I don’t have an inside line to the President or his team. I wish I did. The President issued an Executive Order that had due process issues. He did it without input. He did it without planning. He did it without a strategy, and hell, he did it when he had an Obama AG who wouldn’t defend it. All of those unforced errors are on his team, which should have known better. In fact, President Trump may know what he wants to do, but he is arguably the President with the least knowledge on how to do it. He has no experience, and it is up to his team to see every angle, find every hurdle, and prepare for every contingency. They either didn’t do that, don’t know how to do it, or he didn’t listen. Either way, he is getting his butt handed to him in Courts in which he does not belong. Right now, it’s 2-0. We are at the bottom of the lineup, and the closer isn’t available even if we take the lead.
Since Judge Robart issued his TRO, I have been begging the Trump team to get new advice. In fact, for a week, I have been begging them to give me just 30 minutes of time to help unscrew them from this problem they made for their President. Hell, I didn’t even support the guy. However, some responsible conservative has to throw the man a line. Instead of getting the help he needs to crawl out of this legal and political cavern, it’s like everyone in the hole with him is asking for a bigger shovel. Trade with China will be easier than ever, as Trump’s legal and political team have nearly dug their way there. I am terrified they are this stupid.
The Ninth Circuit is not the place for a reliable, proven, thoughtful legal analysis. I could pile on and say a bunch of mean-spirited things about the Judges, their philosophy, and their legal reasoning. I will leave that to others. No Conservative American wants the legal thinkers of that Circuit making law. The Ninth Circuit #Calexited the Constitution decades ago. Law there bears no relationship to federalism, nor is it in any way tethered to our Constitution. The Executive Order of a law and order, populist, America-first President, has no business in that Circuit. The twenty-nine page opinion by that panel was the functional, legal equivalent of the Circuit Court firing on Fort Sumter. The Court never even discussed the statute at issue … not once.
“Get the hell out of that Circuit you idiots.” If someone in your legal circle didn’t yell that in one of your meetings Mr. President, you need a bigger or better circle. The law is not the law anymore. It’s all politics. You should have been advised that. Likewise, someone should have said to you sir, that you can rip this legal case from these flower-power jurists. Someone should have advised you, as I would have, to withdraw the Executive Order. It’s crap. The problem is, one of your ego-driven advisers who put you in this spot wrote it and doesn’t want to take the hit. He or she forgot that their job is to do whatever is right to implement strong public policy, including taking the blame for bad advice. Instead, your team has you marching uphill, against the wind, in an open field, fighting a superior enemy, while defending an Order that is indefensible. Without traffic, in mid-day, I can be there in 50 minutes. And, I would gladly speak my native tongue of New Jersey to the fools advising you. In thirty minutes, we can you on a path to meet your objectives and to waive goodbye to judicial activists.
If you want to know what was wrong with the original order, I wrote that already. Once you lost in the District Court, you should have stayed in the District Court and built your record. While you did that, you could have built the case for the restrictions publically. That would have bought you time, maybe 30-45 days. In that time, you would have been well on your way to sitting the next Supreme Court Justice. Once you had a final order on the injunction, with a better record, you could have either appealed … getting the same result no matter what you did … or withdrawn the Executive Order. You would then have stripped the District and the Ninth Circuit of Jurisdiction. Concurrently, your team, including your intel operation, lawyers, and national security team would have built and compiled a recommendation on which you would have written a much longer, stronger, tighter, more detailed Executive Order. You then would have issued that Executive Order, after a national speech laying out the specifics and purpose.
Would the radical left have sued you again? You bet. Would they have shopped for a make-believe Court filled with social justice warriors who see the Constitution and Federalism as a bar to Utopia? Maybe they would, but not if you followed the rest of my advice. And that advice is available, free of charge … some day when traffic is light. Bring the team, and I’ll do the briefing. If you want to order from the Italian Store, get me the Milano … the whole one.
Right now, it’s progressive jurists 2, and your team nothing. You want to beat them. You need ballplayers. Absent that … you could use some better legal and political advice.
Author: Richard Kelsey
Richard Kelsey is the Editor-in-Chief of Committed Conservative.
He is a trial Attorney and author of the new book on higher education, “Of Serfs and Lords: Why College Tuition is Creating a Debtor Class”
Rich is a former Assistant Law School Dean and Law Professor. At Mason Law Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP, drawing on his expertise as a former CEO of a technology company specializing in combating cyber-fraud.
Before returning to private practice, Rich taught legal writing and analysis and an advanced litigation seminar. In 2014 he was elected by the graduating class as the faculty speaker at their graduation.
He is a regular commentator on legal and political issues in print, radio and on TV. Rich has appeared on hundreds of stations as a legal expert or political commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL.
Rich also writes on occasion for the American Spectator and CNSNews.com.
In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.
His Twitter handle is @richkelsey.