We’re taking a deep dive into the 9th Circuit’s opinion on Trump’s executive orders. First, in the Pearls, we’ll discuss ethical issues causing problems in the White House, and, in the Heels, we’re going to talk about what’s on our minds besides politics this week and our big book announcement!
First up, Trump and Kellyanne fight with Nordstrom. Trump earlier this week tweeted that "My daughter Ivanka has been treated so unfairly by @Nordstrom. She is a great person – always pushing me to do the right thing! Terrible!" (And it was retweeted by the official @POTUS account)
Then, Kellyanne stated on Fox & Friends: "Go buy Ivanka's stuff, is what I would tell you," Conway said. "It's a wonderful line. I own some of it. I fully -- I'm going to just, I'm going to give a free commercial here: Go buy it today, everybody. You can find it online."
The comments could run afoul of a federal law that bars public employees from making an "endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity."
James Nuzzo, a legal scholar and founder of the Colchester Group consulting firm, took a closer look at President Trump's tweet and noticed something very important was missing: Specifics. All the tweet accuses Nordstrom of "doing" is being "very unfair," Nuzzo points out. Any lawsuit the company brings against Mr. Trump would have almost no chance of success. Moreover, the U.S. Supreme Court has made it clear that only factual misrepresentation, in other words specific lies — not opinion — would be considered libel or slander. And the tweet almost seems to have been crafted very wisely with that precedent in mind. Someone saying another person or company is "unfair" is almost the definition of an opinion as "fairness" cannot really be defined legally or otherwise. In short, don't expect President Trump to get a slap on the wrist or any other kind of slap from the courts over this.
Congress is a different matter. A much stronger argument could be made that Congress could officially censure President Trump for his conduct connected to the tweet against Nordstrom and several others like it that specifically attacked or demeaned businesses and individuals.
In the Suit, we talk about Washington v. Trump and do our best to summarize the decision.
The procedural history of 9th Circuit decision:A. The state of Washington went to federal district court asking for a temporary restraining order (TRO). When a hearing happens, Washington wants a declaration that the order is illegal and unconstitutional and permanently enjoined from enforcement. (Minnesota jumped in as a plaintiff, too)The District Judge granted that TRO. The President asked the 9th circuit to stay the TRO. So, Washington said, “STOP enforcing this EO until a full hearing can happen.” The district court did. Then the President said to the circuit court “stop the district court’s order stopping my order until a full hearing can happen. And the 9th circuit said, “nope, we’re going with that restraining order.”
- Standing — cases and controversies — you can only bring a lawsuit if you have a particular and specific, non-theoretical injury that a court could actually redress. The states of Washington and Minnesota said that they were harmed because the EO kept people from coming to their public universities and the states are asserting the rights of their students and faculty membersThe Court agreed.
- Judicial Review - The President said that his order was unreviewable. Courts recognize deference to the executive branch, but the President said that there is no judicial review for orders on immigration. — The court isn’t having that at all. The Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. Th federal courts routinely review the constitutionality of—and even invalidate—actions taken by the executive to promote national security, and have done so even in times of conflict.
- Likelihood of Success on the Merits:
A. The President says people affected by the order have no Due Process rights - court says nope, due process rights apply.
B. Lawful permanent residents — WH counsel issued a clarifying statement that lawful permanent residents are exempt from the more onerous parts of the order. The Court said: not relying on that. WH counsel isn’t the president -can’t issue an order superseding the executive order. "Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” And BTW, people who aren’t lawful permanent residents (including aliens who are unlawfully in the US) have due process rights, too.
C. Court refuses to limit the scope of TRO and affords due process rights to basically everyone. They also won't limit the geographic scope because of the importance of national immigration policy - effectively saying "It is not our role to try and rewrite the EO"
D. The Court avoids the religious discrimination question but does say the Government has not met its burden of showing a likelihood of success on appeal.
E. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.
5. Conclusion: On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay
In the Heels, Sarah just finished This Is How It Always Is and loved it. Also, make sure and check out The Pantsuit Politics book club on Goodreads. For the month of February, they're reading Strangers in Their Own Land: Anger and Mourning on the American Right.
Also, we have our own exciting book news! We've signed with a literary agent and we want to hear your ideas for what YOU would like to see in a Pantsuit Politics book - everything from episodes that connected with you to questions you'd like us to answer. Let us know!