My legal training and education, and many decades of practicing trial law, finally led me to approach the hysterical chorus of claims that the President’s recent Executive Order was a “Muslim ban” in what really does appear lately to be “the old-fashioned way”—to read and study Judge Robarts’s opinion, to read and study the order itself and to listen to (most of) the appellate arguments. I came away from that experience with not only a clear understanding of what the Order actually says (and, perhaps more importantly, what it does not say), but also an abiding conviction that very few of the baying bloodhounds of the press have bothered to read the Executive Order in view of the near-identical and, in some cases, inane characterizations of the order and the law on which it is based.
Based on my old-fashioned approach, and with the caveat that as a member of the Bar I am ethically constrained from any kind of personal disparagement of a member of the Judiciary, here, for what they may be worth, are my observations and conclusions.
First, the opinion of the District Court in Seattle was, with all due respect, overbroad, over-reaching and devoid of any reasoning or citation of authority whatsoever—the opinion did not even mention the actual content of the Executive Order nor did it even attempt to analyze the legal authorities upon which it is based. Although I have not researched this aspect of it in depth, I found it inexplicable that this court would make its order apply “Nationwide”, thus, in real terms and not just theoretically, overruling the decision of another Federal District Court, District Judge Nathaniel Gorton of Boston, which had just the day before ruled in a diametrically opposite manner, holding the order legal and fully enforceable. I was more than a little surprised when not a single Judge on the appellate panel last evening even mentioned this most unusual attempt of a single Judge in one Judicial District to have its order apply to the entire nation. As noted below, that was but one of my very serious concerns about the appellate argument, parts of which sounded like a recording of a freshman year (maybe even High School Moot Court exercise), again, with all due respect.
Second, The Executive Order is very carefully written to be anything but a Muslim ban!
As I could only dream of writing as cogently, clearly and persuasively as Heather MacDonald, I will simply adopt her brief refutation of this Democrat, media, academia, far left (but I repeat myself!) talking point:
“This executive order is far from a “Muslim ban,” pace the press. Millions of Muslims remain as eligible for entry after the executive order as they were before it. The order singles out entries from seven countries based on evidence of the heightened Islamic terror threat there. If doing so is impermissible because those seven countries have Muslim-majority populations, then national security has been completely sublimated to political correctness. It is not the U.S.’s fault that the individuals creating the most worldwide havoc with bombings and beheadings of civilians are Muslims motivated by radical Islamic ideology. The U.S. is forced to take its enemies as and where it finds them.”
“Have Islamic terrorists come from other countries? Yes, but the seven countries selected by the decree are now the site of the most contagious terrorist ideology and chaos, according to the Obama administration and now the Trump administration as well. The critics cannot simultaneously argue that the pause is too sweeping—taking in a handful of Muslim-majority countries—and that it is not sweeping enough—not taking in more Muslim-majority countries.”
This has been the consistent view of several analysts from many publications who have also taken the “old-fashioned” approach and have actually read the document before uttering sheer and total banalities about it. What a unique concept! We can only hope more and more “journalists” will return to that time-honored practice, which is admittedly not for the faint of heart or for those members of the chattering class who are simply too lazy to take the few minutes it would take anyone to read this document.
One of the clearest statements I found, and also one of the most entertaining, was this one from an apparently small paper in the Washington, D.C. area, entitled, appropriately enough, “Obsession”:
“The word on the street in the DC-environs where I live, is that President Trump has slapped a moratorium on entry to the USA by Muslims, Buddhists, Taoists, Animists, Hindus, Moonies, Rosicrucians, Hari-krishnas, Shintoists, and adherents of any other religions with odd-sounding names. Reporters, pundits, politicians, “educators,” clergy, students, professional agitators and stoned advocates for free pot are shouting from the housetops that “this is not who we are,” and vowing to fight Mr. Trump’s “Hitlerian” discrimination against religion to the last man, woman or whatever. Dark whispers are even circulating that Trump really wanted to set up “detainee camps” for Muslims and others, but was restrained by “moderates” on his staff (assuming that there are any).”
“OK, OK – enough of that tongue-in-cheek stuff, although the overheated accusations of “Hitlerian” religious discrimination are all too true. All seriousness aside, though, Mr. Trump did not bar followers of Islam (or of any other religion). His order:
- Suspended entry of all refugees to the United States for 120 days;
- Barred Syrian refugees indefinitely;
- Blocked entry into the United States for 90 days by citizens of seven countries (i.e., Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen);
- Barred green card holders from those countries from re-entering the United States, although the administration said exemptions could be granted.”
“Indeed, just finding this straightforward summary of Mr. Trump’s order took some digging, as most media organs are obsessed with the “religious discrimination” story-line. Senate Minority Leader Charles Schumer (D-NY) made a big media splash (so to speak) by publicly “weeping” over Mr. Trump’s “mean-spirited” order, while vowing to fight it with his last breath. (Somehow, he and multitudes of like mind overlooked the fact that the seven nations named in the order were originally cited as “terrorism-prone” by the Obama administration two years ago.)”
Among the biggest cries of anguish of the far left is the fact that the order gives priority to victims of religious-based persecution. As noted in a recent edition of “Rubin Reports”, this is hypocritical coming from those who claim to always stand with minorities of all kinds, everywhere. Here is what Ben Stein of The Daily Wire had to say on this aspect of the Order, along with the applicable section of the Order:
“6. Priority Is Given To Victims of Religious-Based Persecution. The media has labeled the order Islamophobic based on this provision, but here’s what it actually says:
Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
“As David French points out at National Review, the current definition of refugee under law states, “any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of . . . religion [among other things].” This executive order isn’t a major change to that standard, and it is designed to give priority to Syrian Christian refugees who have largely been left high and dry by the Obama administration.”
Third, with regard to the Appellate arguments of Monday evening, February 7, 2017, it is difficult to come up with any word within the constraints of respect for the Judiciary other than disappointing, both as to the quality of appellate advocacy on the part of the attorneys, particularly the dismal performance of the attorney representing the Government, and the questioning of the Court. We are taught early, and reminded time and time again, that it is dangerous to second-guess lawyers “in the pit” about their own cases, as they usually know many times more than anyone else does about their case. However, I did find myself wondering, with all the resources of the Government and considering the momentous importance of this appeal, why any one of a number of well-known and highly skilled appellate counsel could not have been found to present the case on behalf of the Government. I found the Solicitor General of the State of Washington, on the other hand, quite impressive. However, I was deeply troubled by not only the numerous inquiries into statements made by President Trump in the course of the campaign about “banning Muslims” and similar statements by Mr. Giuliani, which did not seem at all relevant to the question to be decided, but also the openly and forcefully adversarial tone in which some of the questions were asked, especially by one of the Judges on the panel. Any attorney who has had any appellate experience at all has run into some hostile questioning from time to time, but the tone of some of this Court’s questioning seemed to be unusually pointed and, at times, unnecessarily so. I also found Judge Friedland’s asking “What if the order said “No Muslims”? to be, and there is no other way to put this, simply inexplicable, and felt real sympathy for Government counsel as he tried to show the obvious—that this is not the order we are dealing with in this case.
To borrow a little from the Chinese Proverb, we seem to be living in Orwellian times, in which we are lied to day in and day out by groups which not long ago were looked to for information with which we could be the informed electorate Mr. Jefferson said was so critical to the maintenance of a healthy Republic. Some members of these groups, i.e., politicians of a certain stripe and almost all of the mainstream media(approximately 93% are registered Democrats), seem to have abandoned all pretense of any objectivity whatsoever and have adopted the practice of The Big Lie which was at the heart of Orwell’s writing. The more this Trump Derangement Syndrome continues, the more incumbent it is upon the citizenry to approach major issues like the one considered here “the old-fashioned way” and realize that if one is to know what is in a certain document or law or other writing, assume the media is lying to you about it, as they usually are. Or, as one of the more colorful columnists on the scene today recently put it, “everything said about President Trump’s “Muslim ban” is a lie, including that it’s a “Muslim ban.”