Californians (but then, neither was this week’s court comprised of crazy San Franciscans, with an Arizonan, a Hawaiian and resident of San Jose). So, you have real uncertainty as to the outcome (recognizing that it’s a strong states’ case on the merits, signed-onto now by four judges from across the political spectrum), and you have those timing concerns, as well.

3 – Finally, the feds could take their briefs and go home. This option requires the Administration to claim that it just can’t get a so-called fair trial on this Order, and they’re so concerned about a Syrian invas – err, protecting us from those bad mullahs that they will terminate this Order, and then immediately redraft another one, more artfully phrased (one would hope).

For an Administration that shows no compunctions about changing its mind, that has a brand new Attorney General who may know more than his boss (he of the Roy Cohn school of law), that can spin it as set forth above, and do it soon, that has to be an attractive option.

But what do You think, ladies and gentlemen of the public? What should they do? What would You do? Your input is solicited.
We need your support now more than ever. Can we count on you?


 +   2 people like this
Posted by SHale, a resident of San Ramon,
on Feb 10, 2017 at 12:58 pm

SHale is a registered user.

so, we telegraph which countries are affected so the terrorists just enter from another country not listed. Thot Trump said he wouldn't telegraph intentions? Ooops
Now Trump says he will do 'new' orders next week. Can't wait.

 +   7 people like this
Posted by syrupmutoo, a resident of Danville,
on Feb 10, 2017 at 6:35 pm

Wa, wa, wa :-( Dribble dribble dribble from the gadfly.

It's over, America will be great again.

The nutty is toast. Overburndend, bloated and slow,and full of leftists because 18 of 25 judges were appointed by democrats.

Repubs control both houses and the presidency. The ninth covers way too much area and population. Aaaaaagain, it's the most overturned court.

History will prove Tommy wrong again!!! ... as usual.

In the mean time, new admin. will enforce the law, hurray!

Lots of ways to get it done. Cry all ya want Tommy, your side lost.

 +   1 person likes this
Posted by Michael Austin, a resident of Pleasanton Meadows,
on Feb 10, 2017 at 6:38 pm

Michael Austin is a registered user.

Looks like option three is unfolding at this time.

What is, or was the value of that executive order to preventing emigrants from entering this country from a select number of mid east countries?

Did it actually save any American life's?
Did it encourage a potential terrorist immigrant in the process of boarding an aircraft and deciding in not doing so?

We may never know the value of that executive order!

 +   5 people like this
Posted by syrupmutoo, a resident of Danville,
on Feb 10, 2017 at 8:23 pm

Nutty ninth is quickly becoming meaningless and is about to unravel. Judicial activism won't bode well with the supremes.

Ginsebreg favors amendments, even she can't ignore the constitutional purvey of the presidency.

Non citizens are subject to immigration law. Habeus corpus and fundemnetral common law stuff, not much more. Enemy combatents, there is president. Remember, Obama was blocked when he tried to grant temporary residency to illegal aliens. Immigration law, it's on the books, must follow. Though luck Tommy!

 +  Like this comment
Posted by syrupmutoo, a resident of Danville,
on Feb 10, 2017 at 8:45 pm

Fing autocorrect, precedent, but president works too, love ya Trumpster!

Dribble, dribble, Cushy. Merica!

 +   2 people like this
Posted by Tom Cushing, a PleasantonWeekly.com blogger,
on Feb 11, 2017 at 7:15 am

Tom Cushing is a registered user.

syrpy: how did you decide to correct that particular error? About a dozen others in that one comment still just sit there, undermining the credibility of your message.

Pro-tip: you can collect your thoughts and edit your commentary before posting it.

 +   2 people like this
Posted by Sam, a resident of Oak Hill,
on Feb 11, 2017 at 8:18 am

I read somewhere that Trump's big mistake here was that he included Green Card holders (permanent residents) in his order, and that turned out to be a problem because permanent residents do have Constitutional rights. It was also pointed that Trump could have easily corrected his mistake by making a quick additional amendment to his executive order, but that his pride wouldn't let him admit that he made a mistake so instead it was decided that the White House counsel would write some "advisory memo" saying how the executive order should actually be implemented. The problem with that approach is that from a court perspective a White House counsel memo doesn't have any legal standing.

So it appears that Trump is back to square one and needs to draw up and sign an executive order which doesn't include US permanent residents.

 +   7 people like this
Posted by bsdetector, a resident of San Ramon,
on Feb 11, 2017 at 8:47 am

The 9th circuit has an 80% reversal rate at supreme court. A unanimous decision by this ultra liberal group doesn't mean much.

Not much here in your blog that speaks to the reality of situation, rather just the usual myopic hyperbole.

The reality is that this is a losing battle for the left. Small victory was totally predictable. It's why they did it with the ninth, instead of elsewhere.

For the time being social democrats like Tom, enjoy brining up popular vote vs electoral college. It's akin to saying, our football team has more offensive yardage and should be the winner. The rules of the game only count touchdowns and field goals etc..

California let's illegal aliens vote. Unchecked immigration can easily change demographic of a region and country over relatively short periods of time.

Democrats know darn well that every new arrival will vote their way. This is a morally bankrupt way of gaining power and frankly an invasion, in classic military and political science terms.

See you in court indeed and in a whole bunch more venues. Left lost huge and it's payback time. It has nothing to do with race. It is about ideology.

Islamic state, sharia law and the axis of evil from theocratic ideological monsters, in the name of god are pure evil.

No women's rights, gay rights, for that matter human rights matter in these countries.

If your neighbors yard is a pigstye does that give them the right to use your yard? At some point, the peoples of a nation must take responsibility for their mess. Stopping the free flow of visa holders under a loser standard, is the legitimate power of the executive branch and a legitimate byproduct of an election.

Populations tend to migrate to areas of likemindedness. California has experienced a massive growth in population over the past several decades.
California is a liberal Mecca and has way too much power for one state.

We have a system to protect against large populations overwhelming the legitimacy of others. Think of it like minority rights for states.

Leftists hate the constitution. Too bad, it's here to stay.

 +   1 person likes this
Posted by SHale, a resident of San Ramon,
on Feb 11, 2017 at 8:49 am

SHale is a registered user.

Perhaps Trump and his team of clowns should learn how to do their jobs and be less clownish. And please, ease up with the Exec Orders. Learn to be President first. He has 4yrs to mess things up, no need to do in first 4 weeks.
He's making it so hard to give him 100 days before forming an opinion.

 +   2 people like this
Posted by Sam, a resident of Oak Hill,
on Feb 11, 2017 at 9:00 am

@bsdetector :"The 9th circuit has an 80% reversal rate at supreme court. A unanimous decision by this ultra liberal group doesn't mean much."

I looked up that stat. It turns out that you neglected to mention that only cases that have a significant chance of being overturned are actually reviewed by the Supreme Court for possible reversal. You also neglected to mention that the average reversal rate for ALL Federal Circuit Courts is almost 70%.

Maybe you should turn that "bsdetector" on yourself. You seem to be full of it.

Does the 9th Circuit Really have an 80% reversal rate?: Web Link


 +   2 people like this
Posted by Sam, a resident of Oak Hill,
on Feb 11, 2017 at 9:08 am


Oh, and to delve just a bit further into the stats, the percentage of 9th Circuit Court cases reviewed by the Supreme Court is 0.153 %, which is about 1 in 650 cases. Of that 0.153% that are reviewed, 80% are reversed, which translates to a reversal rate of 0.123% of all cases handled by the 9th Circuit Court.

 +   5 people like this
Posted by bsdetector, a resident of San Ramon,
on Feb 11, 2017 at 10:26 am

Syria 402
Iran 340
Somalia 155
Sudan 37
72% uptake and it's only one week!

We are at war with three of the above. Syria and Iran, really?

Cold war, proxy war, war war,doesn't really matter.

This is one of the most stupid moves by a court in the history of the United States.

Tom, war is the continuation of politics by other means. You are an erudite in this area, yet you comment that you understand the nuances of this craft. You do not have the training, nor education necessary to comprehend what is at stake.

When lay people try to practice law, it rarely goes well. When lawyers, or retired lawyers turned recruiter, blogger comment on strategic national security, foreign policy and intelligence matters, experts chuckle at the naivete. You fill your blog with emotional assertions with zero thesis for the planned outcome, so only some may be fooled by your attempts to influence. Thank god we have people who shut your nonsense down.

The louder you cry, the more desperate you sound.

Fait Accomplished, this first order was simply a little acid test.

You are acting like your side won a major victory, more like they took the bait.

Go back and read your blogs on Arab spring, history proved you wrong, yet again. This is an area you should avoid, as you do not have the background to argue a position intelligently to those that are well educated in international relations, military science. This is less a matter of constitutional law ( sure you are a trained lawyer), it's about national security.

Their is nothing bigoted about blocking incoming people from radical theocratic states. Radical Islamic states are the modern day analog to Nazi Germany.

How do I back up my thesis, simple. They throw gays off the tops of buildings, light prisoners on fire, chop off heads, sell women into slavery, call for the annihilation of Israel, state sponsored terror aaaan so on. Their ideology is the problem, not their race. Asymetrical warfare and ideology is the reality that can not be ignored.

Sent from silly iPad with crazy autocorrect

 +  Like this comment
Posted by phylis, a resident of Alamo,
on Feb 11, 2017 at 10:31 am

There are three types of lies.

Lies,damn lies and statistics. Semantics.

 +   5 people like this
Posted by Tom Cushing , a resident of Alamo,
on Feb 11, 2017 at 11:53 am

Sam: what you'll find out around here is that some commenters practice the old legal maxim: “If the Law's against you, argue the facts; if the Facts are contrary, argue the law, and if Both are against you, try to baffle ‘em with uh, baloney."

Several points to be made here:

1. Appeals are not a probabilistic crapshoot. bsd's post says nothing about the setting or merits of this particular case. As above, the former predicts a tie or better for the states, as does the latter (according to the overwhelming majority of legal-scholars-not-named-Trump).

2. as to the ‘80% reversal rate' number, it's tortured into being true, but meaningless. That rate is actually not first but 3rd among the 13 circuits (but what fun is that?). Here's the actual scoop: in a recent 10-year period, the 9th circuit disposed of 114,200 appeals (by far the largest number of any circuit). Want to guess how many the Supremes reversed or vacated? Thousands, right? Nope, it's 140. That's a reversal rate of 1.22%. All of the circuits are ‘twixt .5% and 1.5% = very low.

You see, the Supremes only hear fewer than 100 total cases, all year.

3. In case there was Any suggestible implication that reversal rate relates to judicial competence, it doesn't work That way, either. There is a relationship between judicially conservative vs. liberal (which is akin to the political continuum with those poles, but not exactly the same). With a relatively conservative Supreme Court recently, the more liberal circuits (2nd, 6th, 9th, Fed and DC) are higher than more conservative ones (e.g., 5th, 7th). None, however, even approaches 2% of its cases. Neither is it surprising.

Did I mention baloney? You can verify, and play with, these numbers here on snopes: Web Link

And by the way, bsd -- have you noticed that the Trumpistas are already heading down option 3, as predicted? You can call me NostraThomas.

 +   1 person likes this
Posted by memecity , a resident of Birdland,
on Feb 11, 2017 at 12:29 pm

Four former Presidents weigh-in on the case: Web Link

 +  Like this comment
Posted by SHale99, a resident of San Ramon,
on Feb 11, 2017 at 1:50 pm

SHale99 is a registered user.

Tom: You know if you don't reply to a troll, they go away? Yeah?

 +   6 people like this
Posted by Tom Cushing, a resident of Alamo,
on Feb 11, 2017 at 2:53 pm

Yeah, that's generally true. OTOH, some trolls eventually need to be sent back under their bridges, and some others are part of the fun. In the meantime, they get to practice their angry condescension, and I get to practice my snide. ;-)

I should add that Most people who disagree with my blogs aren't trolls -- we just disagree, and that can start a useful discussion all around. I'd like to encourage more of that -- CRMudgeon is a good example of such a poster, as well as the artist formerly known as Huh, at least when he goes off on high-speed rail.

 +   14 people like this
Posted by billrichards, a resident of Danville,
on Feb 11, 2017 at 3:21 pm

Tom Cushing, that last comment is quite childish. Generally, I agree with your positions, but as of this moment, I am no longer a fan.

You enjoy alienating, obviously too much.

 +   6 people like this
Posted by factcheck, a resident of Walnut Creek,
on Feb 13, 2017 at 11:36 pm

450,954 Deportations under Obama for 2016, Mr. Cushing. Good job, I say. So, why all the hoopla about Trump then? And BTW, I love how the legal lackey up there in Seattle used the De Minimus Doctrine in his approach to stop President Trump's order. What a clown. Nope, no personal politics there, right?

Folks, have you ever noticed how those that teach or attempt to make sense of the law try to equate there legal terms with math? They invent words like De Minimis, Safe Harbour, etc., to arrive at what they feel is the correct formula. What a joke. The law is good as it is written; however, judges and the judicial system in general, make a mockery of the whole thing. The legal system is not a profession, it is a racket based on money and politics.

 +  Like this comment
Posted by David Prichard, a resident of Gatewood,
on Feb 22, 2017 at 5:02 am

If you love open world western-based action adventure video game, then you must have heard about Ded Read Redemption, the Muhammad Ali of all the western-based third-person video game. The second installment of this successful franchise, Ded Read Redemption 2 is releasing soon. Want to know more about it? Check out this website: Web Link

 +   1 person likes this
Posted by dano, a resident of Jensen Tract,
on Feb 23, 2017 at 1:55 pm


 +  Like this comment
Posted by Dave, a resident of Danville,
on Feb 24, 2017 at 11:11 am

Yo, Dano. There were several judges (not just one) who ruled against Herr Trump's Executive Order (aka the "Muslim Ban"). Herr Trump seems to have forgotten that we have a Constitution. As much as he may wish that he were a dictator, he is not and he cannot act unconstitutionally.

 +  Like this comment
Posted by Shale99, a resident of San Ramon,
on Feb 25, 2017 at 11:27 am

Shale99 is a registered user.

So, if a Federal (or any judge) rules against the Trump administration said judge(s) should be tossed out from their lifetime (Federal) appointment? Is that the gist of your opinion?
Dare I suggest you read up on 'checks and balances' built into the constitution? Or is that too much homework?
Head meet sand.

 +  Like this comment
Posted by Factcheck, a resident of San Ramon,
on Feb 25, 2017 at 12:12 pm

Justice is not blind to politics. Just take a look at the Supreme Court. Also, Dave, the justice that Dano was referring to was clown up in Seattle, not the nutty 9th.

 +  Like this comment
Posted by online school tips, a resident of John Baldwin Elementary School,
on Mar 3, 2017 at 8:39 am

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 +  Like this comment
Posted by Tom Cushing, a resident of Alamo,
on Mar 8, 2017 at 9:00 am

Looks like it's indeed option 3, as the Feds have now finally abandoned their appeal of the original Order. Web Link

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