As you say, I think the problem here is that there’s little the pro-EO side can point to as a rebuttal to the idea that this was just meant as discrimination. I think it’s one of those things where the worse it looks, the better the argument has to be to defend it, and the combination of Trump’s statements and the statements of his proxies, the text of the EOs, and the lack of much argument add up to something unconvincing for some judges. It will be interesting to see how many.
Not an Executive Order, but an act of Congress abolishing all courts except for the Supreme Court (Article I, Section 8).
I think D’Anconia is right. The EO must not violate the constitution, and it must be within the enumerated powers the Executive Branch, but it’s not up to the courts to decide whether or not a problem exists that needs to be dealt with. The president has the authority to do X, he can do X whether or not the courts think X solves any particular problem (or not).
I’m confused. You said D’Anconia is right, and then say that “he can do X whether or not the courts think X solves any particular problem (or not).” Those statements seem contradictory. That the EO must not violate the constitution is different than saying it must address an actual problem.
I think you are wrong. Or did you think the founding fathers were required to spell it out in the Constitution: “You may not issue executive orders that create real, demonstrable adversity for citizens of these United States in order to advance your personal bigotry and that of your supporters, without proof that you are actually attempting to solve a real, evidence-based problem.”
I’ll go further: When this matter goes before the Supreme Court, I’ll be astonished if even Justice Roberts supports it. I don’t believe it will even be a close decision. The activist conservatives on the SCOTUS – meaning Thomas and Alito – will vote to support Trump. Kagan, Sotomayor, Breyer, Bader-Ginsburg and Kennedy will vote against it. Roberts will be worried about his legacy and vote against it. If Gorsuch manages to get his appointment, I believe he will be an activist and vote with Thomas and Alito, but that still leaves a 6-3 decision.
Feel free to ridicule me to your heart’s content if Trump triumphs. I just don’t see it.
What if it being constitutional relies on it solving a particular problem?
I’m looking forward to the first time Gorsuch votes against Trump and Trump threatens to remove him.
Not at all, I myself am black, I was just pointing out where this judge came from–the state of Hawaii, so readers wouldn’t be confused about which judge I was referring to (there was also a judge in Maryland who was mulling whether to strike down the travel ban).
Oh, and his name is Giuliani, Rudy Giuliani who is an American patriot.
Trump proposing to abolish all courts except for the Supreme Court?
What would that look like?
When interpreting the constitution, we conservatives do indeed embrace the theory of originalism, which specifically says that a judge’s interpretation of provisions of the Constitution should be based on what a reasonable person alive at the time of their adoption and ratification would’ve understand the text’s original public meaning to be. It’s a close cousin of textualism.
Original intent is a different meaning of originalism (and a minority view among originalists) which says that you should interpret the Constitution consistent with what was intended by those who ratified it, with the help of historical documents of the era.
In this case, the judge should’ve focused on the strict wording of the statute (the executive order), and ruled that it was not an unconstitutional Muslim ban. Disgracefully, the judge refused.
You don’t get this? Because what you are saying is that it’s ok for Trump to legally discriminate against Muslims, tear families apart, cause people to lose their jobs, suffer detention at the borders and much more, in order to solve a “problem” that doesn’t exist.
Please, cite me to any evidence you’ve got to show that his EOs will in any way address the fantasy problem of terrorism in this country caused by legal immigrants and/or refugees. Before you answer, remember that the orders apply to only 7 countries from where no one has killed a US citizen on US soil, whether immigrant or refugee.
The orders are temporary, for only 120 days except for Syrian refugees. Since the 1980 Refugee Act, no one has been killed by a refugee or immigrant from any of the named countries – including Syria.
As Guinastasia pointed out, Saudi Arabia is not on the list, from where 9 of the 9/11 terrorists came. Neither is Egypt, the UAE, or Lebanon. Nor is Pakistan – from where the one legal immigrant/terrorist arrived who killed people in San Bernardino. And please note that Iraq is also excluded from EO #2.
I guess our existing vetting processes are working well. So again: What problem is being “solved” by Trump’s EOs? And you seriously think solving this non-existent problem is reasonable, despite the massive amount of despair and confusion inflicted on the nation as a whole as a result of EO #1?
I understand EO #1 is Trump’s choice to appeal to the SCOTUS. I do hope so. It’s indefensible.
LOL, I, too, would love to see that, but I believe Gorsuch is more activist than he wants the public to realize, so I’m not hopeful. He’s got some pretty close ties to Koch Brothers through the Heritage Foundation and others who support the alt-right agenda: Ties to the Federalist Society and the Heritage Foundation; More extreme than Scalia.
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.
I’m sorry, but who the fuck are you to judge what’s disgraceful or not? Please provide us with your long experience of jurisprudence.
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Oh, and his name is Giuliani, Rudy Giuliani who is an American patriot.
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Wait…you mean that lying sack of shit who used his notoriety as the incidental mayor of NY during 9/11 to catapult him to the level of retiree?
Don’t ask me. I am so not a lawyer, and unlike certain people, I don’t imagine that I am.
You know, Johnny Ace, I’m beginning to think that this Hawaiian judge was just staying true to his inbred, familial heritage.
HRC won Hawaii by 32 points, after all. There is a strong current of liberalism in that island state.
In other words, he disgracefully allowed partisan politics to influence his decision.
Wow. Great answer. Not so much for you, though.
It was great for me, not for the judge, who is letting his liberal-ingrained, inbred cousin-fucking heritage running through his blood fester and show itself through his activist decisions.
There’s an interesting scenario, indeed.
I’m not sure if EO #2 supersedes and completely replaces EO #1, either. But I don’t think it does. Trump has got separate actions pending before different courts on each EO. Final resolutions of either or both actions stand separate at this point, I believe.
IANAL and hopefully one of the regular ones here will turn up and set us straight on this point. But I did work in the court system for many years and have a better-than-average understanding of how court procedure works in a general way since that was my job.
I certainly agree that the stench of incompetence, ignorance and just plain petty vindictiveness follows this president and his administration everywhere like an endless pickled egg and beer fart.
Your right-wing whining makes me laugh at you.