# Travel ban: Oh for two **URL:** \ **Category:** Great Debates\ **Created:** [March 16, 2017, 2:26am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281 "2017-03-16T02:26:10Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [March 20, 2017, 5:38am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/121 "2017-03-20T05:38:54Z")
> [@Uzi](#): > > As a point of education to cure my ignorance: I thought politicians were the ones who determined if a law will accomplish something while judges can determine if it is a legal? Otherwise, why not just dispense with politicians and have judges make the laws? First, unless I’m sadly mistaken, an executive order is NOT a law, nor is the President a legislator. Any lawyer around here, feel free to correct me if I’m wrong. Secondly, what do you think the judicial system does? Interpret the applicability of laws. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [March 20, 2017, 5:54am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/122 "2017-03-20T05:54:03Z")
> [@UDS](#): > > I _think_ EO #1 was revoked by EO #2, which would make all the court proceedings relating to EO #1 moot. So if Trump wants to return to his original proposal, he needs to revoke EO#2, issue EO #3 in identical terms to EO #1, wait for someone to launch proceedings against EO #3, wait for a federal court to suspend EO #3, and then appeal _that_ all the way to the Supreme Court. > > This gives rise to two problems. > > First, it makes Trump look (again) like (even more of) a blowhard. He keeps saying he’ll appeal the court decisions that go against him, but instead he backs down and starts again. (Of course, that would be a temporary impression, laid to rest if and when he ever did get to the Supreme Court. But that might be a while.) > > Secondly, it risks muddying the legal waters. EO #3 might be challenged/suspended on _different_ grounds than EO #1 was - specifically, on the fairly obvious grounds that this pattern of revoking and reissuing similar or identical EOs is a transparent attempt to evade the court orders made in earlier cases. The court might strike down EO#3 because, if Trump wanted those provisions to have effect, the proper course was not a pattern of issuing and cancelling EOs, but was to appeal the court order in relation to EO #1. And if you appeal the strikedown of EO #3 on that basis, then the basis on which EO #1 was struck down is not (directly) before the appeal court. > > I’m not saying that the administration couldn’t get around this, and eventually get a ruling from the Supremes on the core issues in EO #1. But they would have done so in an extrardinarily inept, roundabout, complicated way, subjecting themselves to easily avoided delays and excursions down side-alleys in connection with a matter which they themselves identified as being time-critical, so intensifying the miasma of incompetence and ineptitude that already trails them everywhere they go. A quick scan of the new EO reveals that, yes, the new EO explicitly revokes the old one, in Section 1 (i). Your analysis has legs. Be funny to see an Admin lawyer petition SCOTUS to grant cert on the first one, only to have the justices laugh him out of the courtroom. ---
**Author:** ![Uzi](https://avatars.discourse-cdn.com/v4/letter/u/91b2a8/32.png) [@Uzi](https://boards.straightdope.com/u/Uzi)\ **Post date:** [March 20, 2017, 6:13am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/123 "2017-03-20T06:13:45Z")
> [@Johnny\_Ace](#): > > First, unless I’m sadly mistaken, an executive order is NOT a law, nor is the President a legislator. Any lawyer around here, feel free to correct me if I’m wrong. If it isn’t a ‘law’ then why are judges involved? The Grand Poobah crapped out an OE and some judges got involved, apparently for shits and giggles then. > [@](#): > > Secondly, what do you think the judicial system does? Interpret the applicability of laws. That’s what I assumed. They determine if the ‘law’ is legal to enforce. Is it their job to also determine if the law is useful, effective, or accomplishes what the poobah intends? Are there not two things here?: Is the order legal? Does the order accomplish what it intends? If the answer to question 2 is ‘no’, then is it the courts role to invalidate the order even if the answer to question 1 is ‘yes’? If the answer to question 1 is ‘no’, then there is no reason to even comment on question 2. ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [March 20, 2017, 6:38am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/124 "2017-03-20T06:38:27Z")
> [@Uzi](#): > > If it isn’t a ‘law’ then why are judges involved? The Grand Poobah crapped out an OE and some judges got involved, apparently for shits and giggles then. For the reason that any other law suit exists. Someone filed it. Then the suit was determined to have enough basis to be heard, and so it was, and a decision was made. The ACLU would be one of the organizations that tend to deal with personal rights issues and file such suits. > [@](#): > > That’s what I assumed. They determine if the ‘law’ is legal to enforce. Is it their job to also determine if the law is useful, effective, or accomplishes what the poobah intends? In a word, yes. Especially when it comes to individual rights which will be affected by those laws. > [@](#): > > Are there not two things here?: > Is the order legal? > Does the order accomplish what it intends? > > If the answer to question 2 is ‘no’, then is it the courts role to invalidate the order even if the answer to question 1 is ‘yes’? > If the answer to question 1 is ‘no’, then there is no reason to even comment on question 2. If the order doesn’t accomplish what it intends, and it transgresses constitutionally-protected rights, is it legal? (Yes, even immigrants and travelers have some of those.) You should ask a lawyer (or more specifically a constitutional lawyer) for finer points of legality. ---
**Author:** ![Uzi](https://avatars.discourse-cdn.com/v4/letter/u/91b2a8/32.png) [@Uzi](https://boards.straightdope.com/u/Uzi)\ **Post date:** [March 20, 2017, 6:58am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/125 "2017-03-20T06:58:46Z")
> [@Johnny\_Ace](#): > > If the order doesn’t accomplish what it intends, and it transgresses constitutionally-protected rights, is it legal? (Yes, even immigrants and travelers have some of those.) You are mixing two things again. If an order is illegal then it is illegal. If it is legal, but might not accomplish anything (at least according to the judge) or is distasteful to a set of the electorate, can (maybe the question should be ‘should’) the courts invalidate it? Is that their role? Because if it is I am finding it hard to understand what the role of a politician is if that is the case. Why not just have judges sitting like kings of old making decisions on petitioner’s requests and eliminate the politician entirely? ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [March 20, 2017, 7:22am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/126 "2017-03-20T07:22:07Z")
Trump is not the legislature; he’s the chief exectutive. To the exent that he can legislate, he can only do so in a way, and to an extent, that is properly ancillary to his executive function. So, the purpose of his legislation can’t be disentangled from the question of its validity. And making a judgement about the purpose of his legislation involves more than supinely accepting that its purpose is what the government lawyers say. The court looks what what Trump himself has said, and what his advisers have said. They also look at whether the legislation is a realistic or rational way of attempting to give effect it its stated-in-the-proceedings purpose; it it isn’t, that tends to suggest that it’s purpose is other than as stated in the proceedings, and it may be tainted by that purpose. ---
**Author:** ![Uzi](https://avatars.discourse-cdn.com/v4/letter/u/91b2a8/32.png) [@Uzi](https://boards.straightdope.com/u/Uzi)\ **Post date:** [March 20, 2017, 7:45am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/127 "2017-03-20T07:45:35Z")
> [@UDS](#): > > So, the purpose of his legislation can’t be disentangled from the question of its validity. And making a judgement about the purpose of his legislation involves more than supinely accepting that its purpose is what the government lawyers say. The court looks what what Trump himself has said, and what his advisers have said. They also look at whether the legislation is a realistic or rational way of attempting to give effect it its stated-in-the-proceedings purpose; it it isn’t, that tends to suggest that it’s purpose is other than as stated in the proceedings, and it may be tainted by that purpose. So, the order in this case could be legal or not depending on the reason for its implementation. Okay, I get that. That it would be effective in its stated goal still seems to be the purview of politicians rather than judges, imho. ---
**Author:** ![UDS](https://avatars.discourse-cdn.com/v4/letter/u/ecae2f/32.png) [@UDS](https://boards.straightdope.com/u/UDS)\ **Post date:** [March 20, 2017, 8:13am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/128 "2017-03-20T08:13:30Z")
> [@Uzi](#): > > So, the order in this case could be legal or not depending on the reason for its implementation. Okay, I get that. > That it would be effective in its stated goal still seems to be the purview of politicians rather than judges, imho. In the first instance, it is. The courts will generally give a fair amount of deference to the role of politicians in policy formation. In this instance, the issue is not so much that the proposed travel ban is not a terribly good way of combating terrorism. It’s the proposed travel ban is so wholly unrelated to combating terrorism that the assertions of the government that this is its purpose cannot be taken at face value, the usual degree of deference notwithstanding, and this suggest sthat its true purpose and motivation is the one first stated, viz, to combat the entry into the United State of Muslims. And that goes to the question of whether it’s a proper exercise of power. ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [March 20, 2017, 1:23pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/129 "2017-03-20T13:23:46Z")
> [@Uzi](#): > > You are mixing two things again. If an order is illegal then it is illegal. If it is legal, but might not accomplish anything (at least according to the judge) or is distasteful to a set of the electorate, can (maybe the question should be ‘should’) the courts invalidate it? Is that their role? Because if it is I am finding it hard to understand what the role of a politician is if that is the case. Why not just have judges sitting like kings of old making decisions on petitioner’s requests and eliminate the politician entirely? Am I? Both EO’s clearly abrogate the rights of a certain class of people. In order to do so (at least in terms of passing the court’s review), they must show reasons for it. If their reasons are found not to be grounded in reality, if they can show no valid justification, is that or is it not illegal? My sense is that it would be illegal, but again you would have to ask someone more qualified to answer than I. You mean legislator, not politician. Legislators write the law, and judges interpret it. They are not kings. No individual judge has the final say. His/her decisions can be appealed to higher and higher courts, up to the SC. And even in the SC there must be a majority in order to affirm or deny a certain judgment. (Except, of course, in today’s court, in which a tie can cause a couple of outcomes, generally having to do with maintaining the most current status of the case.) The only way judges choose the issues that they will deal with is based on what cases are referred to their court and those cases’ merits. That’s the way it is and the way it has been here since 1789. ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [March 20, 2017, 1:43pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/130 "2017-03-20T13:43:18Z")
Missed the edit window with this. Legislators don’t write a law in a vacuum; it necessarily will interact with other laws previously on the books, directly or indirectly, and judges will need to determine how they will interact, which will take precedence under what circumstances, etc. I’d once again like to stress that, though this discussion has been about laws, an executive order is not a law. It is a directive to departments within the executive branch. Such a directive will likely have effects external to those departments (as these two do), but it does not have the force of law. ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [March 20, 2017, 1:48pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/131 "2017-03-20T13:48:53Z")
> [@Johnny\_Ace](#): > > Missed the edit window with this. Legislators don’t write a law in a vacuum; it necessarily will interact with other laws previously on the books, directly or indirectly, and judges will need to determine how they will interact, which will take precedence under what circumstances, etc. > > I’d once again like to stress that, though this discussion has been about laws, an executive order is not a law. It is a directive to departments within the executive branch. Such a directive will likely have effects external to those departments (as these two do), but it does not have the force of law. I do not believe this is accurate. EOs have the force of law, to my knowledge. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [March 20, 2017, 2:18pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/132 "2017-03-20T14:18:29Z")
> [@jsgoddess](#): > > I do not believe this is accurate. EOs have the force of law, to my knowledge. Well what does “the force of law” even mean? If someone fails to follow an executive order are they going to be arrested or fined? Or would they just be fired for failing to follow orders? ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [March 20, 2017, 2:37pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/133 "2017-03-20T14:37:21Z")
> [@jsgoddess](#): > > I do not believe this is accurate. EOs have the force of law, to my knowledge. As I said, I’m not a legal expert. But checking into it, I see differing interpretations on both sides. Wish we had a constitutional lawyer handy. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [March 20, 2017, 4:47pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/134 "2017-03-20T16:47:16Z")
> [@Johnny\_Ace](#): > > Am I? Both EO’s clearly abrogate the rights of a certain class of people. Do they, legally? I think the first one did because it singled out religion as a factor. But the second doesn’t do that. Do foreign nationals have a right to not be discriminated against due to their nationality for purposes of immigration? If so, it seems like some of our other immigration laws and regulations might be suspect. That’s why we’re picking on (potential) immigrants, right? Because they _don’t_ actually have much in the way of legal protection. ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [March 20, 2017, 5:56pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/135 "2017-03-20T17:56:15Z")
> [@iamthewalrus\_3](#): > > Do they, legally? I think the first one did because it singled out religion as a factor. But the second doesn’t do that. > > Do foreign nationals have a right to not be discriminated against due to their nationality for purposes of immigration? If so, it seems like some of our other immigration laws and regulations might be suspect. > > That’s why we’re picking on (potential) immigrants, right? Because they _don’t_ actually have much in the way of legal protection. Not nationality. Religion again. Do you think that the revealed motivation to stop Muslim immigrants just went away because they rewrote the EO? Did any of the prohibited countries change in being overwhelmingly Muslim? As mentioned above, intent matters here. And I don’t think anyone seriously doubts that regardless of the language of the EO, it’s still meant by Trump to prevent entry of Muslims. Certainly the judges ruling on the _second_ EO included the same argument regarding intent (the same as that against the first EO) in their opinions. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [March 20, 2017, 10:52pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/136 "2017-03-20T22:52:43Z")
> [@Johnny\_Ace](#): > > Not nationality. Religion again. Do you think that the revealed motivation to stop Muslim immigrants just went away because they rewrote the EO? No, I don’t think it went away, and yes, I agree with everyone that that is Trump’s intent and it’s horrible. However. Does this effectively mean that Trump can create no possible EO about immigration with respect to majority-Muslim countries? How far does “we know what you’re really doing” go as a legal precedent? Let’s take Yemen, which we are currently bombing. If Trump were to pass an EO that limited immigration from Yemen, which is majority Muslim, would it justifiably be struck down? It seems sort of absurd to me that there are people in Yemen so dangerous that we have to send flying robots in to kill them (and a lot of other people who had the misfortune to be within the blast radius) with bombs, yet also believe that Yemenis are so innocuous that it’s 100% unreasonable and motivated by bigotry to stop any of them from entering the country for a little while. Similarly, how crazy is it that it is apparently totally within the President’s power to order assassinations of Yemenis, but not to deny them visas? ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [March 20, 2017, 11:38pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/137 "2017-03-20T23:38:36Z")
> [@iamthewalrus\_3](#): > > No, I don’t think it went away, and yes, I agree with everyone that that is Trump’s intent and it’s horrible. > > However. Does this effectively mean that Trump can create no possible EO about immigration with respect to majority-Muslim countries? How far does “we know what you’re really doing” go as a legal precedent? I do not know if the courts will decide to use something similar to how equal protection in employment works, but I think it might be valuable to discuss it just as an example for how a court can approach these questions. Spoilered for length: [spoiler]Say I’m Muslim and I work for Company A in an at-will state. I don’t have a contract. There are a total of 10 Muslims working there. We all have clean records on the job. I have a coworker who goes around saying that Muslims should be fired because they are all thieves, and that if she is ever promoted, she’ll make sure that Muslims are fired. The company thinks that sounds fine, and she is promoted. Shortly after that, she fires me and 4 of the other Muslim employees and says it’s because we stole people’s lunches from the lunch room. Her executive assistant lets it be known that she was the one who came up with the lunch room pretext because the boss knew she couldn’t just fire people for being Muslim. There’s immediate outrage! I say I’m going to take it to court. The boss mutters about how she’ll see me in court. But the company backs down and keeps me and the four others on. A month goes by. There are all sorts of rumors about thefts from the lunch room. It turns out the thief is one of the other Muslims at the company. The boss blows up and fires me and three other workers, but not the thief, saying she’s just trying to protect the other employees from our depredations. Our positions are immediately filled. I go to court, and I present my case. I think the judge would be likely to say that I have made a prima facie case that I have been discriminated against (meaning it looks like discrimination on its face). At that point, it would be up to the employer to show that my treatment was not discriminatory, that there was a legitimate motive behind my firing. Then it would be up to me to show that the employer’s case is a pretext for the discriminatory motive, and I would point to her statements, and the statement of her assistant, and the lack of firing of the thief, and lack of evidence for my thievery. I’m guessing I would win. I wasn’t the thief, there’s no evidence I’m a thief, and the real thief wasn’t fired, so saying I was fired for being a thief seems weird. And the boss has lots of evidence of discriminatory animus. Assuming for the purposes of this example that I got my job back, could that employer ever fire me? Yes. They would just have to do it in a way that does not look like it was motivated the same way. If, for example, they had fired the lunch thief, that would likely not have resulted in a successful employment discrimination suit. And if I turned into a lunch thief after they fired the first person, they could likely fire me as well. Or if I stopped coming to work, or started racking up well-documented infractions (though they are more likely to be scrutinized more closely if I brought another suit).[/spoiler] When I read the first decision, that’s what I was reminded of. That the petitioners said “Doesn’t this look like discrimination?” and the court said “Huh, yeah, it totally does. What say you, defense?” and the “Defense said ‘Lunch thieves!’” and the court said “That’s dumb.” ---
**Author:** ![Aspenglow](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aspenglow/32/76_2.png) [@Aspenglow](https://boards.straightdope.com/u/Aspenglow)\ **Post date:** [March 20, 2017, 11:51pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/138 "2017-03-20T23:51:36Z")
> [@iamthewalrus\_3](#): > > However. Does this effectively mean that Trump can create no possible EO about immigration with respect to majority-Muslim countries? How far does “we know what you’re really doing” go as a legal precedent? This is where solving an actual problem comes in: It goes a long way toward lending credibility to your claims that you are, you know, in fact solving a problem. ---
**Author:** ![CarnalK](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carnalk/32/486_2.png) [@CarnalK](https://boards.straightdope.com/u/CarnalK)\ **Post date:** [March 21, 2017, 12:37am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/139 "2017-03-21T00:37:33Z")
> [@iamthewalrus\_3](#): > > No, I don’t think it went away, and yes, I agree with everyone that that is Trump’s intent and it’s horrible. > > However. Does this effectively mean that Trump can create no possible EO about immigration with respect to majority-Muslim countries? How far does “we know what you’re really doing” go as a legal precedent? > > Let’s take Yemen, which we are currently bombing. If Trump were to pass an EO that limited immigration from Yemen, which is majority Muslim, would it justifiably be struck down? > > It seems sort of absurd to me that there are people in Yemen so dangerous that we have to send flying robots in to kill them (and a lot of other people who had the misfortune to be within the blast radius) with bombs, yet also believe that Yemenis are so innocuous that it’s 100% unreasonable and motivated by bigotry to stop any of them from entering the country for a little while. Similarly, how crazy is it that it is apparently totally within the President’s power to order assassinations of Yemenis, but not to deny them visas? The United States is not bombing Yemen. The U.S. is helping out with the naval blockade and logistics but not the bomb campaign. ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [March 21, 2017, 1:42am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/140 "2017-03-21T01:42:21Z")
> [@iamthewalrus\_3](#): > > However. Does this effectively mean that Trump can create no possible EO about immigration with respect to majority-Muslim countries? I don’t think it means that. If he makes one that clearly has a logical basis, justified by actual evidence of danger, and not seeming to be just an excuse to fulfill a bigoted campaign promise, then it will be much more likely to pass muster. However, if you are asking whether Trump has undermined his own Presidency, and particularly his ability to keep our country safe, by his appeals to bigotry, then I would say that “Yes…Indeed he has in many ways. And, this subjecting of his orders to greater scrutiny by the judiciary is arguably one of those ways.” However, let’s be clear on putting the blame where the blame lies: It is not the judiciary that is undermining him or limiting his power; he is undermining himself. [Previous page](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281.md?page=6) [Next page](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281.md?page=8)