I see that the President has referred to the judge in the Immigration Executive Order (EO) as a “so-called” judge. I thought this was unfortunate, not to mention bad tactics … but after listening to the oral arguments about the EO, I understood more about where he was coming from.
The astounding part to me was that both the Judges and the lawyer for Washington State were discussing statements made by then-candidate Trump and by Rudy Giuliani, in order to determine whether this was really a “Muslim ban” in disguise.
The argument the lawyer made and the three-judge panel is actually considering is that if the Judges determine that the President acted with bad intent, if he crafted the law in response to some ignoble impulse to ban Muslims, that is a reason in the scales of justice to find in favor of the plaintiffs.
Now, hold it right there. Just stop. Think for a moment about what they are saying. Here’s their claim:
If they find the President acted from bad motives, that is a reason to find his actions illegal.
And of course, this has the opposite and in some sense more interesting corollary:
If they find the President acted from noble motives, that is a reason to find his actions legal.
Say what? These three good folk have set themselves up to judge legality, not based on the ACTUAL LAW, but based on their own assessment of the Presidents motives?
The idea of considering the statements of candidate Trump and some random interview of Rudy Giuliani in this context is the most moronic thing I’ve ever heard come out of a judge’s mouth. I can see why Trump calls folks like this “so-called Judges”. A judge is supposed to look at what the law actually says. Not what Rudy Giuliani said about the law. What the law says. Not what Elizabeth Warren said about the law. What the law says. Not what Candidate Trump said about the law.
The only valid point at issue is WHAT THE LAW ACTUALLY SAYS! Appeals court judges are not the morality police, they weren’t appointed to decide which lawmaker is a good person and whether their motives are pure.
The question they should be discussing is whether the Immigration Executive Order is legal according to what the various laws ACTUALLY SAY about Presidents and EOs. In other words, does the Executive Order ACTUALLY BAN MUSLIMS OR NOT? Does the Executive Order ACTUALLY INSTITUTE A RELIGIOUS TEST OR NOT?
Hey, protip to the Judges! Sometimes good men write bad laws … however, the fact they are good men is NOT a reason to find their bad laws legal. Even granting that the authors of a given law were busy paving their particular road to hell with only the finest of truly pure and good intentions … so freakin’ what? It’s still the road to hell …
I dunno … maybe living seventeen years in the South Pacific Islands has something to do with it, but I swear I just turned around, and suddenly we have judges who seem to think that their political moralizing, and what Rudy said, is more important than the law itself.
Huh? I’d heard that the Ninth Circuit Court was both the most liberal and the most-reversed Circuit Court in the land, but I had no idea it had gotten to the level of Judge Judy … actually, I take that back, it’s an insult to Judge Judy …
I can see why this would set the President’s hair on fire … that kind of judicial malfeasance angrifies my own blood mightily. It’s still bad tactics to call them out, but certainly understandable.
Rainy day, I can only see about a hundred feet (30m) into the mist … reminds me of the song:
When you’re in the Little Land, they fill your hands with gold,
You think you’ll stay for just a day, you come out bent and old.
Dead leaves in your pockets, snowflakes in your hands,
Run, run from the little folk,
Or you’ll have dead leaves in your pockets, and snowflakes in your hands …
For all of you, sunlight far-reaching on the boundless sea …
w.
PS: As always I ask that if you comment, please QUOTE THE EXACT WORDS YOU ARE REFERRING TO. I’m happy to discuss and defend my own words. I cannot comment on your personal interpretation of unknown words of mine.
PPS: Don’t get me started on the question of Judge James Robart, the man who stayed the Immigration Order, the man President Trump described as a “so-called Judge”. From Reason (emphasis mine):
Remember Amherst College student “John Doe,” who was expelled for sexual misconduct, even though he had good reason to believe that his accuser had actually assaulted him? A judge recently blocked Doe’s attempt to subpoena his female accuser’s text messages on grounds that re-litigating the matter “would impose emotional and psychological trauma” on her.
Consider the implications of this decision. According to Seattle District Judge James Robart, a student who believes Amherst violated his due process rights, wrongfully expelled him, and ignored subsequent evidence that his accuser, “Sandra Jones,” was the actual violator of the college’s sexual misconduct policies, does not deserve the opportunity to make his case because someone else’s feelings are more important.
Come for the tragedy … stay for the miscarriage of justice … my further thoughts on the subject of kangaroo courts on campus are here.
Skating Under The Ice 
It is just a little odd that with all these lawyers around spouting off, the smartest person in the story is a guy from Brooklyn.
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I agree with your general tone, but intent is a significant point in the application of US law. Intent easily makes the difference between First and Second Degree murder.
I’m no legal expert, maybe Rud will chime in, because I don’t know if there is historical precedent for considering intent when drafting and passing laws.
I support the Trump’s executive order, I think it’s grounded in law. I’m just not sure those counter arguments are as weak as you maintain. And in saying this I mean I really don’t know. I’m not passive-agressively hiding behind a weak assertion.
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charles the moderator February 8, 2017 at 4:14 pm
Thanks, Charles, but the difference is, in this case it is not a person on trial. It is a LAW on trial.
A person has intent, and that intent as you point out is important.
A law has no intent. It is just the text. It means what it says. Heck, people pass laws all the time whose effects are the reverse of what they intended … why?
Because THEIR INTENT DOESN’T MATTER. Only the law matters.
Best regards to you and yer outlaws,
w.
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“A law has no intent”
I beg to differ. The intent of the law under discussion is to make people living in the US safer from terrorist attacks by people from seven nations.
If the intent of the drafters of the law is to exclude a group that they are not allowed to exclude, but they frame it and write it so it doesn’t note that clearly, but intentionally gives the drafters plausible deniability, then that intent MAY, I emphasis MAY be relevant.
Again, I don’t know if there is any precedent for this, but I can see that there might be.
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charles the moderator February 8, 2017 at 10:39 pm
Thanks for the reply, Charles. I see I wasn’t clear.
What the judges are (wrongly) looking at the intent of the LEGISLATOR, which is meaningless. For example, as I said above, people pass laws that end up doing something opposite to what the person who wrote the law might have intended, because they weren’t careful with the wording.
But once the law is passed, the legislators intentions don’t count. At that point the law just does what its text says it does. Heck, there are laws that were passed and one crucial word left out … do you think a judge can just wave his hands and say “well, the intent of the lawmaker was the opposite” and presto, everything will be OK?
No way. A law says what it says, even if per Pelosi we have to pass it to see what it says.
Now if the legislators were on trial, then their intentions would indeed be relevant. Humans have intentions. But the legislators are not on trial. The LAW is on trial, so the intentions of the legislators don’t matter.
Finally, I would not say a law has an intent. The intent of President Trump in framing the EO was to “to make people living in the US safer from terrorist attacks by people from seven nations.” But that’s the intent of the lawgiver, not the law. Laws don’t have “intent”, they have meaning. They allow things. They forbid things. They restrict things. They permit things.
But the intent of the restrictions or permissions is inherent in the legislator, not in the law.
Thanks as always,
w.
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There is the concept of legislative intent: https://en.wikipedia.org/wiki/Legislative_intent
I’d say this opens the door to this line of legal inquiry. That said, the door should slam shut pretty fast if there is no ambiguity in the statute (or executive order).
“When a statute is clear and unambiguous, the courts have said, repeatedly, that the inquiry into legislative intent ends at that point. It is only when a statute could be interpreted in more than one fashion that legislative intent must be inferred from sources other than the actual text of the statute.”
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Not to disagree with the main point of this post, but wasn’t that exactly what happened with the “Roberts rule” in the SCOTUS decision on Obamacare?
First the majority found there wasn’t enough legal spandex in the world to stretch the commerce clause to cover the individual purchase mandate. But then Justice Roberts reasoned that if they had called it an income tax, it would have been permissible, so he gave it to them anyway.
But it wasn’t a tax; everybody said it wasn’t a tax. If it had been a tax then it must under Article 1, section 7 have originated in the House. When it was introduced the sponsors said it wasn’t a tax. The government briefs filed all gave the commerce clause as the constitutional nexus for the law. In oral arguments government attorneys affirmed that. Johnathan Gruber admitted, even bragged, that they knew when they put it together that ACA wouldn’t pass if it were called a tax, so they designed it to avoid that designation.
But the “Roberts rule” allows the courts to in effect re-write the government’s arguments on their behalf, should they come to the court on their own with an inadequate one.
In the second SCOTUS decision on ACA, they specifically ignored the actual wording of the bill (subsidies are only available to people who sign up with a state-provided exchange) in order to preserve the “intent” of the law. How they managed to divine intent in a 2,000+ page bill which they even joked about not actually reading was left unstated.
Sorry for the side-tractoring of your post, but the courts can and do abuse their authority in exactly this way.
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Yes, but you can’t argue for a 1st degree murder change based on intent when nobody is actually killed.
If the text of the order cannot be reasonably construed to ban entry of all Muslims, and if the administration of the order does not have the effect of banning all Muslims, then it’s not a Muslim ban.
It wouldn’t matter anyway, the statutory basis for the order permits both temporary and permanent exclusions of any alien or class of aliens; see Randy B’s comment below.
Besides, if you’re going to impute intent to a statute based on what is said in public discussions, then the courts could void laws if they didn’t end up being what politicians said they would be when offered. Most recently, the same guy who said “elections have consequences” also promised “if you like your doctor you can keep your doctor”.
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I am a legal expert. Mens rea (or intent) may be an element to be considered in many criminal statutes, but the President’s Executive Order is not a criminal statute. His actions are clearly authorized by section 212(f) of the Immigration and Nationality Act (8 U.S.C. 1182(f)). The only way a court can strike down his Executive Order is to rule that this statute is unconstitutional.
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Good question. See long reply below. All the intent needed here is imbedded in the written language of the EO and the underlying Statute. Washington’s pathetic attempt to argue otherwise in this situation fails on both fact and law. Very different than criminal law, where intent changes the nature of the crime and therefore the legislated punishment.
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From the left, it is always about emotions. The brain always goes wanting!
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Judges have no bias, that is why they are appointed by the political party currently in favor.
Sucks to be out of favor when the vacancies present themselves.
I think I’ll just place my trust in ….. karma.
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The country has been hijacked by lawyers. The legal system does not seek a truth; it just makes sure that the better lawyer wins. It is the heart of the swamp.
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CG, there are too many lawyers and lawsuits, yes. In my opinion there are too few good lawyers, as the appellate arguement here unfortunately showed. If anything, the system has been hijacked by too many laws and regulations which need lawyers to wade through.
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The Constitution is what, 12 to 18 pages long including amendments? the basic full law of the land. And today, it takes 600 pages to pass a budget, 2000 pages to pass obamacare or the patriot act. There is no reason that a law is more than 5-10 pages long. The Supreme Court is “supposed to” determine if a LAW meets the Constitutional test. It isn’t supposed to determine if 1800 pages meets the test and 200 pages fail. If a sentence fails, the law should be rejected.
However, when a “good lawyer” goes to court and argues in circle logic and gets heads spinning, bad judgments come out of it. Obamacare should have been thrown out – as should have the Patriots Act and all the other “Constitution busting” laws that have been passed, on the first sentence that does not meet the Constitutional test. We are not supposed to have judges at any level “interpreting” law or intent of it, we are supposed to have judges abiding by law. But “good judges” are usually equated with “good lawyers” as well. That doesn’t mean they can’t interpret what the sentence should be, however.
The trouble is, your Aunt Hattie probably would be a better Supreme Court judge than the finest lawyer in the nation. All you need to know and truly understand is what is said in the Constitution. you don’t need to know 2 million pages of federal code. If that were to happen, you would suddenly see laws being passed that are only 10 pages or under in length, and the people could once again understand what laws say.
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In United States constitutional law, plenary power is a power that has been granted to a body, or person, in absolute terms, with no review of, or limitations upon, the exercise of that power. Given the text of the statute under which Trump is operating here, 8 U.S.C. §1182(f)) [*], it seems all this case could be about is whether the President is granted plenary powers by this statute.
[*] (f) Suspension of entry or imposition of restrictions by President
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
https://www.law.cornell.edu/uscode/text/8/1182
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The more I think about what’s going on the more I’m worried that a single judge or even a panel of judges can stop the President from invoking a law that the President feels is necessary to protect the US. It’s even one thing for the Supreme Court to do it as a violation of the Constitution but here we have a judge implementing a stay which doesn’t even address the applicable law. What if this had been a national emergency involving an imminent threat to the country (which this may well be)? A single judge can decide the that the President can’t mobilize troops or emergency personnel? How can we prevent an extremist (which this judge appears to be) from downright illegal actions? In the long run things can be done, but in the mean time irreparable harm might occur. Frankly what that judge is doing should be grounds for impeachment.
I don’t know if it’s “protocol” but couldn’t Chief Justice Roberts step in and “stay the stay” until the Supreme Court can weight in?
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This is the NINTH Court of Appeals, it is to be expected. They get overturned a lot at the Supreme Court.
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They seem to be improving but in the wrong direction:
“But in 2010, perhaps seeking to reclaim its position at the top of the heap, the Ninth Circuit was reversed a startling 19 times (79 percent), three times as many reversals as most circuits had cases before the Supreme Court. The same pattern continued in the 2011 (71 percent) and 2012 terms (86 percent), when the Ninth Circuit was reversed more than twice as many times as most circuits had cases before the Court.”
http://www.nationalreview.com/bench-memos/373273/ninth-circuit-leading-pack-most-reversed-jonathan-keim
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And Lord knows how many people were persecuted by this “so-called-judge” and didn’t have the resources to take it to SCOTUS.
Citizens whose lives were turned upside down and literally destroyed by this man of the robe and others like him.
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I wonder if there’s not some overcompensation for the probable teasing (some would call it bullying) resulting from the classic thumb-sucker’s overbite. Is this “lookism”? Why, when there’s much more fertile ground there.
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” Does the Executive Order ACTUALLY INSTITUTE A RELIGIOUS TEST OR NOT?”
This does not apply to an EO. Article VI of the Constitution, in the third paragraph, contains the words “no religious test” but these words are followed by “shall ever be required as a qualification to any office or public trust under the United States.” There is no reference to using or not using any religious test in crafting laws other than the First Amendment which prohibits the government from establishing a religion. So that argument is moot. And of course this EO is about certain countries not religions as evidenced by having no restrictions on any other countries who have a majority of Muslims.
h/t Rush Limbaugh
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afaik
Keeping the bad guys away from our shores is a job for POTUS and his hired guns.
The US Constitution was written to describe how our government treats people.
I don’t believe our founding fathers argued to send troops to Sudan if one of their citizen’s were denied the ability to speak in protest.
The US Constitution is N/A for non-citizens until they reaches our shores.
Even then, remember what Clinton did to Elian Gonzales?
He sent him back to communist Cuba with complete support from the left.
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RE: “(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization. ”
The central argument is that the order discriminates on the basis of religion, but it only envisages doing this if, after the 120 day ban, it prioritises non-muslim refugees, to the extent permitted by the law. So, if the law does not allow changes to prioritise non-muslims, on the basis that they are unlikely to be Islamist terrorists, then the order does not allow for this to happen. Ergo it seems to me that the order is neither un-constitutional nor illegal. The order anticipates that legislation may be required to enable this. However, given that no such prioritisation can take place until such legislation is passed, there is no legal or constitutional problem with the order being enacted as it stands… just my theory.
It seems that the “cruel and unreasonable” unconstitutional and illegal part of the order is that it discriminates on the basis of religion by suggesting that non-muslims may not be an Islamist terror threat… and should be prioritised for refugee status.
The order itself doesnt propose anything illegal or unconstitutional. Just suggests that its a good idea to have a pause in immigration from six countries that previous US administration has dropped 100,000 bombs on, and Iran, that has been at political loggerheads with the US since the late -seventies and is now making threatening missile tests. It seems clear that many citizens from these countries could reasonably assume that they are in a state of war with the US, based on politics not religion.
If you are a Christian from one of those countries you are likely to hate your own countrymen more than Americans and probably don’t need such extreme vetting; as this small demographic within the seven countries is likely to have a more obvious and more easily verifiable claim for refugee status, it is logical that the order should consider legislation to redress the fact that currently the Constitution impedes the clear moral imperative to help these people
However, if the order is amended to remove this clause its effectively the same as what Obama was doing, and therefore legal and constitutional because it would no longer acknowledge that non-muslims from the seven countries are less likely to be terrorists and should be given preferential treatment.
Helping the Christians would require legislation. The order acknowledges they can’t do that yet, but it would be unconstitutional and illegal only if they did so without passing new legislation,
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it does not require legislation to prioritize those suffering from religious persecution, That is not prioritizing one religion over another, it is prioritizing one type of refuge over another.
This is a type of prioritization that we have a lengthy history of supporting, and one where the lack of it is recognized as having been a mistake in the past (Jews prior to WWII)
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It seems obvious to me to that you should be right David, which is why I am so confused by the the way the law seems to be being interpreted here… The order anticipates that there may be a need for legislation for clarification that religious persecution may create a need to give preference to refugees from a particular persecuted minority group, and as you point out, there have been good precedents for this in the past, such as the example of the Soviet jews that you cite. My point is that, to my mind, the order successfully anticipated the dubious interpretation of the law by the ninth Circuit, and in so doing should be seen to circumvent the accusation of illegality and unconstitutionality.
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It seems to me that all of Trump’s EOs have included the clause “to the extent permitted by law”. (all the ones I have read do, I haven’t read all of them)
This seems to me to be boilerplate to try and head off people going to court claiming that these EOs are illegal (as they are always limited to what the law allows)
It also seems to me to be a recognition that regulations and EOs are NOT laws, they are supposed to define how the laws are implemented.
An EO that says to do something illegal should be challanged in court
An EO that says “enforce existing laws” should never be needed, and it’s a sad thing that Trump has had to issue orders saying this.
regulations are not the law, they are in place to support the law (people tend to get this backwards)
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Think about all the nuttiness here in California, and then consider the type of judges that the Governor would appoint.
This explains the 9th circuit.
it doesn’t help at all that the 9th circuit territory was defined a long time ago, and population growth in California means that there are far more people living under the 9th circuit than any other circuit. I saw today that there is an effort being discussed to move some of the states currently in the 9th to a different circuit, but I don’t know how well that would end up working.
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Federal judges are all appointed by the President and confirmed by the Senate. Moonbeam can screw up California state courts. It took Obama to do that in the west coast federal courts.
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Sitting US Senators in the states get a vote of sorts via the blue slip process. Typically a president trades 2-3 of the type judges he wants to appoint to the federal bench for 1-2 of the type judges the sitting senator wants. In Cali for a long time those senators were Feinstein and Boxer. If president and senators are from the same party, all works well. If not, we get judges like Robart courtesy of Patty Murray (D, WA). Cheers –
Click to access Blue-Slips.pdf
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unfortunantly for that theory, the 9th circuit has been extreme for a lot longer than Obama has been in politics, let alone President.
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Which is almost the same amount of time.
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Pingback: Warning: Package Contains Judges, Three Each, So-Called | Skating Under The Ice | Cranky Old Crow
All this going for him, and DJT tweets that high schoolers would be smart enough to overturn the stay…
I’ve defended DJT and much of what he has said, as outrageous as some of those statements have been, kernal of truth or not, but his tweet implicitly about the 9th Circuit judges deciding this case was over-the-line for me. And politically as flat-out stupid as can be. Maybe someone can find the inner-brilliance of this that I miss?
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Thanks for the comment, John, but I cannot find a single tweet of the President’s that mentions high schoolers overturning the stay …
THIS IS WHY I ASK PEOPLE TO QUOTE WHAT THEY ARE TALKING ABOUT!!!
So, please come up with the tweet. I just wasted a bunch of time looking for it. It may be there and I overlooked it … if you cannot find said tweet, I will not be overjoyed …
w.
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I also saw Trump’s remark about a high schooler knowing more about it than the Judges but I can’t find it again either. This post on Burning Platform equates Trumps tactics to chess moves made by a perceived ‘weaker’ player to create an overall winning strategy that can beat a ‘strong’ player. Very good analogy.
https://www.theburningplatform.com/2017/02/08/a-game-of-chess/#more-142774
It will be interesting to see if that moment arrives when Trump’s opponents are so wrong footed he can ‘drain the swamp’. He currently owns the narrative on terrorism and is exposing the weakness of his liberal opponents’ arguments. If there’s any major terrorist event, whether planned or unplanned, in the US, his position will be secured as the dominant one.
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Rosa: The ‘strategy’ thing is a classic move in negotiating tactics – and Trump is a good negotiator. You’ve heard the thing about bidding: He wants 10; it’s worth eight; he’ll take six; you’ll be happy with four; so bid him two. The thing is to reduce the other person’s confidence in their belief in the value of a thing. The shock of going in low makes the other person hesitate and question their standing.
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Not a tweet but a speech to the Major County Sheriffs Association and the Major Cities Police Chiefs Association winter conference in Washington D.C. 2/8/2017.
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Thanks, Douglas. Once again, either a link or a QUOTATION OF WHAT WAS ACTUALLY SAID is needed. I played your game before and wasted my time looking through tweets. I will NOT go on another snipe hunt for you.
I tend to avoid discussing vague and poorly defined subjects. It just leads to misunderstandings.
w.
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Willis, apologies for not providing a link to the source and douglarfix is correct, the comment was in a speech, not a tweet. Here’s a link to DJT making the comment. The comment was made Wednesday morning, after the arguments in 9th District Court.
http://www.cnn.com/2017/02/08/politics/donald-trump-travel-ban-defense/index.html
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My bad. Misplaced video reference and posted anyway. Successfully shot self in foot.
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Was in a speech not a tweet saw it on the 10 pm local news
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over-the-top? yes
a major mistake? it depends who the audience is.
do you really think the left (including the 9th circuit judges) are likely to hate Trump any less no matter what he says? Do you think that it will actually make them hate him any more?
On the other hand, for all the non-lawyers out there, it keeps pointing out the clear language of the 1952 law (never mind the constatutional argument that he has the power) and how this would be a legal EO even if it was a ban (instead of a pause) and even if it was based on religion (which it isn’t)
Brilliance? no. But I don’t actually expect Trump to be “Brilliant”, I expect him to be a bulldog worrying a bone adn standing his ground until he wins.
It’s not always going to be the right thing, and seldom will be pretty, but I expect it to be effective.
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“I can see why this would set the President’s hair on fire … that kind of judicial malfeasance angrifies my own blood mightily. It’s still bad tactics to call them out, but certainly understandable.”
=========
I think calling the so-called judges out was a necessary tactic. It should have been done by the full assembly of Congress as well. These so-called judges are now very much in the spotlight and arguments such as you covered in your post should have them squirming in their panties. Activist judges on the bench are a serious issue in the swamp that needs draining. It would be interesting to hear their arguments that the written law is secondary to their interpretation of why it was passed. Impeachment should be on the table.
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About the only thing that checks one branch exceeding it’s authority are the other branches jealously guarding their own. Jefferson worried about this, explaining; [ — Letter to Mr. Jarvis, Sept, 1820] “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.”
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Sorry for being off topic.
I think you might be interested in this farm article:
https://www.wsj.com/articles/the-next-american-farm-bust-is-upon-us-1486572488
Our WSJ did not make it over the mountain (Snoqualmie Pass) because of global warming induced snow, so can’t tell where this is in the print version.
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Trump is right, and Willis too.
and
from
http://www.foxnews.com/opinion/2017/02/09/andrew-napolitano-what-every-american-wants-to-know-about-federal-judges.html
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So Trump, not Obama, got this letter. Adds a bit of perspective.
http://www.zerohedge.com/news/2017-02-09/911-mastermind’s-letter-obama-here’s-why-we-attacked-america
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It is also instructive to review the opinion by the judge who had previously reversed [declined to extend] a different stay of the executive order [see page 17 at the link if you want to skip to the meat of it]. Judge Gorton knows the limits of judicial review, and expressed them well. https://www.scribd.com/document/338370735/Louhghalam-Et-Al-v-Trump-Et-Al#from_embed
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Lots of convoluted reasoning here, but the real point is that these judges are simply inventing reasons to fit in with their own beliefs and prejudices. The foundation of the EO is as clear as day, he has the necessary authority, in fact the text could not be clearer. What is going on here is not law, but politics by those who are expected to be above such activity.
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In reviewing the Constitutionality of a law, the courts are certainly entitled—indeed expected—to look at the intentions of the legislators who wrote the law. It was not the task of the District Court judge to determine the Constitutionality of the law governing the EO. In any case, the law the President is using is so clear, as Mr Trump himself said yesterday, that even a mediocre high-school student could understand it. He then proceeded to read the law (cited above in this thread by Randy B).
The question of a ‘Muslim ban’ is a red herring. In point of fact, 8 U.S.C. §1182(f) gives the President plenary authority to ban anyone he wants, on any basis whatsoever:
It doesn’t matter if the ‘class of aliens’ is all red-heads, or all Zen Buddhists, or whatever: if the President decides that their presence is ‘detrimental to the interests of the United States’, his authority is absolute. The ‘so-called judge’ was completely out of line.
/Mr Lynn
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On the question of ‘Muslim ban’ intent. Not relevant at all in this situation. Three points. 1. Noncitizens have no constitutional rights unless they are in our country. SCOTUS has ruled that non-resident close family relatives of legal non citizen residents (green card) or naturalized citizens have none. Makes simple sense, when in Rome do as the Romans, but not otherwise. So Washington state is not somehow harmed, nor are the foreign aliens no matter how Washington might feel. 2. All power over foreign commerce (includes tourism) and naturalization(includes immigration) is vested in Congress by Article 1 section 8. Congress has exercised that power via the immigration and visa statute Trump’s EO relies upon. It, among other things, says foreign criminals cannot get visas and that there shall be no religious discrimination in issuing visas. That statute as amended is inarguably constitutional? 3. Finally, there is the national security provision in the statute relied on by Trump. It provides him with the power to excude groups of aliens on national security grounds. In his judgement as elected president, not based on some other security expert’s opinion. He did so by specific country, not by religion. That 7 are amongst 47 muslem majority countries is irrelevant except to show it is NOT a Muslim ban. He specifically said for 7 countries where adequate vetting documentation was difficult to obtain (like criminal past) and needed for national security. That rightly includes Iraq as the Bowling Green kerfuffle proves. He did it for 90 days to allow State and DHS to work with those countries to provide better vetting procedures. The only relevant intent here is express in the wording of the EO itself. And clearly withnin the scope of that constitutional provision. Not even a close call legally. You must take the statute and the EO on their face.
Washington state arguing about campaign speech showed how weak a hand they have.Bet this liberal progressive panel gets it wrong, just like the trial judge, who thought is ruling should also apply nationwide, something over which he did not have jurisdiction. Even if they surprise me and get it right, is going to SCOTUS cause leftist Washington will appeal for political purposes.
Btw, did not watch, but did read part of the the transcript. Thought the US attorney did a very poor job of arguing what is a very simple case.
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Thanks, Rud. The US Attorney was horribly unprepared. I was stunned by his incompetence. However, the Justice Department was headless at the time …
w.
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I actually wondered whether it was deliberate passive resistance. I sure would fire his ass.
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I heard that the US Attorney was a last minute replacement as the person who had been intended to make the arguments had to recuse themselves for some reason.
David Lang
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I find the mainstream media coverage of this case inadequate — as ever.
The “list of Muslim nations” Trump tries to enforce was largely (six of seven nations) devised by President Obama, acting under orders from Congress. Trump’s intentions may or may not be relevant to the courts, but they are not the ONLY intentions to be examined. What did the legislators of 2015 intend when they handed the executive branch the power to designate dangerous nations requiring more scrutiny? What evidence did the (former) executive branch intend to use as evidence of danger? Did the nations listed (prior to the election of 2016, but not yet brought to force) meet the intended standards? Did the current executive intend to extend, revise, or revoke-and-replace the prior standards? Did the one nation added to “the list” meet the old standards, or is that nation somehow an exception or violation?
Lots of meat for a hungry investigator.
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The actions of activist judges may be one of the reasons Trump got elected in the first place. Certainly some voters were concerned by how a Hillary presidency could turn the supreme court and with a vacancy ready to be filled, this was a more immediate concern than in most elections. Judges continuing to circumvent the will of the people expressed through their elected president may help DJT secure a second term.
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Can someone explain to me what the hell is going on here? Here’s the suit by Washington State.
Here is a section from the US Constitution:
Article III, Section 2 para 2
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellateJurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (emphasis mine)
Unless I’m reading something wrong Judge Robarts has NO jurisdiction to make any ruling in this case. Nor does any other Judge short of the Supremes. Am I missing something?
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Yes. The Washington lawsuit is not ‘where a state is a Party’. Its subtle. Washington brought the lawsuit on behalf of aliens who cannot get visas. Those persons unnamed are technically the Parties. Washington claimed it had standing to do so because it would be hurt if they could not visit and terrorize Seattle. Clearer example. 28 states have sued to stop CPP. They did so on nehalf,of their citizens and utilities. They are not Parties, and the lawsuit wends its way to SCOTUS on appeal. The second sentance of Article 3 section 2.2.
For a state to be a party in the sense of article 3 it has to be directly a party. For example, drawing a disputed state line would go directly to SCOTUS.
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Except that the title of the suit is Washington State vs and as you said Washington claims IT would be hurt and has standing to sue. It is convoluted to say the State has standing to sue and is affected yet it isn’t a party to the suit.
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Bear, there is a famous civil procedure case taught to 1Ls at Harvard Law. I took it from the dreaded Arthur Miller himself, after whom the movie 1L professor was modeled. Academic terrorism. He hated me, because I was a more mature joint JD/MBA program student who had already survived the first year of HBS. Oh, and who always had a ‘good enough’ law answer in civil procedure for Miller the first couple of months of a full year course. He stopped calling on me before Thanksgiving, for whichnI gave thanks.. My plan. Learned after 3 painful near sleepless months at HBS working three cases per day, often until 2-3-4 in the morning. (HBS strategy is to flood you with analyzable data, most of which is irrelevant to themproblem at hand. HLS strategy is to confuse about what the legal issue at hand is. Flip side of same cae theodmcoin.) Hit em hard, hit em often early. The profs soon figure you will do ok on your own and turn their attention elsewhere. Then you can relax and enjoy the experience. But I have digressed.
The sole question discussed for the entire 1L class was, who is the plaintiff? You are correct, the plaintiff here is Washington State. But done under the legal doctrine of parens patriae, which means Washington state IS NOT a Party for,purposes of A3s2.2. I explained the essence without legalese above.
Yes, the law is convoluted. That is why law school takes three years yet turns out mostly mediocre or worse lawyers.
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Sigh, it takes lawyers to come up with a situation where you’re a party but not a party. Thanks for the explanation.
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What I don’t understand is why the administration capitulated to the stay that was issued by the judge in the first place. Why did the administration not simply say from the get-go, “This judge has NO AUTHORITY WHATSOEVER to issue a stay. Therefore, we ignore it.” What is that judge going to do, arrest Trump?
The ONLY question is whether the president has the legal authority to issue a temporary (or any kind of) ban, and the answer is quite clearly “Yes, yes he does”. The President’s lawyers can tell him that. No judge is necessary.
Furthermore, it is totally irrelevant if anyone was “harmed”. The government does lots of things that “harm” me (at least IMHO, I feel that I am harmed).
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You can’t ignore what a judge says, at least it would be a huge mistake.
However, your point about it being irrelevant if anyone was “harmed” is directly on point. There is NO WAY to have ANY immigration policy without someone being harmed …
Regards,
w.
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Maybe not today but Andrew Jackson got away with it (and for the record he was wrong IMO).
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“You can’t ignore what a judge says, at least it would be a huge mistake.”
This may be true, but we are living in a time when the courts have become so politicized that it might take such a revolutionary action to reign them back in. In this case, there is no doubt that “a” president has the power to do what he did, but “this” president is not going to be afforded that luxury. IOW, I am afraid that they are going to challenge every single thing he does. Maybe it’s better to make a stand now. At some point he will have to.
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Very unwise for this administration to flout a court order, no matter how ill-advised. That way lies near vpcertain impeachment attempts under article two section three :’he shall take care that the laws be faithfully executed” . Dems have said they are itching for impeachment attempts; what li s behind the stupid emoluments clause lawsuit also.
Real simole connlaw primer:
Congress makes laws under Article 1, the courts interpret them in light of the Constitution (and legislative intent…) under Article 3. Like the Captain of a Navy ship, the President is then constitutionally ordered to just “Make it so” under Article 2 section 3. (Make it so is a commanders order to the ship’s helmsman to make the new course so, both speed and bearing.
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But what are we to do when the courts go ‘rogue’ and start making up the law? What’s next? Deciding the border wall is unconstitutional or any immigration rules are? This is bordering on a constitutional crisis in my mind. It’s not there yet but close.
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Rud, it does bring up an interesting question.
The Seattle judge ruled after about 15 minutes of arguments that the government had not shown that there was sufficient threat to justify the EO.
Now, both the Constitution and the relevant law, 8USC1182, say that the Executive Branch and in particular the President are the ONLY ONES who have the authority to decide on the question of threats posed by refugees.
So what we’re seeing is the reverse of what you and I both advise against, disobeying a court order. That would be blatant executive overreach …
… so instead, we’re supposed to just put up with blatant and obvious judicial overreach?
It’s a real question. We’re used to overreach by the executive branch, but we have little defense against some so-called “judge” who does NOT get the Presidential Security Briefing trying to tell the President he’s wrong about national security … I’d call him worse things than “so-called” …
w.
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I’m sorry:
“Come for the tragedy … stay for the miscarriage of justice …” is absolute gold; If there’s a Twainian summary of the current US, there it is.
That one is going in the reuse book.
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Glad you like it, and any time anyone calls my writing “Twainian”, I am overjoyed. He’s one of my literary heroes.
w.
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Just heard that the top two Justice Department attorneys couldn’t represent the Gov’t because their previous law firms presented Amicus briefs … sounds like a clever plan to hobble the Gov’t …
w.
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Just to be clear, I agree with Willis and most commenters here that DJT is right in his EO on suspending immigration from 7 countries, and agree the judge who issued the stay made an incomprehensibly bad ruling. And, the questioning from the 9th District bench was appalling, although the Justice Dept attorney’s responses were stumbling, ineffectual, and equally appalling.
Still it’s gratuitous IMHO for Trump to imply that the judge who issued the stay is not as smart as a high school student or the the 9th District judges would be so as well if they ruled against him.
Those kinds of comments just give ammunition to DJT’s detractors. He could have said “the law is clear…” without the disparaging comment. I’d like to see DJT win over a few hearts and minds among my fellow citizens and comments like this do not help.
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It’s over. 9th Circuit upheld the stay. If any Federal judge can do this what can’t they do?
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Well, I had to return here to vent. The 9th appellate just upheld the abominable federal judge, with much pontification to no binding legal effect. Just more Blowing Smoke. Nonresident aliens have NO constitutional rights unless granted by Congress. Fact. It follows that legal residents cannot assert such rights on behalf of alien non resident ‘loved ones’, no matter how any Court feels about that. Like this one does. Congress has full constitutional authority on immigration, naturalization, and foreign commerce. Period.. Trump used that which was given him in a narrow, proscribed way. Going to SCOTUS tout suite. And will be a litmus test for the 4-4 Roberts court, because this one is crystal clear. Even the liberal side have no legs to stand on since Jefferson.
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Well, you posted while I was typing, and of course we agree …
w.
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The Ninth Circuit ruling is here.
I was amazed that the Circuit found that Washington has standing because immigration laws might make some people unable to attend Washington universities … say what? That is true of EVERY CONCEIVABLE IMMIGRATION REGULATION!
There WILL be losers from ANY restriction on immigration, and some of them might go to Washington State University … SO WHAT???
Gotta say, polls show that this one breaks so far to the right that there’s no way the Democrats gain ground on this one … heck, even the Europeans just got polled 55% for 25% against the idea of banning immigration from ALL Muslim majority nations.
w.
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Carried to the extreme we have a situation where nine judges (1 Federal district, 3 Appellate, and 5 Supreme court judges) could make up whatever law that they want and declare their rulings constitutional. Where’s the checks and balances? What can the other branches do?
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Impeachments are always fun. These haven’t been done to a sitting federal judge in a while. Porteous of LA was impeached in 2011.
Better yet, congress has complete control of the federal courts below SCOTUS. They could pass legislation to disestablish a federal circuit court on one day and stand up a new one the next. The president would nominate judges to sit in the new court with no provision being made for the old ones. I think the last food fight over this technique were the Judiciary Acts of 1801 & 1802 where the outgoing Adams administration packed the federal courts and the incoming Jefferson administration and congress reversed that packing. It’s been a while but it is doable.
When judges want to act like politicians, perhaps it is time to treat them like politicians. Cheers –
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it’s best not to mix impeachment and an ongoing case.
If this goes to the SC and they pass down a blistering ruling, then impeachment against this judge would me a good thing to do. If they pass down a split decision, wait for a better case.
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Agreed.
Whomever argues the US case in this ought to point out that neither the 9th Circus or Judge Robard wrote their rulings having anything to do with the law and demand that the SCOTUS rule on the law involved or return it back to the 9th Circus with instructions to consider the black letter law involved (my guess is that the latter would win a majority out of the current 8, but perhaps that is wishful thinking. Cheers –
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Read it today. Really bad legal reasoning. The Boudienne precedent is inapplicable to these facts. The enabling clearly constitutional statute the EO expressly cited not even mentioned once! Never read anything so bad. Even the SCOTUS liberals will have to rule to overturn.
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Damn, WE, i am too angried to comment on this predicted abomination. But it not go quietely into the night. Law is law, period. No matter what Washington state people think.
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We now have an accomplished federal prosecutor and legislator in the office of Attorney General. Let’s take a deep breath and let the estimable Jeff Sessions have a go at these renegade judges.
If AG Sessions decides to go to the Supreme Court forthwith, I think we can assume that even the liberals there will be hit with such a barrage of obvious law that even they will have to side with the Constitution and the President, or risk being taken as fools.
/Mr Lynn
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Deciding legal strategy before SCOTUS is the duty of the Solicitor General, who is co-equal in rank with the Attorney General. The current SG is Noel J. Francisco, who assumed office (acting) on January 23, 2017.
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According to Wikipedia, “The United States Solicitor General is the third-highest-ranking official (co-equal in ranking with the United States Associate Attorney General) in the U.S. Department of Justice.” He reports to the Attorney General.
According to this article,
https://www.yahoo.com/news/chuck-cooper-emerges-as-trumps-likely-choice-for-solicitor-general-132121716.html
an “old Washington hand” named Chuck Cooper is AG Sessions’s choice for SG. Whoever it is, I expect he’ll do exactly what Jeff Sessions wants.
/Mr Lynn
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You are correct. Francisco is a holdover from the previous administration. This is likely to be another contentious confirmation proceeding. Alan Dershowitz advises the Trump administration to rescind the EO and issue a new one, better crafted to avoid a legal challenge. It wouldn’t help to have in place some federal attorneys better able and willing to make a strong case.
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Willis
After listening to lawyers debate Trump’s EO, there seems to an assertion that the 1965 immigration act banned restricting immigrants based solely on religion. The lawyers seem to imply that a judge would need to balance the two laws.
If this is true then perhaps judges probing whether Trump intended to “ban all Muslims” would be germane and appropriate.
I am not a lawyer and cannot provide detailed references. The Wikipedia article does not reference religion, but perhaps subsequent court decisions clarify this.
Norm
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You are right. The US cannot discriminate on religion, so Trump didn’t. The EO is quite clear. It covers people of ALL religions from seven countries. As a result, Trump’s intent is meaningless. The law says what it says. It CANNOT be a Muslim ban, no matter how you or they twist it, no matter what Trump’s intent was.
It is a temporary ban on seven countries, clearly legal under US law. Remember … the judges who ruled on this were overruled 86% of the time in 2016 by a liberal-leaning Supreme Court. That means THEY ONLY GET ONE IN SEVEN RIGHT … and this is obviously not that one.
w.
w.
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The rule of law is a good thing. The laws themselves, not so much, and the people who make those laws should take some blame for that. So what we have now is a system which Mark Steyn calls a sewer. He was talking about the DC system; I think we can generalize. What can be done? Can we drain the sewer?
If the conviction rate is about 97% and half of the inmates are actually innocent, the justice system has failed. Don’t take those numbers as facts, they are just rumors. What are the actual numbers? The justice system should be fixed.
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The other thing about this case is that the judges (and many others) think it is about the Muslim religion. To the other side, it’s about national security and terrorism. There is a common denominator: radical Islam.
To atheists and ex-Christians, Islam is just another religion and all religions are the same. I don’t think they actually believe that, but that’s the party line. The catch is that Islam is more than a religion, much more, it’s a whole system of government.
If Muslims want to pray in their own way, fine. If Muslims want to impose Sharia Law, that is not fine. The religions which can live in a democracy with the rule of law are mostly harmless. The religions which place their own rules above ours are not compatible. It makes sense that subversives and terrorists should be kept out.
It does not make sense that Muslims are the left’s sacred cows when they often are strongly opposed to the things the left (and feminists and gays) value most.
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This is just one of many things that makes no sense about the left. Absolutely everything they distrust and despise in Christianity is present in Islam in a more strident form, and bunch more besides. I believe they are so fixated on casting the whole world as victims of white, male Europeans they are completely blind to any other fault.
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Returned here after calming down to do some lawyerly review of this abomination, since WE is a really interesting fellow and his blog readers seem to want to learn (like Bear).
1. Standing. The state university argument is colorable enough to allow standing under parens patriae. See comments to Bear above.
2. Reviewability. US did not contest. Done. (Alrhough I find the 9ths arguments weak, theynwere granting the government position.)
Then it goes south big time.
3. Jurisdiction. Here the 9th completely botches Boumedienne. That SCOTUS case was about whether enemy combatants captured in ‘the war on terror’ had a right of habeus corpus (to appear before a judge to determine whether there was sufficient grounds for detention). Court said Gitmo is run by US, so yup. Utterly inapplicable here. Last time I checked, there were no Gitmo detain es applying for visas to travel to US. There were progressive lawyers trying to get them in so those terroists would be accorded fuller US legal protections. The stupid burns.
4. Likelihood of prevailing: due process. Completely Stupid. The US constitutionally underlain notions of due process DO NOT apply to aliens NOT in this country. Period. Any more than Iranian Revolutionary Guards extended US due process comsiderations to their US embassy hostages.
5. Likelihood of prevailing: constitutionality. Stupidest part. Article 1 section 8 ‘The Congress shall have power’ :8.3 to regulate commerce with foreign nations (tourism, education), 8.4 to establish a uniform rule of naturalization (including thereby immigration and refugees), and 8.14 to make rules for the government. Trump’s government.
6. Likelihood of prevailing: religious discrimination. News, the EO named countries. 7/47 Muslim majority, all sponsoring/harboring radical Islam, and without adequate vIsa vetting processes.
More West Coast progressive nonsense.
Congress relied on those express plain simple Constitutional powers to pass the 1952 Act Trump’s EO relied upon. End of legal discussion. This opinion is not even close to being in the legal ballpark. Pure judicial over reach from the most overturned appellate circuit, the 9th. ~80% Scotus overturn rate. That’s not bad, that is horrendous. The West Coast regard for Constitutional law laid bare.
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One judge in the Ninth has requested that it be heard “en banc”, which for the 9th I think is 10 judges. They may not go for it … but if they don’t the door is open for any of the 21 ? justices on the 9th CIrcuit to write a dissent.
Brokers are bullish on popcorn stocks …
w.
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This has a subtle but important meaning. For a 9th judge to request en banc (all appellate judges of that circuit) means that one does not want to be tarred by this brush. Is VERY in unusual. Suggests henhas counted votes and is signalling Trump. Alt is he wants an ennbanc to trash Trump at SCOTUS. 50-50. Not on the playing field, so just a legally knowledgeable bystander opinion.
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Before the administration goes back to court they had better line up some attorneys who are both capable and motivated to make a solid case.
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Willis, Rud and all other commenters: you got this wrong.
The EO or entry ban applied also to LEGAL residents and US visa holders. Now, these people, especially those already residing legally in the US, have constitutional “due process” rights. This EO violated those rights, the appellate Judges said so and they are correct. You can’t revoke legal visa suddenly without specific cause.
A Trump spokesman conceded this error and said the ban will not apply to green card holders. But this saying is not enough – the EO needs to be amended and corrected.
It was an ill thought, ill prepared and abusive order. It harassed and injured legal visa holders. It was an abuse of human rights.
The judges were correct in staying the order.
Trump understood this, after some advisers understood the issue, after a couple of days, and declared that the EO will be re-issued, in correct form. He thereby conceded that the Judges were right.
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Jacob, thanks. I must object to your opening when you say:
What is the “this” that you think I got wrong. Please QUOTE MY EXACT WORDS.
What is the “this” that you think Rud got wrong. Please QUOTE RUD’S EXACT WORDS.
What is the “this” that you think “all other commenters” got wrong. Please QUOTE THEIR EXACT WORDS.
I’ve had it up to my ears with this kind of handwaving attack. You make a totally vague accusation that there is some unknown question where you are right and everyone is wrong. Bad start. Then you go off on a rant about 56 different things, some of which I didn’t mention at all.
Was the EO perfect legislation? No, because it failed to consider all the possible people it would affect. Which is why it will be replaced this coming week with a new one that will cover visa and green card holders. It will be interesting to see how that plays out. My guess is that the 9th will find some other BS reason to stop it.
Finally you say:
Nope. He conceded nothing. He simply saw that it was easier to go around them than to fight about who is right.
And since it will never go to the Supremes, we won’t ever know if the judges were right or not.
As to that question, me, I read their judgement and I thought it was BS. The judges wanted to question and delve into whether the President’s evaluation of the risks was sound. The enabling legislation does NOT give the courts that power, and in my opinion, it is dangerous judicial over-reach to allow unelected judges to evaluate risks from different classes of immigrants. The judges have neither the knowledge, the experience, nor the top-secret information needed to evaluate those risks … which is probably why that power is given expressly to the President.
So please, dial back on the EVERYONE IS WRONG BUT ME, ME, ME nonsense. You have interesting ideas, but that doesn’t mean they’re all valid.
w.
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The original EO included provisions that allowed the Sec State and Sec Homeland Security to provide exemptions for people under a wide range of things, including ‘undue hardship’. To the courts, ‘undo hardship’ can consist of “I already paid for vacation tickets and they are not refundable”, so the exception was pretty broad (depending on individual circumstances)
so all the clarification consisted of is saying that some categories of people fall into these exceptions automatically.
Remember, on that first day, with zero notice, there were only ~100 people affected, and they were all permitted to enter the US after a relatively short while.
Holding a Visa and exiting the country does not mean that you are guaranteed the ability to re-enter the country, the Visa allows you to ask for enty (while the permission is generally automatic, it’s not guaranteed)
The fact that the 9th Circuit said that the follow-up instructions were not good enough doesn’t hold much water for me. I see them reversed by the Supreme Court so much of the time that I think there is a really good chance that they would have been reversed this time.
The fact that the Judges concluded (with no access to classified reports) that the inconvienience of some people outweighted the National Security concerns is part of what makes me pretty sure they would get slapped down in this case as well.
I see the question of whether or not to re-write the EO being a tug-of-war between:
1. getting the restrictions in place ASAP
vs
2. defend the balance of power between the Executive Branch and the Judicial Branch
A large part of me things that it would have been better for the future of the country to fight it out, but it looks like Trump is going to focus on getting the restrictions in place instead (and while Trump is not dropping the court case, I expect that the Judges will close the case when the new EO is filed, and all the plaintifs around the country will file new lawsuits trying to block the new EO within minutes of it being issued, no matter what it says)
David Lang
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“Remember, on that first day, with zero notice, there were only ~100 people affected, and they were all permitted to enter the US after a relatively short while.”
No thanks to the administration – it was the judges who redressed this wrong.
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jacobress February 18, 2017 at 7:07 am
Oh, not true at all. The people affected were all permitted to enter within 24 hours or so, well before the ban on the ban …
w.
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“(while the permission is generally automatic, it’s not guaranteed)”
A Visa can also be revoked – for example if it turns out the holder is engaged in illegal activities.
It should not be revoked without specific cause – this would be a violation of “due process” rights.
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Willis, not you, neither one of the 80+ commenters addressed the issue that revoking suddenly and arbitrarily (with no specific cause) 60,000 LEGAL visas – is harmful and wrong and violates the “due process” Constitutional guarantees. No one felt this is harassment and injury for 60,000 people who are innocent.
The court mentioned the “due process” issue, but you did not notice or address the issue.
So, the court, by staying the EO, did the right thing (and the legal thing): it prevented a very real injury that was going to be inflicted on 60,000 LEGAL visa holders (and their US associates), that might be illegal and unconstitutional. On the other hand there was the damage that these 60,000 people (or some of them) might inflict by committing acts of terrorism. This danger seems theoretic and remote, no matter what Trump (wrongly) claimed.
Trump had authority and right to stop the issue of NEW visas. This part of the EO was legal and correct.
The mass revoking of existing, LEGAL visas was the wrong part of the EO, that needed staying. The EO order was flawed, no matter how much Trump’s general policy of halting immigration might be correct.
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jacobress February 18, 2017 at 7:29 am
Jacob, thiis is nonsense. Here’s what I said:
And here’s what David said:
So your claim is a crock of bovine fertilizer. We addressed the question, you just don’t like the answer.
In addition, you claim it “violates the due process guarantees” … you have no way of knowing that. Nobody does until it is tested in the Supreme Court. So put your extravagant claims of god-like knowledge about what is Constitutional back in your pocket. You might think you get to determine that, but you don’t.
Look, you get your own ideas, but you don’t get your own facts. Your claim is demonstrably false. I and others discussed the question of visa holders.
w.
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“So your claim is a crock of bovine fertilizer.”
Well, what you cited above was written by you in response to my first post. Neither you, nor the 80+ commenters touched on this point before my comment: that the EO injured LEGAL visa holders.
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Willis: ” that kind of judicial malfeasance angrifies my own blood mightily”
Calm down. Some of the Judges’ arguments might be wrong (and some correct), but, on the whole – the staying of the EO was the right think to do.
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jacobress February 18, 2017 at 7:41 am
Calm down? My dear fellow, you are far too free with your attempts to tell others what to do. From my perspective the problem is not that I’m too outraged … it is that you are not outraged enough.
Was the staying of the EO “the correct thing to do”? I say no. I say that many laws have been passed and then their meaning clarified in practice AS THIS ONE WAS. Visa holders and green card holders were specifically exempted from the order, and that was made clear and carried out without the courts. So the effect of the next EO will be exactly the same …
So no, Jacob, I and others don’t agree with you at all … which would be fine if you considered the possibility that you might actually be wrong.
But nooooo … instead, you put your prick suit on and start trying to lay down the law as if you were the Supreme Court.
So call me crazy, but I don’t take much advice about either the law, or the appropriate level for my outrage, from some random internet popup who is not even willing to sign his own name to his ideas …
w.
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“Visa holders and green card holders were specifically exempted from the order”
Well, no. They were included in the order. Only when attention was drawn to this flaw by judges and protests did a spokesman say that “they would be excluded” but that is not what the EO itself says. So, the EO, as issued, needed to be modified.
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how do you know it was the right thing to do?
For all we know, there was credible intelligence saying that terrorists were planning to travel here in the immediate future on visas printed in some of the government offices that have been overrun in these 7 countries.
IF that is the case (and I’m not saying it is), then the action of the judges has let terrorists enter the US.
It’s been fairly common that the specifics of intelligence reports cannot be shared because it would reveal how something was known, so if this was the case, they could not just trot out the evidence to present in court. Not that it would matter because the Judge that imposed the ban did so after a 15 minute hearing with no ability for either side to submit briefings.
As willis said, if the new EO is what we expect it to be, the rules of who will be able to enter the country will be exactly the same as they were within 24 hours of the first EO, so the only effect of the stay will have been to allow notice to the ‘bad guys’ that this was going to be going into effect soon, so they should hurry their travel plans to enter the US sooner.
David Lang
P.S. the argument that giving preference to people suffering from religious persecution is establishing a state religion is complete and utter nonsense.
On Sat, 18 Feb 2017, Skating Under The Ice wrote:
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“IF that is the case (and I’m not saying it is), then the action of the judges has let terrorists enter the US.”
Good that you are not saying it, because you just guess, and I think you guess wrong. If there was some specific intelligence warning, the administration lawyer would surely have said so at the hearing, without divulging details (the details could have been shown to the judge behind closed doors).
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“For all we know, there was credible intelligence saying that terrorists were planning to travel here in the immediate future on visas printed in some of the government offices that have been overrun in these 7 countries.”
If that was true, the EO would be justified.
Nobody in the administration claimed what you said above, so I don’t know where you take this claim from.
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Jacob, I fear that you are missing the point. The legislation says that President can restrict immigration whenever HE judges that there is a threat.
It does NOT say that the President can do it only if his judgement is approved by some so-called judge in Washington.
That is YOUR interpretation, and I have no clue where you get it, as the enabling statute is very clear.
So when you say “the EO would be justified”, what on earth makes you think such an EO NEEDS to be “justified” by some unelected judge? If that were the intention the legislature would have said so.
w.
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Judges are needed to make sure that the constitutional rights of people (such as the “due process” right) are respected, so you can’t say the Judges have no role.
Here is my take:
If there was a specific and acute threat to the security of the US, that would take precedence over the possible harm done to individual legal visa holders. But, if there is no such specific threat, and the only thing that happened was a change of administration and policy – this, in itself is no good reason to inflict damage on people. The new administration should have implemented it’s new policies in an orderly and deliberate manner, without hastily injuring people. (i.e. modified the process of granting NEW visas, without revoking legal visas). Existing visas could have been re-examined, but only revoked on individual basis, in case of finding specific reasons for it.
By the way: “some unelected judge” ?? wrong! The judges were elected and confirmed according to the law of the land.
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jacobress February 18, 2017 at 2:27 pm
Here is the relevant law, full and complete:
Show me anywhere in there that says you, I, or anyone gets to second-guess the president on this question.
So despite your claims that you or I or the judges have been called upon to make this choice, to decide if the threat is “specific”, to tell the President you don’t think today the threat is “acute” enough … read the damn law, and show me where it even hints at that.
Note also that it gives him power over “all aliens or any class of aliens”, which assuredly includes the class called “resident aliens”, which includes green card holders, as well as the class of aliens called “visa holders”.
So despite your claims, the law itself says the President CAN make rules for visa and green card holders.
Finally, is this EO un-Constitutional?
Doesn’t matter … it’s moot, so we’ll never know. Your entire attack on this EO is unresolvable, because it will never be tested in court. In the lovely Nixonian phrase, “That EO is no longer operative” …
So I invite you to agree to disagree, and to wait and see what the next EO is. And while we’re waiting, let me ask you this.
If it does NOT apply to green card and visa holders, would you support it?
My best to you, and as always, thanks for the ideas and conversation,
w.
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“If it does NOT apply to green card and visa holders, would you support it?”
If it does not apply to legal visa holders (i.e. only applies to the issue of new visas) – it would be, at least, legal, so correct and acceptable.
A new process of deeper and stricter vetting of visa applications was probably needed, and it is a good thing that such a new vetting process will be established.
There was, however, no good reason for this sudden and all inclusive and dramatic and harmful ban. This specific ban was just political theater, Trump who loves a good show, showing how he promptly keeps promises. This sudden and dramatic and arbitrary Executive Order improved US security NOT ONE iota (despite what Trump claimed, and despite him being authorized to make such claims).
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so you say that once a visa is issued, it can never be reconsidered?
you seem to think that a visa means a lot more than it really does.
per the State Department official website: https://travel.state.gov/content/visas/en/general/frequently-asked-questions/what-is-a-u-s-visa.html
Having a U.S. visa allows you to travel to a port of entry, airport or land border crossing, and request permission of the Department of Homeland Security (DHS), Customs and Border Protection (CBP) inspector to enter the United States. While having a visa does not guarantee entry to the United States, it does indicate a consular officer at a U.S. Embassy or Consulate abroad has determined you are eligible to seek entry for that specific purpose. DHS/CBP inspectors, guardians of the nation’s borders, are responsible for admission of travelers to the United States, for a specified status and period of time. DHS also has responsibility for immigration matters while you are present in the United States.
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any restriction on entering the US can be argued as ‘doing harm to individuals’
Entering the US is not a right, it’s a privilege (same for any country)
A Visa is not permission to enter the country, it’s permission to present yourself at a port of entry to ask permission to enter the country (this is different from how some other countries treat visas) Immigration and Customs officials then decide at that time if they are going to be permitted.
As for the argument that the judges would be told. First off, the Judge in Washington didn’t hold a long enough hearing for anything like that to be raised. Second, you don’t get the point that sometimes spreading knowledge that there is a specific threat can cause problems (see the bombing of Coventry during WWII for an example where Churchill made the hard choice NOT to warn the city to preserve intelligance gathering capabilities)
Judges are not the highest branch of government, they are equal to the President and Congress. Each branch has it’s powers, and interactions with other countries (which includes immigration) is specifically allocated to the President in the Constitution. In addition to that, Congress specifically authorized the President to limit entry (note, not just immigration, _entry_) of any group that he deems to be a threat.
This doesn’t say anywhere that these forign nationals have to be a big enough threat to outweigh inconvienience to other individuals, it just says that entry from that group would be detrimental to the interests of the US.
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All you say is correct and true.
But, once a visa has been granted by the US government, it should be honored and not be revoked arbitrarily and for no specific reason. Otherwise the process of granting US visas would be meaningless and ridiculous.
You can’t say: all visas granted by the Obama administration are null and void – only visas granted by Trump are valid. This would be an illegal and ridiculous claim.
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you think that a visa means more than it does. Look at the State department website. A Visa is not permission to enter the US, it only means that an US officer elsewhere in the world has determined that you are eligible to apply to enter the US.
> … not be revoked arbitrarily and for no specific reason
well, these weren’t revoked for no specific reason.
First off, the Visas were not revoked, entry was stopped for 90 days, after that point they would be valid again.
but even if it was decided to revoke all visas from those 7 countries, that’s not ‘arbitrary and for no specific reason’, there are all sorts of good arguments that could be made for this, including the fact that those countries have had governent offices overrun and the means to make passports identical to the official ones (because they are using the same equipment as the official ones) is known to have fallen into the hands of the bad guys.
and that’s just what’s known without any security clearance.
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jacobress February 19, 2017 at 3:33 am
Gosh, Jacob, I’m so glad that you have been given access to the Presidential Daily Briefing so that you can advise us based on your deep, top-secret, intimate knowledge of impending threats to the US …
… perhaps you don’t realize it, but there actually is a reason that the President makes that determination, and NOT YOU …
The finest part is where you reassure us that nothing possibly could have occurred as a result of the Court stopping the President’s action. Gosh, I feel so much better now …
w.
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“but there actually is a reason that the President makes that determination, and NOT YOU …”
The only reason is that He is Presindent…
You and davidelang claim and guess that there was a specific and new threat revealed to Trump in January in a security briefing that demanded this urgent action.
There is absolutely no evidence of such a new threat, and the administration didn’t make such a claim. So you invented this.
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He is President, which means that he has access to a lot more data than we do.
But also, he is the one assigned (both by the Consitution and by law) to be the one to make the decisions about forign policy, including immigration.
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jacobress February 20, 2017 at 3:22 am
Yep. A more expanded version is that the reason is that the President was very specifically given that power by Congress, and you weren’t.
You have not quoted either David or myself so I fear that you’re making unverifiable claims. I do not recall saying that there was a “specific and new” threat, it doesn’t sound like me. If you can find such a quote, we can discuss it. I can’t discuss your vague claims about unknown words that you believe I said. This is why I’ve asked you repeatedly to QUOTE THE DAMN WORDS YOU ARE REFERRING TO.
Your habit of making unsupported accusations is counter-productive. It makes discussing things with you unpleasant and frustrating. And worse from your point of view is that it makes even your true claims unverifiable, so you’re working against yourself.
In any case, the simple fact is that the Legislature gave the President to restrict entry into the US for any group he likes, any time he thinks necessary.
I get that you don’t like that. I get that you mistakenly think there has to be some “specific and new threat”. However, the statute doesn’t say that. It says whenever the President decides. What basis he decides on is up to him. He can do it on a specific and new threat … or he can do it on a vague and old threat. It’s UP TO HIM ALONE.
Not sure why the concept is so hard for me to get across, but neither you, nor I, nor some judge, were given that power by Congress. The President was given that power, unfettered as to his judgement.
w.
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Since neither me nor you are informed about the president’s security briefings – I would put you a question: suppose there is no specific, new, security threat that surfaced in January – do you thing that the harm or injury done to legal visa holders is justified?
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I’m not trying to argue if it’s justified or not, I’m arguing that he had the authority to do so. And that the Judges do not have the information or authority to make the judgement call that they don’t think the risk is severe enough (remember, you had a 15 min hearing in one court, and a 2×30 min hearing in the appeals court, the second of which was broadcast live on national TV, hardly room for presenting classified information)
Now, my personal opinion on the justification:
I don’t trust that the policies that Obama had in place keep us safe. Under his watch, any ties between Islam and terrorism were not only ignored, but downplayed. Bengazi is an example of where his administration lied to put the blame on the attack on innocent people instead of the people who actually directed the attack because it was inconvienient to the narritive that he was pushing.
As such, a short pause to go over the policies seems very reasonable to me
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jacobress February 20, 2017 at 3:32 am
I’m sorry, but a three month delay for some small percentage of the people coming to the US, subject to exemptions for humanitarian reasons, is so far down on the “harm or injury” scale as to be laughable.
Not only that, but the threat from those countries is substantial. A large percentage of the Islamic terrorist killings worldwide occur in those countries. Five of them are in the top six countries worldwide in Islamic terrorist killings per capita. And they all have either weak or antagonistic governments, making documentation and verification hard or impossible. Finally, over seventy people from those seven countries have been arrested for terrorist-related crimes here in the US.
So no, I would not require any “specific, new” threat … the plain old threats are more than enough, thank you kindly …
w.
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