It is a frightening expansion of judicial power. It was one thing when it was academic arguments about things like same sex marriage where, at the end of the day, no big deal to opponents. But the judiciary has now, honest to goodness, held that it and not the executive or the legislative branches have final say on who comes into the country. It is not at all a stretch to believe that it will now say it can review military strikes or declarations of war.
I agree with you that the travel ban had some serious flaws, and if I was the President, I would not have enacted it. But this ruling says that the President has no power to set immigration policies without ensuring that constitutional rights, which have never applied to non-citizens abroad, are now applied to non-citizens abroad.
The standing question is even more troubling. By saying that the States have standing because employees at their universities cannot conduct research or travel runs that argument into the ground.
Hell, do I have standing now to challenge the order? After all, one of these immigrants may come to my office and want to conduct business with me, and by keeping them out of the country, it hurts my bottom line.
You need to check post #197, in reality several experts from the left and the right thought that it was more likely that Trump was the one overreaching.
Now that’s a radical reinterpretation of the historical text. Anti-SSM’ers screamed after the Obgerfell decision that pedophilia, bestiality, dogs & cats living together, etc. etc. was going to be the inevitable result of SSM being made nationally legal.
Seriously, read the court’s order. It addresses the states’ and the government’s arguments, and makes a reasonable determination rejecting the government’s contentions.
[QUOTE=Ninth Circuit]
Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionally permissible means of implementing that power”). Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).
Kleindienst v. Mandel, 408 U.S. 753 (1972), does not compel a different conclusion. The Government cites Mandel for the proposition that “‘when the Executive exercises’ immigration authority ‘on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion.’” The Government omits portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority. In fact, the Mandel standard applies to lawsuits challenging an executive branch official’s decision to issue or deny an individual visa based on the application of a congressionally enumerated standard to the particular facts presented by that visa application. The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather, the States are challenging the President’s promulgation of sweeping immigration policy. Such exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard; as cases like Zadvydas and Chadha make clear, courts can and do review constitutional challenges to the substance and implementation of immigration policy. See Zadvydas, 533 U.S. at 695; Chadha, 462 U.S. at 940-41.
This is no less true when the challenged immigration action implicates national security concerns. See Ex parte Quirin, 317 U.S. 1, 19 (1942) (stating that courts have a duty, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty”); Ex parte Milligan, 71 U.S. 2, 120-21 (1866) (“The Constitution of the United States is a law for rulers and people, equally in war and in peace … under all circumstances.”). We are mindful that deference to the political branches is particularly appropriate with respect to national security and foreign affairs, given the relative institutional capacity, informational access, and expertise of the courts. See Humanitarian Law Project, 561 U.S. at 33- 34.
[/QUOTE]
[QUOTE=UltraVires]
The standing question is even more troubling. By saying that the States have standing because employees at their universities cannot conduct research or travel runs that argument into the ground.
Hell, do I have standing now to challenge the order? After all, one of these immigrants may come to my office and want to conduct business with me, and by keeping them out of the country, it hurts my bottom line.
[/QUOTE]
You likely don’t have standing because you don’t have controlling Supreme Court and Circuit case law to support your proposition. The States, on the other hand, had controlling authority to support their assertions, including cases that held that schools may assert the right of their students.
Not that it would happen, but I wonder if Texas could sue in the same way Washington has, but essentially in bad faith, so as to ensure that the case was also heard by the 5th circuit. What would that look like anyway, if the 9th circuit struck down and the 5th circuit upheld (and the Supreme Court split)? Would different parts of the country have different entry standards?
No. The TRO from WA is nationwide. At most, the 5th Cir. litigation would result in the absence of an injunction, so no conflict.
Of course, there are lots of times when the two parts of the country do have different law, but in the immigration context judges have been more willing to enter nationwide injunctions.
This leaves a lot of room for reevaluation once the district court gets to a PI. I don’t think we should be too shocked if refugees are carved out, but it will depend on the strength of the standing arguments with respect to them in particular.
ETA: There’s a good argument that no PI is necessary given the nature of the 9th Cir. ruling. Wonder if they’ll argue that…
No. The due process that illegal immigrants are owed is the opportunity to assert various defenses to removal (or non-admission) including claims of asylum.
It seems to me that if Trump is sincere it would be smarter to rescind the EO and spend some time reworking it to address some of these issues before re-issuing. That doesn’t seem to be his way though… From a political standpoint, he probably even likes having an adversarial relationship with the courts.
Trump is sincere - while he is apparently about the easiest person to ‘control’ and has little critical thinking skills that are evident - he is very sincere in his goals.
What I found funny was the recent statements, by him. that he wanted to wait a month but was advised against it - what I dont get is how his followers cannot keep track of his changes.
**
If Trump were smart** - he would have simply tightened the rule(s) without having to use the EO. Much of what he thinks he is trying to fix is already in place anyway - and has clearly been working.
He used the EO to make a grandstand ‘statement’ as well as to attempt to assert the authority he thinks he suddenly has.
And it bit him in the ass - and this is exactly the way it needs to.
So if the courts agree with you, then they can say who can or cannot be in the country … yeesh … for the cost of deporting 5 million Mexicans now we have to let in tens of thousands of blood-thirsty ISIS-trained terrorists …
Bolding mine. Where are these tens of thousands of strawmen coming from? The countries on Trump’s list were already on a previous list from Obama without the “ban” and religious test baggage. The people who did get visas from the countries were already in refugee camps AND were vetted. The investigations took from two up to four years. There’s been no terrorist actions by individuals who went through this process in spite of Trump’s groundless bluster about “under-reporting” of terrorist incidents. His claims were rated mostly, “pants-on-fire”.
Please explain without the “millions” and “tens of thousands” strawmen.:dubious:
One of the interesting aspects of the case which conservatives could potentially use to great mischief is that the 9th circuit openly used Trump’s statements about banning Muslims against the government. That could be a very useful predecent to overturn Democratic regulatory and tax bills which are intended as punishment for companies and classes of individuals they don’t like. Courts can rule those bills to be “bills of attainder” in the future based on Democratic campaign statements.
A specific statement made by a politician that indicates an intent to engage in unconstitutional behavior; and
A specific act (executive order, proposed bill, vote, etc.) that is potentially motivated by a desire to complete an unconstitutional act, and that is plausibly connected to the statement in part 1.
If you don’t have those, if you’re just spitballing and saying random things, I’ll ignore your post; I was curious if you were actually talking about something real.
The ACLU and Cato Institute are political/ideological entities, and their legal positions will tend to follow their ideologies. Any time their ideologies intersect the legal consensus will follow.
The better way to get a sense of what the weight of legal opinion is is by looking at the more non-partisan experts and scholars who get quoted in the NYT/WaPo/CNN and the like. And my reading of these types of sources in the immediate aftermath of the EO being issued was that legal challenges would face an uphill battle.