In response to my position on the Trump travel ban (perhaps hugely misinterpreted),  I received many emails and comments, mostly unfavorable.

Some comments were on “The Law” and others cited facts about the Ninth Circuit Court. One person cited a recent article from Hoover.Org.

Let’s address those emails and comments in light of the fact that Trump has backed down from taking the case to the Supreme Court.

On Friday, the Financial Times reported Trump Says No Rush to Appeal Travel-Ban Ruling, May Issue New Order.

In defense of Trump, that appears to be a BS news headline. I can find no Tweet nor any other reference where Trump said “no rush” except for references that point back to that headline from the FT.

It would have been very damaging to the Trump case had he said there was no need to rush given the urgency he placed on the ban.

The FT is making up news headlines. With that bit of mainstream media fake news out of the way, let’s consider other viewpoints.

It’s the Law

Several readers emailed that Trump’s position is “The Law”. Typically they cited Federal Immigration Code 1182 Sec.(f):

“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

I remind them that the constitution once ruled that blacks were worth 3/5 of a vote and their slavemasters could vote their vote for them.

The 3/5th rule is found in Article 1, Section 2, Paragraph 3 of the United States Constitution, which reads:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Section 2 of the Fourteenth Amendment (1868) later superseded Article 1, Section 2, Clause 3 and explicitly repealed the compromise. It provides that “representatives shall be apportioned … counting the whole number of persons in each State, excluding Indians not taxed.” A later provision of the same clause reduced the Congressional representation of states who denied the right to vote to adult male citizens, but this provision was never effectively enforced. (The Thirteenth Amendment, passed in 1865, had already eliminated almost all persons from the original clause’s jurisdiction by banning slavery; the only remaining persons subject to it were those serving lifetime prison sentences, which the amendment excluded from the ban.)

Various laws once allowed “separate but equal”.

So spare me the sap about what “The Law” says, as if “The Law” is final. The constitution is not even final.

Curious Positions on “The Law”

Many of those citing “The Law” only do so because they happen to agree with the law as written.

I point out Roe v. Wade, a correct ruling that is without a doubt “The Law” given it has been tested a number of times at the Supreme Court level.

The idea that human life begins at conception is a religious belief, no more, no less.

PEW research shows 59% of US adults say abortion should be legal in most cases. 69% say Row v. Wade should not be completely overturned.

But 69% of conservatives actively seek to force their religious beliefs on everyone else. They do so despite “The Law”, despite common sense, and despite the blatantly unconstitutional position of imposing religious beliefs on others.

Adding to their massive hypocrisy, the same crowd complains about “activist judges” making laws, although they seek to install “activist judges” to make the law in accordance with their religious beliefs.

Finally, it’s safe to assume most of those “conservatives” see no harm in blowing countries to smithereens or droning innocent men, women, and children to death.


Bad Math

Next in line to object to my immigration stance are those who do not understand math.

Numerous people sent me articles about how often ninth circuit court rulings are overturned by the Supreme Court. For example, the Daily Caller notes the 9th Circuit Has 80 Percent Reversal Rate At Supreme Court

The American Bar Association notes the Supreme court only reviews an average of 64 cases per year, which is about 0.106% of all decisions by the federal courts of appeals.

Regardless, something on the order of 99.9% of ninth circuit rulings are not challenged at all. Those challenged are not necessarily heard by the Supreme Court.

The Daily Caller and most other articles readers sent also failed to mention that the 9th court contains 20% of the US population and is overburdened with cases.

The American Bar Association is dated, but the math has not changed by much.

Hoover Review

My favorite reader comment comes from reader Franny who claims “From a legal perspective, the Ninth Circuit decision is a heaping pile of crap. I predict the full court en banc will withdraw it — that’s how embarrassing it is.”

That comment, in and of itself, is laughable, as noted above. However, I thank Franny for providing a link to a Hoover article titled A Flawed Restraining of a Flawed Order, by Michael McConnell.

McConnell blasts the decision of the ninth Circuit Court for second-guessing Trump’s reasons and for sidestepping various issues.

He also blasted the circuit court for their statement “More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.”

McConnell stated that is “precisely backwards”.

Mish Take: I do not want judges rewriting executive orders or laws to make them legal. Since when was that a good idea?

A more reasonable point of view would have been insistence that the court strike those provisions that it deemed unconstitutional.

With that adjustment, I am basically in agreement with McConnell. Please pay attention to these McConnell quotes:

  1. The Title: “A Flawed Restraining of a Flawed Order”. Trump’s order was flawed – I agree
  2. “The President’s inappropriate personal criticism of the judges and the judicial process did not help his case.” – I agree
  3. “The order is constitutional with respect to the vast majority of its applications.” I agree while noting that “vast majority” does not mean “all”
  4. “The smartest move by the Administration is to revise the executive order to make clear that it only applies to unadmitted and nonresident aliens” – I agree, but Trump should have done this in the first place, not make the court rewrite his order.
  5. “I fear that slogging forward in the Court of Appeals, before the same panel, is unlikely to be successful, and that returning to the district court will lead to endless battles over executive privilege, in which the Administration will take the same position any executive would take, but which will be treated as uniquely Trumpian defiance of judicial authority. Better to correct the order and start afresh, with organized implementation and full public explanation.”  Again, I agree

That’s five agreements with one major disagreement as to whether or not the ninth circuit court should have rewrittenTrump’s order.

Not only did McConnell chastise Trump for “inappropriate criticism”  the title of his article notes the flawed nature of Trump’s order.

Trump’s order, prohibiting the return of legal residents, was at best blatantly stupid. His comments toward the court were inappropriate.

After stating he would take this case to the Supreme Court, Trump backed down, as has been the case more often than not lately.

Why did Trump back down? He would likely lose, as McConnell clearly states.

In regards to points 4 and 5, I fully concur with McConnel. Trump should correct the order and start all over.

My position is simple and easily defended:

  • At best, Trump made an incredibly bad decision to block legal residents from returning.
  • More likely, Trump’s action was unconstitutional and the Supreme Court would have ruled that way had the case proceeded (like it or not).
  • The 9th circuit was correct in not rewriting the law for Trump. Judges should not rewrite laws.
  • Trump acted childishly and foolishly toward the court. That was another poor decision on Trump’s part. There was no upside.
  • Trump had the right to bar entry to new aliens from those seven countries. I never stated otherwise.
  • I was and still remain, firmly against German Chancellor Angela Merkel’s open-arms welcome of refugees.
  • Had Trump issued a clear order, he would not be in this mess. It was a self-inflicted wound.

Think First, Tweet Second

Related Articles

  1. Assessing the Constitutional Merits of Trump’s Seven-Nation Ban
  2. Back to the Past: Steen Jakobsen Asks Did Trump Change Anything?
  3. Secretary of State Tillerson: A Moderating Influence on Trump? Russia to Return Snowden?

Mike “Mish” Shedlock