Federal judge blocks President's executive order: how?

Great Debates
61

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.

62

Using a President’s pre-presidential “political campaign speech” as justification for any court ruling would be an egregious politicization of the judicial branch and would be out of line with our system of government. The courts cannot and should not be allowed to issue rulings with regard to official actions based on political speech of a person before they are in office. The office holder must be given rulings based on their words and actions while in office. To do otherwise would basically mean the judiciary is nothing but a political branch now. If so, ignoring its rulings entirely becomes simply a political choice–and a valid one.

63

We can debate that incorrect opinion in the appropriate forum. But it’s worth pointing out as a factual matter that there’s plenty of evidence of the anti-Muslim intent from after the inauguration, including the comments of Giuliani, Trump’s own comments to CBN, the content of the ban itself, and Sec. Kelly’s comments that the order carries out Trump’s campaign promise (among other evidence).

64

You’re incorrectly characterizing the arguments instead of just going and reading them. Why?

65

I have been in Judge Robart’s court many times. I can assure you, he’s as conservative as they come. In all senses of the word. He may be wrong or he may be right, but I can assure you that he did not do this for “political reasons.” (and I say this in his defense even though he threw out my last case in his court on Summary Judgement, a decision that was clearly erroneous.)

66

I’m sorry, remind me of Giuliani’s role in the government? His words to a television station, sans vetting in a court, aren’t evidence of anything. Further, lets say that the part of the ban that sought to prioritize entry of “religious minorities” could be construed as an establishment clause violation of preferentially treating by the government one religious belief over another. It would seem appropriate to strike down that segment of the ban, not the more broad ban on allowing travel from the seven countries.

I think it’s obvious from prior actions, the President can and has stopped travel from specific countries at specific times in our history, under our current laws. The section of the EO on religion was about the refugee program, so it could have easily been blocked without requiring the State Department to reverse its revocation of provisional visas, or without blocking the “travel ban” aspect of the EO.

67

If this is true it’s inappropriate for you as an officer of the court to be criticizing a judge in a public forum.

68

Your understanding of how the law works is incorrect. Evidence of intent comes in many forms and is not limited in the ways you imagine.

That section is evidence of the intent behind the other sections.

Again–you’re flailing at half-understood versions of the arguments instead of just reading them. There’s no reason to do that. The complaints lay it all out.

69

So the judge held a finding of fact where he actually explored intent? I find that unlikely.

As I’ll say again–if we start overruling official actions based on the political speech of officials prior to their being in office, the judiciary is no longer valid as an independent, apolitical arbiter of the law. It’s now just a political branch. And I’d argue the executive would be fully valid in simply ignoring it going forward.

70

The argument on intent is also concerning because it would seem to suggest if a person ever says something that might imply later official actions of a legally discretionary nature are done due to discriminatory reasons, those actions can never be taken again. For example if a President says something racist against black people and makes white supremacist statements before being President, then as President decides for example to “deemphasize” prosecutions of certain crimes, that are more regularly committed by whites than blacks, you could argue he is doing so for racist reasons due to his preference for white people, and rule that he doesn’t have the legal discretion the constitution and our laws give him.

This strange legal theory you espouse would basically suggest that entire discretionary powers of the executive can simply disappear for the term of an individual’s presidency based on the words that person used before their presidency.

71

That’s a non-sequitur.

And there you have it folks.

72

With all due respect to you (a non-lawyer), a lot of what you object to are either incorrect views of the law or of the facts that happened here. That a judge may consider intent is a non-controversial subject – for example, in construing whether a law is discriminatory, courts may look into the legislative history (including comments made by politicians during debates) of the law. In any case, Judge Robart here has not addressed the merits of the case yet, and thus has not considered intent at all. As **Richard Parker **said, it may be helpful if you read some of the briefs and court orders to familiarize yourself with the issues.

73

I’m honestly not that interested in this specific case, it’s a stupid policy by a stupid President. I’m never going to read those linked briefs/cases.

My interest now is more broadly on this argument about “intent.” So explain to me, a non-lawyer, if it’s the case that I, a hypothetical massively racist Speaker of the House, hates Asian people, constantly denounces Asians and racially slurs them, promotes a revision to immigration law that permanently bars all immigration from say, China, Japan, and Vietnam. It’s your assertion that if such law, which doesn’t contain any inherently racist text in it, produced by my House of Representatives, can never be valid law because I had racist intent?

I think it’s constitutionally obvious congress can simply ban immigration from specific countries–it’s done so before in the 20th century. So is it truly the case future legislation of that kind couldn’t happen if I, a leader of congress, pushed such a bill, because I make racist statements? If so, would a future congress be able to pass a law with a different Speaker, one who had never made racist statements?

74

It would be a piece of evidence in evaluating whether the ban has a secular purpose or not. That doesn’t make it dispositive evidence. If there are good reasons for the ban apart from unconstitutional animus, then there would need to be fact-finding. One of the reasons that Trump’s statements are so damning (which again include post-EO statements to CBN and others) is that the secular purpose of this ban’s particular contours is hard to find.

75

What’s a non-bigoted purpose for banning Asian immigration? That used to be law of the land, in the 20th century. Or would the courts treat an “Asian immigration ban” differently because Asian people abroad aren’t entitled to protections from race-based discrimination, but a religious oriented ban affects Americans because it is an act of “establishing”?

76

I’m not so sure that the Chinese Exclusion Laws would survive modern constitutional scrutiny. Keep in mind they haven’t been re-examined since *Plessy *was overturned. But apart from that, yes, I think there is reason to think the Establishment Clause is different from the Equal Protection Clause in this respect.

To be clear, you’re absolutely right to think there are big questions about how these constitutional protections apply to non-citizens outside the country. That’s why most of the cases have involved plaintiffs who are inside the country who are injured by the blocking of these immigrants (like U.S. family members, Amazon.com, and people who made it to US airports). But the key point is that there is a lot of gray area there, rather than settled law. Some of that gray area may get resolved by these cases.

77

The problem with drawing such an analogy is that the facts on the ground and jurisprudence has changed since that time. If such a blanket ban were to occur today, Asian-American (US citizens) plaintiffs may have good constitutional arguments to make to challenge it.

Another problem with your global and non-specific approach to this issue is that you are ignoring a lot of subtle factual and legal factors that are important. The current EO doesn’t just affect non-citizens who are outside the US – it also has an impact on American citizens and legal residents who have direct ties to individuals affected by the EO, either as relatives, spouses, children, or employers.

Edit: again, ninja’ed by RP.

78

No it isn’t. I offered the exact same criticism when I filed my appeal to the 9th Circuit.

My conduct in this regard is governed by RPC 8.2:

My statements above were in defense of Judge Robart’s qualifications and integrity. I’m not the one who called him “that so-called judge.” I said he was wrong to throw out my case, and I stand behind that. Obviously, it’s my opinion. Even judges with great qualifications and integrity can get it wrong sometimes.

79

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.

Take Amazon for example, in their sector employers have long loved the H1B visa because they get people into the country who are tied to them as their sponsor, and who they can pay lower wages than they would an American worker. While the specifics of the H1B require that it only be used to fill positions that cannot be filled by Americans, the reality is in the tech sector at least there are glaring examples of American firms laying off American workers making x, then signing a contract with an outsourcing firm that employs H1B visa holders making x-y. The enforcement provisions of H1B are lax, and make it very easy for companies to bring people in even if they really could have found Americans to fill the jobs. I’ve read articles where some economists say the tech sector doesn’t have the sort of “jobs shortage” that many tech companies assert, but it’s rather simpler–the current pool of workers just make a relatively high wage and the companies would like to see that change so they can collect a greater portion of the profits for themselves.

Unlike the Muslim ban, which I think would be difficult to enshrine in law due to lack of Republican Congressional support, we’re actually seeing activity on H1B from the Republican Congress. Mainly, a proposal that anyone brought in on an H1B be paid a minimum salary of $130,000 a year. This would firmly put these people in the higher end of the market (at least outside of high-COL areas like Seattle, NYC, SF) for software engineers and etc. If you follow the rhetoric, a lot of this is being done to “protect American workers from overseas workers coming here and ‘taking their jobs.’”

So to me, it would seem Amazon would have a cause of action here–that the proposed increase in salary requirement for H1B was causing Amazon financial harm, and that the motivation of the law was discriminatory in nature since legislators had openly said they were trying to protect American workers versus people from other countries.

I don’t know that this would happen, but to me it seems there is potential “hazard” of going down this path in that we as a democratic people would lose our ability to control things like our immigration policy and it would instead be vested in corporations and judges. That long term hazard is why I flew a bit off the handle here about this travel ban (which to be frank, I think is stupid, does little of logical value, that I believe was done for political posturing purposes and that I honestly expected would be “modified” so much over time it would basically only exist as a political fiction to satisfy Trump’s campaign rhetoric), because this argument that the political branches can no longer decide when the doors are open or shut concerns me–not because I have any great desire to shut the doors, but because I do feel it should be decided by the people through their elected officials, not judges. I don’t think it should be decided by executive whim, and I’m generally in favor of a much stronger congress with less discretionary Presidential powers (to arrest a generational accretion of power by the Presidency.)

80

…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.