Federal judge blocks President's executive order: how?

[Johnny_Ace]

@UltraVires

I agree with this 100%. The policy is not perfect, and on balance probably not even good. But it is a policy that is inherently executive in nature. Courts should but out and stop inventing rights.

So, in other words, there should be no checks and balances. I’m sure the Donald would agree.

[Richard_Parker]

Here’s a good articlefor those seeking to understand the legal issues, especially with regard to the rights of people outside the US.

(1) The plenary power does not, as some seem to believe, stand for the proposition that noncitizens outside the US who have never touched foot here have no constitutional rights. . . . After all, just a few years ago the Supreme Court held that alleged enemy combatants housed at Guantanamo Bay—noncitizens who had never been in the United States—had constitutional rights to challenge their detention at GITMO. So even if it were true that Trump’s order applied only to noncitizens abroad who had no previous ties to the United States (in fact it is much broader, applying at least initially even to returning green card holders), that fact would not be sufficient for us to conclude that the Constitution clearly would not apply.

(2) The plenary power does not stand for the proposition that blatant (lawyers would say “facial”) discrimination on the basis of race, sex, religion, or ideology is constitutionally permissible in immigration policy. . . . But what is too-often overlooked about [the Chinese Exclusion] cases is when they were decided: each of them was decided during a constitutional era when such policies were often accepted as a matter of domestic law as well. Chae Chan Ping was decided seven years before Plessy v. Ferguson, which upheld Jim Crow segregation and birthed the infamous jurisprudential principle of “separate but equal.”

Much more at the link, including a separate link to David Cole’s take on the Establishment Clause arguments.

[John_Mace]

Thanks, RP. Nice to have you back and offering your legal perspective again!

As much as I loath Trump, he is at least giving us some serious civics lessons.

[Northern_Piper]

@Okrahoma

Let’s stipulate that for argument’s sake.

Can the countries that the EO applies conceivably be considered “hostile to the US”?

Wait, so Iraq, which the US invaded for the sole purpose of removing its government and installing a US friendly regime, is now “hostile to the US”? :dubious:

[John_Mace]

@Northern_Piper

Wait, so Iraq, which the US invaded for the sole purpose of removing its government and installing a US friendly regime, is now “hostile to the US”? :dubious:

I don’t know how hostile the current Iraq government is to the US, but the regime originally installed there after the invasion is long gone.

[Northern_Piper]

@Quartz

[QUOTE=Alley Dweller]

Article II of the Constitution says "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour,

Thanks. I’m guessing here that ‘good behaviour’ does not include blocking the President for political reasons.
[/QUOTE]

Quartz, the “good behaviour” clause has its roots in the English Act of Settlement of 1701, which was enacted to respond to the Stuart insistence that the courts were just another arm of Royal power, to take orders from the King.

[QUOTE=Parliament of England]

Art. III, cl. 7. … Judges Commissions be made Quamdiu se bene Gesserint and their Salaries ascertained and established but upon the Address of both Houses of Parliament it may be lawfull to remove them.
[/QUOTE]

“bene gesserint” is normally construed to mean “good behaviour” and is not tied to the decisions made by the judges, but things like no corruption. This clause was crucial for the establishment of judicial independence, originally in England and later in other common law countries.

The phrase was taken up by the drafters of Article III of the US Constitution, and translated into “good behaviour.”
Psst - Alley Dweller - Article III, not Article II.

[Northern_Piper]

@John_Mace

I don’t know how hostile the current Iraq government is to the US, but the regime originally installed there after the invasion is long gone.

Man, inflation is really hitting home. Even $2 trillion doesn’t buy a good puppet government these days …

[up_the_junction]

This is by far the most dagerous thing Trump has done to date and this exactly the nub of it:

“This is an epic confrontation between the presidency and the constitution,” says Marci Hamilton, a constitutional lawyer and scholar of religion at the University of Pennsylvania.

“The moment Donald Trump suggests anyone disobey the federal court order then we will be in a constitutional crisis.”

'An epic confrontation': has travel ban put White House and courts at odds?

Accepting everything else, literally, how dare he behave in this way.

[Sage_Rat]

@John_Mace

Frankly, when the judge asked and answered his own question about how many terrorists had come from those countries and killed anyone in the US, I think he looked rather foolish. Like him or not, it’s up to the president and the executive branch to be making decisions about protecting the US from outside threats, not the judiciary.

The government only has the right to govern so long as it is not capricious, so far as the justice branch is concerned. And, in general, the courts will bend over backwards to accept the slimmest of government excuses. But there is always that case where no matter how hard you squint, you just can’t say that it’s anything but a capricious law.

That is and has been the standard for quite some time. It’s not a new and interesting rule.

[up_the_junction]

I’ve only now understood Steve Bannon drafted the EO, which is obv. why the courts have struggled to understand the meaning never mind constitutional consequences.

It surely can’t be the case but the White House seems clueless in these matters - it’s as if they assume the president rules by decree like a monarch.

[arfurvirus]

Article II Section II says the 9th Leftist court will be struck down.

[up_the_junction]

WTF is a “leftist court”?

[John_Mace]

@up_the_junction

This is by far the most dagerous thing Trump has done to date and this exactly the nub of it:

'An epic confrontation': has travel ban put White House and courts at odds? | Trump travel ban | The Guardian
Accepting everything else, literally, how dare he behave in this way.

Emphasis added. Trump hasn’t done that*, so I’m not sure what point you think you’re making.

*suggest anyone disobey the federal court order

[bobot]

That is simply some kind of Fox/Brietbart/Limbaugh/Hannity nonsense.

ETA: response to up_the_junction

[Ramira]

@up_the_junction

WTF is a “leftist court”?

for the new bolsheviks that are the Trumps, all opposition is labelled as deviationists, so your judge appointed by a Republican president and I read a life long Republican considered conservative becomes leftist.

just like for Lenin and Stalin, to oppose them was to be the right deviationists…

It is the fun house mirror of the bolshevik-fascist type thinking, mirrors of each other.

[John_Mace]

Please: “so-called” judge.

All kidding aside, that was beyond the pale for the president to say. He should be formally reprimanded by Congress.

[Ramira]

it is not a joke that to normalize such a discourse in the political sphere can have the serious long term damage to the political culture.

but if you americans want to begin to look more and more like the dysfunctional Italians and Greeks governments… or worse maybe.

[asahi]

@Iggy

Context is everything.

Taking applications, even prioritizing applications, for refugee status based upon one’s membership in a persecuted group is written into the UN Refugee Convention and US law. And persecution on the basis of religion is specifically mention in both.
Both the Yazidi in Iraq and Christians in Syria have been subject to genocide at the hands of ISIS. John Kerry noted that determination of genocide had been made in relation to the Yazidi. The European Union recognizes that Christians have been victims of genocide by ISIS in Syria. It is not hard to surmise that each minority group may also suffer at the hands of ISIS in the other country.

You raise a fair and valid point.

I would be inclined to accept Trump’s position as aid to a persecuted group were it not for some of the comments that he and members of his administration have made in the past, which have clearly and demonstrably shown an anti-Muslim bias. But even if you downplay that part, if the Administration decides to accept Christian immigrants from Syria, we still have the problem of proving that they are, in fact, Christian. What’s keeping a Daesh member from claiming to be Christian when in fact he could be a radical Islamist? It just seems that a lot of mental gymnastics are required to validate the order, constitutionally speaking.

[up_the_junction]

@John_Mace

Emphasis added. Trump hasn’t done that*, so I’m not sure what point you think you’re making.

*suggest anyone disobey the federal court order

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.

[asahi]

@Okrahoma

Let’s stipulate that for argument’s sake.

Can the countries that the EO applies conceivably be considered “hostile to the US”?

There are individuals from these countries who are hostile to the United States, so the president is probably within his legal domain to restrict immigration from these areas. Again, I don’t think people are debating that. They’re debating whether someone can discriminate based on religious and ethnic grounds, or whether there can be a blanket unqualified exclusion on all people from a particular country – that’s the murkier part of the EO and it seems the Courts already have serious doubts about that.