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This week, Mike and Jay start out by discussing President Trump’s decision to discontinue President Obama’s Deferred Action for Childhood Arrivals program. They both agree that it’s probably a good policy, but that it’s also probably unconstitutional, and as such President Trump did the right thing by discontinuing it and urging Congress to enshrine it into law.
Next it’s a look at President Trumps deal with his new friends Chuck (Schumer) and Nancy (Pelosi) to continue to fund the government and raise the debt ceiling until mid-December. The move caught Congressional Republicans by surprise and was not appreciated by them, to say the least. Mike optimistically wonders if maybe this is a sign of a more bipartisan Trump, while Jay things that it’s another example of Trump forgetting who his friends are – friends he might need in, say, an impeachment trial.
After that, the Guys turn to the still worsening situation in North Korea in the wake of the regime’s latest and most powerful nuclear weapons test. Jay is convinced that the US won’t let North Korea develop the capability to launch a nuclear strike on the mainland US while Mike believes that the costs of preventing it are simply too high to bear and that some day soon, North Korea will have that capability, despite President Trump’s promise that it will not be allowed to happen.
Finally, it’s an update on President Trump’s travel ban, which was dealt a setback this week by the 9th Circuit Court of Appeals. Jay feel that the 9th Circuit got it wrong, while Mike argues that the administration’s interpretation of an earlier Supreme Court opinion was too narrow.
Mike’s Recommended Reading:
– Grand Hotel Abyss: The Lives of the Frankfurt School. Stuart Jefferies
Jay’s Recommend Reading:
– The Essential Writings of Ralph Waldo Emerson
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Mike and Jay,
Just listened to today’s podcast and it was delightful as always. However, during your conversation on the 9th Circuit Federal Appeals Court, Jay inaccurately said that the court is the most overturned court. This is the same point Sean Hannity made on this show (or at least tried to). According to Politifact, it was actually the 6th Court of Appeals. Just a heads up.
Love the podcast and thanks for what you guys do. Let’s Make America Sane Again.
-Matt
http://www.politifact.com/punditfact/statements/2017/feb/10/sean-hannity/no-9th-circuit-isnt-most-overturned-court-country-/
Hi Matt! Thanks so much for the comment / correction. (I especially appreciate you including the link.) I’ll make a note of this and mention it on our show next Saturday. – Mike
Neither the State of Hawaii nor IRAP included the most pertinent arguments against mootness or vacatur in its brief. Perhaps they’ve been strategically saving them for the last round of briefs. Not wanting to take that chance, we’ve put them on our website and are sending them to you.
The Ninth Circuit took the first step in moving Executive power back towards the limits imposed on it in the Constitution: it limited the President’s power over immigration to the power Congress redelegated to it in the applicable statute, 1952’s Immigration and Nationality Act.
Not only does President Trump want to prevent the Supreme Court from addressing that ruling, he wants it to disappear. It cuts his power, although not nearly to the extent that the Constitution does, and a Circuit precedent has some value for future cases within that circuit even if overruled.
The way to make a ruling disappear is called vacatur, or expungement. If the case is held to be moot because of timing the Court can consider whether the decisions below should be left or vacated.
Of course, the first question is whether the case should be mooted in the first place.
A. In June, having been rebuffed by both the 4th and 9th Circuits, President Trump filed for certiorari on a potentially joined case. In his June 14 memorandum JA 1441-43, he set out a formula for determining the ban’s expiration dates. These would be based on when the Supreme Court stayed the injunction, with a 90-day active period beginning then for one section and a 120-day active period beginning then for the other.
Because it was June the President requested expedited review. On June 26, the Court granted review to the joined cases but did not expedite it. It granted the partial stay, which meant oral argument would have to be scheduled before September 24 to prevent possible mootness of one section, and before October 24 to prevent possible mootness of the other.
Keeping oral argument within the 90 days would prevent any part of the case from potentially becoming moot before it could be heard. The Chief Justice sets the schedule for hearing cases. He had the opportunity to set oral argument before or after 90 days from the date the Court itself stayed the injunction.
Although a 1917 statute set the Supreme Court’s term as beginning the first Monday in October and ending in June, there is precedent for the Court both working into July (US v Nixon, 418 US 683, (1974) was decided on July 24, 1974) and starting in September (Citizens United v FEC, 558 US 310 (2010), was reargued on September 9, 2009). This means the Chief Justice had the opportunity to schedule the case during the 90-day period that wouldn’t potentially render any part of it moot. To schedule it before September 24 to keep it within the 90-day period was entirely up to the Court itself.
The Court scheduled it for October 10. As a result, the memorandum’s formula would expire part of the order prior to the case being heard.
Because J.A. 1441-43 was issued before the Court even granted review the Court was of course aware of the formula prior to setting the date for argument. President Trump controlled both the order’s original expiration date and the memorandum’s formula for setting a new expiration date, but the Supreme Court controlled two factors in the formula: the date of the stay and the scheduling of the case.
Under these circumstances it would be highly improper for the Court to moot any part of the case or to expunge either Circuit’s decision.
B. President Trump surrendered his claim to vacatur with a voluntary forfeit “by the ordinary processes of appeal or certiorari” (US Bancorp Mortgage Co v Bonnel Mail Partnership, 513 US 18 (1994)). This is the proper claim against vacatur. It’s not the same as a plain voluntary forfeit, which requires all relevant action to be in the President’s control.
EO 13780 was effective March 16, 2017 for 90 and 120 days. But Presidential memorandum J.A. 1441-43 “explains that the effective date of each enjoined provision will be the date and time at which these ***injunctions are lifted or stayed with respect to that provision.” (respondents’ brief, internal quotation marks omitted).
On June 26 the Supreme Court granted review and a partial stay, which reset the clocks to September 26, 2017 and October 24, 2017 as part of the ordinary process of certiorari. The date of oral argument, October 10, 2017, was also set as part of the ordinary process of certiorari.
Any claim for vacatur regarding the portion of the order that expired on September 24 has been voluntarily forfeited by the ordinary processes of certiorari.
Michelle Nappi, RepairRestoreSafeguard, Inc.
That’s incredibly informative – thanks so much for posting it! – Mike