Saturday, February 11, 2017

Flawed Restraining of a Flawed Order?

Michael McConnell at the Hoover Institution analyzes the decision of the Ninth Circuit panel. An excerpt:

What will happen, going forward? The smartest move by the Administration is to revise the executive order to make clear that it only applies to unadmitted and nonresident aliens, whom the Supreme Court has stated have “no constitutional right of entry to this country as a nonimmigrant or otherwise.” That would render the due process holding of the court, which was the only issue reached, moot. I fear that slogging forward in the Court of Appeals, before the same panel, is unlikely to be successful, and that returning to the district court will lead to endless battles over executive privilege, in which the Administration will take the same position any executive would take, but which will be treated as uniquely Trumpian defiance of judicial authority. Better to correct the Order and start afresh, with organized implementation and full public explanation.

[Update: This post's headline was corrected. My excuse? Sloth.]

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