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Title: Fox News: Kavanaugh and Kethledge new SCOTUS frontrunners?
Source:
HotAir
URL Source: https://hotair.com/archives/2018/07 ... ledge-new-scotus-frontrunners/
Published: Jul 5, 2018
Author: Allahpundit
Post Date: 2018-07-05 14:08:39 by Tooconservative
Keywords: None
Views: 11619
Comments: 54
— John Roberts (@johnrobertsFox) July 5, 2018 If anyone’s well positioned to know that the winds have changed in the West Wing, it’s a Fox News reporter. And if anything’s likely to boost a shortlister overnight, it’s making a good face-to-face impression on Trump. A more ideological president might look past that sort of thing to more nuts-and-bolts concerns about the nominee’s jurisprudence, but with Trump “personal chemistry” is key. A White House official involved in vetting the nominees told Axios that Trump’s likely to tilt towards “who he feels most comfortable with in a personal setting,” which would explain Kethledge’s stock rising. Although in fairness to POTUS, it’s not like Kethledge is any weaker ideologically than the competition. If Trump can get someone whom he likes personally and whom righties will like on the bench, so much the better. An interesting footnote via Politico: Apparently Ted Cruz is bearish on Kavanaugh. On a call with associates on Monday, Cruz warned that Kavanaugh is the sort of “unreliable” jurist by whom Republicans have been disappointed in the past, and he has worked to bolster the prospects of his colleague, Sen. Mike Lee (R-Utah). Sen. Tom Cotton (R-Ark.) also spoke to the president about the merits and drawbacks of each nominee, including Kavanaugh. Cruz can stump for Lee all he wants but Lee’s not going to be the nominee and may not even be in serious contention. What’s his beef with Kavanaugh, though? It must be more than that one ObamaCare ruling, which Kavanaugh defenders like Ed Whelan have argued has been misunderstood. What’s strange about Cruz’s opposition is that he and Kavanaugh have had parallel careers to some extent. They’re roughly the same age (Kavanaugh’s a few years older), both Ivy League law grads, both Supreme Court clerks, both worked on the Florida recount in 2000, both served in the Bush administration in Dubya’s first term. They’ve come out of the same conservative professional legal culture and that culture is very high on Kavanaugh. If anything, you’d think Cruz would be out in front recommending him as the next best choice after Lee. Is there history between the two that explains his chilliness? As for Barrett’s stock dipping, maybe her interview with Trump didn’t go as well as Kethledge’s did. Possibly Trump is worried that Barrett’s reputation, fair or not, as a pro-life warrior will end up spooking Collins and Murkowski and he’ll be dealt an embarrassing defeat in confirmation. Or maybe he’s calculating that he’ll get to appoint Ginsburg’s successor and wants to “save” a woman nominee for that spot, knowing that public pressure to fill Ginsburg’s seat with a female will be particularly intense. It’s unlike him to pass on a chance to instigate a nationwide culture-war street fight, which is what nominating Barrett would do. But if anything could make that fight more vicious, waiting to nominate Barrett as a replacement for the left’s feminist hero would do it. It would be a supreme act of clawing back cultural territory from the other side, practically a provocation. Maybe he’ll announce The Purge on the same day and let Americans really have it out for a day or two. Or maybe Barrett’s stock hasn’t dipped. Per WaPo, she’s one of three finalists, not two: — Robert Costa (@costareports) July 5, 2018 I’d wager on Kethledge. If it’s true that people like Cruz are warning Trump about Kavanaugh, Trump’s not going to roll the dice on him. The one thing he’s done as president that’s united the right entirely was appoint Neil Gorsuch; naturally he wants another nominee in that mold, not someone who’s going to attract ominous grumbles from movement conservatives from the start and maybe end up knifing conservatives on a major case while on the bench. Kethledge seems to be a safer pick despite a last-minute effort by some border hawks to paint him as soft on immigration. There’s a piece answering that charge at NRO today that’s worth your while. One last thing per Axios: Although Trump has said he’ll announce the nominee on Monday, sources say they wouldn’t be surprised if he changed his mind and broke the news early once he’s settled on someone. Don’t wander too far from a computer or TV over the next few days. Three days ago the alleged finalists were Brett Kavanaugh and Amy Coney Barrett, but that was before Trump began interviewing shortlisters. And the interview with Raymond Kethledge reportedly went very, very well. .@FoxNews is told that @realDonaldTrump has completed the interview process for his @USSupremeCourt pick. Raymond Kethledge and Brett Kavanaugh are said to be the front-runners to replace Justice Kennedy. Announcement Monday night. 
Judge Raymond Kethledge Conservatives have also fixated on a 2011 challenge to Obamacare in which Kavanaugh ruled that the individual mandate functioned as a tax and invoked an 1867 law preventing individuals from challenging taxes before they have gone into effect. (The individual mandate went into effect in 2014.) But he also advised that, whatever its constitutional shortcomings, “Congress could eliminate any such potential problem.”… back on the SCOTUS search beat today. The top 3 contenders as of 9:30 a.m., per GOP and WH sources: Kavanaugh, Kethledge, Coney Barrett
Poster Comment:
Ted Cruz doesn't want Kavanagh but hasn't threatened to vote him down (yet). Rand Paul is threatening to vote against Kavanagh over his actions during the Bush years. And Barrett is probably too pro-life to get past Collins/Murkowski.
It looks like Kethledge at this point. And he has most of the personal qualities that Gorsuch has (hunter, fisherman, Michigander) and is considered to have a more polished style in Senate hearings and Kethledge is considered more appealing than Gorsuch to people who know them both. And that personal style factor means a lot with Trump. Kethledge is a better bet to sail through Senate hearings flawlessly than either Barrett or Kavanagh. (1 image)
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#14. To: Tooconservative (#12)
Hardiman was the runner-up to Gorsuch so I've been surprised that he hasn't been featured more prominently in the rumors about filling the Kennedy vacancy.
Me too. Maybe he's now "old news".
#15. To: misterwhite (#14)
Hardiman was interviewed, quietly.
Trump loves the big surprise on episodes of SCOTUS Apprentice. So he could be faking us out with the List Of Three, only to pick Hardiman.
I would overall prefer Hardiman to Kethledge, more track record, more originalist. And Hardiman doesn't have Kavanagh's Bush/Starr connection or Barrett's inexperience and unwise remarks about Roe.
I'm a little concerned that Kethledge is so unknown on some issues that he could be a new Kennedy or Souter. Hardiman is a lot better known.
#16. To: Tooconservative (#15)
So he could be faking us out with the List Of Three, only to pick Hardiman.
True. He could have decided on Hardiman the day Kennedy quit, but threw out some names to test the reactions from the public. If everyone insisted he appoint one of them, he could always change his mind.
Or he could appoint Me Merrick Garland Merrick Garland -- he'd get Chuck Schumer's support.
#17. To: Tooconservative (#15)
I'm a little concerned that Kethledge is so unknown on some issues that he could be a new Kennedy or Souter.
Why is it that conservative Republicans end up getting blindsided by these appointments but never liberal Democrats?
#18. To: misterwhite (#17) (Edited)
Why is it that conservative Republicans end up getting blindsided by these appointments but never liberal Democrats?
Because the judiciary are by default statists. And sooner or later they give in to the thrill.
Every justice on the Court will always be more liberal than advertised, when push comes to shove. Like Roberts saving OdingaCare.
#19. To: misterwhite (#16)
True. He could have decided on Hardiman the day Kennedy quit, but threw out some names to test the reactions from the public. If everyone insisted he appoint one of them, he could always change his mind.
You know he's reveling in all the attention and the buildup to the Big Event.
WaPo: "I think I have it down to four people, and I think of the four people, I have it down to three or two. I think they’re all outstanding,” Trump told reporters Thursday en route to Montana, declining to name the finalists. “I don’t want to say the four. But I have it down to four. I’ll have a decision made in my mind by Sunday. We’ll announce it on Monday.”
So he has it down to two. Or three. Or four. Maybe.
Donald is a bit of showman. But he's having lots of fun, no doubt.
#20. To: Tooconservative (#12)
I think you're [] that's Hardiman.
My bad. Good catch.
#21. To: misterwhite (#13)
Right. As did the U.S. Supreme Court in Roe v Wade when they faithfully interpreted and applied the right to privacy they found in a penumbra of an emanation.It was there. They said it was there. They saw it. And they faithfully interpreted and applied it.
What is the "open borders" appellation based upon?
You did not address, much less answer, the question. What did he say about open borders?
#22. To: Tooconservative (#19)
Donald is a bit of showman. But he's having lots of fun, no doubt.
He is also listening to and evaluating the early criticisms.
#23. To: nolu chan (#22)
Tune in Monday night for the next episode of Celebrity Justice.
#24. To: Tooconservative (#23)
Tune in Monday night for the next episode of Celebrity Justice.
I can't wait for the Senate dems questioning the nominee and the invocation of the Ginsburg rule.
#25. To: nolu chan (#21)
You did not address, much less answer, the question. What did he say about open borders?
In Patel v. USCIS, 732 F.3d 633, 2013, Kethledge wrote an opinion that expressly rejected the government’s contention that an American immigration law’s purpose is to protect American workers and benefit American businesses.
In Van Don Nguyen v. Holder, 571 F.3d 524, 2009, Kethledge reversed a deportation order of a criminal alien who had lied about a drug conviction and been convicted of grand theft auto -- which Kethledge argued was not an aggravated felony.
#26. To: misterwhite, Ed Schultz terminated, knew too much, nolu chan (#25)
Ed Schultz mysteriously dies at 64...
He knew too much.
Bender: Ed Schultz had remarkable political instincts
"Heart problems, they say. I don't think so."
#27. To: misterwhite, nolu chan (#25)
I'd rather have Hardiman or Kethledge but it seems all the smart money is betting on Kavanagh at this point.
He has been the fair-haired boy of the Beltway conservative legal establishment since he graduated from law school. The Senate GOP will likely be willing to fight to confirm him.
Kethledge is a very good writer. But supposedly Kavanagh has him beat with some people describing his opinions as operatic. That's high literary praise for legal writing and the kind of thing that routinely described Scalia's writing. He's also very fast at debate and could push oral arguments in a certain direction. They say he is impressive in person.
#28. To: hondo68 (#26)
"Heart problems, they say. I don't think so."
So Judge Kavanagh murdered Vince Foster and then killed Ed Schultz to keep him quiet?
#29. To: Tooconservative, Ginsburg, Sotomayer, likely to drop dead soon (#28)
So Judge Kavanagh murdered Vince Foster and then killed Ed Schultz to keep him quiet?
He covered up for the Clinton/Bush D&R crime syndicate. He had to whack Ed Schultz to make it through the confirmation process and replace Ruth Bader Ginsburg on SCOTUS.
Orders from Javanka. Both Ginsburg and Sotomayer are likely to drop dead at any moment, so their replacements are being installed preemptively whenever possible.
#30. To: All, nolu chan, misterwhite, hondo68 (#27)
Now a reported push to save that seat for Kethledge.
Politico:
| Former aides and supporters of Kethledge, a Michigan resident who moves outside Washington circles and is considered the least known of the leading contenders, are quietly circulating positive information about the judge’s personal life, political profile and reassuring record on the U.S. Court of Appeals for the 6th Circuit. The tacit message: If Brett Kavanaugh is a well-connected D.C. insider, and Amy Barrett is a grass-roots favorite but lacks experience, Kethledge is a down-to-earth Michigander who checks all the boxes for conservatives. “Unlike many people, he’s not a D.C. insider,” said Kethledge pal Christopher Yoo, a University of Pennsylvania Law School professor. Kethledge and Yoo shared an office when they clerked for retiring Justice Anthony Kennedy from 1997 to 1998. “He doesn’t belong to the kind of circles of power that other former clerks are often drawn to. What’s quite telling is his love of Michigan, his love of outdoors. … One of the highest compliments he can give about a person is they aren’t afraid to drink beer straight out of the bottle.” |
Got that? He actually knows a few people who drink beer from bottles! What a redneck judge! What a man of the people! If confirmed, he'd probably show up at the Court wearing a coonskin cap, by crackey.
#31. To: Tooconservative, Willettized (#30)
Judge Don Willett's family produces not only beer, but whiskeys including Bourbon & Rye.
A few shots of this stuff and those errant justices will be seeing things Justice Willett's way!
#32. To: Tooconservative (#30)
wearing a coonskin cap, by crackey.
I had one.
#33. To: misterwhite, Tooconservative, hondo68 (#25)
In Patel v. USCIS, 732 F.3d 633, 2013, Kethledge wrote an opinion that expressly rejected the government’s contention that an American immigration law’s purpose is to protect American workers and benefit American businesses.In Van Don Nguyen v. Holder, 571 F.3d 524, 2009, Kethledge reversed a deportation order of a criminal alien who had lied about a drug conviction and been convicted of grand theft auto -- which Kethledge argued was not an aggravated felony.
This is obviously derived from a recent screed by Ann Coulter. It would help if those actively campaigning for Brett Kavanaugh would just gather in the park by the White House and hold an official political campaign rally for Brett Kavanaugh, rather than sniping at everybody else.
This appears to channel Ann Coulter via The Conservative Treehouse.
https://twitter.com/AnnCoulter/status/1014595076947955713
https://www.facebook.com/OfficialAnnCoulter/posts/1597644290345379
https://twitter.com/Harvardlash/status/1014570376230301696
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Unfortunately, this is most certainly intended for an audience that has not, and will not, bother to reach out and find the court opinions and read them.
[misterwhite #25] In Van Don Nguyen v. Holder, 571 F.3d 524, 2009, Kethledge reversed a deportation order of a criminal alien who had lied about a drug conviction and been convicted of grand theft auto -- which Kethledge argued was not an aggravated felony.
https://twitter.com/AnnCoulter/status/1014596302502539266
Ann Coulter
Verified account @AnnCoulter
Jul 4Ann Coulter Retweeted Yale Lash
Kethledge also reversed a deportation order of a CRIMINAL ALIEN who had lied about a drug conviction and been convicted of grand theft auto, which Kethledge argued was not an aggravated felony. Van Don Nguyen v. Holder, 571 F.3d 524
Yale Lash @HarvardLash
Replying to @AnnCoulterPlease show me one thing that would point to Judge Kethledge wanting open boarders. You’re literally #FakeNews
In Nguyen, the Opinion of the Court was written by Circuit Judge Merritt, not Circuit Judge Kethledge.
The criminal alien was a permanent resident whose crime had been committed 18 years previously. At issue was whether a necessary predicate for an order of deportation existed. The unanimous three-judge panel concluded it did not. Judge Kethledge joined the opinion of Judge Merritt. Judge Griffin filed a concurring opinion only disagreeing with obiter dicta.
At 1-2:
OPINIONMERRITT, Circuit Judge. Petitioner Van Don Nguyen, a permanent resident, petitions this Court for review of a final order of removal entered by the Board of Immigration Appeals on April 18, 2008. This appeal raises the issue of whether the unauthorized use of an automobile constitutes a "crime of violence" under 18 U.S.C. § 16(b).
At 2-3:
The Board of Immigration Appeals followed the reasoning of the Fifth Circuit and found that Nguyen’s 1990 conviction for auto theft under California law was a “crime of violence” rendering him subject to removal. Under the Immigration and Nationality Act, “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The list of offenses that constitute “aggravated felonies” includes “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F).[...]
For the reasons that follow, we hold that the theft of an automobile under the California grand theft statute is not a “crime of violence” under 18 U.S.C. § 16(b). The most succinct reason for our conclusion is that the statute in question regarding the "crime of violence," as well as the California auto theft statute, is ambiguous and our decision must take into account the "rule of lenity." Under the ancient rule of lenity, any doubt about this conclusion must be resolved in favor of the defendant, or in this case, the petitioner who is subject to deportation pursuant to an ambiguous criminal statute.
See United States v. Santos, _U.S._, 128 S. Ct. 2020, 2025 (2008)(plurality); United States v. Bass, 404 U.S. 336, 347-49 (1971); United States v. Ford, 560 F.3d 420, 425 (6th Cir. 2009) (applying the "rule of lenity" to a previous conviction for a "walkaway" escape because it is not unambiguously a "crime of violence" and therefore cannot serve as the basis for career offender status). Justice Scalia recently explained in Santos that the rule of lenity prevents courts from having to "read the mind" of Congress and is a "venerable" requirement that the federal courts have applied for two centuries when interpreting ambiguous criminal statutes. When a criminal statute is ambiguous as to its intent, the "tie" goes to the defendant. Because we cannot find that auto theft is "unambiguously" a crime of violence under Section 16(b), we should follow the ancient rule and overrule the administrative agency in this case.
Nguyen was convicted in 1990, under California state law, of the crime of Grand Theft.
At 6:
Whether a state conviction constitutes a crime of violence under 18 U.S.C. § 16 has been the subject of much litigation. As defined by 18 U.S.C. § 16, a crime of violence is:(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
At 7-11:
Section 487 of the California Penal Code, which was in effect at the time of Nguyen's conviction in 1990, defines grand theft simply as the "taking" of property above a certain value from another. The statute includes all manner of personal property, such as agricultural products, livestock and, as was the case herein, an automobile. Under California law, the elements of auto theft are not explicitly set out in the statute, but California case law has identified them as follows: any person who (1) takes possession; (2) of an automobile; (3) owned or possessed by another; (4) by means of trespass and (5) with intent to permanently deprive the owner of such property; and (6) carries the automobile away. See, e.g., People v. Davis, 965 P.2d 1165, 1167 (Cal. 1998). The use of physical force to take the property is not an element of the offense. Under the language of Section 16(b), the question then becomes whether "taking" an automobile "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing [the theft]." 18 U.S.C. § 16 (b).To answer the question, we start with the plain language of 16(b), which "covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing the offense." Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (an alien's conviction for driving under the influence of alcohol and causing serious bodily injury in an accident in violation of Florida law did not constitute a "crime of violence" and, on that basis, was not an aggravated felony that warranted deportation). After examining the language in Section 16(a), the Court turned to look at the plain text of § 16(b). The Court observed that this provision defines a crime of violence to include any offense that is a felony and, in contrast to subsection (a) which requires that force be an element of the offense, that by its nature, involves a "substantial risk" that physical force against the person or property of another may be used in the course of committing the offense. The Court noted, however, that the provision covers offenses that "naturally" involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The Court emphasized that the "reckless disregard" in § 16(b) relates not to the general conduct or to the possibility that harm will result from a person's conduct but to the risk that the use of physical force against another might be required in committing the crime.
Interpreting Leocal, the Board previously ruled that the offense of unauthorized use of a motor vehicle in violation of Texas law is a crime of violence under 18 U.S.C. § 16(b). In re Brieva, 23 I. & N. Dec. 766 (June 7, 2005). The Board noted that the government had met its burden of demonstrating that the alien's offense was an aggravated felony "crime of violence" under controlling circuit court precedent, and in this connection the Board cited United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999). Discussing the impact of Leocal, the Board found that the Fifth Circuit's holding in Galvan-Rodriguez remains binding after Leocal. The Board found that the nature of the offense of unauthorized use of a motor vehicle was such that it involved a substantial risk that force would be used to cause property damage during the commission of the offense because an unauthorized driver is likely to use physical force to gain access to a vehicle and to drive it and that this is a sufficient risk of the use of physical force to be a "crime of violence" under § 16(b).
The Supreme Court's recent decisions in Begay v. United States, 128 S. Ct. 1581 (2008) (DUI did not constitute a violent felony under the Armed Career Criminal Act because breaking such laws do not typically involve "purposeful, violent and aggressive conduct") and Chambers v. United States, 129 S. Ct. 687 (2009), are contrary to the Board's decision in this case. In determining whether a prior offense is a "crime of violence" under § 16(b), the court must "consider the offense generically, that is to say, . . . examine in it in terms of how the law defines the offense, not in terms of how the individual offender might have committed it on a particular occasion." Begay, 128 S. Ct. at 1584; see also Leocal, 543 U.S. at 7 (the language of § 16(b) "requires us to look at the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime"); United States v. Meyer, 803 F.2d 246 (6th Cir. 1986) (attempted sale of cocaine not "by its nature" a "crime of violence" under Section 16(b)).
Applying these principles to determine if California's grand theft law can constitute a "crime of violence" for purposes of Section 16(b), we note that the statutory elements make no mention of violent conduct and, indeed, encompass inherently nonviolent conduct. The focus is on the dollar amount of the property taken - not whether force was used to take it. The government argues that the crime carries a "substantial risk" that the vehicle might be damaged or vandalized during the taking. While we agree that there is some chance that violent force may be used against an automobile to gain entry or that the car might be damaged or vandalized during the theft, we cannot see that the risk is "substantial." The California statute encompasses theft of a broad range of items, many of which, such as agricultural products, carry almost no risk of violence being done during the theft. The proper inquiry is one that contemplates the risk associated with the proscribed conduct in the mainstream of prosecutions brought under the statute. See James v. United States, 550 U.S. 192 (2007) (in determining whether attempted burglary falls within the Armed Career Criminal Act, the Court stated "the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another") (emphasis added); Leocal, 543 U.S. at 10 n.7 ("The 'substantial risk' in § 16(b) relates to the use of force, not to the possible effect of a person's conduct.")
The "ordinary meaning" of the term "crime of violence" and the legislative history of Section 16(b) suggest a category of violent, active crimes. Leocal, 543 U.S. at 11. Logic and common sense dictate that Congress did not intend to punish a person who merely takes an unoccupied car in the same manner it would punish a convicted murderer, rapist, robber or others who take property by force against a person. Sanchez-Garcia, 501 F.3d at 1214. The government's analogies to entering homes to commit burglary are not similar to the taking of an unoccupied car. There is always the possibility that the owner may return and a confrontation may ensue. With a car, the car is generally driven away and the owner returns to an empty parking spot. Should a perpetrator approach an occupied vehicle with the intent to take it by force, the charge will rarely be auto theft — it will almost certainly be carjacking or robbery or another much more serious charge. See United States v. Williams, 537 F.3d 969, 974 (8th Cir. 2008) (in remanding to district court to determine whether Missouri conviction for auto theft was a "crime of violence," court noted that auto theft presents far lesser possibility of confrontation than burglary of a building). Nor has the government provided any basis for us to conclude that the subject offense naturally involves a substantial risk that violent or destructive force would be used against the property of another.
The elements of the offense of auto theft, and the general understanding of the nature of the offense, do not entail a meaningful risk that physical force will be used in committing the offense. The Supreme Court's decision in Leocal repudiated any conclusion that an unsubstantiated risk of physical force in some small subset of cases is sufficient to classify the offense as a "crime of violence." Interpreting § 16(b) would "blur the distinction between the 'violent' crimes Congress sought to distinguish for heightened punishment and other crimes." 543 U.S. at 11. A look at the categories of items listed in the California grand theft statute makes clear that the statute is aimed at punishing the theft of items above a certain dollar value — not because their taking involves violence or force.
For the foregoing reasons, we hold that auto theft, as defined in the California Penal Code § 487 (1989), is not a "crime of violence" under 18 U.S.C. § 16(b) and cannot serve as an "aggravated felony" warranting deportation of a permanent resident alien. We remand to the Board of Immigration Appeals for further proceedings consistent with this opinion.
https://www.nationalreview.com/bench-memos/judge-kethledge-immigration-laws-faithful-application/
In Van Don Nguyen v. Holder, for example, Judge Kethledge joined an opinion holding that grand theft auto was not an “aggravated felony” because the statute defined “aggravated felony” as a “crime of violence,” and grand theft auto — although a serious crime — is not a violent crime under Supreme Court precedent. Only an activist judge could have reached a different conclusion.
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[misterwhite #25] In Patel v. USCIS, 732 F.3d 633, 2013, Kethledge wrote an opinion that expressly rejected the government’s contention that an American immigration law’s purpose is to protect American workers and benefit American businesses.
Ann Coulter Slams 'Open Borders Zealots' on Trump's SCOTUS Shortlist, Backs KavanaughPosted by Ian Mason | Jul 4, 2018
[excerpt]
In 2013’s Patel, Kethledge wrote an opinion that expressly rejected the government’s contention that an American immigration law’s purpose is to protect American workers and benefit American businesses. “One can speculate that Congress meant to exclude certain aliens to protect American workers, and admit other, ‘qualified’ aliens to help American employers,” Kethledge wrote. “But there is no basis in the text of the statute—none—to conclude that Congress was completely indifferent to the interests of the ‘qualified immigrants’ themselves.”
https://twitter.com/AnnCoulter/status/1014595076947955713
Ann Coulter
@AnnCoulterAnn Coulter Retweeted Yale Lash
Patel v. USCIS, 732 F.3d 633 Judge Kethledge rules agst U.S. to allow a foreigner, who had overstayed his prior employment visa by 6 yrs, to challenge the denial of a NEW employment visa application.
Yale Lash
@HarvardlashReplying to @AnnCoulter
Please show me one thing that would point to Judge Kethledge wanting open boarders. You’re literally #FakeNews
12:41 PM - 4 Jul 2018
The Opinion addressed and answered the question of whether it was proper for the District Court to issue a dismissal for lack of prudential standing. The 6th Circuit, opinion by Judge Kethledge, found that dismissal for lack of prudential standing was reversible error.
It ends with the court stating, "Finally, having determined that Patel had both prudential and constitutional standing in this case, we decline to go further and address the merits of his claim."
Rightly or wrongly decided, what it decided was prudential standing.
At 1-2:
OPINIONKETHLEDGE, Circuit Judge. Peshtal Inc. filed a petition for an employment visa on behalf of Shashikant Patel under 8 U.S.C. § 1153(b)(3). The United States Citizenship and Immigration Services denied the petition. Patel then filed suit in federal district court under the Administrative Procedure Act, challenging the denial as arbitrary and capricious. The district court dismissed the suit for lack of prudential standing. We reverse.
At 3-5:
II.A.
We review de novo a district court's dismissal for lack of prudential standing. See Dismas Charities, Inc. v. U.S. Dep't of Justice, 401 F.3d 666, 671 (6th Cir. 2005).
Under the Administrative Procedure Act, a party has prudential standing if he is "adversely affected or aggrieved by agency action[.]" 5 U.S.C. § 702. A party is "adversely affected or aggrieved" if the interest he seeks to protect is "arguably within the zone of interests to be protected or regulated by the statute that he says was violated." Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (internal quotation marks omitted). In determining a statute's zone of interests, "we do not look at [the provision at issue] in complete isolation." Fed'n for Am. Immigration Reform v. Reno, 93 F.3d 897, 903-04 (D.C. Cir. 1996) (citing Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 401-02 (1987)). Instead, we look at that provision alongside any other provision that has an "integral relationship" with it, in order to "help[] us . . . understand Congress' overall purposes[.]" Air Courier Conference ofAm. v. Am. Postal Workers Union AFL-CIO, 498 U.S. 517, 529-30 (1991) (internal quotation marks omitted).
The prudential-standing test "is not meant to be especially demanding." Patchak, 132 S. Ct. at 2210 (internal quotation marks omitted). Rather, in enacting the Administrative Procedure Act, Congress intended to "make agency action presumptively reviewable." Id. (internal quotation marks omitted). Thus, a plaintiff lacks prudential standing only if his "interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Id. (internal quotation marks omitted). And because the plaintiff only needs to be "arguably" within the statute's zone of interests, "the benefit of any doubt goes to the plaintiff." Id.
Here, Patel alleges that the CIS violated 8 U.S.C. § 1153(b)(3) when it denied the petition for an employment visa that Peshtal Inc. filed on his behalf. That provision states in relevant part: " Visas shall be made available ... to... [q]ualified immigrants who are capable . . . of performing skilled labor (requiring at least 2 years training or experience) . . . for which qualified workers are not available in the United States." (Emphasis added.) Given that § 1153(b)(3) expressly provides for issuance of employment visas directly to qualified aliens, it is arguable, to say the least, that a qualified alien who wants an employment visa is within that provision's zone of interests.
The government responds that Patel lacks prudential standing because his interests are inconsistent with the purpose of § 1153(b)(3), which the government says is the protection of U.S. employers and workers. But it is folly to talk about "the purpose" of the statute when the statute reflects a compromise between multiple purposes. One can speculate that Congress meant to exclude certain aliens to protect American workers, and admit other, "qualified" aliens to help American employers. But there is no basis in the text of the statute—none—to conclude that Congress was completely indifferent to the interests of the "qualified immigrants" themselves. To the contrary, § 1153(b)(3) makes employment visas available to the immigrant, rather than his employer, which suggests that Congress gave the immigrant, too, a stake in whether he gets a visa. Simply stated, under § 1153(b)(3) it is the alien, not the employer, who is entitled to an employment visa; and that makes unavoidable the conclusion that the alien's interests are among those "protected or regulated by the statute[.]" Patchak, 132 S. Ct. at 2210.
Two other provisions corroborate this conclusion. First, 8 U.S.C. § 1255(b) provides that an alien whose petition is approved under § 1153(b)(3) becomes eligible for a permanent visa, rather than a temporary one. If § 1153(b)(3) provided employment visas only for the benefit of U.S. employers (as the government contends), it would be unnecessary to give the alien a permanent visa; instead, a visa that lasted as long as the employer needed the alien's services would do. That Congress rejected that approach in § 1153(b)(3) suggests that the provision protects the interests of aliens as well as employers.
Second, the so-called "portability provisions"—8 U.S.C. § 1154(j) and 8 U.S.C. § 1182(a)(5)(A)(iv)—likewise reflect a congressional intent to protect the interests of qualified aliens. Before Congress enacted these provisions, an approved petition for an employment visa was valid only so long as the alien stayed with the employer that filed it. Thus, if an alien who had an approved petition wanted to change jobs, he would need to start the whole status-adjustment process over again. Because of the portability provisions, however, the alien's petition "remain[s] valid with respect to a new job" under certain circumstances. 8 U.S.C. § 1154(j).
At 7:
Disembodied notions of statutory purpose cannot override what the statute actually says. What § 1153(b)(3) says is that the alien, ultimately, is the one who is entitled to the employment visa. The alien's interest in receiving it is therefore within the zone of interests protected or regulated by the statute. Patel has prudential standing to challenge the denial of his prospective employer's petition for an employment visa.
At 7-8:
B.The district court did not decide whether Patel had constitutional standing, but it suggested that he might not. Given that the process for Patel's application (and litigation) has already dragged on for years, we decide the issue here. To establish constitutional standing, Patel must prove that he suffered an injury in fact that is fairly traceable to CIS's conduct and redressable by a favorable decision. See Lujan, 504 U.S. at 560-61. Patel has suffered an injury that is fairly traceable to CIS: the loss of an opportunity to become a permanent resident. The issue is whether that injury is redressable in this lawsuit.
The government argues it is not. Even if the petition's denial is set aside, the government says, it still must approve Patel's application for an adjustment of status. The government suggests that might not happen, in which case this suit would not redress Patel's injury. But the government misunderstands what that injury is. Patel "lost a significant opportunity to receive an immigrant visa" when the CIS denied Peshtal Inc.'s petition on grounds that Patel says were arbitrary. Abboud v. INS, 140 F.3d 843, 847 (9th Cir. 1998). That lost opportunity is itself a concrete injury—and a favorable decision would redress it. Indeed, the record reflects that Peshtal Inc.'s offer of employment to Patel remains open, and the government (to its credit) conceded during oral argument that CIS could grant Peshtal Inc.'s petition if (as Patel contends) the petition's denial was arbitrary and capricious. Patel thus has constitutional standing.
At 8-9:
D.Finally, having determined that Patel had both prudential and constitutional standing in this case, we decline to go further and address the merits of his claim. The dissent notes that in three cases cited in this opinion the appellate courts answered the prudential standing question and "went on to hold . . . that the alien-worker plaintiffs were not entitled to relief on the merits." Dissenting Op. at 12. But in two of these three cases, the district court had already reached the merits of the plaintiffs' claims. See De Jesus Ramirez, 156 F.3d at 1277; Taneja, 795 F.2d at 356. The district court did not do so here, and we therefore leave these arguments for that court's consideration on remand.
* * *
We reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.
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UNITED STATES SUPREME COURT
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak et al., 567 U.S. 209 (2012), (8-1) Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Alito, JJ., joined. Sotomayor, J., filed a dissenting opinion, post, p. 228.
The prudential standing test Patchak must meet “is not meant to be especially demanding.” Clarke v. Securities Industry Assn., 479 U. S. 388, 399 (1987). We apply the test in keeping with Congress’s “evident intent” when enacting the APA “to make agency action presumptively reviewable.” Ibid. We do not require any “indication of congressional purpose to benefit the would-be plaintiff.” Id., at 399–400. And we have always conspicuously included the word “arguably” in the test to indicate that the benefit of any doubt goes to the plaintiff. The test forecloses suit only when a plaintiff ’s “interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Id., at 399.
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https://www.nationalreview.com/bench-memos/judge-kethledge-immigration-laws-faithful-application/
In Patel v. USCIS, Judge Kethledge ruled that an immigrant was permitted to bring his suit — not necessarily to prevail, but just to have his claim heard in court. The government wanted to throw the case out based on a legal doctrine called prudential standing, but Judge Kethledge recognized that he was bound by the Supreme Court’s holding that prudential standing is not “demanding” and is relatively easy to satisfy. Here again, Judge Kethledge knew that his obligation as a lower-court judge was to respect the Supreme Court’s precedent.
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https://www.scribd.com/document/383353230/Van-Don-Nguyen-v-Holder-571-F3d-524-6th-Cir-2009
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https://www.scribd.com/document/383353300/Patel-v-USCIS-732-F-3d-633-6th-Cir-11-Oct-2013
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#34. To: nolu chan (#33)
Interesting that Coulter, who I recall is a proud alumnus of Michigan law, is opposed to the leading jurist who might represent Michigan ably on the Court.
Instead, she's with the Beltway establishment, sticking knives in Kethledge to promote the Swamp's favorite, Kavanagh.
#35. To: misterwhite (#32)
I had one.
But of course you did.
When I was younger, we killed thousands of those destructive little bastards. Never once wanted to wear one on my head. My older brother made decent money at times selling their dead bodies to local fur buyers. Sometimes entire pickup loads of them.
#36. To: Tooconservative (#35)
Weren't a Davy Crockett fan, huh?
#37. To: misterwhite (#36)
Weren't a Davy Crockett fan, huh?
King of the wild frontier, my shiny white hiney.
#38. To: Tooconservative (#35)
Coons are the asshole rodents of the woods... the only good coon is a dead coon.
I'm the infidel... Allah warned you about. كافر المسلح
#39. To: GrandIsland (#38)
Coons are the asshole rodents of the woods... the only good coon is a dead coon.
They are extremely destructive and cunning. Hard to get rid of without just killing every last one of them.
#40. To: GrandIsland (#38)
Coons are the asshole rodents of the woods... the only good coon is a dead coon.
I sense a double meaning here.
#41. To: Tooconservative (#35)
When I was younger, we killed thousands of those destructive little bastards.
Aha. Now I get it. You're upset with yourself that you didn't have the business savvy to sell the skins to Disney.
"At its peak, the frenzy started by Parker's Davy Crockett character helped sell 5,000 coonskin caps a day, causing the price of raccoon fur to jump from 25 cents a pound to $8."
And those are 1955 prices.
#42. To: misterwhite (#41)
"At its peak, the frenzy started by Parker's Davy Crockett character helped sell 5,000 coonskin caps a day, causing the price of raccoon fur to jump from 25 cents a pound to $8." And those are 1955 prices.
Racoon fur was pretty decent at other times. Late Seventies, a few years in the Eighties. Not sure about since then.
I wasn't sure that most of those years that people hunting them with spotlights/flashlights and .22 rifles were making much money by the time you paid for gas to bomb around in a pickup. Some years, a kid could make some decent money that way. Most years, not much.
It was simpler for me. I just wanted those coons dead. Also, skunks and porcupines and badgers and, of course, coyotes. All foul creatures IMO.
#43. To: All, misterwhite, GrandIsland (#42)
In addition to the species I listed above, I forgot to mention my intense dislike of prairie dogs, moles and rabbits. And crows. And certain species of hawks.
Pretty much, I hate all the woodland rodent species and would shoot them on sight if a gun was handy. I'm not even that fond of beavers, very destructive to trees in their vicinity. But I didn't shoot beavers.
#44. To: Tooconservative (#42)
I just wanted those coons dead. Also, skunks and porcupines and badgers and, of course, coyotes. All foul creatures IMO.
Here on the farm we have raccoon, skunk, possum, fox and lots of squirrels. Target rich environment (not the squirrels -- the Goldens love to chase them).
(That would be Doug and Nancy Golden who live next door.)
#45. To: Tooconservative (#43)
In addition to the species I listed above, I forgot to mention my intense dislike of prairie dogs, moles and rabbits. And crows. And certain species of hawks.
Perhaps a list of animals you do like would be shorter.
#46. To: misterwhite (#44)
Target rich environment (not the squirrels -- the Goldens love to chase them).
A squirrel is rarely worth a .22 shell.
Perhaps a list of animals you do like would be shorter.
Much shorter.
#47. To: Tooconservative (#46)
A squirrel is rarely worth a .22 shell.
They would be if you made hats out of them.
#48. To: misterwhite (#47)
I don't think hats made from tree rats are that much in demand.
#49. To: misterwhite (#40)
I sense a double meaning here.
i.e. POTATO.
lol
I'm the infidel... Allah warned you about. كافر المسلح
#50. To: Tooconservative (#39) (Edited)
I’ve had to put five more rounds from a cylinder full of .357, into a coon, just to get that mangy fucker to stop screaming from the first shot I put in it.
I'm the infidel... Allah warned you about. كافر المسلح
#51. To: GrandIsland (#50)
The bigger ones can be incredibly tough, even fairly aggressive.
#52. To: GrandIsland (#50)
I’ve had to put five more rounds from a cylinder full of .357, into a coon,
Ain't that the truth.
#53. To: Tooconservative (#48)
I don't think hats made from tree rats are that much in demand.
It got me curious. I found a website (Chichester, Inc) that sells squirrel pelts -- $20 for Red Canadian Pine Squirrel:#1 Grade. $31.99 for American Gray Squirrel.
This could be your opportunity to sell the critters you slaughter by the thousands.
#54. To: misterwhite (#53)
This could be your opportunity to sell the critters you slaughter by the thousands.
No, I don't shoot them like I used to. Their numbers locally declined rather sharply over the years.
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