Basically the meat of my post is right there in the title. I know that the first ban was “blocked” (whatever the legal term is) by a number of federal appeals courts, and his modified second ban has also been blocked, but then Supreme Court allowed the second ban to be re-instated until they rule on it definitively in a few months (please let me know if I am incorrect in the details of this).
But
What makes it unconstitutional? I found one article from The Hill (http://thehill.com/blogs/pundits-blog/the-administration/318116-what-makes-trumps-travel-ban-so-unconstitutional) which says that the ban is unconstitutional because
a) There is no evidence to show that such a ban will work and it was hastily put together and therefore “irrational”
b) It imposes an undue burden on states’ economies
c) It violates first amendment because religion based
AFAIK, the constitution says nothing about laws needing to be evidence-based, and I don’t know if First Amendment protections apply to non-residents of the US. I’m not sure if (b) is a constitutional violation–per the authors of the article above, it violates the federalism clause.
Is the job of lower federal courts generally to determine the constitutionality of a law, as is the mandate of the supreme court?
Please correct me on any errors in fact or terminology that I may have made. I am no legal eagle and my post reflects a crude layperson understanding of the issues at hand.
Beats me. The President is “clothed in great power” when it comes to the frontiers. I understand the courts are ruling his ban is illegal if it is imposed for illegal discriminatory reasons.
If you are discriminating against a “suspect class” yes the law needs to be evidence based. This may not explicitly be in the constitution (see: Substantive Due Process), but the SCOTUS has ruled so.
And we won’t 'know" for sure whether the EO is unconstitutional until the SCOTUS rules. And, of course, even then we’ll argue about it. And I believe there is also a statutory issue involved as well as a constitutional one since Congress makes immigration law, and one might argue exactly how that current law should be interpreted.
First of all, it’s important to understand how federal courts decide if an act of Congress (or an order of the President) violates some portion of the Constitution, especially when the violation is not obvious simply by looking at the words of the act/order or the Constitution.
Many of the rights enshrined in the Constitution do not have hard and fast boundaries. For example, the Equal Protection Clause of the Fourteenth Amendment states that “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” But what exactly does that mean? If the State of California passes a law mandating prison for people who are adjudicated to have committed murder, then that law by it’s very nature discriminates against people who have committed murder. They are treated differently under the law than those of us who have not. I cannot be put forcibly in prison, thus losing my liberty, but a murderer can. Similarly, if the State of California were to pass a law mandating prison for someone who is “black” and who marries someone who is “white”, that law by it’s very nature discriminates against people who are “black”, compared to people who are “white”. Now, we want the Equal Protection Clause to preclude the latter law, without precluding the former law. So there must be some way of reviewing laws that lets states discriminate against murderers appropriately without discriminating against “blacks.”
The Supreme Court has over the years derived various “tests” for determining when laws passed by states, or Congress (or acts of the President) violate portions of the Constitution that don’t have really definitive boundaries. In the cases outlined in my hypotheticals, when statutes discriminate against “blacks”, then they must do so in furtherance of very important state interests, which are being addressed by a very narrowly tailored law, basically. Otherwise, we let states discriminate against classes of people that are not “suspect” whenever the state can show that the discrimination is rationally related to a valid state interest (such as keeping murderers off the streets).
So now let’s look at what the two Courts of Appeal decided in the case of the modified “Travel Ban.”
The Fourth Circuit accepted that the Administration generally gets to deal with immigration without its actions being subjected to intense scrutiny. As long as the actions are facially legitimate and are bona fide, then they will be accepted as legitimate, even if an argument can be made that they would fail some other more normally applied scrutiny. Here, the Executive Order (the second one) had a legitimate facial purpose. BUT, the Fourth Circuit used the various statements issued by the President and his campaign, as well as things said by the Administration since his inauguration, to determine that the Order was not issued in a “good faith” (bona fide) effort to address those legitimate concerns. Thus, the Court applied the sterner Lemon test to determine if the Order violates the Establishment Clause of the First Amendment (“Congress shall make no law … regarding establishment of religion …”). Again, using the various statements of then-candidate Trump and his campaign, the Court determined that the Order violated the Establishment Clause.
The Ninth Circuit took a different route. Perhaps realizing that the Constitutional claims have some potential problems, the Ninth Circuit said instead that the President did not follow the Congressional Immigration and Naturalization Act authorizing his order. Specifically, the Ninth Circuit said that the President did not make a "sufficient finding that the entry of these classes of people would be ‘detrimental to the interests of the United States.’ " The Ninth Circuit also asserted that the Order violates other provisions of the INA.
So, to summarize in answering your questions:
Only the Fourth Circuit found that the Order was unconstitutional. It determined that the Order violates the Establishment Clause of the First Amendment, by entangling the government in religious issues (Lemon).
The Ninth Circuit found that the Order was unlawful (not unconstitutional). It determined that the law allowing the President to issue an order of the type in question was not followed by the President in issuing THIS order. That law requires that the President make certain determinations in support of any such order; the Ninth Circuit felt that those determinations were not properly made. There are other violations of the INA the Ninth Circuit found as well.
You mention in passing the issue of “standing” (whether or not non-citizens can raise Constitutional/legal objections). The Courts both found that the specific classes of plaintiffs before them had standing to raise these issues, because they already had sufficient contacts with the United States to allow them to press the issues. Further, some of the issues are being pressed by states themselves, who are being harmed (they assert) by the ban in that they are now precluded from doing things like filling vacant university posts, accepting university students, etc. from the countries covered in the ban. THIS is where the Supreme Court itself has interjected its power; it has allowed the injunctions issued by the two appellate courts to continue ONLY to the extent that they apply to certain non-residents who have sufficient contacts with the United States (the Court gave some guidelines in their order). So the standing issue is obviously one the Supreme Court itself is not completely convinced of (at least to the extent that the Fourth and Ninth Circuits were).
Yes, lower courts do have the task of determining the validity of a federal law/action. That’s inherent in the determination of whether or not to uphold the action of the government. Indeed, oftimes the determination of the Supreme Court on such issues is based upon the evidence adduced at trial on the issue before the District Court, since the appellate courts cannot take evidence on matters themselves. Indeed, lots of constitutional questions never make it to the Supreme Court, but get settled at the lower levels.
The major reason is that Trump put it in effect. If Obama did the same prior to the election cycle and before it was even mentioned by Trump it would be a non-issue. Obama would be congratulated on a wise and bold move.
Obama wouldn’t have done it. Any immigration ban that he put into effect would have been tailored to an actual threat, not been designed to fulfill a stupid and bigoted campaign promise.
You do know that some of the judges who struck down the ban were appointed by Republicans, do you not?
In the Fourth District en banc decision, there were three dissenters; all were appointees of one or the other President Bushes. Of the 9 judges who either joined the opinion (in whole or in part) or who concurred in the judgement, all were originally appointed by either President Clinton or President Obama. The one anomaly is Chief Judge Gregory, who was a recess appointment of President Clinton. President Bush the Younger re-appointed him to the position after the recess appointment ran out.
The underlying decision of the District Court for the District of Maryland was issued by an appointee of President Obama.
In the Ninth Circuit panel decision, all three judges on the panel were appointees of President Clinton.
The underlying decision of the District Court for the District of Hawai’i was issued by an appointee of President Obama.
So, you see, you are completely wrong in your assertion, as far as the second executive order goes.
That is not the point and I suspect you know it. I used the qualifier of*** IF ***in the statement.
The point is Obama got a pass every step of the way for 8 years despite many things that should have been very scrutinized carefully by the press but were not. The press and dems now over react to Trump on many things they would have given Obama a pass on.
If you can’t see that, or will not acknowledge that, then you do not view current events objectively…
One can disagree with you – and many of us do – without any loss of objectivity. Obama did not get the “free pass” you imagine. He was criticized with extreme harshness for every single step he took for eight entire years.
Obama…"criticized with extreme harshness for every single step he took " you say. Laughable statement.
Don’t get me wrong, I am for a press corps that is totally suspicious of both sides and treats all politicians with a bit of skepticism. I also understand that press outlets have points of view. I have no issue with either Fox News or the Nation, nor those in between. That is good so many points of view are out there. However the major news outlets of NYT, WaPo, CBS, NBC, etc. IMHO they all gave Obama a free pass for 8 years.
Let me ask just one question.
The Obama administration knew of the Russian meddling in the election in 2016 while they were in power and did nothing about it. Where is all this extreme harshness in the major news outlets for this one issue ? Should be easy for you to find. If so I will re-consider my views. Meanwhile I won’t be holding my breath.
Help me out here. Which presidents, during their campaign for election, promised to ban all members of a particular religion from the United States, and, after getting elected, then issued a ban targeting members of that religion?
While you’re formulating your response, please remember that the current president admitted via his favorite medium that he is, in fact, issuing a ban on Muslims.
Whether it is right or wrong ethically is immaterial. Why is it unconstitutional considering this country has a rich history of banning people from selected countries?
I don’t believe it is unconstitutional, but I can tell you (very generally) that the Fourth Circuit concluded it was because they reasoned:
The ban is directed against Muslims (relying on statements made during the campaign, and statements made by Trump surrogates to conclude that the ‘country’ claim is just a sham);
A ban against Muslims violates the First Amendment rights of the citizens within the United States who want the banned travelers here. In other words, my Irish Catholic relatives and your German Protestant relatives and someone else’s Israeli Jewish relatives and someone else’s godless socialistic heathen Icelandic relatives can continue to come visit us without meaningful restraint, but someone’s Uncle Aamil from Syria and Auntie Aafiya from Somalia cannot.
Where, in your opinion, does this part of the decision get stated in the opinion issued by the Court? I find no such claim regarding the Constitutionality (which they disposed of via application of a Lemon test using the campaign statements of the President and his campaign). So far as I can tell, the only part of the opinion where these questions were relevant was in establishing that the plaintiffs had standing to raise the claim of unconstitutionality. Am I wrong?
I’ll give you one answer: He used the so-called “red phone” to tell them to knock the hell off. He expelled 35 Russian diplomats and closed two Russian compounds in the Washington area as well as sanctioned four Russian individuals and two Russian entities. Obama did nothing only if you have quite a broad definition of nothing.
