Well it is up to a Republican judge to have the analysis of your laws and engagements according to your statutes that exist now, he obviously has a sentiment that there is actionable harm that has happened and sinc?e he is an actual judge and you and I are not, maybe the sweeping statements should wait
it may be your Yosemite Sam presidency will have blundered into setting a precedent that can restrain the executive power… he opened the door to review by bungling with a badly drafted order
Already I saw from Richard Parker’s list of the many types of concerned parties with respect to this order that it was the act of sheer amateurism and extremism that risks now to upend its own goals.
We’ve been favoring persecuted religious minorities for a long time. Are we going to have to send Falun Gong members back to China now because our processes were discriminatory?
That is my thought as well. My experience with judges (not in the US system, admittedly) is that the more a government asserts that a government action is unreviewable, the more closely they will consider the principle of judicial review and its limits. The statement that an action by a government official is unreviewable by the courts raises a major red flag about the rule of law. It’s when a government pushes an issue to the extremes that it is most likely to get an unfavourable court ruling.
Yes. And Ramira is right that such a badly written executive order was just inviting extra court scrutiny.
Still, that doesn’t excuse an obviously impaired ruling. Trump did not have the right to exclude lawful US residents, but refugee policy is absolutely within his discretion and now a judge has asserted that refugee policy is only at Obama’s discretion, not Trump’s. And that every past President who prioritized persecuted religious minorities was doing something illegal.
There is a clear difference in the law between favoring someone persecuted because of their religion, and favoring someone persecuted because of their religion only if they are a member of a minority religion.
First, the additional requirement was intended by Trump to tip the scales toward Christians, as he told CBN news.
Second, the additional requirement requires an assessment by judges of what constitutes a minority religion, which is precisely the kind of adjudication of theological questions that U.S. courts have avoided under the Establishment Clause. Government agents would have to decide whether a Sunni who doesn’t believe in hijab for women and is therefore persecuted by ISIS is a member of a minority religion, for example. It gets very messy, very quickly.
Plus, putting aside the entanglement of trying to determine if someone is of a “minority religion”, why should that matter in determining if someone is a refugee in need of protection? Why assume that Christians need protection more than Muslims? If you’re going to admit people because they’ve been persecuted because of their religion, is it not discriminatory to say that only some religions qualify, and others don’t?
It may be that in the case of a particular country, you will get more Christians than Muslims claiming persecution, but shouldn’t it be the individual circumstances of each claimant that determines if they get fast-tracked, rather than an assumption that Christians are automatically in greater need of protection?
For example, according to the wiki article on apostasy, Somalia, Sudan, and Yemen all have the death penalty for Muslims who are considered apostates. Should a person who is facing the death penalty for an erroneous allegation that he has renounced Islam not be considered a prime candidate for refugee status?
Or should a Christian who has lost their job in one of those countries because they are Christian have priority, even if they don’t face any physical threat?
I think something missing in this discussion is that these seven national governments are not necessarily hostile … rather they are ineffective … if we look to the other extreme like the United Kingdom … we see that the UK’s procedure for issuing passports is good enough for entry into the USA … the USA doesn’t have to issue visas to UK passport holders for them to just visit as tourists …
This is not the case with Syrian citizens holding ISIS issued passports … the USA doesn’t let these people in without a visa … because we doubt the ISIS vetting process is good enough … and all these seven countries are having problems this way … Saudi Arabia is quite brutal with their passport holders … they get into the USA without visas but if they misbehave then they get sent home to have their heads lopped off …
I’m sorry … but Article III of the Constitution gives judicial power to the courts in ALL cases … all acts of Congress and actions by the President … if the written law prohibits immigration determination based on ethnicity … then the President cannot ban all ethnic Syrians … of course the courts have the right to impose law on the President … it is Congress and Congress alone who can change the ban on ethnic determination …
IANAL, but I read this article, and it seemed to make a pretty compelling case for why the judge was wrong. I thought it would be of interest to this thread.
I skimmed it. It seems to rehash the government’s case, but doesn’t really lay out the States’ case. In any event, any article that says this can’t be considered objective:
It’s not *cherry-picking *to point out what that son of a bitch repeatedly said.
Yes it does, relying entirely on the Justice Department brief.
However, it does not quote at all from the Washington State brief, instead giving only the DOJ summation of the State’s position.
To get a full understanding, it’s good to look at both sets of briefs. So I’m not convinced solely by this article, although it does strike me, as a foreigner, that the DOJ makes some good points.
(And I would say the same thing if Mother Jones publishes an article about how strong the State’s case is, relying solely on the State’s Brief. Briefs by their nature are one-sided; to get the complete picture, read both. )
Yes, as much as I admire the result of Judge Robart’s order, I think the substance of a candidate’s language probably isn’t what makes an Executive Order lawful or not. The EO should rise or fall on it’s own language. Hopefully fall
But on the other hand, there was the North Carolina re-districting law that was struck down in part because the record showed clearly that there was an anti-Black animus behind the new districts.
Listened to some of the oral arguments this evening. I came away thinking the feds had a good case on points like the statutory framework, but the DOJ lawyer was too hesitant. The heart of his case was that he was saying the matter is not reviewable by the courts. When one of the judges actually asked that question ("Are you saying that the courts cannot review this order at all?), he waited a long time before saying, “Yes, that is our position.”
That’s bad advocacy. Everyone knew going in that he would get asked that question: it’s key to his case. He had to make a strong defence of it. He should have said, briskly and with confidence: “Yes, and here’s why it’s not reviewable by the courts: national security is a matter for the President, the legislative framework is for the Congress, and when the two act together, using information that the courts do not have, the courts have to respect their joint decision.” Instead, a long pause, a tentative “yes” and a clear desire to move to another part of his argument.
He let the silence fill the air. I’ve told students in moots, “Always keep talking. If you don’t answer a question like that, especially one that goes to the heart of your case, the silence in the court room is better advocacy against you than anything the opposing counsel could say. Silence is telling the court that you don’t have an answer.”
If you don’t sound like you believe your own argument, why should the Court?
The Solicitor General for Washington State was much better on his feet, I thought: much more confident and with answers. I only heard him on the standing issue and he seemed good.
Still, advocacy critique aside, I thought the feds did have good points on the statutory authority for the order.
Looks like the Court rejected the argument that they could not review the order, and the complete lack of evidence that anyone from the seven countries had committed any terrorist acts in the US sewered the governement.