News Sips 2/7: Immigration Pause Paused, DeVos Day, Mr. Puzder’s Problem, and Media Wars Continued

Here are the four things you need to know before your coffee gets cold, the February 7, 2017 edition:

 

Immigration Pause Paused

The President’s Executive Order limiting immigration from terror hotspots around the globe, which critics have labeled as a “Travel Ban,” or, in even more unflattering terms, a “Muslim Ban” was paused from taking effect by  Federal Judge James Robart in Seattle over the weekend. Judge Robart’s sweeping Order did not merely apply to the State of Washington, but rather to the entire nation. The Judge has yet to rule on the merits, but issued an Order that noted there was a significant chance that the challengers would be successful on the merits and paused enforcement of the Executive Order.

The Administration appealed this decision to the Ninth Circuit Court of Appeals in San Francisco. The way this works is that a panel of three judges from the Circuit Court are selected to hear the appeal. The judges are William Canby, who was appointed by Jimmy Carter (and is 85 years old); Michelle Friedland, who was appointed by Barack Obama; and Richard Clifton, who was appointed by George W. Bush. While judges don’t always come down on the side of the Party that put them in power, it’s a good jumping-off point for speculation about outcomes (notably, Judge Robart who blocked the Executive Order was a George W. Bush appointee).

The Ninth Circuit is the most-overruled Appeals Court in the country and has a reputation for tending to the left on both social and economic issues. The Appeals Court is not hearing the merits of the challenge to the Executive Order, but merely whether the Order should remain blocked from enforcement pending the outcome of the case before Judge Robart.

The panel has set a one-hour hearing for 3pm (6pm EST). We should expect a ruling very shortly thereafter. The most-likely outcome is that the panel will affirm Judge Robart’s decision. This is, likely, not the correct Constitutional conclusion (without diving down the rabbit hole, the President is given wide latitude in dealing with immigration issues. When there are issues of national security, the President’s power is very-nearly plenary. However, it seems unlikely that left-leaning judges are willing to accept the political fallout of siding with the Administration on this issue.).

This will leave the Administration with a few options. First, it could appeal the appellate ruling within the Ninth Circuit. Basically, they can ask for the entire Ninth Circuit to sit, en banc, and rule on the issue. This is not likely to change the result given the ideological makeup of the Court (again, we’d like to assume that judges could rise beyond partisan bickering—and maybe they can, who knows—but we’re dealing with the most-likely scenario, here). Second, the Administration could immediately appeal the ruling from the three-judge panel to the Supreme Court. This is particularly risky given the 4-3-1 makeup of the current Court (again, without diving down another rabbit hole, the vast majority of the decisions reached by the Supreme Court are either unanimous or not divided on what we would call “ideological lines.” However, in cases that have an overt political component, it’s best to assume that the Court’s breakdown will be similar to their political ideology. Do we prefer that this wasn’t the case and that judges would be neutral arbiters of the law? Sure. Is that a naïve approach in this situation? Probably.). The best-case scenario at the Supreme Court would appear to be a 4-4 split. This outcome would leave the decision of the Ninth Circuit intact. It would also, potentially, lead to a split among Circuits because other Courts of Appeal are likely to reach conclusions that are not the same as the one reached in the Ninth. Even if the Administration and the Senate were to rush through the confirmation of Neil Gorsuch, there would still be, at least, a two-month period before Justice Gorsuch could be on the Court ready to hear cases.

The final possibility for the Administration, and, by all accounts the one that they should consider, is a re-vamping of the Executive Order. There are a few versions of this scenario that could work. The most extreme would be a pause in all immigration to the United States. While this would, certainly, cause an uproar, it would actually be on sounder Constitutional footing than the current Order (despite the strong chance the current Order is Constitutional, there is a federal law that prohibits discrimination in immigration policy based on national origin).

Whatever the outcome of the current appeal, there is little chance that the decision of the three-judge panel this evening will be the end of the drama surrounding this issue.

 

DeVos Day

The confirmation vote for President Trump’s nominee for Secretary of Education, Betsy DeVos, will be held right around noon today. Democrats used a procedural prerogative to push a vote on Ms. DeVos back from yesterday to today. Democrats spent about 24 hours taking to the floor of the Senate to decry Ms. DeVos and the President for a myriad of issues. Democrats feel Ms. DeVos lacks the requisite qualifications to be Secretary of Education. Cynically, much of the outrage is being generated by teachers’ unions that see DeVos as a threat to union monopolies in education.

Regardless of the back-room reasons for the outrage over Ms. DeVos from the left, she does have a very real concern over Republican defections. Already Susan Collins of Maine and Lisa Murkowski of Alaska, the two Republicans in the Senate who have received the most money from teachers’ unions, have announced they will be voting against DeVos’ confirmation. It’s important to note that both Senators Collins and Murkowski did side with Republicans to advance Ms. DeVos’ nomination out of committee and to limit debate to allow Ms. DeVos to get a vote despite their decision to oppose her final vote.

The Republicans hold a 52-48 (technically 52-46-2) majority in the Senate. The defections of Collins and Murkowski make the vote an even 50-50 split. This means that the Vice President, as President of the Senate, will be on hand to cast his deciding vote (a power he gets from the Constitution). No other Republican defections are expected (if there were, most Senators would have the decency to let the Leadership and the White House know ahead of time so they could withdraw Ms. DeVos instead of having her lose a vote. This has not happened as of the time of writing, so we can expect a 51-50 confirmation vote today).

 

Mr. Puzder’s Problems

The next big confirmation battle has been shaping up to be Andrew Puzder, the President’s nominee to be Secretary of Labor. As we can see, cynically, with opposition to Secretary of Education and Secretary of Labor, there’s a strong overlay of union angst that’s rearing its head in these fights.

However, despite the fact that Mr. Puzder has been an impressive leader of a major restaurant company, it appears that his nomination is off to a rocky start. News is breaking that he has been employing an illegal alien as a cleaning person at his home for, apparently, years. Mr. Puzder, who, along with several other Trump nominees, were to make up a “second wave” of confirmations later this month, now looks to be on a very shaky foundation going forward.

It remains to be seen exactly what the Administration and Mr. Puzder will choose to do about the revelation of this employment issue. In the event Mr. Puzder withdraws from consideration, there are already rumors circulating that Wisconsin Governor Scott Walker, who famously brought unions to heel in his state and survived a recall election over it, may be on the President’s shortlist for a replacement.

 

Media Wars, Continued

It wouldn’t be a normal day in Washington without clashes between the Administration and the media. Today’s fight comes over a report from the New York Times that alleges to have gotten someone in the White House to give details about Mr. Trump’s loneliness in the Executive Residence. The story claims that, because the First Lady has remained in New York with the couple’s son Barron, the President is acutely alone.

The article goes on to cite unnamed sources who recount that the President can be found walking around and exploring the residence in his bathrobe or watching cable news and tweeting.

Suffice it to say, there’s absolutely no evidence to support this kind of a story and the Administration has pushed back against the reporting. Again, this is just another instance of journalists rushing out stories that are either poorly-sourced (or not sourced at all) but because they contain apparent stories of palace intrigue that the insular media chooses to believe about the President, it gets rushed to press. Notably, there are so few people who would know about the President’s dealings in the Residence that there is a statistically insignificant chance anything could have actually leaked with the type of details that were reported. Moreover, as Press Secretary Sean Spicer notes: “The President doesn’t even own a bathrobe.”

The President also took aim at the media yesterday for their failure to report international terrorist attacks. The White House has released a list of dozens of incidents around the world perpetrated by “Radical Islamic Terrorists” that, the Administration contends, the media failed to adequately cover. Predictably, this has gotten pushback from the media. The reality is, most likely, more nuanced than either side would contend. There are definitely competing interests in reporting and the devotion of time to “attempted” versus “successful” attacks also plays a factor.

Regardless, the media wars between the Administration and the press don’t seem to be fading (and it will definitely keep generating clicks).

 

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Of course, there are more things going on in the world, but these should be enough to get your day started.

 

Matt McDaniel

Attorney and Political Commentator

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