Lion of the Blogosphere

Do States have standing to challenge Trump’s EO?

Standing in Article III courts, something that the average person doesn’t know anything about, but luckily for me, I took Professor Berch’s Federal Courts class.

In 2015 (back when Obama was President), there was an op-ed in the New York Times urging the Supreme Court to hold that states should never have standing to challenge an executive order, not under any circumstances. I wonder if those two law professors still believe that, and if the New York Times would still print an op-ed urging such a thing?

In Texas et al. v. United States, 787 F.3d 733 (5th Cir. 2015), the Fifth Circuit did hold that states had standing to challenge an executive order on the basis that states would be required to issue drivers’ licenses to illegal immigrants.

I see two ways in which Washington’s claim of standing in the current case before the 9th Circuit differs from the Texas case.

1. Obama’s EO required the states to do something, issue drivers’ license, while Trump’s EO poses no direct burden on the states to do anything.

2. Obama’s EO had no other party who could claim injury other than the states. The Supreme Court, for example, has long held that individual citizens have no standing based on their status as taxpayers or because of a general dislike for a federal law or regulation which doesn’t affect them directly.

But in the case of Trump’s EO, the logical party to have standing would be a person who was denied entry to the United States because of the EO. (Although the reason they are not suing is because of previously established law that non-citizens lack standing in immigration matters in Article III courts. The immigration “courts” are actually tribunals run by the DOJ and are not real courts. It’s all part of the longstanding principle that immigration policy is outside the purview of Article III courts and rests with the President and Congress.)

* * *

On a slightly different topic, I have this advice for Trump:

Do not treat the courts the way you treat the news media or some celebrity whom you dislike. If you want to say something about a case, you may speak to the legal issues, but personally-directed put-downs against judges are going to hurt you and not help you.

* * *

To expound on how Trump treats judges, don’t forget that the federal judiciary is an independent branch of government, and that all federal judges, regardless of whether they are liberal or conservative, agree that the judiciary is independent and they desire to maintain the power of their branch of government. Any attempt at bullying judges with insults is going to hurt him by turning conservative judges against him.

Trump can and should make a public legal case for why his order is constitutional, but it if it’s not done in a way that respects the federal judiciary, it will backfire on him.

Trump has plenty of lawyers working for him, he should task one with helping him comment about litigation in a manner that won’t offend the federal judges.

Written by Lion of the Blogosphere

February 8, 2017 at 11:41 am

Posted in Law

40 Responses

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  1. That op-ed is really incredible.

    Two in the Bush

    February 8, 2017 at 12:01 pm

  2. That’s the problem with Trump. I think he is already getting really frustrated with how government actually functions. It’s slow, inefficient, burdened by politics, etc. Trump is partially to blame of course because he doesn’t have a filter. Still, my guess is that he is really annoyed by how slowly things are going.


    February 8, 2017 at 12:29 pm

    • No. President Trump has developed acre upon acre of property, so he’s all too familiar with obstructive courts and glacial government bureaucracies.


      February 8, 2017 at 2:30 pm

      • True, but in his old business, he had a million things going on so he could re-focus his attention. He now knows what it’s like to work on the inside. Plus, he has numerous faults that are starting to come out. People are getting tired of his Twitter.


        February 8, 2017 at 6:02 pm

      • You’ve been misreading things for a long time now. Trump’s doing fine.

        Andrew E.

        February 8, 2017 at 6:16 pm

  3. Leftist judges have become a law unto themselves. They need to be de-legitimized to restore the constitutional order. Trump can either do that himself by going full Andrew Jackson, which would be entirely within his right and authority to do since he was duly elected and is sworn to uphold the Constitution. Or he can get the public to help by belittling and disrespecting the judges publicly.

    Andrew E.

    February 8, 2017 at 12:31 pm

    • Trump can and should make a public legal argument. But calling the judges names is counterproductive. Don’t forget that the courts are an independent branch of government.

      Lion of the Blogosphere

      February 8, 2017 at 12:58 pm

      • A public legal argument is just for posterity. Trump can, and probably will, do that but it would be merely to log it into the record. It won’t persuade anyone. Trump is a persuader.

        Andrew E.

        February 8, 2017 at 1:04 pm

      • “Don’t forget that the courts are an independent branch of government.”

        So what is the check on their power? You can see only a tiny number of them have been impeached, so obviously that’s not it.


        February 8, 2017 at 1:18 pm

      • Lower level judges are subject to review by the appellate court, and they in turn by the Supreme Court.

        They can be impeached. The Supreme Court can be packed.

        And judges are appointed, in the first place, by the President and confirmed by the Senate.

        Lion of the Blogosphere

        February 8, 2017 at 1:57 pm

      • He doesn’t need to. We will. Legislating from the bench will be set on fire.

        Blake the enforcer

        February 8, 2017 at 4:31 pm

  4. No, states don’t have standing. But Prog judges do not give one single fig about the law. ALL they care about is results and they will gleefully contradict something they said yesterday because now the context has changed (i.e. from something I personally want to something I personally don’t want). And this applies right up to, and especially to, the Supremes.


    February 8, 2017 at 12:54 pm

    • Which is why I think a liberal court can and will–and this includes the Supremes, if Gorsuch is not confirmed–start ruling that foreign nationals who have never even been to America have constitutional rights, Trump’s EO violates the establishment clause of the First Amendment, basically any immigration policy which “discriminates” in any way violates “due process” and “equal protection,” and much, much more.


      February 8, 2017 at 1:05 pm

  5. Your advice is excellent and it’s not really off topic. I truly hope that the gang (Jared, Ivanka, the Steves) work on this. It’s a case where Trump shouldn’t be allowed to be Trump. Style affects substance.

    After having seen the hatred this weekend, I’m no longer so chill. I’m distressed by the amount of disrespect and hatred shown towards Trump and his Presidency already.

    It’s kind of like attacking a physicist for being ugly.


    February 8, 2017 at 1:04 pm

  6. One of the few things that stuck with me from my undergrad constitutional law class: standing is a scam. No standing is a great excuse to not rule on something when judges don’t want to. A lot of important federal law affects the whole country broadly, so it’s hard to find an individual who unambiguously has standing. However, whenever judges do want to rule, voilà! standing materialises.

    Greg Pandatshang

    February 8, 2017 at 1:42 pm

  7. Here’s the latest on Left pseudo-intellectual trying to grapple with Trump, a return to reality and more:

    The real problem? …the damn libertarians and their society/coalitions, says the left, which leaves them unrecognized.<>


    February 8, 2017 at 1:49 pm

  8. Very naive. Most of these judges take bribes from corporations on various cases. Trump should make an example of Robards. Publicly call him a traitor.

    The Philosopher

    February 8, 2017 at 2:39 pm

  9. Very interesting post. As with so many other things now, it’s just different when there’s a Republican in the White House. I love this quote from the linked NYT op-ed:

    The Supreme Court should use the challenge to President Obama’s immigration policy to remind states that litigation is not an alternative to the political process.


    As President Obama loved to remind us, elections have consequences.

    Black Death

    February 8, 2017 at 2:41 pm

  10. There was a lot of hand wringing about Arizona’s SB1070 and immigration policy being the sole province of the Federal government.

    The Obama administration argues :””The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country,””


    ““The law is clearly pre-empted by federal law under Supreme Court precedents,” said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.

    Since the 1800s, the federal government has been in charge of controlling immigration and enforcing those laws, Professor Chemerinsky noted. And that is why, he argued, Arizona’s effort to enforce its own laws is destined to fail.”

    so how do Leftists now reverse course so drastically?

    Lion o' the Turambar

    February 8, 2017 at 2:42 pm

    • Read my comment. That’s how.


      February 8, 2017 at 4:35 pm

  11. Can’t disagree more about Trump calling judges names. Public shaming gets results.


    February 8, 2017 at 4:48 pm

  12. George Borjas points out that under existing law(!) the US is supposed to deny entry to immigrants “liable to become a public charge,” and to deport them if they do become a public charge:


    February 8, 2017 at 5:37 pm

    • As far as the Democrats are concerned an immigrant “liable to become a public charge” is the best kind of immigrant.

      Lewis Medlock

      February 10, 2017 at 12:28 pm

      • No shit. Which is why said existing law should be enforced starting yesterday.


        February 10, 2017 at 1:18 pm

  13. Does the Lion want to have the honor of retweeting this entire article? Also does he agree old school Marxists were prole Socialists?

    Just as their planned historical end stages distinguish Technocracy from Communism, they also indicate what other non-Communist forms of Leftism belong in the same category with Communism; those are any Liberal ideologies that end with proletarian domination, Proletarian Socialism. Some of the numerous non-Communist Proletarian Socialist movements of Marx’s time include the Anarchism of Kropotkin and Bakunin, the Mutualism of Proudhon, and other radical Socialist politics such as those espoused by Josef Dietzgen.


    They were proles who looked like Josef Stalin, Leon Trotsky, Vladimir Lenin, Alexander Schliapnakov, Pyotr Kropotkin, Viktor Nogin, “The Iron Felix” Dzerzhinsky, Nestor Makhno, Alexei Rykov, Nikolai Krylenko, Lazar Kaganovich, Leon Kamenev, Nikolai Gorbunov, Mikhail Bakunin, Pavel Dybenko, Nikolai Bukharin, Ivan Teodorovich, Georgy Chicherin, and Lavrenti Beria.

    These Proletarian radicals were ferocious in appearance and action, meat eating, often bearded, cis-gendered, white male, tobacco using, vodka drinking, and heavily armed proles or prole sympathizers; robust proles as capable of chopping down trees to build a hideout cabin as they were breaking rocks in Siberian labor camps.

    By itself the physical difference between the Technocrats and Proletarian Socialists is so striking that one may also phrase their difference as – Eastern Bloc Communists were Proletarians who would inspire fear in a bar fight; Progressive Bureaucrats are “Communists” who would inspire laughter in a bar fight at their expense.

    Comrades, Stalin was a prole.


    This goal now made clear by the passage of time, Dictatorial Bureaucracy could well be defined as “Communism” for “Communists” who want to destroy the proletariat and rule a highly class stratified society governed by high-priest sociologists.

    The Undiscovered Jew

    February 8, 2017 at 5:47 pm

    • Marx would oppose Progressivism because their main policies (and the class of the Progressives themselves) were detrimental to the proletariat:

      It is appropriate to speculate how Marx himself would assess modern Progressivism considering how much Progressives have shamelessly borrowed from Communist slogans and tactics knowing since the birth of their movement they would end up betraying the white proletariat Marx held so much confidence in.

      He would likely focus on three facets of Progressivism. First, how their initiatives have neutralized the chances of a truly proletarian movement, second why Progressives wanted the proles left inert, and finally how Progressivism will ultimately collapse.

      The two main Progressive methods for disabling the proletariat, immigration and trade, would both be fanatically opposed by Marx and opposed with equal vigor by other Proletarian theorists such as Kropotkin and Proudhon.

      Marx would have an easy case to make on Communist grounds against immigration. He believed proletarian revolution must be led by the “aristocracy of the proletariat”. These are the proletarians who, because of their ability and elevated status, with other proles were most likely to reach class consciousness. From class consciousness they would then lead proletarian revolt. Third world immigrants he would consider to be lumpenproletarians, those proles so lacking in intelligence, education, discipline, and prone to crime that they were not only useless to revolution due to their incapacity for class consciousness but were in fact easily co-opted by Capitalist forces because of the precarious nature of their day to day existence.

      As for the embrace of immigration by Capitalists he would chalk that up as another example of them happily making a short term profit off the sale of the rope that will hang them later.

      Free trade he would see as a mechanism for neutralizing any class threat posed by the white proletariat. Through de-industrialization, the white proletariat – in Marx’s view the most capable of the proletariat – would slip into a degenerate lumpenproletariat state from which they too would be unable to attain class consciousness.

      He would be dismayed at how Progressives had corrupted his natural aristocracy of the proletariat into tranquil, morbidly obese, cretins waiting to be carved up by ISIS like roast beef.

      He would not consider the possibility of the proletariat seizing control of the main Progressive Parties because of the unsuitability of its leadership. He would dismiss the remaining members of those mainstream parties who do sympathize with the Proletariat, e.g., Bernie Sanders and Jeremy Corbyn, as just managed “pothead Communists” who exist only to keep some remaining portion of the working class in the Progressive camp.

      The Undiscovered Jew

      February 8, 2017 at 7:27 pm

      • Karl Marx was a big supporter of free trade, precisely because of its destructiveness.


        February 8, 2017 at 10:17 pm

      • Karl Marx was a big supporter of free trade, precisely because of its destructiveness.

        The point of the article is to prove Progressivism is a categorically different Liberal ideology from Communism (and other Proletarian radical movements).

        Marx endorsed trade for Capitalist nations as a way to destroy themselves by accelerating worker revolution.

        But what would he say about the modern embrace of free trade by Progressives who claim to be “Liberal”and for the worker?

        He would probably say trade is evidence they are not Liberals or for the worker but bourgeoisie stooges of Capitalism, and therefore the Progressives are not Marxists of any kind.

        The Undiscovered Jew

        February 8, 2017 at 11:05 pm

  14. City in Ohio caved on being a Sanctuary city.

    Looks like there is going to be a war in Texas between Gov Abbott and the Austin Sheriff over Austin being a Sanctuary city. The Feds might not be able to do too much to hurt Sanctuary cities in blue states, but red states should be able to crush their own Sanctuary cities just by having the DOJ look the other way.

    These first 3 weeks have not been smooth sailing but things are going pretty well overall. Most of the cabinet is confirmed and Trump’s approval numbers have held steady, although his disapproval numbers have gone up. He is undermining the judicial branch and the Dems scorched earth tactics and general craziness is causing the rest of the GOP to grow closer to Trump.

    Otis the Sweaty

    February 8, 2017 at 9:17 pm

    • Blue states are where the sanctuary cities are a big deal. Once the illegals are in them, they give birth to anchor babies, who can and do migrate to red states later.

      Law breaking blue state gov’t’s have to be defeated, plain and simple. We either have a country or we don’t. Enforcing the law is common sense and popular, and any poll that shows otherwise is a lie concocted by conniving left-wing shills.


      February 8, 2017 at 9:39 pm

      • “Law breaking blue state gov’t’s have to be defeated, plain and simple.”

        In the long run, yes. But we don’t need to necessarily do it all today. We can push the illegals into blue states and that will make them easier to round up and also create more friction in those states. In the mean time, red states can pass “unconstitutional” laws banning illegals from public schools and welfare and the DOJ can just turn a blind eye, the courts have no enforcement mechanism and it won’t be a power play by Trump, it will just be Federalism in action. This will set the groundwork for a Final Solution to the immigrant question in blue states, but it all has to be done step by step.

        Keep in mind that Trump is already stepping up deportations. It is very realistic to expect that by the time of the 2018 midterms that the Wall is built and that the government will have deported a net 1 million illegals from the interior.

        Otis the Sweaty

        February 8, 2017 at 11:21 pm

      • I got this from the NYT and the big blue bubbles are where people get bubbly with money. As Yakov would say, NYC is a jungle, because it’s where the money is at. Most red areas are pauper towns

        I’m pondering if non-whites/illegals are moving the gravy train as much as proles in some of these regions, where it then gets skimmed off by parasites we called SWPLs.

        Just look at Middle America — they say proles overf there are not doing well. Maybe they need to move.


        February 8, 2017 at 11:42 pm

  15. This is not that complicated (despite all the smokescreens around jurist philosophy and legal and critical theory). The Left has the Mandate of Heaven and the Right does not. If Communism is not your thing, then try Calvinism: The Left is predestined for salvation and the Right is not (that we are talking about law rather than religion doesn’t change the principle).

    When a consensus forms on the left that something is constitutional, it is. If there is no consensus on the left on an issue (or outright antipathy to what conservatives want, as in the case of immigration) then nothing the Right believes is constitutional, no matter what precedent is cited or logic is used to establish their case. The Left is always right and the Right is always wrong.

    Obama could not really be challenged by anyone. Trump is less powerful than a lower-court liberal judge. Our system cannot be reformed.

    Joey Junger

    February 9, 2017 at 2:57 am

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