Recently in International Category

The U.S. Supreme Court has issued the following order in Trump v. IRAP, No. 16-1436, the Fourth Circuit case challenging the 90-day ban on travel from six countries where the U.S. was unable to properly vet admittees (bold-face added):

We granted certiorari in this case to resolve a challenge to "the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780." Because that provision of the Order "expired by its own terms" on September 24, 2017, the appeal no longer presents a "live case or controversy." Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
The portion I have bold-faced means that the obnoxious Fourth Circuit opinion is wiped out as precedent.  CJLF's brief in the case, which urged precisely this result, is here.  At the time of the main briefing, we were the only ones calling for this, although in a supplemental letter brief in response to the Court's request the Solicitor General came around.

The companion Hawaii case from the Ninth Circuit addresses two other provisions in addition to the 90-day ban.  A provision limiting the number of refugees in the fiscal year just ended became moot on October 1.  A 120-day provision will become moot 120 days from the day the Supreme Court partially lifted the stay on it, which will be later this month.  I expect a similar disposition of that case at that time.

Travel Ban Case Off Calendar

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As noted in this post Sunday, the 90-day travel ban in the case before the Supreme Court expired on that day and was replaced by a very different order.  The 120-day refugee restriction will expire in October.  Yesterday the Supreme Court took the case off the calendar and ordered the parties to further brief the mootness issue:

The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The parties should also address whether, or to what extent, the scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot. The briefs, limited to 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before noon, Thursday, October 5, 2017. The cases are removed from the oral argument calendar, pending further order of the Court.
CJLF's amicus brief supporting neither party, specifically on mootness, is here.  Amy Howe has this post at Howe on the Court, republished at SCOTUSblog.

New Travel Limitations Announced

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The same executive order that announced a 90-day travel ban for selected countries also directed cabinet officers to develop a more tailored approach to countries that cannot or will not provide the information needed to vet people coming in.  The 90-day ban expires today, and the Administration announced the replacement package in a Presidential proclamation.

Laura Meckler has this story in the WSJ.  See also Friday's post.


Replacing the Travel Ban

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Laura Meckler reports for the WSJ:

The Trump administration is preparing to replace its controversial travel ban--which sought to bar almost all travel to the U.S. from six countries--with more targeted restrictions affecting a slightly larger number of countries, people familiar with the process said.

Rather than ban travel altogether from the nations on the new list, the new order is set to create restrictions that vary by country, based on cooperation with U.S. mandates, the threat posed by each country and other factors, these people said.

*      *      *

The new rules are scheduled to be announced by Sunday, when the existing, 90-day travel ban expires. The ban now applies to people from Iran, Libya, Somalia, Sudan, Syria and Yemen.

Doesn't the expiration of the 90-ban make the challenge presently before the Supreme Court moot?  Yes, IMHO, and that is what CJLF's amicus brief supporting neither party says.

What happens to the case?  Our brief says that under the Munsingwear rule the Court should vacate the lower court opinion and remand with directions to dismiss.  That would wipe out the lower court opinion as precedent.  Where does the rule's name come from?  In World War II, there were price controls on nearly everything, including underwear.  A dispute over them became moot when the war ended and the controls were repealed.

Massive Vote Suppression Down Under

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Australia is having a referendum on same-sex marriage, but there is a problem, Rob Taylor reports for the WSJ.

The USA is in the same category as ... ?

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Yesterday I posted a comment, the 16th, to Bill's August 30 post "Is the United States Isolated in Using the Death Penalty?"  Knowing that comment threads have diminishing audiences, I thought I would copy it as a post:

In death penalty debates, the anti side regularly asserts that having the death penalty places the United States in the same category with despotic regimes. Nonsense.

Any rational system of classification begins with the most important distinctions at the top, separating the major categories. Biological classification, for example, begins with separating plants from animals, only later gets down to separating felines from canines, and later still separates dogs from wolves.

If you wanted to classify countries by their legal systems, you would begin with such major distinctions as (1) providing due process of law, (2) not criminalizing political dissent, free exercise of religion, etc., and (3) democratic adoption of the governing laws.

In a classification tree of countries' legal systems, then, by the time we got down to whether a system had capital punishment or not, the United States would be in the same category as Japan, and perhaps India and Taiwan. (I don't claim to be knowledgeable on their legal systems, so I hedge on that.)

Should it bother us that we are with Japan rather than Italy? Doesn't bother me in the slightest.

Physician-Assisted Suicide

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Netherlands MP Kees van der Staaij has this critical op-ed in the WSJ on that country's assisted suicide law.

CJLF has not taken a position on this issue.

Beats Me, Ask SCOTUS

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Yesterday in the Hawaii travel ban case, District Judge Derrick Watson denied the Plaintiffs' Emergency Motion to Clarify Scope of Preliminary Injunction.

Upon careful consideration of the parties' submissions, it is evident that the parties quarrel over the meaning and intent of words and phrases authored not by this Court, but by the Supreme Court in its June 26, 2017 per curiam decision. That is, the parties' disagreements derive neither from this Court's temporary restraining order, this Court's preliminary injunction, nor this Court's amended preliminary injunction, but from the modifications to this Court's injunction ordered by the Supreme Court. Accordingly, the clarification to the modifications that the parties seek should be more appropriately sought in the Supreme Court.
Ariane de Vogue has this article for CNN.  The full text of the order is here.

The Sometime Virtues of Globalism

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As of last week, the United States was in bed with the following countries on a hotly debated issue of international importance and grave moral consequence:  China, Iran, Iraq, Saudi Arabia, North Korea, Afghanistan, Somalia, Cuba, Libya, Uganda, Bangladesh, and Namibia.

Question:  Can you name the issue?
How soft do we have to get on our very worst criminals before people stop accusing us of being inhumane to them?  The case of Norway demonstrates that there is no limit, so we might as well not even worry about that.

As noted on this blog back in 2011, Anders Breivik's sentence of 21 years comes to about 14 weeks per life taken.  The lives of innocent people are pretty cheap in Norway if you only get 14 weeks for taking one.

Yet, as noted here last year, a Norway court found that even this outrageously lenient sentence was being executed inhumanely because Breivik's "three-room prison suite furnished with a treadmill, a refrigerator, a DVD player, a Sony PlayStation, a desk, a television, and a radio" was too isolated.

Today, Agence France-Presse reports:

Norwegian mass murderer Anders Behring Breivik has not been treated "inhumanely" by being held in isolation in prison, an Oslo appeals court has ruled, overturning a lower court judgment.

"Breivik is not, and has not, been subjected to torture or inhuman or degrading treatment," it said.

*           *           *

Kwanwoo Jun, Alastair Gale, and Ben Otto report for the WSJ:

North Korean dictator Kim Jong Un issued an assassination order to kill his half-brother after seizing power in 2011 and agents tried to execute it at least once before succeeding this week, South Korea's top spy chief said.

A Flawed Restraining of a Flawed Order

Michael McConnell, Stanford Law Professor and Hoover Institution scholar, has this article at Hoover on last week's Ninth Circuit decision.

A Debacle and a Learning Moment

The WSJ has this editorial titled Trump's Judicial Debacle noting a number of ways that the Administration and the courts were both wrong. "President Trump's immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy."

The editorial goes to explain several ways the Ninth Circuit decision is wrong and how the Administration seemed ill-prepared to defend the order.  At the end, the editorial has some worthwhile thoughts on what to do now.

There are lessons to be learned from this debacle, though.  I will note a few of them in separate posts.
Jose de Cordoba and Santiago Perez have this article in the WSJ with the above headline.

MEXICO CITY--Influential Mexicans are pushing an aggressive and perhaps risky strategy to fight a likely increase in deportations of their undocumented compatriots in the U.S.: jam U.S. immigration courts in hopes of causing the already overburdened system to break down.

The proposal calls for ad campaigns advising migrants in the U.S. to take their cases to court and fight deportation if detained. "The backlog in the immigration system is tremendous," said former Foreign Minister Jorge CastaƱeda. The idea is to double or triple the backlog, "until [U.S. President Donald] Trump desists in this stupid idea," he added.

Talk about stupid ideas.  A concerted attack on our judicial system by foreign influences might just spur Congress to fund a big expansion of the system and thereby increase deportations.  Nothing makes Americans come together quite like being attacked from outside.  "Perhaps risky" is an understatement.

Good and Bad Decriminalization

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Deutsche Welle (German wave) reports:

Germany is ditching a law specifically protecting heads of state and government against insults, after Turkish President Recep Tayyip Erdogan tried to sue a prominent satirist. Slander and libel laws still apply. 

Chancellor Angela Merkel's cabinet decided on Wednesday to abolish the rarely enforced section of the criminal code by January 1, 2018. 

The idea of 'lese majeste' dates back to a long-gone era, it no longer belongs in our criminal law," Justice Minister Heiko Maas (pictured above) said. "The regulation is obsolete and unnecessary," he added.
Thanks to Eugene Volokh for the tip.

Laura Mills reports for the WSJ:

Russian lawmakers voted Friday to remove domestic violence from the country's criminal code, making abuse punishable by fines rather than a prison sentence.

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