Trong Khiem Nguyen / Flickr robert mueller amp trump...
Trong Khiem Nguyen / Flickr
Burning of the Reichstag 1933. Germany / Mono Print
“In taking the Fuehrer Oath (Führereid), the German Army swears allegiance not to the Republic, not to the flag, not to the constitution, and not even to the office of the head of state, but to Adolf Hitler personally who has now attained absolute power over the German people.”

Darn that extra-legal authoritarianism…

The signing of the declaration, which vests Nielsen with the power to request military action to protect U.S. Customs and Border Protection agents, appeared to take Defense Secretary James Mattis by surprise.

Kelly and Nielsen argued against signing the declaration, which granted the military broad authority at the border, telling the president that the move was beyond his constitutional powers.

They were vocally opposed by, among others, senior policy adviser Stephen Miller; Chris Crane, president of the National Immigration and Customs Enforcement Council; and Brandon Judd, president of the border patrol union. Also present was Vice President Mike Pence, who did not take a stand on the issue, according to one of the people briefed on the debate.

The signing of the declaration, which vests Nielsen with the power to request military action to protect U.S. Customs and Border Protection agents, appeared to take Defense Secretary James Mattis by surprise. It’s an indication of the extent to which immigration policy in the Trump White House is engineered by a small group of hawks, including Miller — and, as a result, has often caught other stakeholders off guard.


The president’s move on Tuesday is also illustrative of the extent to which, on immigration in particular, he has stretched the limits of his constitutional powers, preferring to issue executive orders rather than work through Congress. It’s an instinct that has been encouraged by advisers like Miller, who have pointed out that previous presidents have extended the powers of the executive branch further.…

“And there is Miller, perhaps the most powerful Jew in this administration outside members of the Trump family, defending the policy without a hint of hesitation or misgivings.”…

Federal troops have a long history of domestic roles, including occupying secessionist Southern states during Reconstruction and putting down major urban riots. The Posse Comitatus Act prohibits the use of active duty personnel to “execute the laws”; however, there is disagreement over whether this language may apply to troops used in an advisory, support, disaster response, or other homeland defense role, as opposed to domestic law enforcement.[1]

On March 10, 2009, members of the U.S. Army Military Police Corps from Fort Rucker were deployed to Samson, Alabama, in response to a murder spree. Samson officials confirmed that the soldiers assisted in traffic control and securing the crime scene. The governor of Alabama did not request military assistance nor did President Obama authorize their deployment. Subsequent investigation found that the Posse Comitatus Act was violated and several military members received “administrative actions”.[13][14]…

Stunt-POTUS* has doomed us to repeat Santayana quotes….

Although the popular view is that Hitler drafted the oath himself and imposed it on the military, the oath was the initiative of Defence Minister General Werner von Blomberg and General Walther von Reichenau, the chief of the Ministerial Office. Indeed, Hitler was surprised by the oath.[2] Before Hitler took office, the military swore the Reichswehreid to the German constitution and president. The intention of Blomberg and Reichenau in having the military swear an oath to Hitler was to create a personal special bond between him and the military, which was intended to tie Hitler more tightly towards the military and away from the NSDAP. Years later, Blomberg admitted that he did not think through the full implications of the oath at the time.[2]


August 20, 1934, the cabinet decreed the “Law On The Allegiance of Civil Servants and Soldiers of the Armed Forces”, which superseded the original oaths. Prior to the decree, both members of the armed forces and civil servants had sworn loyalty to “the People and the Fatherland” (Volk und Vaterland); civil servants had additionally sworn to uphold the constitution and laws of Germany. The new law decreed that instead, both members of the armed forces and civil servants would swear an oath to Hitler personally.…

Eighty years is not enough distance.

Note how all these RW actions are constructed and which audiences they also address

two Kent States:


”So, this Thanksgiving, I’m thankful for memories, good and bad, and for the common history they comprise, good and bad, peaceful and bloody. They are the best weapons against a politics gone mad and a president* gone mad with it. We find even our collective short-term memory overwhelmed by events, day after day. The president*’s main refuge is the constant present tense, and it is a redoubtable one. But it’s not an impregnable one. The arsenal of history, individual and collective, is becoming arrayed against it, and that arsenal’s primary weapon is our memory, of who we are and what we were, so we can define whom we want to become. It is still there, waiting to be used, and I give thanks for that.”…

Migrants seeking asylum are not an insurrection

In 2006, Congress modified the Insurrection Act as part of the 2007 Defense Authorization Bill (repealed as of 2008). On September 26, 2006, President George W. Bush urged Congress to consider revising federal laws so that U.S. armed forces could restore public order and enforce laws in the aftermath of a natural disaster, terrorist attack or incident, or other condition. These changes were included in the John Warner National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122), which was signed into law on October 17, 2006.[7]

Section 1076 is titled “Use of the Armed Forces in major public emergencies.” It provided that:

  • The President may employ the armed forces… to… restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition… the President determines that… domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order… or [to] suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such… a condition… so hinders the execution of the laws… that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law… or opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.[8]

In 2008, these changes in the Insurrection Act of 1807 were repealed in their entirety, reverting to the previous wording of the Insurrection Act.[9] It was originally written to limit presidential power as much as possible in the event of insurrection, rebellion, or lawlessness.…

Remember that Trump is doing this to prep the ground for when the Mueller report arrives and lawfare escalates.

1. Let’s start with the easiest and most obvious flaw: The actual decision that has set off this tirade was by a federal district judge in San Francisco, _not_ the Ninth Circuit. Especially if he’s relying on reversal rates (more on that shortly), that’s a pretty key distinction.
2. As for the decision itself, the Executive Order the district court put on hold purports to redefine eligibility for asylum in a manner that is squarely inconsistent with the text of the relevant statute, 8 U.S.C. § 1158.

Odds are that _any_ judge would’ve ruled the same way.

3. So this is not about judges “refusing to follow the Constitution,” or substituting their own policy preferences for those of the political branches. Rather, it’s about a federal judge holding that an Executive Order violates the plain language of a clear, unambiguous statute.
4. Now, let’s turn to the attack on the Ninth Circuit itself.

Trump’s claim that it’s the appeals court most often reversed by #SCOTUS is categorically false, whether over the last two years, five years, or longer. In fact, that honor goes to the Third Circuit (NJ, PA, DE, VI).

5. As I’ve noted previously, over the past five Terms, three other circuits have been reversed in a higher percentage of the cases #SCOTUS has reviewed from those courts (the Third, Sixth, and Eleventh Circuits):

  • Once again, over the last five Terms, three federal appeals courts have been reversed by #SCOTUS in a higher percentage of cases than the Ninth Circuit:
  • 1) Third Circuit (12/13 = 92%)
  • 2) Sixth Circuit (26/31 = 84%)
  • 3) Eleventh Circuit (18/22 = 82%)
  • 4) Ninth Circuit (48/60 = 80%)

So here, @realDonaldTrump is just lying.

6. It’s true, of course, that the Ninth Circuit has the most _total_ reversals, but that’s because #SCOTUS _hears_ more cases from that appeals court than any other. It also has the most affirmances over the same time periods.

Why does #SCOTUS hear so many cases from that court?

7. Because it is, by far, the largest appeals court in the country, both geographically and by docket size. As these statistics show, far more cases were filed, decided, and remained pending in the Ninth Circuit last year than in any other appeals court:…

8. Some folks still insist that being reversed in 48/60 cases over five Terms is high. Keep in mind, though, that #SCOTUS chooses almost all of the cases it hears.

99.9% of lower-court rulings, _including_ those by the Ninth Circuit, are never reviewed by the Justices.

9. If we’re measuring by total cases decided by the Ninth Circuit, then, the reversal rate is somewhere south of 0.1% (And other circuits are generally comparable.)

In a nutshell, #SCOTUS takes far too few cases to use its decisions for quantitative evaluations of the circuits.

10. Even qualitatively, the Ninth Circuit holds its own. #SCOTUS‘s first decision this Term resolved a 4-1 circuit split in favor of the outlier (the Ninth Circuit), and it did so unanimously.…

11. Some focus on immigration cases, pointing to the travel ban, in which #SCOTUS reversed the Ninth Circuit (it also reversed the Fourth Circuit, but whatever).

Even there, though, #SCOTUS also sided _with_ the Ninth Circuit in a major case last Term:…

12. As for judges, because of its size, the Ninth Circuit also has the most active judgeships (29). 16 of those 29 were appointed by Democratic Presidents. If/when President Trump fills the outstanding vacancies on that court, 13 of the judges would be appointed by Republicans.
13. By contrast, seven of the 11 active judges on the powerful D.C. Circuit were appointed by Democratic Presidents, compared to four (assuming President Trump successfully fills the vacancy created by Justice Kavanaugh’s elevation) by Republicans.
14. To be sure, progressive plaintiffs often choose the Ninth Circuit, just as conservatives choose the Fifth. But that’s not to get a “guaranteed result” so much as it is to try to take advantage of favorable precedents, something all good litigants do.
15. Just last Tuesday, for example, the Ninth Circuit refused to rehear en banc a troubling panel decision that courts can’t decide through habeas petitions whether immigrant juveniles have a right to counsel in removal proceedings:…

16. In sum, @realDonaldTrump is wrong about which court he’s mad at; why he lost this case; whether the Ninth Circuit is the “most reversed” in the country; whether it’s full of “Obama judges”; and whether it produces “almost guaranteed” results.

Other than that, though…


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