Supremes Have Had Enough
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2019-09-12 07:00 by Karl Denninger
in Editorial , 130 references Ignore this thread
Supremes Have Had Enough
[Comments enabled]

It appears the USSC has had enough.

In an extraordinary rebuke, 7-2, the Supreme Court has told the 9th Circus to cut the crap.

At issue is the repeated set of national injunctions the court has issued -- this one, specifically, on asylum.

Circuit courts have limited jurisdictions -- but this has never bothered the 9th Circus, which has exploded with national injunctions under the Trump Presidency.  This is patently unconstitutional and despite concerns over the clash between immigration policy in the Executive the law, the Supremes appear to have had enough of it.

Weighing on their decision, I'm sure, is that more than 80% of those who claim asylum fail to win their case -- and of those who fail most never come back to court to hear the ruling and leave the country.  Instead they disappear into the nation and remain, burdening the United States and breaking the law.

This cannot have been lost on the court.  It would be one thing if these "applicants" were generally successful, and only a few failed in their attempts.  It would also be congruent with the law if most showed up for their hearings and abide the rulings therein voluntarily.  But neither is the case.

The 9th Circus is an unlawful, rogue agency that ought to be destroyed and replaced.  Their encouragement of raw lawlessness is unprecedented in American history and the lack of response from the good and decent people of this land, who always are the final arbiter of justice in any nation, is deeply disturbing.  Were their rulings limited to that circuit then the people who live there could be reasonably charged with the responsibility for same -- likewise, if the impact of their rulings was confined there.  Neither is the case.

The simple fact of the matter is that if 80%+ of the people who come under the jurisdiction of a law ignore it then it is no law at all.  To give license to such acts is sedition -- the outright overthrow of government authority.  That's the most-serious of crimes, second only to treason.

This ruling ends the bullcrap for now on the issue.  It also ends the stone-walling by Mexico.  ICE is now free, under the law, to refuse entry to anyone claiming asylum who has not made application in the nations they have passed through and has been refused without cause (e.g. as a criminal, etc.)  These people no longer have a right to entry and to remain while their "determinations" are made; they're barred and inadmissible, period.

Eventually this case will find its way to the Supremes for final disposition.  But in the meantime the court has shut down the tens of thousands of people a month who come into this nation with bogus, unsupportable asylum claims knowing damn well they're false and who have zero intent of compliance with the law when they lose.

It's about damn time.

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Whitehat
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the problem is that we let it go on too long providing a somewhat easier work around. illegals who have been here for around the past three decades have children born here, American citizens. new arrivals are marrying them to legitimize their status. note that the marriage can occur in another country as our second generation person is free to travel in and out of the country. lots of young South Americans females born here are taking illegal immigrant husbands older than them. they prefer young wives anyway.

this is what happens when illegal immigration is allowed to go on too long before a fix attempt. once one full generation is born, the battle is lost absent a very radical and forceful remedy which does not happen outside of a major political and social shift otherwise known as a really bad thing.

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Aztrader
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This should be retroactive and every one of them that claimed asylum needs to go back. This is the problem with catch and release and why the left was screaming about Trump sending them back to Mexico. Now he kept the families together and can send them back together. A big win for our country.
Jack_crabb
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I'm frankly very surprised the rebuke came from the USSC. It is waaaaaaaaaay overdue.

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Molon Labe
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Eleua
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The standard for a court to issue an injunction are:

1). likelihood of the moving party to prevail on the merits.
2). Irreparable harm to the moving party, if an injunction is not issued.
3). balance of inequities significantly favor the moving party
4). public interest in the issue (does it serve a public good?)

On these criteria, the moving party (the invaders) fail miserably on all four, especially given the behavior of immigrants NOT showing up to complete the legal process.

The USSC has been, generally, pretty good about keeping the court system from replacing the political process. Yes, there are some glaring exceptions, but they generally keep politics and adjudication apart.

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Yep @Eleua -- I suspect the turning point here is the FACT that nearly ALL of those released pending proceedings DO NOT SHOW UP.

There is little that pisses an honest judge off more than someone literally giving him or her the finger.

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Lenguado
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I was going to post about this in The Bar last night, but wasn't sure I got the interpretation correct.

Does this set precedent for not just the current administration, but across the board, that rulings by Circuit and lower courts that claim to apply outside of their Circuits and/or for the entire country, can now be openly and publicly ignored?

Or does there need to be another ruling by the USSC on this?

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Asimov
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Quote:
There is little that pisses an honest judge off more than someone literally giving him or her the finger.


I think there's at least one thing...

Being given the finger... and getting away with it.

Seriously though, won't this just get ignored too?

[Edit: I do hope they're deadly serious about it though.]

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Tickerguy
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@Lenguado - It only applies to this case; the actual order itself is extremely terse. Sotomayer's dissent is basically a whine-fest but has no value judicially.

HOWEVER, it's a hell of warning BECAUSE it's so terse and is a 7-2 ruling. It's what the Supremes DIDN'T say that means so much here. They could have gone through reasoning or whatever, and didn't. They just said "**** YOU, and by the way, if this case is decided against the administration and the administration appeals to the Supreme Court as we expect they probably will, and we grant cert, the stay remains until we decide the underlying case."

So it's not just "the injunction is gone" it's "the injunction is gone and you cannot re-impose it even after you rule on the underlying case at any level whatsoever, provided there is an active appeal to the Supreme Court."

That's pretty extraordinary; I don't recall an order of this sort out of the Supremes before.

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Eleua
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@Len,

Generally speaking, the various Appellate Courts are proxies for the USSC. When the appeals courts rules, it is taken as the governing precedent IN THAT CIRCUIT and carries the weight of the Supreme Court..

The USSC generally takes two types of cases - that where the circuit(s) are wrong, and need to be corrected, or where there is a "circuit split." That means that one circuit sees the law one way, and another sees it differently. This standardizes the law across the circuits.

The USSC in a common-law system (ours) can't be overruled by a lower court. It's precedent governs all circuits. In a civil law system (Swiss), precedents are case-specific.

This is why all airlines file for BK in the Second Circuit (NYC). The case law is favorable to them, and they prevent a "circuit split" and inviting USSC review of them using the federal BK codes to get around 45 USC 151-160.

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Eleua
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@Karl,

The USSC has done this fairly reliably in various labor law cases in upholding 29 USC 101 et seq. For decades, corporations were using Clayton and Sherman to enjoin labor activity. In 1932, Congress specifically exempted non-violent labor activity from the injunctive relief process and collusion prohibitions by labor unions by a 19:1 margin. In reviewing a 1980 longshoreman case, the USSC said that Congress took them out of the labor injunction business in 1932, and they give very broad application to the intent.

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Aztrader
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Just saw a bid for Riot gear for Border Patrol. Timing seems obvious. 500 sets of gear and 500 shields. Think they are expecting trouble?....
Tickerguy
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@Aztrader -- Yeah, provided they already have the 3250fps deterrents against invasion in-hand.

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Lenguado
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@Tickerguy,

Thanks! Yeah, on my first read through last night, it sounded to me like the USSC ruling was rebuking the 9th Circuit for imposing a nation-wide injunction vs it only applying to those States covered by the 9th Circuit. My subsequent reading made me doubt that interpretation though.

I guess that did occur within the 9th Circuit's initial ruling, but then reversed again to a nation-wide injunction once the initial Federal Judge "cleaned up" his wording in his injunction.

Per 0Hedg article (yeah, yeah, I know . . .),
Quote:
San Francisco Federal Judge Jon Tigar issued a preliminary injunction in July blocking the policy after a coalition of migrant and civil rights groups represented by the American Civil Liberties Union challenged the rules in court, while the 9th US Circuit Court of Appeals narrowed Tigar's injunction - relegating it to within the 9th Circuit's jurisdiction. According to the Daily Wire's Kevin Daley, "That meant that the third-country transit bar could be applied to migrants intercepted in New Mexico or Texas, but not Arizona and California," adding that "the 9th Circuit also said Tigar could reimpose a nationwide injunction if he made additional factual findings supporting such a move. Tigar did so and restored a nationwide injunction against the contested rule Monday."

Emphasis mine.

On more reading of your comments today and other articles, it sounds like the USSC likely stayed the injunctions on the merits of the administration's case (though they didn't say it as you note). That would be good news! Press to Test for a final ruling on this.


@Eleua,
Also thanks! I pretty much understand what you explained.

I was just hoping that this was a rebuke and precedent that a ruling by a singular Federal Judge in S#!Tistan Francisco could NOT be imposed outside their jurisdiction / circuit, as this judge did - and the 9th Circuit continuously does. Guess not this time.

I suppose that should this case make it's way to the USSC, it will likely ONLY be decided on the merits of the case (the third-country transit bar), not on whether a Judge's / Circuit's ruling applies outside their jurisdiction.

I would like to see that litigated to the USSC, with a favorable ruling.

+++++++++++++++++

By the way, how could Ginsburg join Sotomayor in dissenting, when she is a cyborg and on life support?!?!?!!?!?
smiley

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"War is when your government tells you who the enemy is. A revolution is when you figure it out yourself." --Unknown

"Those who make peaceful revolution impossible, make violent revolution inevitable." - President John F. Kennedy

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Tickerguy
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@Lenguado - The 9th Circus appears to have known this was coming -- and thus tried to reverse the national impact problem. Sort of like a "Shields Up! **** -- too late!" sort of thing.

I do not know what the Supreme's ruling was predicated on since they didn't state their reasoning. But the fact that they were pissed off was quite clear from the fact that not only did they lift the stays on a national basis they prohibited them from being re-imposed on this litigation irrespective of any theory that might be developed in the future until and unless the case reaches them and they issue a final ruling on it or is disposed of in a final form.

Assuming the litigation continues and this goes up on cert (which I fully expect) this means the policy remains in force for AT LEAST the next year and probably longer. If the Administration wants to play cute (and it will), and I were them, I'd do everything I can to prevent it from hitting the Supremes and having an opinion come out of them before the 2020 election.

This is easy to do -- go ahead and have it heard originally, if you lose petition for an en-banc hearing which you are entitled to and will take a couple of months more time, let THAT run and wait for THAT result along with any other competing actions in other circuits, and THEN just before your time to timely file runs take it up to the Supremes for cert, which they will almost-certainly grant. You then get into THEIR briefing and argument schedule which means we're talking at least another six months to a year depending on exactly where you hit in their cycle at the time.

With even a modicum of effort this goes beyond the 2020 elections and in the meantime the injunction CANNOT be reimposed.

As of TODAY, if you're seeking asylum and in some other nation you must apply there first and be refused BEFORE you can make application in the United States. If you show up at the border making such a claim without proof you're going to be turned back immediately, and if you sneak over the border and try to claim asylum you lose immediately and, likely, permanently, so there no due process to be had since there are no judiciable elements to debate, there is nothing beyond a perfunctory hearing to hold, you're ruled inadmissible on an administrative basis and ejected immediately.

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Lenguado
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Yep, this was a VERY BIG win!

The citation (19A230) is pretty phrucking curt and concise:

https://twitter.com/steve_vladeck/status....

The question is, will Trump truly follow up, and direct ICE & Border Patrol to enforce it.

Breath. Not. Holding. . . .

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"War is when your government tells you who the enemy is. A revolution is when you figure it out yourself." --Unknown

"Those who make peaceful revolution impossible, make violent revolution inevitable." - President John F. Kennedy
Lenguado
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What's the possibility that the ACLU just drops their litigation though?

If they drop their suit, then yes - this policy is in force as long as Trump is Prezbo. But all they have to do then is wait and hope that a Demonrat wins in 2020.

But if they do press their suit, and this wends it's way all the way to the USSC, and they lose - well - Day Done! That would give Trump a HARD win.

With this massive rebuke ruling, seems like they may just want to tuck their tails between their legs, crawl home to lick their wounds, and restock to be able to litigate at a future date. This way, Trump only gets a soft win.

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"War is when your government tells you who the enemy is. A revolution is when you figure it out yourself." --Unknown

"Those who make peaceful revolution impossible, make violent revolution inevitable." - President John F. Kennedy
Tickerguy
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Except it's not just the ACLU that sued; the other plaintiffs would have to agree to drop it, and I bet they don't.

My suspicion is that they had EVERY expectation that they'd get to wind this one through the courts until past the election with the injunction in place.

Oops.

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