# 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:** 8
**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 5, 2017, 1:45pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/141 "2017-02-05T13:45:54Z")
> [@up\_the\_junction](#): > > Which is why the verb ‘suggests’ is used n the present tense. > > If he does, he acts as a monarch would. Hence the potential for a constitutional crisis, no one has suggested there is such a thing now. You were the one I was quoting, not your cite. You do realize that this is not the first time a presidential order has been stayed by a judge, don’t you? ---
**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 5, 2017, 3:46pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/142 "2017-02-05T15:46:11Z")
Much of the confused legal analysis arises from the fact that there are (at least) six different legal theories being applied to five different provisions of the Order which affect (at least) ten different classes of people. The different possible combinations have to be analyzed differently. It would be helpful when discussing the strength of any legal claim if you clarify what legal claim, what part of the order, and what class of people. Here’s some options: **Claims** [ol] [li]Establishment Clause[/li][li]Equal Protection Clause[/li][li]Due Process Clause[/li][li]INA prohibition on discrimination[/li][li]Administrative Procedures Act[/li][li]Religious Freedom Restoration Act[/li][/ol] **Order** [ol] [li]120-day refugee ban[/li][li]Exception for religious minorities[/li][li]90-day visa ban for 7 countries[/li][li]Indefinite ban on Syrian visas[/li][li]Prior interpretation of order that affected LPRs[/li][/ol] **People** [ol] [li]LPRs who were outside the US when the order was executed[/li][li]LPRs who were inside the US when the order was executed[/li][li]Visa-holders who were outside the US when the order was executed[/li][li]Visa-holders who were inside the US when the order was executed[/li][li]People with valid visas who are denied entry at a U.S. port of entry on U.S. soil[/li][li]People outside the US seeking to apply for visas[/li][li]People inside the US seeking to apply for visas[/li][li]People who had been granted refugee status[/li][li]People seeking refugee status[/li][li]U.S.-based family members of affected people[/li][li]U.S.-based employers of affected people[/li][li]U.S.-based educational institutions of affected students[/li][/ol] ---
**Author:** ![GIGObuster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gigobuster/32/421_2.png) [@GIGObuster](https://boards.straightdope.com/u/GIGObuster)\ **Post date:** [February 5, 2017, 4:02pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/143 "2017-02-05T16:02:30Z")
Appeals Court Rejects Bid to Quickly Restore Trump Travel Ban > **[Appeals court knocks back attempt to swiftly reinstate Trump travel ban](https://www.nbcnews.com/news/us-news/justice-dept-appeals-have-court-restore-trump-travel-order-n716891)** > > The denial means travelers restricted under the order can continue coming to the United States while the legal battles continue. > [@](#): > > A federal appeals court early Sunday denied the Justice Department’s request to immediately reinstate President Trump’s order restricting refugees and travelers from seven majority-Muslim countries from entering the U.S. > > The ruling came just hours after the department filed an emergency motion to stay Judge James L. Robart of Seattle’s order that halted the implementation of restrictions imposed by Trump’s order nationwide. > > The denial means that travelers restricted under the order can continue coming to the U.S. while the legal battles continue. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 6, 2017, 1:30am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/144 "2017-02-06T01:30:25Z")
From that article: > [@](#): > > A federal appeals court **early Sunday** denied the Justice Department’s request to immediately reinstate President Donald Trump’s order restricting refugees and travelers from seven majority Muslim countries from entering the United States. > … > The 9th U.S. Circuit Court of Appeals in San Francisco asked challengers of the ban to respond to the appeal and for the Justice Department **to file a counter-response by Monday afternoon.** I’ve been had cases with that sort of short turn-around: fire up the office coffee machine, order in a case of Red Bull, pizza at midnight, and churn out that brief by 11:55 am! Good luck to all counsel involved, pro and con: I feel their pain. 🙂 ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 6, 2017, 2:19am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/145 "2017-02-06T02:19:48Z")
> [@Okrahoma](#): > > Can the countries that the EO applies conceivably be considered “hostile to the US”? In the case of Iraq, the US Government has taken several thousand air strikes, sent several thousand troops, and is spending billions of dollars to help Iraqis defeat ISIL in their country. By what measure do you figure that the US considers Iraq to be hostile to us? ---
**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 6, 2017, 2:34am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/146 "2017-02-06T02:34:07Z")
> [@Ravenman](#): > > In the case of Iraq, the US Government has taken several thousand air strikes, sent several thousand troops, and is spending billions of dollars to help Iraqis defeat ISIL in their country. > > By what measure do you figure that the US considers Iraq to be hostile to us? Not saying I personally agree with this, but it could be argued that Iraq is so infested with jihadis, that the country needs be subject to “extreme vetting”. The government need not be hostile to the US, since it’s not “the government” that will be applying for visas. It is a fact that the previous administration put Iraq on the list of countries affected by _The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015_. That could be considered an independent assessment that Iraq is a “special case” country, regardless of how much money the US spent on it. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 6, 2017, 3:00am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/147 "2017-02-06T03:00:28Z")
> [@John\_Mace](#): > > Not saying I personally agree with this, but it could be argued that Iraq is so infested with jihadis, that the country needs be subject to “extreme vetting”. The government need not be hostile to the US, since it’s not “the government” that will be applying for visas. It is a fact that the previous administration put Iraq on the list of countries affected by _The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015_. That could be considered an independent assessment that Iraq is a “special case” country, regardless of how much money the US spent on it. That isn’t what **Okrahoma** asked, nor what I was addressing. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 6, 2017, 3:09am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/148 "2017-02-06T03:09:35Z")
> [@Ravenman](#): > > That isn’t what **Okrahoma** asked, nor what I was addressing. That is exactly it. Some parts of Iraqi government may not be hostile to the US. The country Iraq definitely is. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 6, 2017, 3:13am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/149 "2017-02-06T03:13:17Z")
> [@Okrahoma](#): > > That is exactly it. > > Some parts of Iraqi government may not be hostile to the US. The country Iraq definitely is. What exactly is “the country of Iraq?” And if they are hostile, why is the government of the United States fighting and dying for it? ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 6, 2017, 3:18am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/150 "2017-02-06T03:18:46Z")
> [@Ravenman](#): > > What exactly is “the country of Iraq?” And if they are hostile, why is the government of the United States fighting and dying for it? Originally, because of complete and utter misunderstanding of Middle East. Now, because we’re too deep in. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [February 6, 2017, 3:25am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/151 "2017-02-06T03:25:52Z")
> [@Okrahoma](#): > > Originally, because of complete and utter misunderstanding of Middle East. That’s a very mild way of putting “because of ignorant and unscrupulous opportunism on the part of neoconservative PNACkers who figured they could exploit the 9/11 attacks as a pretext for an imperialist power play in Iraq”. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [February 6, 2017, 3:42am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/152 "2017-02-06T03:42:05Z")
That’s the least of the problems with his argument. He relies on vague terms like “the country is hostile even if the government isn’t,” but can’t explain a single word of what that means. The US is very, very unpopular in Jordan, but the government is a very close friend. No ban there. Turkey is an ally, but their leader is nuts and the US is also very unpopular. No ban there. Nobody has suggested that there are specific threats that we are worried about from any of these countries that the ban applies to. The only proper terms for the rationale for the policy are things like arbitrary and senseless. ---
**Author:** ![up\_the\_junction](https://avatars.discourse-cdn.com/v4/letter/u/f1d935/32.png) [@up\_the\_junction](https://boards.straightdope.com/u/up_the_junction)\ **Post date:** [February 6, 2017, 5:55am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/153 "2017-02-06T05:55:10Z")
> [@John\_Mace](#): > > You were the one I was quoting, not your cite. You do realize that this is not the first time a presidential order has been stayed by a judge, don’t you? Yes, and you do realise the grass is green and the sky blue, don’t you. Look, at the end of the day the USA is not a democracy but you do at least have the last, final bulwark of the rule of law offering some protection to the people. And now you have a president attacking judges for applying the rule of law. This is really very dangerous and of genuinely historic proportions ---
**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 6, 2017, 6:28am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/154 "2017-02-06T06:28:04Z")
The system, so far, has worked exactly the way it’s suppose to. And just like it worked in other, similar cases. But thanks of your concern. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 6, 2017, 7:44am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/155 "2017-02-06T07:44:52Z")
This decision is pretty activist. Some of Trump’s order can certainly justify an injunction, but in order to stop other parts it sounds like Robart just worked backwards to the result he wanted to achieve. For example, it resumes refugee admissions. But aren’t refugee admissions solely at the discretion of the President? The judge left the cap of 50,000 in place. But what’s the legal difference between a cap of 50,000 and a cap of zero? Shouldn’t the judge have simply lifted the cap entirely? ---
**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 6, 2017, 1:16pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/156 "2017-02-06T13:16:53Z")
> [@adaher](#): > > But what’s the legal difference between a cap of 50,000 and a cap of zero? Shouldn’t the judge have simply lifted the cap entirely? We’re not at the 50,000 cap, so no one would have a claim to imminent harm as a result of it and a judge could not enter a TRO based on it. By contrast, lots of people are immediately affected by the 120-day “pause.” Moreover, the justification for a complete “pause” is different from the sort of discretionary decisions involved in setting it at some very low-but-historically-not-insane number. The judge may well have overreached here, but this particular argument is not persuasive. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 6, 2017, 1:36pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/157 "2017-02-06T13:36:05Z")
Regardless, he seems to be claiming that the President can’t set the cap to zero. Doesn’t that obligate us to let in at least some refugees from everywhere? I don’t think that part of his injunction has a chance in hell of surviving scrutiny. The President by law can let in zero refugees or a million refugees. And precedent says that we can even discriminate on a 1st amendment basis(Communists have been forbidden entry). It’s totally at the President’s discretion. Even more absurdly, the judge said there can be no religious test, even to prioritize religious minorities. ---
**Author:** ![Ramira](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ramira/32/344_2.png) [@Ramira](https://boards.straightdope.com/u/Ramira)\ **Post date:** [February 6, 2017, 2:07pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/158 "2017-02-06T14:07:29Z")
The order seems not to say that action like zero is impossible, but that there was not a due process and there may be the immediate harm. Since it is the temporary restraining order, you seem to be greatly exagerating the meaning, if I understand your law well enough ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [February 6, 2017, 2:20pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/159 "2017-02-06T14:20:38Z")
There is no requirement for due process for refugees who want to enter the US. Due process only applies to refugees who are actually here. We do not owe 7 billion people an immigration hearing. ---
**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 6, 2017, 2:32pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/160 "2017-02-06T14:32:48Z")
> [@adaher](#): > > And precedent says that we can even discriminate on a 1st amendment basis(Communists have been forbidden entry). It’s totally at the President’s discretion. Even more absurdly, the judge said there can be no religious test, even to prioritize religious minorities. The precedent is not as clear and well-settled as you’ve been lead to believe. [Previous page](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953.md?page=7) [Next page](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953.md?page=9)