The Anatomy Of Hillary Clinton"s $84 Million Money-Laundering Scheme

Authored by Dan Backer via Investors.com,

In 2014, the Supreme Court ruled in favor of my client, Alabama engineer Shaun McCutcheon, in his challenge to the Federal Election Commission"s (FEC) outdated "aggregate limits," which effectively limited how many candidates any one donor could support.

Anti-speech liberals railed against McCutcheon"s win, arguing it would create supersized "Joint Fundraising Committees" (JFCs). In court, they claimed these JFCs would allow a single donor to cut a multimillion-dollar check, and the JFC would then route funds through dozens of participating state parties, who would then funnel it back to the final recipient.

Democracy 21 President Fred Wertheimer claimed the Supreme Court"s McCutcheon v. FEC ruling would lead to "the system of legalized bribery recreated that existed prior to Watergate." The Supreme Court, in ruling for us, flatly stated such a scheme would still be illegal.

The Democrats" response? Hold my beer.

The Committee to Defend the President has filed an FEC complaint against Hillary Clinton"s campaign, Democratic National Committee (DNC), Democratic state parties and Democratic mega-donors.

As Fox News reported, we documented the Democratic establishment "us[ing] state chapters as straw men to circumvent campaign donation limits and launder(ing) the money back to her campaign." The 101-page complaint focused on the Hillary Victory Fund (HVF) — the $500 million joint fundraising committee between the Clinton campaign, DNC, and dozens of state parties — which did exactly that the Supreme Court declared would still be illegal.

HVF solicited six-figure donations from major donors, including Calvin Klein and "Family Guy" creator Seth MacFarlane, and routed them through state parties en route to the Clinton campaign. Roughly $84 million may have been laundered in what might be the single largest campaign finance scandal in U.S. history.

Here"s what we know. Campaign finance law is incredibly complex and infamous for its lack of clarity. As I"ve explained before, its complexity is a feature, not a bug. Major political players with the resources to hire the very few attorneys who practice campaign finance law benefit from the complexity that keeps others out. Perhaps HVF"s architects thought so too, and assumed that if no one understands what"s happening, no one would complain.

Here"s what you can do, legally. Per election, an individual donor can contribute $2,700 to any candidate, $10,000 to any state party committee, and (during the 2016 cycle) $33,400 to a national party"s main account. These groups can all get together and take a single check from a donor for the sum of those contribution limits — it"s legal because the donor cannot exceed the base limit for any one recipient. And state parties can make unlimited transfers to their national party.

Here"s what you can"t do, which the Clinton machine appeared to do anyway. As the Supreme Court made clear in McCutcheon v. FEC, the JFC may not solicit or accept contributions to circumvent base limits, through "earmarks" and "straw men" that are ultimately excessive — there are five separate prohibitions here.

On top of that, six-figure donations either never actually passed through state party accounts or were never actually under state party control, which adds false FEC reporting by HVF, state parties, and the DNC to the laundry list.

Finally, as Donna Brazile and others admitted, the DNC placed the funds under the Clinton campaign"s direct control, a massive breach of campaign finance law that ties the conspiracy together.

Democratic donors, knowing the funds would end up with Clinton"s campaign, wrote six-figure checks to influence the election — 100 times larger than allowed.

HVF bundled these megagifts and, on a single day, reported transferring money to all participating state parties, some of which would then show up on FEC reports filed by the DNC as transferring the exact same dollar amount on the exact same day to the DNC. Yet not all the state parties reported either receiving or transferring those sums.

Did any of these transfers actually happen? Or were they just paper entries to mask direct transfers to the DNC?

For perspective, conservative filmmaker Dinesh D"Souza was prosecuted and convicted in 2012 for giving a handful of associates money they then contributed to a candidate of his preference — in other words, straw  man contributions. He was sentenced to eight months in a community confinement center and five years of probation. How much money was involved? Only $20,000. HVF weighs in at $84 million — more than 4,000 times larger!

So who should be worried? Everyone involved — from the donors themselves to Democratic fundraisers to party officials who filed false reports and, ultimately, to Clinton campaign and HVF officials looking at significant legal jeopardy.

Don"t take my word for it. Our complaint is built entirely on the FEC reports filed by Democrats, memos authored by Clinton campaign manager Robbie Mook, and public statements from Donna Brazile and others.

The only question that matters: Was the law broken? If the answer is yes, then the corrupt Clinton machine should be held accountable.

Supreme Court To Debate Warrantless Collection Of Cellphone Records

Authored by Derrick Broze via ActivistPost.com,

In one of the most important Fourth Amendment battles of the digital age, the Supreme Court is preparing to tackle a case involving law enforcement accessing cellphone records without a warrant.

On Wednesday the US Supreme Court is scheduled to address the case of Carpenter v. United States to determine whether or not law enforcement should be required to obtain a warrant before accessing the cellphone records of an individual. The case deals with a set of armed robberies that took place between December 2010 and March 2011. Several men worked together to rob RadioShack and T-Mobile stores in the Michigan and Ohio areas, stealing cell phones and holding store employees and customers hostage in the process.

A couple of the men were arrested and quickly confessed afterwards. However, one man remained at large. With one of the suspect’s phones in their possession, the FBI gained access to”transactional records” from various wireless carriers for 16 different phone numbers contained within the phone. These records contained all the location info and call records made to and from the phone. Using the “cell-site records” pulled off the phone, the FBI was able to locate and arrest the final suspect, Timothy Carpenter. He was charged and convicted by a jury of aiding and abetting robbery that affected interstate commerce, and aiding and abetting the use or carriage of a firearm during a federal crime of violence. Carpenter now faces life in prison for his crimes.

The FBI gained access to the cell-site records using provision set forth by the Stored Communications Act, which was passed in 1986 to deal with the protection of information stored digitally. The Act allows the government to force a third-party service provider to provide customer information under the so-called “third-party doctrine,” which states that individuals lose their expectation to privacy when they voluntarily provide private info to email, Internet, and cell phone providers. This lower barrier for accessing personal information allowed the FBI to gain access to the suspect’s cell phone data with a judge’s approval, but without a warrant based on probable cause. This is because the SCA only requires that there are “reasonable grounds” to suspect that the contents of a phone or other electronic communication device will be relevant to an ongoing criminal investigation.

Carpenter has appealed the decision stating that the FBI failed to acquire a warrant before accessing the cell-site records. Earlier this summer the Supreme Court decided they would rule on the matter. The Supreme Court blog states that the issue at hand is, “Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.”

The Fourth Amendment to the U.S. Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” This means the government should only violate these rights upon issuance of a warrant. The government is expected to argue that the SCA supports its decision to obtain the service provider’s location information without a warrant because the information does not reveal the actual contents of communications on the cell phone. In response, Carpenter’s attorneys will likely argue for Fourth Amendment protections and use the case of Riley v. California, which found that warrantless search and seizure of digital contents of cell phones during an arrest in unconstitutional because cell phones hold vast amounts of personal information. Carpenter’s team will attempt to convince the judges that cell phones are completely intertwined with the average American’s life and should be protected.

Carpenter has received support from civil liberties group like the American Civil Liberties Union, as well as the Reporters Committee for Freedom of the Press and 19 other media organizations that have called on the Supreme Court to overturn the guilty verdict and require the government to acquire warrants to access cellphone location data.

The ACLU is arguing that not only is the issue about Fourth Amendment protections for the average American, but that Carpenter v. United States will have important implications on whether or not journalists are protected from revealing their sources. For today’s journalists, cellphones are mobile newsrooms that go where a reporter goes. They’re used to contact sources, record interviews, write notes and articles, take photos and videos, share work on social media, follow breaking news, and more.

“If the court accepts the government’s argument in Carpenter, this would make it easier for the government to obtain cellphone location records and track where reporters have traveled,” the ACLU writes.

 

“This, in turn, can reveal reporters’ newsgathering processes and sources. For example, a journalist’s visits to a government building could indicate that she is working on a piece about a specific agency. This could put the agency on alert and make it more difficult to gather necessary facts. For reporters, leaving a cellphone behind to avoid this scenario is not an option — doing so would hinder their ability to effectively report a story.”

If you care about freedom and privacy you should keep your eyes and ears on the case of Carpenter v. United States. Whatever the court rules will shape the future of how law enforcement handle digital communications as move further into an increasingly digital age where privacy is almost non-existent.

Patriots And Protesters Should Take A Knee For The Constitution

Authored by John Whitehead via The Rutherford Institute,

By all means, let’s talk about patriotism and President Trump’s call for “respect for our Country, Flag and National Anthem.”

At a time when the American flag adorns everything from men’s boxers and women’s bikinis to beer koozies, bandannas and advertising billboards (with little outcry from the American public), and the National Anthem is sung by Pepper the Parrot during the Puppy Bowl, this conveniently timed outrage over disrespect for the country’s patriotic symbols rings somewhat hollow, detracts from more serious conversations that should be taking place about critical policy matters of state, and further divides the nation and ensures that “we the people” will not present a unified front to oppose the police state.

First off, let’s tackle this issue of respect or lack thereof for patriotic symbols.

As the U.S. Supreme Court has made clear, Americans have a right to abstain from patriotic demonstrations and/or actively protest that demonstration, for example, by raising one’s fist during the Pledge of Allegiance. Likewise, Americans have a First Amendment right to display, alter or destroy the U.S. flag as acts of symbolic protest speech.

In fact, in Street v. New York (1969), the Supreme Court held that the government may not punish a person for uttering words critical of the flag. The case arose after Sidney Street, hearing about the attempted murder of civil rights leader James Meredith in Mississippi, burned a 48-star American flag on a New York City street corner to protest what he saw as the government’s failure to protect Meredith. Upon being questioned about the flag, Street responded, “Yes; that is my flag; I burned it. If they let that happen to Meredith, we don’t need an American flag.”

In Spence v. Washington (1974), the Court ruled that the right to display the American flag with any mark or design upon it is a protected act of expression. The case involved a college student who had placed a peace symbol on a three by five foot American flag using removable black tape and displayed it upside down from his apartment window.

Finally, in Texas v. Johnson (1989), the Court held that flag burning was protected speech under the First Amendment.  The case arose from a demonstration near the site of the Republican National Convention in Dallas during which protesters marched through the streets, chanted political slogans, staged “die-ins” in front of several corporate offices to dramatize the consequences of nuclear war, and burned the flag as a means of political protest.

In other words, if freedom means anything, it means that those exercising their right to protest are showing the greatest respect for the principles on which this nation was founded: the right to free speech and the right to dissent. Clearly, the First Amendment to the Constitution assures Americans of the right to speak freely, assemble freely and protest (petition the government for a redress of grievances).

Whether those First Amendment activities take place in a courtroom or a classroom, on a football field or in front of the U.S. Supreme Court is not the issue: what matters is that Americans have a right—according to the spirit, if not always the letter, of the law—to voice their concerns without being penalized for it.

Second, let’s not confuse patriotism (love for or devotion to one’s country) with blind obedience to the government’s dictates. That is the first step towards creating an authoritarian regime.

One can be patriotic and love one’s country while at the same time disagreeing with the government or protesting government misconduct. Indeed, real patriots care enough to take a stand, speak out, protest and challenge the government whenever it steps out of line.

It’s not anti-American to be anti-war or anti-police misconduct or anti-racial discrimination, but it is anti-American to be anti-freedom.

America requires more than voters inclined to pay lip service to a false sense of patriotism. It requires doers—a well-informed and very active group of doers—if we are to have any chance of holding the government accountable and maintaining our freedoms.

After all, it was not idle rhetoric that prompted the Framers of the Constitution to begin with the words “We the people.”

This ultimate responsibility for maintaining our freedoms rests with the people.

Third, we need to stop acting as if showing “respect” for the country, flag and national anthem is more important than the freedoms they represent.

Listen: I served in the Army. I lived through the Civil Rights era. I came of age during the Sixties, when activists took to the streets to protest war and economic and racial injustice. As a constitutional lawyer, I defend people daily whose civil liberties are being violated, including high school students prohibited from wearing American flag t-shirts to school, allegedly out of a fear that it might be disruptive.

I understand the price that must be paid for freedom. None of the people I served with or marched with or represented put our lives or our liberties on the line for a piece of star-spangled cloth or a few bars of music: we took our stands and made our sacrifices because we believed we were fighting to maintain our freedoms and bring about justice for all Americans.

Love of country will sometimes entail carrying a picket sign or going to jail or taking a knee, if necessary, to preserve liberty and challenge injustice. And it will mean speaking up for those with whom you might disagree. Tolerance for dissent, we must remember, is a vital characteristic of the citizens of a democratic society.

The problems facing our generation are numerous and are becoming incredibly complex.

As I make clear in my book Battlefield America: The War on the American People, we’re at a very crucial crossroads in American history. We have to be well-informed, not only about current events but well-versed in the basics of our rights and duties as citizens. If not, in perceived times of crisis, we may very well find ourselves in the clutches of a governmental system that is alien to everything for which America stands.

Therein is the menace to our freedoms.

So stop falling for the distractions. Stop allowing yourself to be fooled by propaganda and partisan politics. Stop acting as if the only thing worth getting outraged about is whether a bunch of football players stand or kneel for the National Anthem.

Stop being armchair patriots and start acting like foot soldiers for the Constitution.

Appeals Court Rules Against San Diego Unions: First of Many Taxpayer Victories To Come

Authored by Mike Shedlock via MishTalk.com,

In 2012, San Diego voters gave Landslide Approval to Proposition B, which eliminated defined-benefit pensions for newly hired city workers except for police.

In December of 2015, the state Public Employment Relations Board, a bastion of Union sympathizers, ordered the city to make millions of dollars of retroactive payments to workers hired since the law took effect.

The city appealed. Today we have a very welcome ruling for taxpayers: An Appeals Court overturned the PERB Ruling.

“This is a victory for the citizens of San Diego and the state of California,” said taxpayer advocate April Boling, one of three who filed court appeals. “The court agreed citizens can take matters into their own hands through the initiative process and support of elected officials does not somehow trigger the requirement for union negotiations.”

Since the provisions of the ballot measure were implemented, most new employees have been offered 401k-style plans.

The proposition was opposed by organized labor groups, which took their case to the PERB.

The city contended that private citizens don’t have to negotiate with organized labor before proceeding with a ballot measure, and that even though municipal officials like then-Mayor Jerry Sanders backed Proposition B, they did so on their own time.

A three-justice panel of the Fourth District Court of Appeal returned the case to PERB with directions to dismiss the union complaints.

The justices also called on PERB to order other “appropriate relief” consistent with the views they expressed in their opinion, and determined that each side to the litigation will bear its own costs.

First of Many Court Victories to Come

This is the first of many court rulings that will have unions reeling.

I discussed why previously on December 28, 2016, in Good News in Battle Against Public Union Greed and Corruption.

The election of Donald Trump is likely to do at least one good thing for the country (and that’s at least one more good thing than we would have seen had Hillary won).

Trump gets to make the next Supreme Court appointments and he has a great chance to clobber the public unions.

Already the SEIU is putting out warnings. An internal memo outlines plans to slash budgets by 30 percent at SEIU, the group behind the Fight for $15.

Victory Postponed

When Supreme Court Justice Antonin Scali unexpectedly died on February 13, 2016, after hunting quail, I was dismayed by the impact that might have on union rulings.

Sure enough, on March 29, the Supreme Court Handed a Major Victory to the Unions in a 4-4 tie, upholding an Appeals court ruling on union fee collection.

The Supreme Court handed organized labor a major victory on Tuesday, deadlocking 4 to 4 in a case that had threatened to cripple the ability of public-sector unions to collect fees from workers who chose not to join and did not want to pay for the unions’ collective bargaining activities.

It was the starkest illustration yet of how the sudden death of Justice Antonin Scalia last month has blocked the power of the court’s four remaining conservatives to move the law to the right.

A ruling allowing workers to refuse to pay the fees would have been the culmination of a decades-long campaign by a group of prominent conservative foundations aimed at weakening unions that represent teachers and other public employees. Tuesday’s deadlock denied them that victory, but it set no precedent and left the door open for further challenges once the Supreme Court is back at full strength.

Gorsuch Replaces Scalia

Scalia is gone but via a nuclear option, Gorsuch Heads for Supreme Court.

One is never 100% sure how justices will rule, but there is an overwhelming likelihood that Clinton would have appointed a union sympathizer who would have further wrecked taxpayer and city budgets.

Instead, there is a very strong likelihood, Gorsuch will stick it to public unions every chance he gets.

At long last, the court has a chance to make some very important rulings that put money into taxpayers’ pockets while lowering the costs of cities doing business.

However, the Supreme Court cannot fix everything that needs to be fixed by itself. Congressional help is needed.

I call on Republicans in Congress to do four things.

Four Things

1. Kill collective bargaining for public unions


2. Pass national right-to-work legislation


3. Scrap Davis-Bacon and all prevailing wage legislation


4. Pass national bankruptcy laws allowing cities and municipalities to declare bankruptcy

Victory at Hand

Point number four above will allow insolvent cities in Illinois, California, and other places escape preposterous pension obligations via bankruptcy.

Victory over public unions is possible. All Republicans have to do is the right thing.

Note to Senator Rand Paul: Please lead the victory charge.

Court Of Appeals Unanimously Rejects Trump's Travel Ban: Full Ruling

In a decision that will hardly come as a surprise, the 9th Circuit Court of Appeals has unanimously (including one GOP appointee) ruled for the U.S. to remain open to refugees and visa holders from seven Muslim-majority countries while the Trump administration fights to reinstate a travel ban in the name of national security.

The San Francisco-based appeals court on Thursday denied the government’s request to close the doors after days of public debate over President Donald Trump’s attacks on the judicial system and a rush of fearful immigrants. The ruling increases the likelihood that the administration will ask the Supreme Court to step into a case that’s the biggest test of Trump’s executive power yet.

The government had made a request to reinstate the measure on an emergency basis, which the judges considered to be unwarranted.

"We hold that the government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay."

The three-judge panel hearing the case included Judges William C. Canby Jr., a Jimmy Carter appointee; Richard R. Clifton, a George W. Bush appointee; and Michelle T. Friedland, a Barack Obama appointee.

"Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree," they wrote.

"In short, although courts owe considerable deference to the President"s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."

Trump made a brief remark to reporters in the West Wing, calling the ruling “a political decision" and saying national security is at stake, according to NBC News. The appeals court refused to reinstate Trump’s order after a Seattle judge halted enforcement while courts decide whether it’s constitutional. “The courts seem to be so political,” Trump said in a speech on Wednesday. “It’s so sad."

The president’s action initially denied entry to an Iraqi who helped U.S. military, professors at University of Massachusetts and a student seeking to bring her daughter for medical treatment. The ban set off angry protests nationwide and attracted a flurry of lawsuits and adverse rulings. None was more sweeping than that of U.S. District Judge James Robart in Seattle. Washington and Minnesota won the order temporarily blocking the ban nationwide after arguing it hurt their residents and employers including Microsoft, Amazon.com Inc. and the Mayo Clinic.

* * *

The administration can now ask the Supreme Court to immediately intervene, which most legal experts think is likely, or wait until a ruling on the preliminary injunction order. The high court is currently shorthanded with eight justices. If there is a split decision, the lower court’s ruling would be upheld.

As The Hill reports, Sen. Tom Cotton (R-Ark.) blasted the court Thursday night, saying Trump’s order is “plainly legal under the Constitution and our immigration laws” and warning that “courts ought not second-guess sensitive national-security decisions of the president.” 

“This misguided ruling is from the Ninth Circuit, the most notoriously left-wing court in America and the most reversed court at the Supreme Court. I"m confident the administration"s position will ultimately prevail."

Critics of the travel ban came out quickly to cheer the decision: "President Trump ought to see the handwriting on the wall that his executive order is unconstitutional. He should abandon this proposal, roll up his sleeves and come up with a real, bipartisan plan to keep us safe," Senate Minority Leader Charles Schumer (D-N.Y.) said. 

Bernie Sanders added that the court ruling could "teach President Trump a lesson." 

"Hopefully, the unanimous court ruling against President Trump’s immigration ban will restore some of the damage he has done to our country’s reputation around the world," the former Democratic presidential candidate said in a statement minutes after the ruling came down.

Then there was a tweet from the Washington Attorney General who started all of this:

DENIED. UNANIMOUS. PER CURIUM.

— WA Attorney General (@AGOWA) February 9, 2017

And, of course, Hillary Clinton:

3-0

— Hillary Clinton (@HillaryClinton) February 10, 2017

... to which however there was an apt reaction:

0-2 (2008,2016) https://t.co/ijiGbWg38T

— DanRiehl (@DanRiehl) February 10, 2017

* * *

However, it was Trump"s tweeted response that made it clear what the next step is: 12 words, ALL CAPS, and all making it clear that Trump won"t let it go without a Supreme Court showdown, because just moments after the Appeals Court ruling was released, Trump tweeted the following:

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

— Donald J. Trump (@realDonaldTrump) February 9, 2017

Concurrently, the US Department of Justice has said that it is reviewing the Appeals Court decision on the Trump travel ban and is "considering its options."

DOJ Reax to 9th Circuit Decision: “The Justice Department is reviewing the decision and considering its options.”

— Paula Reid (@PaulaReidCBS) February 9, 2017

What are next steps?

1. Do nothing.


2. Seek an emergency stay


3. Petition for certiorari before judgment, in the Supreme Court of the United States

Based on the Trump tweet, the option the President will pick is clear: showdown at the Supreme Court.

* * *

Some key excerpts from the ruling.

To rule on the Government"s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.

The Opinion starts with Due Process, and rejects the assertion that aliens are not entitled to due process:

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.

Here is the Court saying that Green Card holders have Due Process rights, as do all people on US soil:

First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States... There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.

Here the Court is dismissive of Trump"s DOJ claim that the ban is necessary for security, adding there is "no evidence" that aliens from the seven countries perpetrated terrorist attacks:

the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.  Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.  We disagree.

The court rejecting the argument that a TRO should be narrowed in scope, noting that citizens may have interests for non-citizen travel:

First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States. There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.

On the government"s lack of demonstrated authority that a memo from White House Counsel supersedes the Exec Order.

The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.

Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.as

The Court faults the government for submitting "no evidence" to justify the change in long-standing national security policies.

The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.

The Court ends by emphasizing that it has considered national security, but tips towards free flow of travel and freedom from discrimination.

Finally, in evaluating the need for a stay, we must consider the public interest generally. See Nken, 556 U.S. at 434. Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.

The punchline and the one sentence that will infuriate Trump, is the following in which the court says it is "beyond question" that the courts have the authority to oversee the President.

In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.

The fight, however, is far from over. The court battle so far has focused on whether the president’s order should be paused while courts weigh larger issues. Robart already ordered both sides to submit additional arguments focusing on the substance of the case: whether the states have a right to sue and whether Trump’s order discriminates against Muslims.

Ultimately, the case is likely to end up before the US Supreme Court, although the next three immediate steps are to 1). do nothing, 2) seek an emergency stay, or 3) cert before judgment, i.e., petition the US Supreme Court.

The most likely outcome is the last one.

The full ruling is below:

Appeals Court To Hear Immigration Ban Arguments On Tuesday Evening

On Monday evening, a Federal Appeals Court announced that the legal showdown with the Trump Administration will take place on Tuesday evening around 6pm, when the 9th U.S. Circuit Court of Appeals will hear oral arguments on whether to restore President Trump’s executive action on immigration and refugees. Oral arguments will be made by phone, with each side getting 30 minutes of argument time. A recording of the call will be made public after the hearing.

At around the same time, the Justice Department filed a brief with the Court of Appeals in support of President Donald Trump’s travel and refugee ban. The filing said the Trump administration executive order that bans travelers from seven nations is a “lawful exercise” of presidential authority. A federal judge in Washington state put the order on hold Friday.

“The court’s sweeping nationwide injunction is vastly overbroad,” the administration said of a Seattle judge’s ruling Friday that halted PresidentDonald Trump’s plan. After the filing, a three-judge panel of the appeals court scheduled a hearing by phone for Tuesday at 3 p.m. in San Francisco.

As Bloomberg recaps, since the Seattle judge’s ruling, refugees and travelers have been rushing to the U.S. before another legal turn closes the door. The 11 days since Trump’s Jan. 27 executive order have been chaotic as travelers were initially stranded at airports, protests raged worldwide and a litany of lawsuits were filed across the country. "Companies, universities, citizens and refugees have sought relief from the courts in crucial tests of the president’s unilateral ability to decide who threatens the nation."

The question before the federal appeals panel in San Francisco is narrow, springing from a case brought by Washington and Minnesota, which argued that the ban was unconstitutional and that their economies were being harmed. U.S. District Judge James Robart in Seattle temporarily halted Trump’s ban on Friday. The Justice Department seeks to void that order. The loser is likely to appeal to the U.S. Supreme Court.

If the Trump administration loses its appeal, the case will go back to the Seattle court, where Robart would weigh whether to reject the ban on a longer-term basis. The administration reiterated that Congress has granted the president “broad discretion to suspend the entry of any class of alien into the country.” It also argued that an alien outside the U.S. has no substantive right for a judicial review of a denial of a visa. Nor, do the states have a right to act on their behalf, government lawyers said.

The order doesn’t violate the Constitutional rights of lawful permanent residents, the government argued. The executive order is “neutral with respect to religion,” it said.

If the government fails to persuade the appeals court to block the order, it might petition the Supreme Court to intervene. Five of the eight justices would be needed to reverse that decision. However, Kathleen Kim, a professor at Loyola Law School in Los Angeles said “I think it’s unlikely this makes it to the Supreme Court,” adding  “I believe that if the Supreme Court wants to maintain its integrity as a majoritarian body serving as a legitimate system for checks and balances, it will not consider an appeal.”

That would leave the merits of the arguments to be debated in a Seattle courtroom, with the case and perhaps others making their way to the top court for review in months or even years - especially if appeals courts issue conflicting rulings on whether it’s legal. The immigration case has already cropped up in the confirmation process for Supreme Court nominee Neil Gorsuch, with Democrats questioning whether he would be able to check Trump’s exercise of executive power. Gorsuch, a conservative who favors originalism when interpreting the Constitution, could be the tie-breaking vote on the currently split court.