Friday, July 14, 2017

Hawaii Judge overrules USSC

Offers mixed ruling on Homeland Security "Bona Fide Relationship" definition

So last week the state of Hawaii went to court trying to challenge that the bona-fide relationship restrictions being used in the travel ban were too restrictive. A District Court Justice from Hawaii rejected their argument, stating that only the USSC had the authority to clarify their own ruling, and that lacking a clarification from the USSC, the interpretation of that was left to the Executive branch.

    State of Hawaii           Homeland Security
    Authority                    No Authority

But as I pointed out Sunday, the 9th circuit court remanded the case back to the District Judge, effectively stating that they believed that lower courts do have the ability to interpret the USSC order, and that if the Court rejected the State's (updated) request for "injunction" that the 9th circuit court would be happy to take it up.

So the Judge in question apparently decided to weigh in himself with a "mixed" ruling in regards to the numerous challenges provided by the State of Hawaii. On several points he rejected the States argument, but on a couple of others, he provided "relief".

What struck me in reading the ruling was that it pretty much granted the benefit of the doubt to the State of Hawaii's desired definition, unless there was something "specific" within the USSC ruling that could be seen as otherwise prohibiting the relief. In other words, pretty much in every specific situation where the USSC ruling appeared to leave the questions to the discretion of the Executive branch, the judge rejected that discretion and replaced it with specifically what the State of Hawaii asked for.

This strikes me as without any constitutional justification at all.

It's as if the Judge in this case believes that in cases of national security, that the constitution somehow provides that the State of Hawaii has more authority than the Federal Government as it pertains to defining the specifics of a Presidential Executive Order regarding National Security?

Seriously, what constitutional authority in this situation does the State of Hawaii actually have over this matter? How many of our intelligence agencies report to the State of Hawaii?

There quite literally was no finding of any constitutional problems with the definition created by Homeland Security. The court did not appear to provide any relative case precedent for why Homeland Security would not have the authority to make these decisions. The Justice simply decided that he preferred the guidelines suggested by Hawaii over the guidelines in place from Homeland Security and therefor summarily decided to rule that Homeland Security must change them what Hawaii wanted?

The bigger problem here is that the optics makes it look like the State of Hawaii, the District Justice in question, and the 9th Circuit Court believe that the decisions handed down by the USSC are now open to being re-litigated in lower courts. What good is it to have a Supreme Court, if their decisions are actually open to being challenged in district court? What sort of long term circular nonsense would that create? When the USSC rules, that's supposed to the end of the litigation. There is no other means to keep the Supreme Court "Supreme" other than to allow them to ALWAYS have the final say. 

That being said, Clarence Thomas suggested that this would be the ultimate result of what now appears to be another feckless attempt by John Roberts to walk the tightrope between Legal Justice and Politics. What lesson does the Roberts court learn from this will be interesting. The Courts are not where the merits of laws and EO are supposed to be argued. The separation of powers of the Constitution is clear on that. But the Roberts court seems wishy washy as it pertains to these questions, often times offering somewhat conflicting and tortured rulings that seems to allow that concept, at least around the edges. 

Should the USSC been more specific on the bona-fide relationship? Should they have simply offered in the ruling, that the clear authority to make this determination rested with the Executive branch and Department of Homeland Security.  Should they even have to offer such clarification in their ruling, when the constitution appears to clear on the subject? 


Myballs said...

Excellent commentary

caliphate4vr said...

Jesse Jackson: 'We Won the Election, It Was Stolen'

And that hair lipped asswipe knows theft

rrb said...

Anonymous caliphate4vr said...
Jesse Jackson: 'We Won the Election, It Was Stolen'

well, at least it wasn't stolen in hymietown.

felonia von pantsuit won the popular vote there.

rrb said...

Should the USSC been more specific on the bona-fide relationship?

the fact that they had to engage the topic at all is absurd. the constitution is crystal clear on the subject. the fact that we're even discussing this issue is testament to just how unhinged the left has become on any trump-related topic.

like i've said before, if trump were to walk across the surface of the potomac, the headline in the WaPo the next day would be "TRUMP CAN'T SWIM."

rrb said...

speaking of judges and their power to make asinine rulings...

Jake Tapper‏Verified account


#URGENT: A British judge will allow US physician Michio Hirano to examine Charlie Gard in London early next week.

6:27 AM - 14 Jul 2017

ah, the glories of socialized/single payer medicine. where a government ghoul decides your fate.

Loretta said...

"So last week the state of Hawaii went to court trying to challenge that the bona-fide relationship restrictions being used in the travel ban were too restrictive"

Good post.

Simple solution:

First class, all expenses paid, one-way ticket to Hawaii.

Specifically, the Island of Ni'ihau.

No questions asked, give them a monthly stipend - $2500/month sounds good. Hell, give them a food allowance so when their extended families can be comfortable while visiting.

Problem solved.

Loretta said...

"early next week."

Don't hurry.

Loretta said...

CS, are you near the sinkhole?

The damn cable channels sure aren't talking about it.

Commonsense said...

Nope, it's a long way from where I live.

It's in Pasco county which is the county just north of Tampa.

Swallow two houses so far.

They're pretty common in that part of Florida.

rrb said...

Blogger Loretta said...
CS, are you near the sinkhole?

i am!

i live i n alky's head rent free, remember?

Commonsense said...

That's not a sinkhole. It's a dark and spooky bat cave.

Loretta said...

"i am!

i live i n alky's head rent free, remember?"


wphamilton said...

The Administration should simply ignore this ruling while appealing it to the Supreme Court. In situations where a court has overstepped its Constitutional powers, it is not the supreme authority.

wphamilton said...

Aside from the Hawaii judge flagrantly disregarding the USSC decision (which said specifically "close" family members) simple arithmetic refutes his ruling.

If Grandparents have a "close family relationship", then so do "Grandchildren". It's the same relationship, obviously. But one person could have literally dozens of grandchildren, even adult grandchildren. Have a big family, each of them having 4 or 5 kids, you do the math. To allow potentially dozens entry because one person is vetted would be a farcical disruption of whatever security the immigration order attempts to provide. Even a more normal (for the US) 8 or 9 would be absurd. How many terrorists might have a grandparent harmless enough to be allowed entry, who could contrive a good reason for it? Too many.

The Supreme Court opinion clearly intended to allow the Government to limit entry, and not eliminate that authority. The Hawaii judge's mistake and over-reach is clear enough that he should be disregarded, if indeed it does damage our national security. If I were Trump, I would immediately institute such strict vetting procedures for anyone from those countries that it would probably take until the Supreme Court hears this case to complete them.

I don't necessarily agree with Trump's travel ban. I don't necessarily say that it's not needed either. But I do believe that a judicial assumption of executive power is potentially a greater threat to this country than are terrorists from Syria.

wphamilton said...

Those "strict vetting procedures" would of course include strict vetting of the applicant's parents, his adult children, his grandparents, and his grandchildren. Sure, all that vetting will take a long time ... but the Hawaii Federal judge required it by including them in the entry list, so what else can you do?

wphamilton said...

Aunts and Uncles as well, just in case the 9th Circuit gets in on the act. Isn't your father's sister as close to you as is your father's mother? Trump had better start vetting those as well.

opie said...

Silly me but I don't think the supremes have ruled on the case yet. IOW's the latest judges ruling adding more specific family members clarifies the USSC broad ban and its rather capricious ruling. I doubt it will open floodgates of bad people since the original ban which was sold as an imminent need to keep us safe, seems to me while everyone was arguing over implementing it for a period of 3 months the borders were pretty secure with no terrorists sneaking in.

wphamilton said...

The USSC knocked the injunction down, now there is another injunction.

The Hawaii judge doesn't get to add more specific qualifications on exemptions to the ban. He doesn't get to "clarify" the ruling by doing so. None of that is within his jurisdiction.

You don't know that no terrorists have sneaked in, in this interim. Trump doesn't know, nobody does. It is, on the face of it, very unlikely that AQ and ISIS haven't at least tried to, given that it's their best chance to do so. Just a little common sense there.

opie said...

You don't know that no terrorists have sneaked in, in this interim.

And you don't know if they have!!! Sure was not the imminent threat that trump was selling..... The last 3 horrible attacks were all home grown......How does the ban stop those??????

wphamilton said...

Is it supposed to stop those domestic terrorists, Opie? Or is it intended to prevent foreign operations from inserting terrorists?