# Federal judge blocks President's executive order: how? **URL:** \ **Category:** Great Debates\ **Created:** [February 4, 2017, 1:50am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953 "2017-02-04T01:50:48Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![Colibri](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/colibri/32/1841_2.png) [@Colibri](https://boards.straightdope.com/u/Colibri)\ **Post date:** [February 4, 2017, 7:27pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/81 "2017-02-04T19:27:52Z")
It’s probably past time to move this one to Great Debates. Colibri General Questions Moderator ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [February 4, 2017, 7:43pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/82 "2017-02-04T19:43:50Z")
> [@Martin\_Hyde](#): > > Okay then–I think that’s pretty reasonable. > > But I have to say it still “doesn’t sit right” with me that it’s being suggested the United States might be constitutionally _required_ to have open borders, and I think on some level if these concepts are carried far enough, that would basically be what you’d be doing. I don’t think anyone is saying that the US is constitutionally required to have open borders, as you assert. What this case is about is whether the president’s EO violates constitutional rights. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 4, 2017, 7:53pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/83 "2017-02-04T19:53:09Z")
> [@dofe](#): > > I don’t think anyone is saying that the US is constitutionally required to have open borders, as you assert. What this case is about is whether the president’s EO violates constitutional rights. … only if “constitutional rights” include the right to a US visa. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [February 4, 2017, 7:58pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/84 "2017-02-04T19:58:51Z")
> [@Okrahoma](#): > > … only if “constitutional rights” include the right to a US visa. Who made that claim? ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [February 4, 2017, 7:59pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/85 "2017-02-04T19:59:45Z")
> [@Okrahoma](#): > > … only if “constitutional rights” include the right to a US visa. It’s as though you ignored all the legal and factual explanations offered in the 82 posts upthread. It’s too bad this has been moved from GQ to GD. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 4, 2017, 8:00pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/86 "2017-02-04T20:00:41Z")
> [@running\_coach](#): > > Who made that claim? The judge, by trying, on Constitutional grounds, to block the part of the order that prevents issuing of visas (note: issuing of future visas, not canceling current ones) to a particular class of aliens. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 4, 2017, 8:06pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/87 "2017-02-04T20:06:57Z")
> [@Okrahoma](#): > > The judge, by trying, on Constitutional grounds, to block the part of the order that prevents issuing of visas (note: issuing of future visas, not canceling current ones) to a particular class of aliens. The correct framing would be that you have the constitutional right not to have a visa denied to you on the basis of your religion. Or, alternatively, that you have the constitutional right not to have a visa denied to your employees or family members on the basis of their religion. That might be true and might be false, as a matter of law. But it is the question, at least with respect to the Establishment Clause (which is one of 5-6 arguments being made in these cases). ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [February 4, 2017, 8:09pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/88 "2017-02-04T20:09:53Z")
Daring to look to a point of view that may support the administration’s position… From [a February 2009 article](http://cis.org/plenarypower) at the website of the Center for Immigration Studies (self described as advocating a "Low-immigration, Pro-Immigrant"point of view) by Jon Feere… > [@](#): > > … > Courts have articulated numerous justifications for keeping immigration regulation largely within the confines of the political branches. Some of those justifications include: > [ul] > [li] **Political Question Doctrine:** Federal courts generally refuse to hear cases that involve policy questions best resolved by elected officials. The logic is that elected officials are more accountable to the public and can best represent the public’s interests. Elected officials are also more likely to understand the political implications of their decisions. The connection between immigration and foreign affairs, national security, and similar policy-related fields has often resulted in courts invoking this doctrine.[/li] > [li] **Lack of Capacity:** Courts are designed to adjudicate legal issues and simply lack the institutional capacity to make political judgments. Immigration law is inherently political because it’s created entirely within the political branches. Any judicial invalidation of immigration statutes almost always requires some amount of “legislating from the bench” and, even still, courts simply do not have the ability to remedy the potentially far-reaching political, social, and economic effects of a ruling that goes against statutory law.4[/li] > [li] **Uniformity:** The specifics of immigration (how many, who gets admitted, who gets deported, etc.) are regulated by federal-level political-branch policies. If lower courts become too involved in this process and craft unique statutory interpretations, there is a strong likelihood of an inconsistent immigration system that varies from one jurisdiction to another. This would arguably be in direct violation of the Constitution, which requires a “uniform rule of naturalization.” Such a result would make it difficult for citizens to change the system if so desired. Aliens would also find it difficult to navigate the system. [/li] > [li] **Efficiency:** From a resource perspective, a court-run immigration system would be problematic. Judges are already grappling with the ever-escalating onslaught of immigration cases; reducing the authority of the political branches to easily remove or exclude aliens would obviously increase the caseload.[/li] > [li] **Immigration Enforcement Is Not Punishment:** The Supreme Court has held that due process protections apply when an individual faces punishment in the form of deprivation of life, liberty, or property, but that an alien being returned to his homeland or denied entry to the United States is not being punished and therefore cannot expect the courts to grant him these protections. Deportation and exclusion is simply an administrative procedure.[/li] > [li] **History:** The great weight of legal authority is in support of judicial deference to the political branches on the issue of immigration. The concept of _stare decisis_, which stands for the principle that past holdings should be respected by the courts, ensures that the plenary power doctrine cannot easily be abandoned.[/ul][/li] The article is rather long but a good read. It does provide quite a few cites. As it comes from the early days of the first Obama administration at least it is not something put together with intent of supporting the current administration. Generally courts have been reluctant to wade very far into the immigration pool. As noted, they often defer to the other branches of government in these matters considering much of the subject matter to be beyond court review. Thus is the basis for plenary power that the legislative branch holds over immigration and, particularly as it is enumerated in the Constitution, over naturalization. And if Congress was so foolish as to surrender its enumerated power to the Executive, well, that may mean that the anti-Trump rulings are doomed to go down upon judicial review with a higher court remanding with an order to reverse. _Stare decisis_ is a bitch. The long standing court precedents really are that the courts are loathe to question such matters. ---
**Author:** ![Banquet\_Bear](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/banquet_bear/32/373_2.png) [@Banquet\_Bear](https://boards.straightdope.com/u/Banquet_Bear)\ **Post date:** [February 4, 2017, 8:16pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/89 "2017-02-04T20:16:02Z")
> [@Banquet\_Bear](#): > > …I don’t understand what they are talking about at all. But this is absolutely fascinating to watch. The judge directly addresses some of Martin’s complaints in the first 15 minutes of the video: I would encourage him to watch it. …the question the judge asks at 31 minutes. WOOOAH! ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 4, 2017, 8:23pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/90 "2017-02-04T20:23:52Z")
> [@Banquet\_Bear](#): > > …the question the judge asks at 31 minutes. WOOOAH! Is that the Q about terrorism by refugees where he answers it himself? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [February 4, 2017, 8:24pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/91 "2017-02-04T20:24:57Z")
> [@Richard\_Parker](#): > > Is that the Q about terrorism by refugees where he answers it himself? No, it was something like “are there _any_ limits to the Presidential powers in this area?” ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 4, 2017, 8:32pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/92 "2017-02-04T20:32:24Z")
Here’s an [article](http://lawnewz.com/high-profile/seattle-judge-is-wrong-and-overreached-by-issuing-nationwide-injunction-on-travel-ban/) that argues that the judge overreached by making his TRO national where the Supreme Court explicitly warned federal judges not to do so. ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [February 4, 2017, 8:45pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/93 "2017-02-04T20:45:02Z")
> [@Richard\_Parker](#): > > Is that the Q about terrorism by refugees where he answers it himself? To be fair, he only answered it after the AUSA said she didn’t know. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 4, 2017, 8:46pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/94 "2017-02-04T20:46:45Z")
> [@Richard\_Parker](#): > > Among the harms they are asserting is that some of those barred are employees of WA companies. > [@dofe](#): > > WA State’s solicitor general made several arguments during the oral argument to support this claim. One of them was that the WA state universities were financially harmed by the EO to the extent it prevented university students and employees from entering the country. Since when is standing conferred on someone who knows someone who might be harmed? If someone runs over my employee in his car, may I sue them? May the State sue them? That’s absurd. I agree with others that there is no constitutional rights to foreign nationals outside our borders; no right to a Visa, and no right to not be discriminated against based upon race or religion. Let’s say we get into war with Canada (which would serve them right!), the holding of this decision would be that barring immigration from Canada would be a violation of the constitution as we would be making laws which overwhelmingly harm white and protestant people, and would be discrimination based upon nationality. Further it would harm any company that current employs Canadians. The President would like to keep hostile and belligerent Canadians out, but the courts would open the door for them. I’ve said in other threads that as a co-equal branch of government, the judiciary has no power to unilaterally overrule the executive. As this is a mere district court, it would be akin to a low level executive ordering around the Supreme Court, or a Congressional page ordering the President do so something. Judicial power as practiced by the left is dangerous and unchecked. Jefferson would have certainly ignored this order. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 4, 2017, 8:50pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/95 "2017-02-04T20:50:52Z")
> [@UltraVires](#): > > Jefferson would have certainly ignored this order. Here’s another poster calling for the President to ignore the courts based on a flawed understanding of the law. One can only imagine how widespread this view is within the Executive Branch. Interesting times are upon us. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [February 4, 2017, 8:54pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/96 "2017-02-04T20:54:17Z")
> [@Martin\_Hyde](#): > > So you’re asserting that non-citizens, non-residents, i.e. foreigners in foreign lands, have constitutional rights against various government actions? I don’t doubt many liberals want to believe this, but I live in a world where the President can order the actual killing of these people (and has thousands of times in the past decades), the President can have these people held without trial, without recourse to any court of review in “black sites” and etc. My understanding is the only reason those things stopped was because of changes in the law. > > You and the ACLU appear to be asserting the 14th Amendment applies to every person on earth, because otherwise discrimination against foreign Muslims has simply no protection under our laws. > > I think your constitutional interpretation is lacking any precedent, so I’d love to see some proof for it. Otherwise the discussion should be solely restricted to immigration law. Is it simply a matter that the President wasn’t following immigration statutes with this order? If so, then I’ll admit I’m ignorant of those statutes, I had read an earlier law that said visas could be revoked on a discretionary basis, but that governed the department of state and non-immigrant visas. Is it simply the case that under the law, immigrant visas are not able to be revoked on a discretionary basis? > > If so, then the order makes sense to me. But if the order is somehow based on the President mistreating religious groups overseas, I think it’s “manifestly obvious” those people have no first amendment protections, no 14th amendment protections or etc. We’ve historically banned people from this country for racist/bigoted reasons, and I don’t mean me 200 years ago, but in the late 19th and early 20th century, after things like the 14th Amendment were already part of the constitution. It’s not really a matter of mistreating people overseas; we’re talking about an American law that attempts to restrict the privileges of people abroad to travel into the United States. The president has the prerogative (a broad one) to regulate or restrict immigration, but he cannot do so on grounds that clearly discriminate on the basis of race, religion, or other recognized criteria. Even foreign visitors have essentially the same constitutional rights as American citizens, except for the right to come here or remain here indefinitely. A president can say to both a German immigrant and a Somali immigrant “Sorry, but we are not accepting visa applications at this time.” A president can also say “You, German immigrant, are welcome at this time” while simultaneously saying “You, Somali immigrant, may or may not be accepted at this time, depending on the results of an extensive background investigation.” But as far as I know, a president is out of bounds when he starts saying things like “We’re gonna take Christians and white immigrants, but not Muslim and brown-skinned ones.” ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [February 4, 2017, 9:01pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/97 "2017-02-04T21:01:07Z")
> [@UltraVires](#): > > I agree with others that there is no constitutional rights to foreign nationals outside our borders; no right to a Visa, and no right to not be discriminated against based upon race or religion. Courts would probably not support your argument. > [@UltraVires](#): > > Let’s say we get into war with Canada (which would serve them right!), the holding of this decision would be that barring immigration from Canada would be a violation of the constitution as we would be making laws which overwhelmingly harm white and protestant people, and would be discrimination based upon nationality. Further it would harm any company that current employs Canadians. There would be a valid national security argument that a president could make, and he would be well within his right to bar Canadians, provided that he doesn’t allow white protestants on the one hand while barring Muslims or darker-complected people on the other. That’s the part you’re overlooking – I absolutely agree that the president has broad power to be selective in who gets admitted to the US, provided that he follows a Constitutionally-supported process for doing so. Barring travelers from states hostile to the US is perfectly legal, but discriminating on the basis of race or religion is not. FWIW, I think much of the executive order will generally be regarded as within the presidential prerogatives and consistent with immigration law, and thus legal. It’s not like Courts are saying the entire language of the order is invalid. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 4, 2017, 9:04pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/98 "2017-02-04T21:04:43Z")
> [@UltraVires](#): > > Since when is standing conferred on someone who knows someone who might be harmed? If someone runs over my employee in his car, may I sue them? May the State sue them? That’s absurd. > > I agree with others that there is no constitutional rights to foreign nationals outside our borders; no right to a Visa, and no right to not be discriminated against based upon race or religion. > > Let’s say we get into war with Canada (which would serve them right!), the holding of this decision would be that barring immigration from Canada would be a violation of the constitution as we would be making laws which overwhelmingly harm white and protestant people, and would be discrimination based upon nationality. Further it would harm any company that current employs Canadians. > > The President would like to keep hostile and belligerent Canadians out, but the courts would open the door for them. > > I’ve said in other threads that as a co-equal branch of government, the judiciary has no power to unilaterally overrule the executive. As this is a mere district court, it would be akin to a low level executive ordering around the Supreme Court, or a Congressional page ordering the President do so something. Judicial power as practiced by the left is dangerous and unchecked. > > Jefferson would have certainly ignored this order. If we were at war with Canada, then there would be a clear, secular reason fro barring Canadians from the US. The judge here is saying he doesn’t see a secular reason for the ban. I think he’s wrong, but the analogy to war time doesn’t really fly. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 4, 2017, 9:06pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/99 "2017-02-04T21:06:38Z")
> [@Richard\_Parker](#): > > Here’s another poster calling for the President to ignore the courts based on a flawed understanding of the law. One can only imagine how widespread this view is within the Executive Branch. > > Interesting times are upon us. I did not suggest that Trump should ignore the order. I said that Jefferson would have. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 4, 2017, 9:07pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/100 "2017-02-04T21:07:29Z")
> [@asahi](#): > > Barring travelers from states hostile to the US is perfectly legal, but discriminating on the basis of race or religion is not. Let’s stipulate that for argument’s sake. Can the countries that the EO applies conceivably be considered “hostile to the US”? [Previous page](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953.md?page=4) [Next page](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953.md?page=6)