Another method available to President Trump is a negotiated Court settlement. The ban on possession of weapons on land administered by the U.S. Army Corps of Engineers is being challenged in the Courts. Court cases in both the Ninth Circuit and in the Eleventh Circuit are active. A Trump administration could order the Corps of Engineers to negotiate a Court sanctioned settlement that would prohibit the Corps of Engineers from ever violating the Second Amendment again. Such Court sanctioned agreements have long been used to create law without congressional approval, law that is impossible to remove by regulatory means.It appears that approach may be underway. From the washingtonpost.com:
The 9th Circuit case was ready for oral argument on March 6. But on March 2, the Corps filed a request to remove the oral argument from the calendar and to put the case into mediation. The motion explained: “The Army Corps of Engineers is reconsidering the firearms policy challenged in this case, as well as plaintiffs’ requests for permission to carry firearms on Army Corps property. This reconsideration has the potential to fully resolve plaintiffs’ objections.”This does not show the Trump administration is behind this change of heart on the part of the Corps. But it seems likely a reversal of policy that occurs a couple of months after a change of administration might be related to that change. Mediation at the Ninth would allow both parties to agree on a settlement. Then the Court would approve of the agreement. Most mediation would be considered certain once both parties approve. But in a politically charged circuit such as the Ninth, such an approach may not be guaranteed. From uscorts.gov:
For over twenty years, the Ninth Circuit Court of Appeals has operated a court mediation and settlement program. During that time, experienced and skilled circuit mediators have worked cooperatively with attorneys and their clients to resolve a variety of disputes. The disputes mediated range from the most basic contract and tort actions to the most complex cases involving important issues of public policy. The mediators have even successfully resolved death penalty cases. No case is too big or too small for mediation in the court's program.The Ninth Circuit claims that what goes on in mediation is strictly confidential, and that mediators are shielded from the rest of the court. But what if the Court abhors the result of a mediation process? What if the Court finds the results of a mediation involves fulfilling a campaign promise of a President that the Court finds ideologically distasteful? Would the Court then approve of such a settlement?
The court offers this service, at no cost, because it helps resolve disputes quickly and efficiently and can often provide a more satisfactory result than can be achieved through continued litigation. Each year the mediation program facilitates the resolution of hundreds of appeals.
We may find out. I do not believe the court is bound by law to approve of settlements reached during mediation. Courts might find a settlement violates law or the Constitution, though I am not aware of such a case. Legal experts, feel free to inform us.
Refusing to order a settlement agreed to by both parties would be unusual. But we live in unusual times. Who would have thought that a Ninth Circuit Court would order that a simple, temporary, executive order on vetting visitors from war torn lands, be halted pending judicial review? The lines between policy making and political review in the courts seem thin indeed.
In the case of Elizabeth Nesbitt, et al v. U.S. Army Corps of Engineers, et al,
we may find out if that line will be crossed when it comes to the Second Amendment and the Corps of Engineers.
update: The sister case in the 11th Circuit, GeorgiaCarry.Org, Inc, et al v. U.S. Army Corps of Engineers, et al, has also been sent to mediation, as of March 7th, 2017, according to californiarighttocarry.org. The question is, are both cases being mediated at the same time, and will the results be national? It seems likely.
©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.