Matt McDaniel

6 minute read

Here are the four things you need to know before your coffee gets cold, the February 8, 2017 edition:


The Ninth Circuit

A three-judge panel of the Ninth Circuit Court of Appeals in San Francisco is considering an appeal of a temporary restraining order enjoining the enforcement of the President’s Executive Order putting a pause in immigration from terror hotspots around the world. Right now, the Order is not in effect. The Government is seeking the judges of the Ninth Circuit to overturn the stay from the lower court and for the case in the lower court to proceed on the merits.

It is unclear how the Court will rule. There is a 2-1 Democrat-appointee majority on the panel. The questioning of the attorneys last night seemed to indicate that the Court would side with the States (Washington and Minnesota are challenging the Executive Order) at least as far as standing goes (can a State even sue over the ban). It’s less-clear what the Court will do with the merits.

There are a few potential outcomes. First, the Court could uphold the lower Court’s “pause of the pause.” This would mean that the Administration could go back to the lower court and have the full hearing on the merits (the lower Court issued its restraining order preemptively—this is normal in a case where there’s a claim of irreparable harm—before hearing more evidence), they can ask for the full Ninth Circuit to review the three-judge decision en banc, or they could apply for review by the Supreme Court. None of these are really options the Government is interested in pursuing, but, in the event the three-judge panel rules against them, the most-likely fighting move does take this matter up to Supreme Court review.

The Court could also reduce the scope of the District Court’s Restraining Order. This would, effectively, only make it apply to certain types of people. Thus, part of the Executive Order would come back into force, but not all of it. The downside of this is the confusion it would likely cause. Also, it’s unclear if the Government or the States would appeal this ruling to the Supreme Court or whether they’d head back to the District Court for the rest of the hearing.

Finally, the Court could scrap the District Court’s restraining order. This is what the Government wants, given the President is acting under his plenary national security powers. This would mean that the Court would have to find that the District Court was in error when it found a likelihood of success in the States’ case (again, don’t read too much into the “likelihood of success” finding here, the Court is to consider facts in a light favorable to the party bringing suit in that context). This seems unlikely given the questioning and the ideological bend of the Court.

Regardless of the outcome, we can expect a ruling likely later today.


DeVos Confirmed

Yesterday, despite Senate Democrats’ protest, Betsy DeVos was confirmed as Secretary of Education. The confirmation had a dramatic flair as it came down to the deciding vote of the Vice President (who is the President of the Senate and can cast a tie-breaking vote). This was the 245th time a Vice President had cast a deciding vote in US history, but it was the first time that a tie-breaking vote had been cast on a cabinet nominee.

While the President and Secretary DeVos were winners on the day, the big winner was Senate Majority Leader Mitch McConnell (who is really winning a lot these days), who was able to shepherd the nomination through the Senate and limit defections from just two Republican Senators. Whatever happened behind the scenes, McConnell clearly was in control of his side of the Senate and knew how the vote was going to go and knew that there wouldn’t be any more defections.

The left attempted to claim some sort of moral victory in forcing the Vice President to cast a tie-breaking vote (Minority Leader Chuck Schumer, in fact, called it “Rigged” on Twitter), but the reality is that Betsy DeVos was confirmed and there was nothing the Democrats could do to stop it.


Elizabeth Warren Shut Down

Last night, Senator Elizabeth Warren insulted Senator Jeff Sessions, impugned his dignity, and violated Rule 19 of the Senate. The Senate has some arcane rules that try to elevate the discourse of the body above the partisan sniping that takes place in regular society. Call it a throwback to a gentler time (though, there was famously a caning on the floor of the Senate in the lead-up to the Civil War), but there’s no doubt the Rules of the Senate are drawn up to at least give the appearance of civility.

Senator Sessions is nominated by President Trump to be Attorney General. The Senate is, post cloture, debating his nomination. This is not the first time a Senator has been nominated to an executive office. However, unlike when Hillary Clinton and John Kerry were nominated out of the Senate, consecutively, to serve as Secretary of State, there was no Republican rancor (despite obvious partisan misgivings) and incivility. Rather, Republicans made their policy differences known, but adopted a genteel attitude towards the President’s prerogative to appoint people he wants to be in his government.

Enter Elizabeth Warren, the Massachusetts Senator with no sense of decorum. She started yelling about Senator Sessions and began reading inflammatory documents that impugned the Senator’s decency (Sessions had been labeled a racist when he was appointed to a Judgeship decades ago). The Rules of the Senate are clear that the introduction of speech or writings that attack another Senator are barred.

Majority Leader McConnell warned Senator Warren that her inflammatory rhetoric was improper. He then moved under Rule 19, after she persisted in her attack, to have her silenced for the rest of the debate on Sessions (which is the appropriate sanction under the Rule). The Senate was called together and voted along Party lines to stop Warren from debating. She is, thus, barred from any further discussion about Sessions. Of course, Democrats and Warren are howling about the issue this morning on everything from feminist lines to racial ones.

The reality is that Jeff Sessions will likely be confirmed later today despite the partisanship and foot-dragging of the left and Elizabeth Warren will use this episode to continue to propel her goal of running for President.


Baltimore’s $15 Nonsense

Baltimore’s City Council (full disclosure: I ran for Council last year and didn’t win) is set to approve a resurrected version of the $15 minimum wage. This ordinance, condemned even by the left-leaning Editorial Board of the Baltimore Sun, would make Baltimore City an island of high labor costs. Obviously, just having one place in the State with an artificially high cost of labor would drive businesses out of the City, undermine attempts to raise the standard of living, and effectively raise costs to consumers.

Putting workers at a competitive disadvantage, especially when both the President and the Governor (despite their differences) have vowed to bring jobs to places like Baltimore, is not just going to hurt workers, it’s going to hurt the future of the City.

There is an attempt in the General Assembly, spearheaded by Democrats, to prevent local governments from modifying minimum wage laws. It’s unclear if this attempt will be successful.


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