Wednesday, February 08, 2017

Sometimes The Judges Have the Butter

Gerard N. Magliocca

The President's comments about "so-called judge" who put a hold on the immigration executive order and the "disgraceful" stuff he heard in the Ninth Circuit's oral argument yesterday brings to mind the following story.  (Judge Gorsuch must tremble every time the President tweets these days.)

An arrogant politician goes to a restaurant for dinner (You can use John Kerry, Mitch McConnell, or anybody you don't like as the subject.)  He asks the waiter for some butter for his bread.  The waiter responds, "I'll get it for you as soon as I can, but the place is busy tonight and we are short-staffed."

Five minutes goes by and there is no butter on the table.  The politician sees the waiter and says, "Hey, I still have no butter. Do you know who I am?"

The waiter responds, "Well, do you know who I am?"

"Er . . . no."

"I'm the guy with the butter."

Sooner or later, the President will learn that berating the people with the butter doesn't get you butter. Unless, of course, he doesn't actually care whether he gets the butter and is simply putting on a dog-and-pony show for his supporters.


Is this a "buttering down" joke category?

The late Flip Wilson's "Here come de judge" might make a comeback.

I think the concern here is that President Bannon may decide, like Andrew Jackson supposedly did, that he's the one who actually has the butter.

The guy was elected President using certain tactics.

Now, as some note, if he merely invested his money, he could have got better returns. So, some of his actions in the end are of limited productivity. But, not sure how much "butter" he will be denied here, and how much it matters to him.

Trump learned his politics in NY and NJ. Punch back twice as hard.

Speaking of Andrew Jackson, John B. Taney served first as his Attorney General and then as Secretary of the Treasury, and later nominated - and approved - as CJ of the Supreme Court whose Dred Scott decision lives in infamy. I read recently that Trump is sandwiched in the WH between portraits of Jefferson and Jackson. Growing up in the Boston area, I was aware of the Democrats Jefferson-Jackson Day political activities. The democratic Party changed with the civil rights movement in the 1950s-60s as did the Republican Party (no longer the party of Lincoln).

Speaking of buttering up, Putin used that approach with Trump.

Trump's mentor for his "basic training" per SPAM's comment was Roy Cohn.

A third possibility: The President gets up, goes into the kitchen, takes the all the butter, and a bunch of other stuff because he has really poor impulse control, then goes back out, hs the waiter arrested for "not doing his job" and then skips out on the check after dinner...

This is really insightful except for the fact that Judge Robart has no butter and everyone knows he never did. More of a busboy or hostess kind of guy.

The Ninth Circuit panel might have some butter, but it is more likely that an en banc panel is the first collection of real guys-with-butter we shall encounter. And Judge Robart's opinion isn't even a very good way of asking "can I have some?" from them.

So, where I say "really insightful," I guess I should say, "kind of clueless."

Berating the guy with the butter doesn't loose you the butter, either, if they've already decided they're never going to give it to you. Basically no matter what Trump does, he's hosed on the immigration order until it reaches the Supreme court. The judge and circuit were both hand picked to be hostile.

The only feasible strategy here is to push Gorsuch through the Senate fast enough that he breaks the 4-4 tie on the Supreme court. That's not a strategy that requires sucking up to the judiciary.

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The judges really don't have the butter in this matter.

If the Ninth Circuit upholds Judge Robart's legally baseless injunction against his original order, Trump can simply issue a second order to the consulates in these nations to revoke all pending visas and refuse to issue any further visas for travel into the United States until the DHS Secretary can personally certify each applicant is not a member or supporter of ISIS, AQ or any of their affiliates. Travel from these nations into the US will immediately grind to a halt.

Even if the Democrats bring suit against the second order before the usual suspect progressive courts, it is doubtful even those judges are going to agree with the insane proposition POTUS cannot screen visa applicants for terrorists.


SPAM's 5:29 PM comment favoring the fascist he claims Trump to be reads between the lines as a plea for a DOJ position of some sort. Can we expect The Donald to take the advice of a police court DUI defense counsel? SPAM has proved over and over again at this Blog that he is baseless, legally and otherwise. SPAM's view of the court system is similar to Trump's view, suggesting that if, as SPAM claims, Trump is a fascist, then so is SPAM.

Speaking of Trump buttering up, did he do that to Mitch McConnell by, wink, wink, before Nov. 8th indicating Trump might consider Mrs. Mitch for a cabinet position? I understand Mrs. Mitch was a Trump supporter during at least part of the campaign. I can imagine the pillow talk, if any, wink, wink, back then. Mitch was careful not to antagonize Trump during the campaign, although Mitch did not, at least openly, endorse Trump. Mitch seems to have taken Trump's campaign advice to "delay, delay, delay" Senate action on Obama's Court nominee. Coincidences? With Mitch as Senate Majority Leader and Mrs. Mitch in Trump's cabinet, that's a lot of H & W political power in the two elective branches. Pillow talk can work two ways in a situation such as this: Mrs. Mitch can get messages to Trump via Mrs. Mitch and vice versa. In any event, that extra spousal income and benefits at taxpayer expense adds up. As they say in the Swamp, "Butter up." Trump try for the perfecta with a later nomination of his sister to the Court. Perhaps SPAM might detect a tad of fascism at work.

Query: Might there have been some pillow talk the night before Mitch ordered my Sen. Elizabeth Warren seated during the Beauregard debate? During - and after - the campaign Trump was rankled by Warren. Andrew Jackson/Roger B. Taney. Trump/Jeff B. Sessions. Andrew Johnson/Indian Genocide. Trump/Indian water pipeline threat. More comparisons?

Here's a possible future comparison: Andrew Jackson/SCOTUS ignored followed by Indian genocide. Trump/Ignoring a SCOTUS decision rejecting a Trump EO.

I'm holding in reserve comments under this feature: TRUMPTY-DUMPTY WAILING WALL.


I have repeatedly described the powers of the absolute bureaucracy and noted how Trump can employ that power to achieve his purposes.

When Trump follows up his fascist political campaign with actual fascist policy, I will call him out. Staying travel from enemy nations or enemy occupied nations is wartime SOP.

Democrat arguments that Trump's order (which were never made against the Carter and Obama orders) somehow violate the Constitution or US Code are without any legal foundation. Article II grants the President all executive power, including those powers normally granted the head of state. In its immigration law, Congress has given the President complete discretion to halt immigration to preserve national security. The Courts have no grant of power and no competence in this area. Foreigners living overseas are not part of the People and have no rights under our Constitution.

The opposition to this perfectly legal order are Democrat juveniles acting out after losing their power.

SPAM I AM! shares his Chicken Little "The Sky Is Falling" with his acclaimed fascist The Donald. SPAM's:

" Article II grants the President all executive power, including those powers normally granted the head of state."

adds to the text of the Constitution, which is unusual even for an unusual textualist. SPAM further informs us:

"Staying travel from enemy nations or enemy occupied nations is wartime SOP. "

Wartime presently? What has Congress declared regarding such nations, whatever they are?

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Andrew Jackson had a long career in U.S. service, mainly in the military (including military governor) [perhaps this is why he needed less generals in his administration] but also was a member of both houses of Congress. He won an election without help of the Attorney General or Electoral College (did lose out there after winning a plurality in 1824, the election going to the House). He also was a self-made man, becoming a lawyer and later prosecutor. The election of 1828 was pretty nasty.


The guy in the White House not calling federal judges "so-called" because they ruled in a way he didn't like is not the same thing as "sucking" up to them. The executive being carefully checked after an executive order even those who generally agree with it says is poorly drafted is "hosing" him. When Trump is in power, checking the President is a problem. Maybe like bureaucrats, judges should be "at will," so when they have the wrong beliefs and "hose" the executive, they can be recalled.*

* Reference to proposal by a conservative in a past thread to give the government more power.


The powers of a head of state are executive powers and Article II begins by granting all executive power to the President.

Such powers are not limited to declared or undeclared wars. I merely noted that barring travel is wartime SOP.

FWIW, Congress declared war by issuing an AUMF against al Qaeda and its various iterations after 9/11.


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It is suggested by the way that there was some sort of judge shopping, which is possible, though I wonder how that worked regarding the judge that decided against the challengers. This is done in various cases (see U.S. v. Texas, the case that went to the Supreme Court and was decided 4-4). But, when certain people or groups do it, it is somewhat less annoying to certain people.

As to Gorsuch, some of his supporters are saying he is wary of agency discretion and executive overreaching in such a way that even liberals should appreciate. On balance, I'm wary about all of that (see Michael Dorf, e.g., at Dorf on Law/Verdict on Chevron deference) but one argument put forth here is that the executive order is ultra vires as to current immigration law. Note the conservatives are the ones in U.S. v. Texas, concerning an Obama immigration order, likely to have decided against the administration. States here are again challenging the feds.

But, ox/gored. This time conservatives are for federal power. A Gorsuch ruling protecting an immigrant also is cited by some supporters. But, sure, figure there's a reasonable chance he will vote to give the federal government the power here.


If Trump intends to use the weaponized absolute bureaucracy to exceed his powers under the Constitution, the Donald's nomination of Gorsuch may indeed come back to haunt him. If he wanted a rubber stamp for the bureaucracy, Trump should have re-nominated Garland.

SPAM I AM! shifts from his Chicken Little to his Humpty-Dumpty mode by "explaining":

"The powers of a head of state are executive powers and Article II begins by granting all executive power to the President. "

SPAM seems to be suggesting that the executive powers of heads of state elsewhere (e.g., Russia?) are somehow incorporated into Article II of the Constitution. SPAM's acclaimed fascist Trump might agree with SPAM.

SPAM I AM!'s new intoxicating phrase "weaponized absolute bureaucracy" may be the result of SPAM inhaling second-hand DUI fumes or first hand recreational Ganja use.


"Appeals Court Keeps Trump’s Ban On Hold, Denying Justice Department’s Request To Enforce The Ban Again"

Carter, Bush, Obama judges unanimously decided on due process issue; religious issue held up for further examination.

Justice is appealing the injunction against the Trump order. The circuit panel did not rule against the appeal, they simply denied Justice's request for an emergency stay of the injunction while the appeal is briefed and considered.

I doubt the Supremes will grant an emergency stay, so I suspect Justice will have to wait until the appeal process is completed.

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