Monthly Archives: March 2017

Five Judges on the Ninth Circuit Deliver Exemplary Dissent From “Contrived Comedy of Errors” in First Decision on Travel BanEdit

On March 15, five Judges of the Ninth Circuit Court of Appeal delivered what Professor Jonathon Turley termed a “vociferous dissent” which has received, as he noted, “a surprising lack of media attention…”. Upon discovering Prof. Turley’s article, and a couple of others in the same vein, I conducted my own search and while not claiming even the slightest degree of skill in electronic searches, I could find not a single word of this remarkable decision in the New York Times, although, to my surprise, it was reported in both the Washington Post and the Los Angeles Times.

The cited article notes the following salient points about the initial opinion while also noting the unusually direct language used by the dissenting Judges, termed by another commentator as “ruthless”, which gives one at least some hope that common (and legal!) sense may ultimately prevail in what another writer has termed this “contrived comedy of errors”:

“The dissenting judges objected that there is an “obligation to correct” the “manifest” errors of the panel. It called those errors “fundamental” and even questioned the manner in which the panel reached its decision with a telephonic oral argument. The dissent raised many of the problems that various commentators have raised, including myself. The lack of consideration to opposing case law, failure to address the statutory authority given to the President, and the sweeping dismissal of executive authority are obvious flaws. (These problems are also apparent in the ruling in Hawaii, though it was based on establishment rather the due process grounds) The dissenting judges refer to the “clear misstatement of law” in the upholding of the district court. so bad it compelled “vacating” an opinion usually mooted by a dismissed case.”

The Judges also made the point, thought to be long-settled before Judge Robart issued the first ruling in this case, that “so long as there is one facially legitimate and bona fide reason for the President’s actions, our inquiry is at an end.”

Prof. Turley sums up the heart of the reason this opinion offers at least some glimmer of optimism that the Courts will finally get back to basics and follow established legal principles instead of concentrating on what the President said on the campaign trail as opposed to what appears “within the four corners of the document”, the analysis we were taught in Law School and which has been the accepted standard ever since, as follows:

“The opinion has all of the legal analysis that is so conspicuously absent in the panel decision, which dismissed or ignored countervailing case law of the Supreme Court and even the Ninth Circuit. … “

We heard more than most of us ever wanted to hear about “hope and change” for the past 8 years– this opinion is definitely my version of “hope” in the sense that if Justice Gorsuch is on the bench by the time these ill-considered cases reach the High Court, it is almost impossible to imagine that they could possibly stand. That is my fervent hope. Thus, I strongly agree with Professor Yoo’s analysis: “I find it hard to believe that the Supreme Court would allow the judiciary to exercise such intrusive review into the motives of the head of a co-equal branch of government.”


True Story: A Neighbor Saw My “Make America Great Again” Flag–And Cried!

This little story definitely falls under the heading of “you can’t make this stuff up!”!

I am very proud of my flagpole in my front yard and have proudly flown “Old Glory” for many years. I try hard to keep it replaced when our frequent South Louisiana storms “have their way with” them and I try hard to observe all the rules with regard to the proper care of the American flag.

I was very happy recently to see an ad for a beautiful red flag with large white lettering reading “Make America Great Again” and immediately ordered it to fly with my brand new American flag, without ever giving a thought to the fact that someone might be so offended by the mere sight of the flag that they would voice loud complaints about it. Therefore, I was delighted when the flag came in and I immediately ran it up the flagpole to take its place of honor right below my spanking new American flag.

Shortly thereafter, I got a call from a neighbor and long-time friend, who explained that he was simply doing his duty as grievance Chair of the Homeowners’ Association in conveying to me a complaint he had received from a neighbor, who told him that as they were from Mexico the mere sight of the flag so upset them that they cried for quite some time after seeing it. My friend made it clear that he was doing his duty, but not necessarily in an enthusiastic way, and in the course of the conversation, he said words to the effect “I must tell you, I really like that flag!” He asked for my response and I asked whether he wanted the dignified response or the one I would really like to give, and he said as he had known me for many years he could probably guess what the “undignified” response would be! So, I responded that it would take a final order of a Court of competent jurisdiction ordering me to take down the flag before it would move one inch; I have had no further complaints. As a matter of fact, another neighbor called me asking for information as to where he could get one for his own flagpole!

If someone tries to tell me there is no such thing as “Trump Derangement Syndrome” I have a true story ready for them; it is real and it is really quite chilling to actually know someone to whom the mere sight of his campaign slogan on a piece of cloth causes them physical upset!

Although if I were truly fair about it, I would have to admit that when I saw a pink knit cap recently at a soccer match, commonly identified by a feline reference and which has become something of an icon for women in The Resistance, if that’s what it’s called this week, I did feel some kind of emotion, mostly sadness for the rather pathetic specimen who was wearing it.

But I did not cry. And if I had, I would never, ever, ever admit it to one living soul!