One passage jumped out at me from the unanimous opinion of the Ninth Circuit panel refusing to overturn the US District Judge James Robart’s temporary restraining order on Donald Trump’s Executive Order on immigration.
The Government has argued that, even if lawful permanent residents have due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued “[a]uthoritative [g]uidance” stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.
Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
Basically, the justices said that the government did not seem to know what it was doing or who was responsible for what and thus their statements could not be relied upon. The justices also said that the government offered no evidence to suggest that there would be irreparable harm if the restraining order stayed in place but simply made assertions to that effect.
It was clear during the oral arguments that the government’s lawyer August Flentje was poorly prepared for the case and could offer few specifics that would reassure the justices that the administration knew what it was doing.
The Government suggests that the Executive Order’s discretionary waiver provisions are a sufficient safety valve for those who would suffer unnecessarily, but it has offered no explanation for how these provisions would function in practice: how would the “national interest” be determined, who would make that determination, and when? Moreover, as we have explained above, the Government has not otherwise explained how the Executive Order could realistically be administered only in parts such that the injuries listed above would be avoided.
The whole tone of the opinion suggested that the justices thought that the White House is a mess with no proper decision-making process that could be relied upon but seems to be just winging it, first issuing a poorly worded document and then having different people issue statements that differed on how it should be implemented. Flentje also seemed out of his depth. His suggestion toward the end that the justices could interpret the Executive Order more narrowly to meet their constitutional concerns also did not fly, with the opinion stating that “it is not our role to try, in effect, to rewrite the Executive Order.”
Amy Howe, in her analysis of the opinion, said that the government currently does not have the high level of legal expertise necessary to try these cases at this level.
The Trump administration will face another challenge if it opts to go to the Supreme Court: Its Supreme Court team will be operating short-handed. Trump has not yet nominated a new solicitor general, and the acting solicitor general – Noel Francisco, a political appointee – did not appear on the government’s reply brief in the 9th Circuit because his former law firm filed a “friend of the court” brief supporting Washington and Minnesota. Deputy Solicitor General Edwin Kneedler, a career lawyer in the Department of Justice, signed the brief instead, and another career Department of Justice lawyer, August Flentje, argued the case in the 9th Circuit.
The fact that there still is no word as to whether the administration will ask for a review by the full Ninth Circuit panel or immediately appeal to the US Supreme Court or meekly go back to try the case in the district courts (the last being the least likely option) suggests that there is confusion as to how to proceed.
So this raises an obvious question. Is the chaotic rollout of the first few weeks of the Trump administration some ingenious scheme, a deliberate ‘shock and awe’ strategy designed to overwhelm the system with all manner of high-profile controversies so that their utterly reactionary agenda is advanced while hidden in the noise and attention is focused elsewhere? Or is this just plain incompetence by a bunch of amateurs who disdain the advice of career professionals? Or is it, as seems likely, a mixture of both, that president Bannon did plan to overwhelm the system but blew the implementation?
There are those who see deep strategies where there are none. During the Obama years, whenever he betrayed the hopes of progressives, there were some who insisted that he was super smart, playing 11-dimensional chess and a long game that we mere mortals could not comprehend. It turned out that Obama was simply a cautious centrist and that he did not have any desire to advance a truly progressive agenda. One must be wary of the tendency to see deep plans in chaotic situations.
Meanwhile in the Twittersphere, Trump is being ridiculed as a l-o-o-o-o-ser, the worst label that he can think of and loves to pin on others.