The Bookworm Beat 3/16/17 — the Rule of Law is Dead edition and open thread

While the rule of law is not completely dead, it’s dead enough to justify the title for this quick round up of today’s lawless news.

Judge Derrick Watson 9th Circuit Refugees ruling Rule of LawThe latest federal opinions would bar President Trump from ever again issuing an executive order. William Jacobson, of Legal Insurrection, has looked beyond the obvious failings of the legal decisions issued against Trump’s most recent executive order (specifically, the absence of any analysis involving statutes, case authority, or the Constitution), and discovered the real canker at the heart of these stinking roses:

Two big developments on judicial usurpation of presidential immigration and national security powers.

The federal district court in Hawaii issued a TRO and the 9th Circuit denied en banc hearing of the first appeal. Both Orders are embedded in full at the bottom of this post.

The net result is that Trump has been stripped of his constitutional and statutory powers to protect the nation through control of who is permitted to enter the country.

I warned about this, and the danger of Trump not seeking Supreme Court review in the first case, President Trump must not back down on immigration Executive Order:

The decision of the 9th Circuit Court of Appeals to leave in place a broad Temporary Restraining Order freezing President Trump’s Executive Order on visas and refugees presents a serious threat to the constitutional and statutory authority of the presidency.

By leaving an overly broad TRO in effect that protects even persons who are abroad with no prior connection to the United States, and by refusing to narrow the TRO, the 9th Circuit effectively extended to such persons U.S. constitutional due process rights both to apply for a visa and in the visa process….

I have seen many analyses critical of the 9th Circuit ruling which urge the Trump administration to take a step back, to withdraw the current Executive Order and rewrite it to fit what is acceptable to the 9th Circuit. The Trump administration, according to some reports, is considering doing that.

That would be a grievous mistake.

The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.

And now it’s playing out.

There’s a very tight relationship between Obama and Judge Watson. This morning, in my illustrated round-up, I included the poster below, along with a comment saying that I was sure that Obama’s arrival in Honolulu was just a coincidence, but a funny one:

It may still be a coincidence, but it’s a coincidence with attendant coincidences attached to it:

Watson, 50, was appointed by Obama in November 2012 and confirmed by the U.S. Senate in April 2013. Watson said in a June 2013 interview with the Honolulu Star-Advertiser that he never met Obama at Harvard and knew him only as head of the school’s law review.

Yes, Harvard has slightly large class sizes (about 550 students per year), but I find it surprising that Watson claims never to have met Obama. I too attended a large school, and I knew everyone in my year, at least in passing. Yeah, I’m sure there’s nothing there.

Who exactly is being protected from Trump in Hawaii. Daniel Greenfield notes that Hawaii takes no refugees or immigrants from the six countries on the list. Why, then, did Watson presume to have authority to rule on the case?

Even sillier is the claim that our national security has to be endangered because the University of Hawaii “recruits from the six affected countries. It currently has twenty-three graduate students, several permanent faculty members, and twenty-nine visiting faculty members from the six countries listed.”

So for 23 grad students, unknown numbers of Americans have to die. Not to mention Hawaii’s tourism. “The State contends that the Executive Order will “have the effect of depressing international travel to and tourism in Hawai‘i,” which “directly harms Hawaii’s businesses and, in turn, the State’s revenue.”

So any immigration or tourism restriction would depress international tourism to Hawaii. Requiring people to apply for passports does that.

“The State points to preliminary data from the Hawaii Tourism Authority, which suggests that during the interval of time that the first Executive Order was in place, the number of visitors to Hawai‘i from the Middle East dropped (data including visitors from Iran, Iraq, Syria and Yemen). See Suppl. Decl. of George Szigeti, (identifying 278 visitors in January 2017, compared to 348 visitors from that same region in January 2016)”

So due to a drop of 70 tourists, the president’s authority to keep Americans safe has to be overriden.

Having had a few hours to think about the insane logic Watson used (rather typical, in my experience, for Harvard grads after 1984), Greenfield had a simple fix to address Watson’s fears about the EO’s impact on Hawaii:

But think of the effect that requiring visas and passports has on tourism to Hawaii and enrollment to the University of Hawaii. Judge Derrick Watson must immediately preserve Hawaii’s economic tourism engine by abolishing all immigration and travel restrictions.

Anything else would be inconsistent.

Only when 1 million Iraqis can visit Hawaii while waving ISIS flags and applying to the University of Hawaii to study mechanical engineering and macrame will justice be done.

Even David Frum understands how bad the decision is. The Atlantic is a Leftist magazine, and David Frum is the magazines house conservative — meaning that he’s just conservative enough to have a slightly different point of view without offending anyone at The Atlantic. Nevertheless, when it comes to Judge Watson, even Frum is appropriately horrified:

The president of the United States has power to bar “any class of aliens” both as immigrants and as nonimmigrants and to impose on their ordinary comings and goings “any restrictions he may deem appropriate.”

That’s the language of the U.S. Code, the law of the land as enacted by Congress, under Congress’ own constitutional power over immigration and naturalization.

Presidential power is never absolute, of course. It’s always subject to the Constitution. Many have argued that Trump’s ban is unconstitutional because—as the president himself has repeatedly said—it’s intended to ban Muslims, and should be regarded as prohibited religious discrimination.

But here’s the problem for those making the argument: It’s firmly established U.S. law that the rights of the Constitution belong only to Americans. The U.S. Army can strip enemy combatants of weapons without offending the Second Amendment right to carry firearms. It can billet troops in private dwellings overseas without offending the Third Amendment. The NSA can intercept foreign communications without regard to the Fourth Amendment. The U.S. courts do not hear cases from foreign nationals who complain their due process rights under the Fifth Amendment have somehow been infringed. And so through the gamut.

Where do foreign nationals then acquire their supposed First Amendment right to enter the United States without religious discrimination?

The answer offered by Judge Derrick Watson’s opinion is a judicial reach of a kind that might sound clever to the student editors of an academic law review—but that should worry all Americans in real life. By barring foreign Muslims, the opinion argues, the Trump administration has signaled disfavor of domestic Muslims as well, thereby violating their First Amendment rights to religious equality.

Not only that! Watson’s opinion further contends that this argument is so convincing that it is “highly likely” to prevail on the ultimate merits—and for that reason, that he is justified in issuing immediately a temporary restraining order against Trump’s ban.

This double argument is bold, to put it mildly.

Frum’s analysis is good enough to deserve reading in its entirety.

Tomorrow is your last day to have a voice about Obamacare’s impact on 401(k)s and IRAs. I wasn’t paying attention, but a reader sent me this important information:

While Congress is battling over repeal of Obamacare, President Donald Trump is setting a course to repeal a regulation that the Obama administration pushed through last year and which has become known as “Obamacare for your IRA and 401(k).” Like Obamacare, the “fiduciary rule” dramatically limits choices and raises costs. This rule could devastate our financial well-being just as Obamacare has harmed our health.

Fortunately, the Trump administration can rescind and repeal the fiduciary rule. Unlike Obamacare, this regulation is not based on any new law, but on an expansive and probably illegal interpretation — currently subject to a legal challenge — of the 42-year-old Employee Retirement Income Security Act. This rule itself was issued by Obama’s Department of Labor in April 2016.

The President needs the help of freedom-loving Americans, though. Supporters of this big-government Obama rule are already out in public claiming that repeal or even delay of this rule only helps Wall Street.

This couldn’t be further from the truth. But the Trump Department of Labor needs to hear from Main Street savers that they don’t want this rule, which would limit their access to financial advice and investment choices, and possibly put their friends and neighbors in the brokerage and insurance industries out of work.

[snip]

The deadline to submit comments is March 17. Send yours to the Department of Labor at EBSA.FiduciaryRuleExamination@dol.gov and include “RIN 1210-AB79” in the subject line of the message. You can also go to the Federal eRulemaking Portal and follow the instructions there.

Go here for some useful analysis explaining precisely why you’ll want to get your objections in on time.

At least the optimists are optimistic. From the beginning of the election season, Scott Adams, Don Surber, and Kurt Schlichter have seen Trump as the master puppeteer and have never been downcast, even when it seemed as if the Left was riding a wave aimed at Trump. Regarding the Obamacare fight, Don has this to say:

The repeal and replacement of the Patient Protection and Affordable Care Act of 2010 is ahead of schedule, and can be completed by the July 31 deadline President Trump set.

That deadline is real because insurance companies need August and September to set their rates for 2018. The open season — when people buy their insurance for the next year — begins in October.

Also, President Trump cannot do tax reform until after Obamacare passes, and the deadline for tax reform is the Christmas break.

More likely October 31 to give Wall Street time to adjust, as well as allowing companies to figure their tax strategy for the coming year.

And don’t worry about the Obamacare passion play we’re witnessing now. Don thinks that’s under Trump’s thumb too:

Do not worry about the repeal and replacement of Obamacare. President Trump will cut a deal that will make it so by July 31.

For now, though, Trump is letting House Speaker Paul Ryan lead the way. This is how Trump pays Ryan back for all that help Ryan gave him in the Wisconsin primary and the general election.

[snip]

Donald Trump became president despite Ryan. President Trump just began taking the speaker down a peg or two as Trump pays the speaker back.

[snip]

Ryan made the opening bid.

President Trump will make his counter-offer, likely letting Secretary Dr. Tom Price take the heat for it. Then Trump will enter later, cut, and close the deal.

I hope Don is right. He’s certainly been right before and I like a man with a track record.

And Kurt Schlichter, while dancing delightedly as he watches Democrats self-immolate, has this perfect epitaph for the Left:

[T]he problem for #TheResistance is that it is composed of stupid people who think they are smart people, parochial bigots who consider themselves open-minded cosmopolitans, and meritocrats who really didn’t merit anything except contempt. They refuse to see that their hero Obama left in his miserable wake a country on the verge of being torn apart, and a teetering legacy built of wishes and fraud that is collapsing before our eyes. When Trump is done, it will be like The One had never even been there. History will label Obama “The Zero” – zero accomplishments, zero achievements, zero return on America’s eight-year investment in fake hope and change for the worse.

I’m a little more worried. In theory, the Supreme Court should instantly strike down the circuit courts’ attempts to prevent Trump from exercising any Executive power under the Constitution. It’s a no-brainer. But Kennedy is a worry. I guess if we can somehow frame it as protecting gay rights….

Lawlessness strikes the women’s room. When conservatives fought back against Obama’s transgender restroom mandate, few of them were hostile to transgenders themselves. I wasn’t although their shrill demands are making me feel less friendly towards them. Most people felt as I do: that the new rules are a green light for any man to go into a woman’s bathroom, whether or not he’s feeling transgender on a given day. The issue isn’t the teeny number of transgenders who will benefit from the rule (and I don’t understand why they don’t just dress like men when they’re going to areas without women’s restrooms, just as I dress appropriately for situations that may be dangerous to me) . . . . Uh, where was I? Oh, right.

The issue isn’t the teeny number of transgenders who will benefit from the rule. The issue is the much greater number of bad men who will use the new rules as carte blanche to do bad things. Moreover, the rule silences women who would normally speak up when a man is in the women’s restroom, because they’re worried now that they’ll offend a transgender. One Progressive Mommy blogger ran smack into this problem at Disney when a man, dressed like a man, sauntered into the women’s room and just stood there watching. That was bad enough, but what really disturbed her was that no one — herself included — spoke up:

I surveyed the room and saw roughly 12 women, children in tow…staring at him with the exact same look on their faces. Everyone was visibly uncomfortable. We were all trading looks and motioning our eyes over to him…like “what is he doing in here?” Yet every single one of us was silent. And this is the reason I wrote this blog.

If this had been 5 years ago, you bet your ass every woman in there would’ve been like, “Ummm what are you doing in here?”, but in 2017? the mood has shifted. We had been culturally bullied into silenced. Women were mid-changing their baby’s diapers on the changing tables and I could see them shifting to block his view. But they remained silent. I stayed silent. We all did. Every woman who exited a stall and immediately zeroed right in on him…said nothing. And why? B/c I…and I’m sure all the others were scared of that “what if”. What if I say something and he says he “identifies as a woman” and then I come off as the intolerant asshole at the happiest place on earth? So we all stood there, shifting in our uncomfortableness…trading looks. I saw two women leave the line with their children. Still nothing was said. An older lady said to me outloud, “What is he doing in here?” I’m ashamed to admit I silently shrugged and mouthed, “I don’t know.” She immediately walked out…from a bathroom she had every right to use without fear.

So there lingered this unspoken doubt everyone had….that .00001% chance this wasn’t a man. Let me be clear. This was totally a man. If this wasn’t a man, this was a woman who had fully transitioned via surgery and hormones into a man and had also gotten an adam’s apple implant, chest hair and size 9-10 shoes ….and at that point, wtf are you doing in the women’s restroom? And let me be clear, my problem wasn’t JUST that there was a man in the restroom. Its that he wasn’t even peeing, washing his hands or doing anything else that you’d do in a restroom. He was just standing off to the side looking smug…untouchable… doing absolutely nothing. He had to of noticed that every woman in the long line was staring at him. He didn’t care. He then did a lap around the restroom walking by all the stalls. You know, the stalls that have 1 inch gaps by all the doors hinges so you can most definitely see everyone with their pants around their ankles and vagina clear as day.

You should read the rest. This is that whole “mugged by reality” moment that needs to happen to Progressives if we are going to back away from the insane policies that they are imposing on our daily lives.

Help a soldier get the benefit of the rule of law. Obama hated the military. He did. He insulted it, underfunded it and, when the opportunity arose, abused the troops within it. I get an email that asks for help remedying one of those abuses. Because the email originates with Allen West, and because I deeply respect that man, I’m passing it along, even though its a bleg not just for signing a petition but for money too:

Dear Fellow Patriot,

President Obama refused to pardon an innocent U.S. soldier before he left office.

Now I’m asking you to sign this PRESIDENTIAL PARDON PETITION FOR ARMY 1LT CLINT LORANCE urging President Trump to do what Obama refused to: send this innocent soldier home where he belongs!

In July, 2012, 1LT Clint Lorance was sent to Afghanistan to replace a platoon leader who was seriously wounded in a Taliban attack. On his third day on the job, Clint and his men were on patrol when a U.S. helicopter radioed that a motorcycle was sitting outside of the village near a road only used by the Taliban. When the motorcycle started gunning toward the platoon, 1LT Lorance ordered his marksman to fire.

Two of the riders were killed. The other was captured in the village, where days earlier a U.S. soldier was shot in the neck.

Those of us who have been stationed in Afghanistan know the tactics and actions of the enemy.

Without a doubt, these men posed a threat to Clint’s platoon. And as the commanding officer, Clint knew he was responsible for getting every single one of his soldiers back to base alive.

Yet our own government didn’t agree. 1LT Lorance was convicted of murder and sentenced to 20 years at the U.S. Disciplinary Barracks at Fort Leavenworth.

Now you know why I’m asking you to follow this link to sign the PRESIDENTIAL PARDON PETITION right away.

You see, it is customary for U.S. Presidents to grant high-profile pardons just before leaving office. However, when Obama’s term came to an end on January 20, 2017, he refused to commute Clint’s sentence.

  • Instead, Obama did commute the sentence of traitor Bradley Manning, who leaked sensitive national security information and put our troops at risk.
  • He did commute the sentence of Puerto Rican nationalist Oscar Lopez Rivera, who was serving 50 years in prison for plotting to overthrow the U.S. government and whose group killed four Americans in a New York City bombing in 1975.
  • And of course he pardoned and commuted the sentences of hundreds of criminal cocaine and heroin dealers.

As a combat veteran, I’m disgusted that Obama let traitors, drug dealers and murderers out of prison early – while 1LT Lorance is left to serve a 20-year sentence for protecting his men on the battlefield!

But now that Donald Trump has taken office, you and I have a new chance to finally free 1LT Lorance.

Will you follow this link to sign the PRESIDENTIAL PARDON PETITION to Donald Trump right now?

My friend, Clint Lorance signed up to serve his country and risked his life on the battlefield to protect your freedom. When his men were threatened, he did exactly what our military trained him to do.

As a combat veteran with 22 years of service, I can’t turn my back on this young soldier.And I hope you won’t either.

That’s why I’m writing you this letter on behalf of the United American Patriots (UAP), an organization founded by another combat veteran who knows just like I do that you can’t second-guess our young men for their split-second actions behind enemy lines.

UAP provides legal defenses for soldiers like Clint who have been unfairly accused of crimes for their actions in deadly combat zones. In fact, they’re assisting 6 other wrongly accused soldiers who are sitting behind bars at Fort Leavenworth, in addition to funding 3 separate efforts to free Clint – an appeal, a motion for mistrial and of course this Presidential Pardon campaign.

But as a non-profit organization, UAP doesn’t receive a dime of federal funding. Instead, they depend on the big hearts of American patriots like you who support them and their mission.

UAP has calculated the cost of filing all the paperwork for Clint’s official pardon request and this Petition campaign to be more than $385,000. But I don’t think you can put a price tag on this young man’s freedom!

I’m not asking you to write a check for $385,000. But I am asking you to make a tax-deductible gift of $31 after you sign the Petition.

Every penny raised will support UAP’s efforts to collect millions of Petitions on Clint’s behalf – and cover the legal fees for other innocent soldiers – so if you are in the position to send a larger tax-deductible gift in the amount of $50, $100, $500 or more, I pray you will.

1LT Clint Lorance served our country honorably and courageously for 10 years. He does not deserve to be treated as a cold-blooded murderer for doing his job.

Will you take just 30 seconds right now to fight for Clint’s freedom by signing the PRESIDENTIAL PARDON FOR ARMY 1LT CLINT LORANCE and make your best tax-deductible contribution of $31 or more.

On behalf of 1LT Lorance and his family, his legal team and UAP, thank you in advance for your support.

Steadfast and loyal,

LTC(R) Allen West
Congressman (2011-2013)

P.S. If you agree that it’s time for President Trump to do what Barack Obama refused to – and send this innocent American soldier home to his family! – then please sign the PRESIDENTIAL PARDON FOR ARMY 1LT CLINT LORANCE right away and make your best tax-deductible donation of $31 or more to United American Patriots.