Author Topic: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'  (Read 12026 times)

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Offline Maj. Bill Martin

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #125 on: February 10, 2017, 07:08:53 pm »
If there's one guarantee, it's that Gorsuch would despise the Ninth Circuit's opinion.  This case illustrates rather well the sometimes narrow difference between an "originalist" and a "textualist".
Gorsuch is a textualist, and unlike an originalist, generally does not consider things outside the text of the law itself, such as legislative history or other statements in the record.  It's the text itself that determines how you interpret something.

Here, the 9th Circuit expressly said that it was going to take account of statements outside the text of the EO itself made by various people - some not even part of the Administration (like Giuliani), regarding "the intent" of the order.  In other words, the 9th circuit held that even though it isn't a "Muslim ban" on its face, its unconstitutional because it was intended to ban Muslims.   Which leads to the rather absurd conclusion that the exact same order promulgated by a subsequent President would not be unconstitutional as long as he didn't make such statements.

Anyway, that's the kind of thing that Gorsuch just doesn't do.  He's shot down that kind of thing a million times in the past, in a variety of contexts.

Offline Maj. Bill Martin

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #126 on: February 10, 2017, 07:09:53 pm »
You do realize that judges cannot rule on anything...

...unless somebody brings a case before them.

Right.  And...?  In a nation of 350 million people, you can surely find someone to bring any claim you want, especially if the court is willing to ignore standing requirements.

Offline Maj. Bill Martin

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #127 on: February 10, 2017, 07:21:30 pm »
Point?

Judges have a job, which is to rule on cases brought forth to them.

You can either be upset at them doing fulfilling that job requirement... or you can focus on those that brought the case forward.

You seem to be upset at the former... not the latter.

Of course I am.  There is strong, consistent Supreme Court precedent holding that the power of the President and Congress over immigration is plenary, meaning that it is not appropriate for courts to get involved at all.  So yes, I hold it against that district court judge and the appellate panel not dismissing the case on that ground.  It is pure activism.

Offline Jazzhead

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #128 on: February 10, 2017, 07:22:39 pm »
In other words, the 9th circuit held that even though it isn't a "Muslim ban" on its face, its unconstitutional because it was intended to ban Muslims. 

And that's why Trump rightfully complains that the order is political (although, to be fair, the order merely keeps the stay in place pending the court's examination of the merits.  But the court has tipped its hand that it will likely be ruling on the basis of politics.)

The order facially doesn't ban Muslims,  most Muslim-majority countries aren't subject to the ban.   The countries selected were chosen because of the combination of their political instability and the known presence of substantial Islamofascist activity, including terror.   The court apparently complained that the Administration didn't provide evidence of terrorist acts committed against Americans by immigrants from these countries.   On such logic,  Trump could have banned travel from Saudi Arabia or Pakistan.  But that would be committing the common strategic mistake of fighting the last war rather than thinking ahead to where new threats may be coming from.    Trump apparently has concluded, I'd assume with the backing of his military and intelligence advisors, that the most risky travelers are those from nations that, here and now, are basically ungovernable and which have permitted Islamofascists to run wild.   

I think that Trump will ultimately prevail on the merits.   
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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #129 on: February 10, 2017, 07:30:33 pm »
Everything crafted by the Legislative and Executive branches (ie: every law, regulation, and EO) is under the Judiciary's purview, to be judged against other law and the Constitution.

That is the purpose of the Judiciary branch of the US government.

Since when?  Who granted the courts any such authority?  Show me in black and white if you don't mind!
"I wish it need not have happened in my time," said Frodo.

"So do I," said Gandalf, "and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."
- J. R. R. Tolkien

Offline Maj. Bill Martin

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #130 on: February 10, 2017, 07:35:12 pm »
I think that Trump will ultimately prevail on the merits.

What good does "ultimately" prevailing on the merits do when the issue is a short-term, temporary halt?  So great, the 9th circuit sets up full briefing and argument, and decides perhaps in September that gee, the President should have been able to temporarily halt immigration from January through April after all while it verified that vetting was accurate.

Like I said elsewhere, Congress should pass a law removing this issue from the jurisdiction of the inferior courts, and vest whatever judicial power exists on this issue solely with the Supreme Court's original jurisdiction.

Offline Maj. Bill Martin

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #131 on: February 10, 2017, 07:36:34 pm »
Article III, Section 2:

1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;10 —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

As a matter of jurisdiction, that's true.  But that ignores a very well established body of law relating to political questions where the precedent is clearly against judicial intervention, etc..

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #132 on: February 10, 2017, 07:44:40 pm »
Article III, Section 2:

1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;10 —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Sorry but none of that is responsive to my question.  To repeat again.  Where is the word or phrase that grants the courts any right of judicial review?
"I wish it need not have happened in my time," said Frodo.

"So do I," said Gandalf, "and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."
- J. R. R. Tolkien

Offline r9etb

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #133 on: February 10, 2017, 07:45:04 pm »
The court apparently complained that the Administration didn't provide evidence of terrorist acts committed against Americans by immigrants from these countries.

Not exactly.  I think what you're referring to is this (in footnote 7 of the decision):

"Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated."

That statement has to be understood in the context of the Gov't request for an emergency stay; i.e., that the EO be immediately reinstated.

You're right the the 9th Circus probably did tip their hand as to how the appeal will go. 

But it has to be said that the Trump administration brought that on themselves by the ham-fisted way this EO was presented. 

Probably the most effective argument against the EO is the "due process" part, which could have been avoided had Team Trump just taken a couple of weeks to get processes and procedures in place before the EO became effective.

Offline r9etb

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #134 on: February 10, 2017, 07:52:37 pm »
Like I said elsewhere, Congress should pass a law removing this issue from the jurisdiction of the inferior courts, and vest whatever judicial power exists on this issue solely with the Supreme Court's original jurisdiction.

They could do that, although short of a case addressing a true calamity, the difficulty of putting any case actually on the USSC docket would probably make it effectively impossible to pursue any sort of legal remedy.

Offline r9etb

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #135 on: February 10, 2017, 07:54:25 pm »
Sorry but none of that is responsive to my question.  To repeat again.  Where is the word or phrase that grants the courts any right of judicial review?

You're not actually going to try re-arguing Marbury vs. Madison, are you?

Offline Maj. Bill Martin

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #136 on: February 10, 2017, 07:54:32 pm »
Everything crafted by the Legislative and Executive branches (ie: every law, regulation, and EO) is under the Judiciary's purview, to be judged against other law and the Constitution.

That is the purpose of the Judiciary branch of the US government.

As I've said, it's not an issue of jurisdiction.  The court is permitted to hear the case.  But the court ignored precedent by not recognizing that the power is plenary, and so inserted it's own views into a case where they had no business.  If you're a lawyer, you know what a decision like that would look like.  There's a bunch of them out there.

Offline Weird Tolkienish Figure

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #137 on: February 10, 2017, 07:55:45 pm »
You're not actually going to try re-arguing Marbury vs. Madison, are you?


Haha! They may. They were arguing against the 1795 Judicial Act (that created US Marshals) a few days ago.


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« Last Edit: February 10, 2017, 07:57:21 pm by Weird Tolkienish Figure »

Offline Maj. Bill Martin

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #138 on: February 10, 2017, 07:56:03 pm »
They could do that, although short of a case addressing a true calamity, the difficulty of putting any case actually on the USSC docket would probably make it effectively impossible to pursue any sort of legal remedy.

I'd prefer to think of it as "it would have to be an extraordinary set of facts for the Supreme Court to consider intervening in a case involving Congress' plenary power over immigration."  In other words, given the correct legal standard, it should be almost impossible.

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #139 on: February 10, 2017, 07:58:42 pm »
You're not actually going to try re-arguing Marbury vs. Madison, are you?

There IS no argument!  At least until someone shows me the grant in writing in the Constitution!
"I wish it need not have happened in my time," said Frodo.

"So do I," said Gandalf, "and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."
- J. R. R. Tolkien

Offline Jazzhead

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #140 on: February 10, 2017, 07:59:09 pm »
But it has to be said that the Trump administration brought that on themselves by the ham-fisted way this EO was presented. 

Probably the most effective argument against the EO is the "due process" part, which could have been avoided had Team Trump just taken a couple of weeks to get processes and procedures in place before the EO became effective.

Agreed.  Which is why I don't have much sympathy for the position Trump's travel ban is now in.   The pattern of this new administration is to pick unnecessary fights and make unneeded enemies.   
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Offline Weird Tolkienish Figure

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #141 on: February 10, 2017, 08:00:14 pm »
There IS no argument!  At least until someone shows me the grant in writing in the Constitution!


You didn't answer his question.

Offline Jazzhead

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #142 on: February 10, 2017, 08:00:32 pm »
There IS no argument!  At least until someone shows me the grant in writing in the Constitution!

It's in Article III - the grant of appellate jurisdiction to the Supreme Court.  I've pointed this out to you before, and you promised to shut up about it if I did.   
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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #143 on: February 10, 2017, 08:01:29 pm »

You didn't answer his question.

I most certainly did answer his question!  The fact that YOU don't like the answer is not material to me!
"I wish it need not have happened in my time," said Frodo.

"So do I," said Gandalf, "and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."
- J. R. R. Tolkien

Online Bigun

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #144 on: February 10, 2017, 08:04:43 pm »

Haha! They may. They were arguing against the 1795 Judicial Act (that created US Marshals) a few days ago.


You're in the belly of the kook beast, man. Good luck!

What 1795 Judiciary act?  I can't seem to find that one!
"I wish it need not have happened in my time," said Frodo.

"So do I," said Gandalf, "and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."
- J. R. R. Tolkien

Offline Weird Tolkienish Figure

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #145 on: February 10, 2017, 08:05:08 pm »
I most certainly did answer his question!  The fact that YOU don't like the answer is not material to me!


So you don't like the opinion of Marbury vs. Madison?

Offline Weird Tolkienish Figure

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #146 on: February 10, 2017, 08:06:50 pm »
What 1795 Judiciary act?  I can't seem to find that one!


Sorry it was 1789:


https://en.wikipedia.org/wiki/Judiciary_Act_of_1789

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #147 on: February 10, 2017, 08:09:08 pm »

So you don't like the opinion of Marbury vs. Madison?

I don't like the court usurping powers never granted them in the constitution!  THAT'S what I don't like!

And BTW:  The founders pretty much laughed at the court and Mr. Marbury NEVER got the commission he "won" in that case!
"I wish it need not have happened in my time," said Frodo.

"So do I," said Gandalf, "and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."
- J. R. R. Tolkien

Online Bigun

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"I wish it need not have happened in my time," said Frodo.

"So do I," said Gandalf, "and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us."
- J. R. R. Tolkien

Offline Weird Tolkienish Figure

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Re: Supreme Court nominee Gorsuch calls Trump's tweets 'disheartening'
« Reply #149 on: February 10, 2017, 08:13:53 pm »
And superseded by the one enacted in 1793.


You wrote a sentence without an exclamation point. Progress!  :laugh: