The Legal battle in the US courts will most probably end in a stalemate and the unacceptable anti-immigration decree will accordingly be finally applied, probably somewhat softened (?)

Discussing lately with a very good friend of mine the posts I have been publishing for over a week of the US president elect’s decree mania, principally the abominable one on anti-immigration, she referred to those who have elected this president – in a lawful election – as frustrated entrepreneurs who had seen in the president elect the “model” of their unfilled aspirations, since it is true that in most Americans there is a “dormant” entrepreneur who for x reasons did or does not see the light.

The US, bis repetita from previous posts, is a very resilient nation with a strong sense of community responsibility which can be called civic committment, this comes from the “pioneers” I believe who “made” this country and had to fight to establish themselves, i.e. the famous “Run to the West” and who are proud of what they have achieved and want to protect it.

The president elect is fooling a lot of unfortunately ignorant masses who believe in a man who uses abominable exhibitionism in his open TV demos signing extremely important decrees, a never before seen type of “reality show”!

It is imperative for the world that the leader of the worldwide leading economy, still, should not be allowed by his fellow citizens to exercise undue power which might destabilize this world’s political face and economy by indirectly favoring giant in population “competitors”.

The US has a history of “non colonialism” (considered as “evil”) and “non mercantilism” (leaving shores to conquer markets abroad), whereas some historical large European countries have had that historical experience: Great Britain, Spain, France and smaller ones like Holland, Portugal too, the US has not and that has always been why it is basically an insolationist country which has a great drawback:

US people feel that whatever is done in the US is “the best” (obviously there are “USers” who know better, generalization is dangerous), I have experimented this kind of, in general, undue “superiority” several times when conducting business, but have in most cases disagreed with it, and explained why it could not work  (even if basically “correct” sometimes), it’s mainly a matter of comunication, that which is absent nowadays politically!

Current president elect has been and is capitalizing on this great drawback which appeals to a great portion of the US population who also is, to a great extent, quite ignorant of matters of  the “world” as such and its history, this has already ensured him a US President’s post and if it continues will endanger the US position as world leader.

The usual  “executive silence” of the EU (European Union) is once more indicative of its “non role” in matters of vital importance like this one, they are  not worthy of their international powerful ancestors, see above, and are rapidly losing, if not lost, any voice in intervening politically in matters such as the one I have been refeerring to.

Why possibly a stalemate in US Justice proceeding on the anti-inmigration decree?

A Justice Department lawyer, Mr. Flentje, on Tuesday – 02/07/2017 – said courts should not second-guess the president elect targeted travel ban, drawing skepticism from a three-judge federal appeals panel weighing the limits of executive authority in cases of national security

He added that the court should not question president elect “motives” (me putting signs), and should confine itself instead to “the four corners of the document” (the “original”) and also said the executive order did not, on its face, discriminate on the basis of religion.

This lawyer is playing a sophist /bully game by trying to turn matters, “second guessing” is not a Justice type “instrument”, its only objective is to throw doubt into a judge’s reasonning, Judge Robart in this case, so “who is second-guessing who” here?

Following judges, assigned by three former US presidents, are those who are conducting the hearings about  the US Justice Court’s appeal against Judge Robart’s decision: Judges Richard R. Clifton, William C. Canby Jr. and Michelle T. Friedland of the United States Court of Appeals for the Ninth Circuit.

No matter how this US Court of Appeals for the Ninth Circuit rules, a decision to be expected within days and accordingly an appeal to the United States Supreme Court remains as being likely.

NYT writes “That court remains short-handed” (what does this mean- that one Juge out of nine is still “missing” -see below) and could therefore deadlock.

NYT continues: “A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place”.

The US supreme court has 8 unretired members, one deceased, Judge Scalia (2016) and not replaced and had two retired ones, with president elect trying to get Judge Scalia replaced by Judge Gorsuch,who is his pick to fill the current opening.

What this means is that  in the case of a Supreme Court 4-4 tie, this non decision leaves the anti-inmigration decree whole again and ready to be reapplied!

NYT‘s following 02/06/2017 article:“Appeals Court Panel Appears Skeptical of Trump’s Travel Ban” will provide more information on this highly important subject, please read  below “MORE”, next

But even August E. Flentje, the Justice Department’s lawyer, sensed he was not gaining ground with that line of argument. “I’m not sure I’m convincing the court,” Mr. Flentje said.

It was a lively but technical hearing on an issue that has gripped much of the country’s attention — and that of foreign allies and Middle East nations — for the past week. Issued without warning on Jan. 27, just a week after Mr. Trump took office, the executive order disrupted travel and drew protests at the nation’s airports by suspending entry for people from seven predominantly Muslim countries and limiting the nation’s refugee program.

No matter how the United States Court of Appeals for the Ninth Circuit rules — in a decision that is expected within days — an appeal to the United States Supreme Court is likely. That court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.

The appeals court judges sometimes seemed taken aback by the assertiveness of the administration’s position, which in places came close to saying the court was without power to make judgments about Mr. Trump’s actions.

While Trump-Bannon-Pence-Ryan-McConnell and the Republican Congress take evermore license with insane chest-beating displays like this–the…

While “a previous Congress and former President Barack Obama had found that the countries cited in the executive order were connected to…

The case is no longer about refugees/banning countries selectively. It’s about who gets to draw lines of sand and who gets to muddle them. …

Mr. Flentje paused. Then he said yes.

“There are obviously constitutional limitations, but we’re discussing the risk assessment,” he said.

Judge Friedland asked what those limitations were, and Mr. Flentje did not provide a direct answer.

Several courts around the nation have blocked aspects of Mr. Trump’s order, but the broadest ruling was the one at issue in Tuesday’s arguments in front of the Ninth Circuit. The panel was considering an earlier ruling by Judge James L. Robart of the Federal District Court in Seattle, which allowed previously barred travelers and immigrants to enter the country.

Judge William C. Canby Jr., appointed by President Jimmy Carter, asked Mr. Flentje a hypothetical question meant to probe the limits of his position. “Could the president simply say in the order, ‘We’re not going to let any Muslims in?’”

Mr. Flentje said the two states that have sued over Mr. Trump’s executive order, Washington and Minnesota, would be powerless to challenge that scenario. He said other plaintiffs might be able to sue on religious discrimination grounds.

Noah G. Purcell, Washington State’s solicitor general, fared little better in fending off questions from Judge Richard R. Clifton, appointed by President George W. Bush. Judge Clifton said the states’ evidence of religious discrimination was thin, adding that “the concern for terrorism with those connected with radical Islamic sects is kind of hard to deny.”

Judge Friedland, who was appointed by President Barack Obama, did not seem persuaded that immediate suspension of travel from the seven countries was necessary.

Photo

 From left: Judges Richard R. Clifton, William C. Canby Jr. and Michelle T. Friedland of the United States Court of Appeals for the Ninth Circuit. CreditLeft and right; U.S. Courts for the Ninth Circuit. Center; Ross D. Franklin/Associated Press

“Has the government pointed to any evidence connecting these countries with terrorism?” she asked Mr. Flentje.

He responded that the government had not had an opportunity to present evidence in court given the pace of the litigation. “These proceedings have been moving quite fast, and we’re doing the best we can,” Mr. Flentje said.

With that, Judge Friedland said, the government’s appeal may be premature.

The case, State of Washington v. Trump, is in its earliest stages, and the question for the appeals court on Tuesday was a narrow one: Should it stay Judge Robart’s temporary restraining order and reinstate the travel ban while the case proceeds?

The argument, which lasted about an hour, was conducted over the telephone and was streamed live on the appeals court’s website. In a media advisory issued before the argument, the court said that “a ruling was not expected to come down today, but probably this week.”

Mr. Flentje said the travel ban was well within Mr. Trump’s legal authority. A federal statute specifically gave presidents the power to deny entry to people whose presence would be “detrimental to the interests of the United States,” he said.

He added that the court should not question Mr. Trump’s motives, and should confine itself instead to “the four corners of the document.” He said the executive order did not, on its face, discriminate on the basis of religion.

Mr. Purcell, the lawyer for Washington State, responded that the underlying purpose of the executive order was religious discrimination. As a candidate, Mr. Purcell said, Mr. Trump had “called for a complete ban on the entry of Muslims.”

More recently, Mr. Trump has said he meant to favor Christian refugees. “The court can look behind the motives,” Mr. Purcell said.

As he closed his argument, Mr. Flentje, perhaps sensing that he was unlikely to achieve a complete victory, offered the court a middle ground. He asked, at a minimum, for the court to reinstate a part of the ban against people who have never been in the United States, calling this a “really key point.”

Reading from a brief, he conceded that those who could be allowed entry are “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”

Judge Clifton said that the administration might be in a better position to narrow its executive order. “Why shouldn’t we look to the executive branch to more clearly define what the order means?” he asked.

Mr. Purcell also said that it was hard to tell precisely what distinctions the government meant to draw. “They’ve changed their mind about five times” since the executive order was issued, he said.

Judge Friedland said that if the executive order violated the Constitution’s ban on government establishment of religion, the court could block it completely.

But Judge Clifton said that only a small fraction of the world’s Muslims were affected by the order, suggesting that he was unconvinced that its effect was religious discrimination.

Mr. Purcell responded that “we do not need to prove that this order harms only Muslims, or that it harms every Muslim.”

“We just need to prove that it was motivated in part by a desire to harm Muslims,” he said.

The judges also questioned whether the two states that brought the challenge had suffered the sort of direct and concrete harm that gave them standing to sue.

The Supreme Court has said that states suing the federal government to defend their interests are entitled to “special solicitude in our standing analysis.” In 2015, an appeals court ruled that Texas had standing to sue the Obama administration to challenge an immigration initiative.

But the case did not seem likely to stall on the threshold issue of standing. Judge Canby appeared to indicate that the harm to state universities was enough to establish standing.

Nor were the judges much interested in another technical question pressed by Mr. Purcell.

Judge Robart issued a temporary restraining order, an interim measure, and Mr. Purcell argued that it was not subject to appeal. In court papers, the Justice Department argued that the order amounted to a preliminary injunction, which can be appealed.

Proceedings before Judge Robart are continuing. On Tuesday, he asked for briefs on the question of whether he should issue a preliminary injunction.

At the close of the appeals court argument, Judge Friedland said she and her colleagues “appreciate the importance and the time-sensitive nature of this matter.” She said the court would rule “as soon as possible.”