Law

The case of Margarita Del Pilar Fitzpatrick

Featured image Of course noncitizens never vote, a faithful reader sarcastically writes. Our reader practices immigration law and directs us to the Seventh Circuit opinion in Fitzpatrick v. Sessions, hot off the press yesterday in the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit opinion briefly summarizes the factual background: Margarita Del Pilar Fitzpatrick, a citizen of Peru, had lived in the United States for three years when »

Al Franken triples down on stupid

Featured image I’m not enough of an elitist to believe that only Senators with legal training should serve on the Senate Judiciary Committee. However, the ability to engage competently in legal reasoning ought to be a prerequisite. In his work on the Judiciary Committee, Al Franken has failed to display this ability. Indeed, he shows a lack of competence in basic logic that, in a better world, would disqualify him from the »

Somebody get me out of here

Featured image The federal courts of appeals routinely operate in randomly assigned panels of three judges. Appeals from their decisions may be taken to the United States Supreme Court and are heard mostly as a matter of the Supreme Court’s discretion. When a federal appellate decision conflicts with a previous decision of the same court, or with a decision of the United States Supreme Court, or (more rarely) presents a question of »

9th Circuit balks at split; Jeff Flake calls it out

Featured image Yesterday, in a post about the Ninth Circuit panel’s decision regarding the Trump administration’s executive on entry into the U.S., I suggested that Republicans should consider legislation to split up that court. The reason is simple: the court is too big. It encompasses nine states and has 29 slots (of which 25 are currently filled, I believe). The court’s size means that, unlike with other federal appeals courts, when it »

A Ninth Circuit footnote [With Comment by John] [Updated]

Featured image The Ninth Circuit has ruled against the Trump administration’s motion for a stay pending appeal of Judge Robart’s order restraining the Trump administration from enforcing the executive order calling a brief timeout on the admission of refugees from seven designated countries (a/k/a “travel ban”) in the Ninth Circuit just concluded. This can’t be a surprise to anyone who tuned in to the oral argument of the motion. The Ninth Circuit »

The Ninth Circuit’s ruling — limited in impact but full of mischief

Featured image Dan McLaughlin at NRO has written a good analysis of the Ninth Circuit’s ruling against the Trump administration’s travel ban. His analysis is comprehensive. In this post, I will quote what I consider the most significant portion: [T]he court found that the government was not likely to win its case – the standard on a preliminary injunction, before all the evidence has been heard – on whether the executive order »

Ninth Circuit maintains suspension of Trump’s order on travel [UPDATED TWICE]

Featured image A unanimous panel of Ninth Circuit judges has just refused to reinstate President Trump’s executive order banning certain travel into the U.S. The ruling, though inconsistent with the law, will surprise few who know anything about the Ninth Circuit. I’m sure we’ll discuss the merits once we have the opportunity to analyze the opinion. For now, let’s consider the administration’s legal options. It could seek rehearing by the Ninth Circuit »

Why not the “A Team,” Part Two

Featured image Yesterday, I asked why, during the oral argument before a Ninth Circuit panel, the Justice Department’s “A Team” wasn’t deployed to defend the Trump administration’s executive order limiting entry into the country. By the “A Team” I meant Noel Francisco, the acting solicitor general who until recently was a partner at the law firm of Jones Day. Both Francisco and acting assistant attorney general Chad Readler, also formerly of Jones »

Memo to Hollywood: Please Don’t Do This

Featured image Last week in class I offered a reflection on how the rule of law often requires determined—nay, strictly speaking even extra-legal—displays of force to establish or vindicate the rule of law. The Declaration of Independence alone did not suffice to establish the United States: It took Washington’s army in the field—an extra-legal act of rebellion—to successfully vindicate the natural rights of man for self-rule that the Declaration proclaims. It then »

Why didn’t the “A Team” defend Trump’s immigration order? [UPDATED]

Featured image Scott has said that August Flentje, the Justice Department lawyer who defended the administration’s executive order limiting entry to this country, did not argue effectively. Even taking into account how difficult it can be for an appellate advocate to deal with a hostile panel, especially over the telephone, I must agree. I’m told that Flentje won an award from Eric Holder for leading the team that argued that DOMA was »

In the Ninth Circuit

Featured image The oral argument of the Trump administration’s motion for a stay pending appeal of Judge Robart’s order restraining the Trump administration from enforcing the executive order calling a brief timeout on the admission of refugees from seven designated countries (a/k/a “travel ban”) in the Ninth Circuit just concluded. The Ninth Circuit made the oral argument accessible by live stream. To no one’s surprise, the oral argument did not go well »

Ninth Circuit update

Featured image Over the weekend the Trump administration filed an emergency motion for an immediate stay and a motion for stay pending appeal of Judge Robart’s order restraining the Trump administration from enforcing its executive order calling a brief timeout on the admission of refugees from seven designated countries (a/k/a “travel ban”). The motion for an emergency stay was denied by a two-judge administrative panel of the Ninth Circuit while briefing was »

Ninth Circuit denies stay

Featured image Yesterday the Department of Justice has filed an emergency motion for an immediate stay and a motion for stay pending appeal of Judge Robart’s order restraining the Trump administration from enforcing its executive order calling a brief timeout on the admission of refugees from seven designated countries (a/k/a “travel ban”). The motion has been posted online here. The motion characterizes Judge Robart’s order as an injunction (which is appealable) rather »

A strange ruling from a strange judge

Featured image Jerome Woehrle at Liberty Unyielding provides a revealing look at James Robart, the federal judge who enjoined President Trump’s executive order temporarily restricting entry to the U.S. from seven highly problematic nations. Scott has observed that Judge Robart’s opinion is nearly devoid of legal analysis. Woehrle expands on this criticism: Judge James Robart’s order has no legal basis, and barely pretends to. [The] order against Trump sheds little light on »

Restrain this

Featured image At The Stranger Sydney Brownstone provides a summary of the temporary restraining order entered by Judge James Robart staying enforcement “on a nationwide basis” of President Trump’s timeout on immigration from seven countries previously identified by the Obama administration. The Seattle Times has posted an excited story on the order together with a video of the hearing on it (below). This case has been brought in federal district court against »

(DHS) Magical mystery tour (and why I need a lawyer)

Featured image The Minneapolis-St. Paul International Airport should be a sidebar to the story of the case against the “Minnesota men” that resulted in guilty pleas and verdicts last year. One of the “Minnesota men” who pleaded guilty and cooperated with the prosecution had worked on the tarmac at the airport in positions where he could have done serious damage. So did the “Minnesota man” who turned informant and was never charged »

Confirming Judge Gorsuch

Featured image By nominating Judge Neil Gorsuch rather than Judge William Pryor, the original frontrunner, I suspect that President Trump hopes to avoid a successful filibuster, and thus get his man confirmed without resort to the “nuclear option.” I’m not saying that this was the decisive consideration. It may be that Trump simply preferred Gorsuch — I don’t know. But it seems likely that Team Trump viewed the prospect of confirming Gorsuch »