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10 February 2017


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Dr. Puck

I don't understand this perspective or what facts it is anchored to. There were no state's rights arguments in the complaint.

This is clear from the headers:

Defendants’ Appeal is Procedurally Improper

If the Court Considers the Appeal, Defendants’ Burden is High
and the Standard of Review Deferential

Defendants Cannot Show Irreparable Harm from the TRO When
it Simply Reinstates the Status Quo

Defendants Are Unlikely to Succeed on Appeal Because the
District Court Acted Within its Discretion

Courts can review the legality of executive action and the
executive’s true motives

The States have standing

Proprietary standing

Parens Patriae standing

The States’ claims have merit

Defendants are unlikely to prevail against the States’
Due Process claim

Defendants are unlikely to prevail against the States’
Establishment Clause claim

Defendants are unlikely to prevail against the States’
Equal Protection claim


Dr. Puck

Defendants are unlikely to prevail against the States’
INA claim

A nationwide TRO was appropriate

A Stay Would Harm the States and the Public Interest


From my perspective this has always been pretty fluid. Conservatives want to sell insurance across state lines, eliminating the rights of states to regulate their own insurance (only way it would work). In general, I think the right has a tiny bit more of a commitment to federalism, but will drop that commitment in a heartbeat to advance a pet cause.



Dr. Puck

Ah, lawyer speak. The governor of Washington was explicit in saying yesterday that he views this outcome at the 9th Circuit as a victory for Washington STATE. you need to get out of the law library and read some history. pl


Liberals will have to come up with something else to call it besides "state's rights" given their long hostility with that term.

I do admit to a bit of schadenfreude. The progressive branch of liberalism has long sought to increase the power and authority of the federal government, has actively promoted technocracy, and now finds out what can happen when all that executive and regulatory authority they've built is suddenly in the hands of someone they hate.


The TRO was issued nationwide. The State of Washington was first to the courthouse. There are other states piling on. Washington sued because it found its residents and businesses being negatively impacted by the ban.

To read anything more into this is a stretch at this point.



I know it hurts all these Yankees and pseudo Yankees like you to embrace state's rights as a method of defending your selves. Be brave! pl


Col. Lang,

Yes, it is highly amusing. It seems that people will often abandon principle when sufficient desire to achieve an outcome in conflict with said principle exists. Gore v. Bush is a classic with the entire conservative side of SCOTUS siding with Federal intervention and the Liberal side agreeing with the state of Florida.



Wouldn't the actual position of the State of Washington in this case be more accurately described as stating that the interests of foreign nationals are superior to those of US citizens?



I believe that what Dr. Puck was getting at was that the TRO was not based on a States' Rights issue. The State of Washington was exercising the same right that any public or private entity has to sue the US government. The TRO constrains action at the federal level, but does not to devolve the federal government's authority on international travel to the state level.


The states do not have standing. There is no legal argument that justifies or rationalizes the actions of the clown judge and the 9th circus court. It is a breathing taking power grab by the Judiciary branch. They seem determined to become our House of Lords.

different clue


I have noticed this too over the years. But it comes from a combination of Movement Conservatives and UpperClass Warriors and OverClass Warriors all over the country rather than from any particular region. Conservatism and The South may overlap, but not completely . . . as they are two different things.

An example of Movement Conservatives and OverClass Warriors asserting Federal Nationalist Supremacy can be seen in the Congress passing and Obama signing the recent law on labeling of GMOs in foods. It is complicated and multi-part and designed to "pre-empt" ( prevent) states from passing genuine sincere GMO labeling laws within the borders of the states which pass those laws. It was passed to suppress Vermont's genuine actual GMO labeling law. Supporters of GMO labeling laws call it the Federal DARK (Deny American's Right to Know) Act. Another example is President Trump saying he will seek the forcible abolition of California's own Auto Emissions Regulation Laws.

This suppression of attempts by particular stateloads of people to protect themselves from one or another sort of National and International Corporate or Other Bussiness Aggression is strictly driven by upper class favoritism and is "dignified" with the "name" of "Federal pre-emption". It does not strictly break down along South/ non-South lines. I haven't studied it enough to see if "Federal Pre-emptionism" matches or overlaps South-nonSouth lines some, a lot, or not at all.


At some point Trump has to break the court's penchant for judicial activism. Winning rulings, even at the Supreme Court level, isn't enough. His political enemies will simply shift the goal posts and mire him in a legal swamp. He has to get congress behind him and start putting the fear of impeachment and legislative over-rule into these legal beagles.

Who knew The Constitution contains the right for gays to get married, or to have an abortion, but not to control who comes into the country?


I think that was litigated a long time ago and some states' rights to support slavery was ended. It now appears that some other states are being successful in defending all kinds of rights without any special considerations.


The District Court and 9th Circuit relied on U.S. v. Texas brought by one of the most 10th amendment oriented state in the country for the sub-silentio holding that States have standing to challenge the Federal Government on immigration matters, a field that once was thought to be within the exclusive province of the U.S. Government


Strom Thurmond is chuckling in his grave...


Yes they're craven politicos. I'm sure we'll see so called conservatives be fine with massive deficit spending shortly and whining about the obstruction in Congress from the left. People and politics are funny.



"that was litigated a long time" It was not litigated at all. The issue was resolved by force majeur and no one was ever tried for the "rebellion." You need to learn some American history. pl

iowa steve

"In deciding the merits of the bond issue, the court further held that the Constitution did not permit states to unilaterally secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were "absolutely null".'


As a practical matter, this theory as alluded to by the Colonel below, is operative as well:

"Other scholars, while not necessarily disagreeing that the secession was illegal, point out that sovereignty is often de facto an "extralegal" question. Had the Confederacy won, any illegality of its actions under U.S. law would have been rendered irrelevant, just as the undisputed illegality of American rebellion under the British law of 1775 was rendered irrelevant. Thus, these scholars argue, the illegality of unilateral secession was not firmly de facto established until the Union won the Civil War; in this view, the legal question was resolved at Appomattox."


different clue


There ought to be a balance . . . or perhaps an appropriately stacked layering of who has which powers over what.

Schadenfreude may be delicious for a while, but only for a while. If one lives in a state down wind from another state which has suddenly asserted its right to de-regulate emissions from coal plants and the fresh clouds of coal-smoke mercury from the upwind state fall out in your state's great-lake water and build up in your state's great-lake perch and walleye . . . the taste of the schadenfreude over the upwind state telling the Federal EPA where to go will eventually fail to cover up the taste of the rising mercury load in your downwind state's fresh-water fish.

Charlie Wilson

...while trying to corner the colored maid...


I know the Southern states lost the war and the Northern states declined to prosecute anyone and thus launched USA 2.0.



Yes sir!! I've warned my brethren for years about what they support and the impact in other hands. Cluck, cluck and roosting now.



I'm glad to hear Trump talking about examining our HB1 and EB visa policies.
This isn't about isolation , to me. It is about educating US children to complete and paying them well.

Mark Logan

I won't defend the hypocrisy, it's valid criticism even if it is only some lawyer's seeking of standing within our convoluted legal system. But I will defend the West.

We are mostly a people who fled the madness of the East who, only after scanning the vastness of the Pacific with our own eyes, sighed "Crap. This will have to do." We were given "states" by the powers that be. We have no collective memory of colonization by this or that Euro faction and clung to no culture but the culture of the group we found ourselves in.

Ken Kesey's less popular book "Sometimes A Great Notion" may seem like a tale of one family's defiance but he was careful to make each member of that extended family as different as can be. We are but the resultant culture of whatever mixed up batch of vagrants that happened accumulate about this or that exploitable resource. You won't find a statue of any Union or Confederate hero. We are only minimally aware there was a war.

A bone for the Southerners: We honor George Pickett here for keeping the San Juans out of Canada.


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