Washington v. Trump

That’s Washington the state of course, not Washington the city or Washington the chap. Since I wrote last week’s column, the Ninth Circuit Court of Appeals has affirmed Judge Robart’s decision. No surprises there.

The government didn’t lose all the arguments. The court accepted that Judge Robart’s Temporary Restraining Order (TRO) could be appealed: normally a TRO cannot be appealed, as they are usually temporary in nature, as it says on the box. A TRO essentially holds the fort until a hearing on the merits can be arranged.

The government lost the rest of its arguments, however. I have read the judgment in its entirety. It is a remarkable document, with respect.

As the President has rightly pointed out, there isn’t a single reference to the statute the President was using when he signed his Executive Order on January 27th, the Immigration and Nationality Act (8 U.S.C. 1101). Since this gives him broad and sweeping powers to control the entry of aliens into the United States, this is both ‘surprising and disappointing’, as we lawyers say. That’s legal code for “are they crazy, what are they on?”

What Was The Justice Department Doing?

The failure of the court to refer to the statute they were interpreting was not the only odd thing about the case. Why on earth did the Justice Department assert that the President’s order was non-reviewable? All presidential orders are reviewable – that point was lost in World War II, admittedly at a time when the Supreme Court was penetrated by the Abwehr, in some cases literally.

That would be a losing point on the First Circuit, never mind the Ninth Circuit. Aside from being a bad point, it is also wrong in principle. The thing to remember about constitutional law is that the principles apply whoever is in office. Constitutional lawyers have to think long-term. Whilst it may sound fine giving a Republican president unreviewable powers, especially a nice one like Donald Trump, you’re also giving the same powers to a future Democratic president, who might be a scumbag, like the last one, no offense intended.

It rather looks as though the Justice Department decided to argue bad points in order to lose. It’s a good thing that Senator Sessions has now taken over as Attorney-General. Hopefully he can bring the department into line.

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Standing

The states’ arguments on standing remain weak. They appear to have coalesced into the effect the order has on students and faculty at state schools like the University of Washington. (Visitors to the States are sometimes confused by the fact that the University of Washington is nowhere near Washington and is in fact in Seattle). It seems like U-Dub had some students and faculty caught by the ban.

Quite what these Iranian professors and students were up to no-one is saying. Maybe they’re teaching bomb-making on the nuclear engineering course, not that the Iranians don’t already have all the nukes they need, thanks to those black French plute shipments in 2003-4.

This still seems a stretch to me. Next thing they’ll be saying is that the City of Seattle has standing, followed by a bloke called Bob at a Denny’s Diner in Tacoma (there are three).

Substantive Merits

The court’s reasoning, with respect, if reasoning is not too strong a word, is weak. The only argument that seemed to me to have some legs was the Due Process argument in relation to resident aliens. The judgment (there is only one opinion, signed by all three judges, Circuit Judges Canby, Clifton and Friedland) emphasizes supposed religious discrimination and the Establishment Clause.

There are all sorts of problems with this, not least the fact the overwhelming majority of the world’s Moslems are not caught by the order. The Justice Department left the door wide open for the respondents and the court to attack the entirely reasonable national security justifications for the ban, however by not filing much in the way of evidence.

It really doesn’t matter that no national of the seven unstable Islamic states in the order has been involved in a terrorist attack on US soil since 9/11. President George W. Bush effectively deterred further terrorist attacks in the US by going on the offense against Afghanistan and Iraq, each of which had been involved in 9/11. The MSM won’t tell the truth about Iraq and 9/11, but the Bad Guys know it and got the message.

Nationals of each of these states have been involved in murderous terrorist attacks outside the US.

The whole point of the President’s Executive Order was to prevent such attacks from being repeated inside the US.

Some of these attacks have been in Western Europe. How many people have to die before the MSM, the Democrats and liberal judges get the message? Whilst it is true to say that the majority of Moslems are not terrorists, the majority of terrorists, sadly, are Muslim. Terrorism and Islam are not unrelated phenomena.

Next Steps

There are three main legal options:

(1) The Ninth Circuit could rehear the case en banc;
(2) The Administration could take the TRO to the Supreme Court, where I predict a 4:4 split, with the Ninth Circuit’s decision standing; or,
(3) They could elect to abandon the attempt to overturn the TRO and go back to Judge Robart to argue the substantive case.

The Administration are said to be reviewing their political options. These include issuing a fresh order. That could be a shrewd move. IMHO a revised order would need to do three things in order to survive scrutiny by the courts, bearing in mind that the Supreme Court, with respect, badly needs the legal ballast that Judge Gorsuch will bring once he is confirmed.

(1) Exclude students and faculty members with existing visas, subject to tightened vetting of future applicants and better monitoring of those already here, many of whom will not be genuine (fake students have been a huge problem in the UK, to the point where bogus colleges have even been set up – I remember one which had 30 desks and over 1,000 enrolled students, mostly from the Federal Republic of Nigeria);
(2) Provide some form of appeal right for legal permanent residents; and,
(3) Make adequate transitional provisions, i.e. provide for smooth implementation.

Making a new order would not rule out an appeal in respect of the existing order, depending upon whether it was revoked or not and the transitional arrangements in the new order. An appeal would only be ruled out if the point became moot, i.e. no longer mattered.

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The Refugee Convention

There is however a further, nuclear option: denunciation by the United States of the 1951 Refugee Convention, together with the 1967 New York Protocol, under Article 44(1). Denunciation takes effect by notification to the UN Secretary-General and requires 12 months’ notice.

In practice most terrorists illegally entering Western jurisdictions do so by abusing the Refugee Convention and asserting a fake refugee status. There are two main reasons for this: applicants do not need to comply with immigration formalities, i.e. can apply without visas, and second, seeking asylum allows them to dispose of their travel documents, concealing their true identity.

It is vanishingly rare for asylum seekers to retain their travel documents. Refugee screening in practice is a joke. The UN High Commissioner for Refugees (UNHCR) field staff are probably as likely to clear a terrorist as block them. The UN is badly penetrated by the DVD, and all UN agencies are suspect.

The President is absolutely right to insist on better vetting. Initial UN screening, which only happens in a minority of cases anyway, a couple of interviews and a fingerprint check are wholly inadequate. Background checks aren’t much use if you don’t know the applicant’s true identity.

Pulling out of the Refugee Convention would eliminate the greater part of the risk. I am NOT saying that terrorists could not get into the US by other means – they could wade or swim the Rio Grande if it comes to that. It is however much more difficult if they have to establish their true identity. Forging passports is a lot more difficult than it used to be – simply switching a photograph is no longer an option. (It used to be quite popular – I well remember examining forged passports when sitting as an immigration judge).

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The First Three Weeks

President Trump has got off to a cracking start. He is moving at such a pace that the MSM and the Democrats can’t keep up. They’re just not used to a politician who keeps his or her promises. It’s quite ironic, really – President Trump owns far more golf courses than Barack Obama, yet has probably not played a round of golf since being elected, whereas Obama spent half his time on the golf course, usually someone else’s.

The MSM are obsessing on immigration and ignoring the President’s regulatory, economic and tax reforms, and that’s before he ditches the idiotic Paris agreement on climate change. His proposals on tax are stunningly good.

President Trump clearly understands the Laffer Curve. If you want to increase the total tax take, you cut taxes, not raise them. President Reagan demonstrated that. Of course if you reduce the tax rate to zero you raise zero tax, but the same also applies if you raise the tax rate to 100%. Fifteen percent seems about right for the lower end of the range within which the Laffer Principle works.

I watched BBC’s ‘Question Time’ program this week with amusement. ‘Question Time’ used to be presented by that nice chap, whom I once met, Sir Robin Day. It’s the UK’s premier current affairs program, currently presented by another nice man, David Dimbleby, into whom I have also bumped.

Whilst he’s a nice chap, with respect, he lacks President Trump’s grasp of economic policy. One of the issues debated was our failing National Health Service, which British politicians like to pretend is the envy of the world. It isn’t, which is why no other country has repeated our mistakes.

One of the questions from the carefully selected BBC audience was about NHS funding. Neither the moderator, any of the politicians on the panel nor the questioner understood that raising taxes reduces revenue. For fully ten minutes they were allowed to witter on in an increasingly meaningless exchange about how much to raise tax by in order to provide additional funding for the NHS, without anyone in the studio apparently grasping the point that the measure they were proposing would reduce the available revenue. It was like two firefighters arguing about whether the best way to put out the fire would be to pour gasoline or JET-1 on it.

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This Week’s TV Review: ‘The Persuaders’, 1971

The True Entertainment channel in the UK started a rerun this week of this splendid old series, which I well remember from my mis-spent youth, which I wasted in study. ‘The Persuaders’, starring those three fine actors Sir Roger Moore, Tony Curtis and Laurence Naismith as the leads, was a welcome weekly break from my studies for my Higher School Certificate.

Aimed at the American market, it flopped in the States, but was a hit just about everywhere else. It achieved cult status over in Europe (Britain is not in Europe of course) and was very popular in Oz.

The heroes, Moore and Curtis, are two Good Guys, who fight crime, assist British Intelligence when asked and go around rescuing damsels in distress. Budgeted at an almost unheard of, then, for the UK, £100,000 an episode, the show was stylish, well-made and extremely well-written by some of the finest talents in the business, including Terry Nation. The catchy theme tune was written by none other than John Barry, composer of the 007 theme.

The two heroes, one a British earl (wrongly styled in the series as ‘Lord Sinclair’) and the other a retired-early Wall Street financier, Danny Wilde (I need hardly add that Roger Moore plays the lord and Tony Curtis the wise guy from New York) spark off each other superbly. They also drive great cars – Roger Moore gets an Aston Martin DBS (like the V-8, but with the Tadek Marek straight-six) and Tony Curtis a Ferrari, albeit a small one.

The series features one of the strongest supporting casts ever assembled for a TV series. Every episode features fine character actors, including Richard Vernon, Gerald Sim, Bernard Lee, Reginald Marsh, Campbell Singer and ‘F Troop’s’ Larry Storch. You never know who’s going to turn up next.

The critics claim it’s dated. Of course it’s dated. It was made over 45 years ago. That lends it a great deal of period charm, even if some of the shirts are a bit frilly and the colors a bit bright.

It’s great fun and hugely entertaining. PBS should buy it up and re-run it.

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Michael Shrimpton

Michael Shrimpton was a barrister from his call to the Bar in London in 1983 until being disbarred in 2019 over a fraudulently obtained conviction. He is a specialist in National Security and Constitutional Law, Strategic Intelligence and Counter-terrorism. He is a former Adjunct Professor of Intelligence Studies at the American Military University.

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