Travel ban: Oh for two

[Johnny_Ace]

@Kobal2

[who?] [citation needed]

Trump. It’s in the article linked in my OP.

[QUOTE=The Orange-Haired Podium Pounder]
“This is, in the opinion of many, an unprecedented judicial overreach,” he added, before pledging to take the issue to the Supreme Court if necessary.
[/QUOTE]

[bobot]

@Monty

Federal judge.

Yeah. How bout that? Referring to the judge as Hawaiian, it almost makes him sound foreign. Or something.
The playbook and the bag of tricks- they are not deep.

[Clothahump]

**Travel ban: Oh for two
**

Actually, it’s oh for two for activist judges who make decisions based on politics and not law. They seem to think that Trump’s enforcement of U. S. law is somehow evil, but never said a word when Obama and others did it.

And it’s oh for two for us as a society when incompetents like that get on a judicial bench.

[XT]

If anyone else is having a hard time keeping up with what the core issues on this, I found this CNN article that talks about it in less heated language and charged atmosphere of hostility than this thread:

Why has it been blocked? What did the judge say?

The ruling is almost entirely based on the “intent of the Trump administration,” says CNN correspondent Jessica Schneider.

“The judge specifically said it was that intent to create this Muslim ban that violated the Constitution’s establishment clause… he pointed to several instances, very specifically, saying it was President Trump’s own words on the campaign trail… advocating the ‘complete and total shutdown of Muslims entering the United States.’”

The judge said it was illogical that the ban was not motivated by religious discrimination.

“The illogic of the Government’s contentions is palpable,” Watson wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”

“Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries.”

What is Trump saying about the ruling?

At a rally in Tennessee Wednesday night, Trump decried the decision as “unprecedented judicial overreach,” and called it a politically motivated move that makes the US look “weak.” He’s vowed to take the case to the Supreme Court if necessary.

“This goes beyond me, because there’ll be other presidents,” he said. “We need this and sometimes we need it very badly… for the security of our country.”

He was defiant about the ban, and predicted victory upon appeal. “We’re going to win… we’re going to keep our citizens safe,” he told the crowd in Nashville.
He described the new order as “a watered-down version of the first (order)” and said that he wanted to “go back to the first one.”

He so far has not attacked Watson, unlike his response to the judge who issued the TRO on his first attempt at a ban. Back then, he tweeted that the “so-called judge” should shoulder the blame for any terror attacks that may occur while his ban was on lockdown.

Is this judicial overreach?

The judges on the Ninth Circuit Court – which upheld the first TRO in February – issued an opinion on the ruling and five Republican-appointed judges alluded to the idea of judicial overreach.

They wrote “whatever we as individuals may feel about the President or executive order, the President’s decision was well within the powers of the presidency.”
CNN’s Schneider says the argument about the context surrounding the ruling, versus the content of the bill, could be a “big point of contention.”
“Should we be looking at the intent of someone who made those comments while he wasn’t president?” she asked.

Hawaii Attorney General Doug Chin said the bigger picture is important.
“I don’t think Judge Watson was overreaching because there is precedent for the courts to look at the context,” he told CNN. “Context matters.”

Maryland AG Brian Frosh – who filed the motion in his state to challenge the order – argued that it is instead a “great example of executive overreach.”

He said “the (federal) judges are doing their job here. It’s not just one judge, it’s six, seven judges that have all said that the first Muslim ban was a violation of the first amendment and now the second one is as well. Donald Trump’s problem is what he himself has said – he’s described this as a Muslim ban.”

There is a video associated with this link as well that might be worth watching as it also goes into some detail on the rationale being used in the block. I honestly don’t know enough about the law to know who is right. Both sides seem to have a point, though of course I’m hoping the side doing the blocking has the right of it as I think this ban is a mistake. I wish people could be a bit less heated and cutting in this thread, since this DOES seem to be one of those debates that is highly technical and isn’t intuitively obvious how it works. The EO is legal. What the courts are doing seems to be as well wrt this block, and it’s one of the things the federal court is SUPPOSED to do if they feel there could be or is an infringement on the Constitution. A good case can be made either way, and the resolution is probably going to be highly technical and beyond most non-lawyer posters to really follow.

[CarnalK]

@XT

A good case can be made either way, and the resolution is probably going to be highly technical and beyond most non-lawyer posters to really follow.

Probably the only thing we’ll understand for sure is that whoever loses it’ll be because of an activist judge.

[simster]

@Clothahump

**Travel ban: Oh for two
**

Actually, it’s oh for two for activist judges who make decisions based on politics and not law. They seem to think that Trump’s enforcement of U. S. law is somehow evil, but never said a word when Obama and others did it.

And it’s oh for two for us as a society when incompetents like that get on a judicial bench.

Considering the number of EOs from Obama that were blocked by the courts, I call bullshit on this post.

[Aspenglow]

@HurricaneDitka

FWIW, the Ohio State attacker was a Somali refugee. True, he didn’t manage to kill anybody, but 11 people were injured, and I don’t believe that non-fatal terrorist attacks are a “non-existent problem”.

Yup.

And in response to that indefensible, dreadful attack that was horrendous but killed no one, it seems the view of Trump and his supporters is to build an ineffectual, jaw-droppingly expensive wall that infuriates and inflames the anger of our traditional ally to the south; enact laws that persecute Muslims and provide fodder for terrorist recruiters abroad but do precisely nothing to actually prevent potential terrorists from entering the country; build up our military to an insane level, and permit law enforcement to carry out search and seizure, invasion of privacy and basically employ Brown Shirt tactics in their dealings with American citizens and legal residents.

With proportionality of response in mind, I wonder what response is appropriate to, say, the killing of 168 individuals in the Oklahoma City Federal Building bombing; the killing of 9 in the Charleston church shooting; the killing of 3 in the Colorado Springs attack on Planned Parenthood; the killing of 2 police officers in Las Vegas; the killing of 3 individuals in Overland Park, Kansas; the state trooper killed in Blooming Grove Township, PA; the 4 individuals killed in a tri-state attack in 2012; the 2 police killed in St. John’s Parish, LA; the 6 Sikh individuals killed in the Wisconsin Sikh Temple shootings; the 3 individuals killed in the FEAR group attacks; the 1 individual murdered in Carlisle, PA; the 1 individual killed in a suicide attack by plane in Austin, TX; the shooting of 3 police officers in Pittsburgh, PA; the 1 individual killed at the Holocaust Memorial Museum; the assassination of George Tiller, late-term abortion physician, in Wichita, KS; the murders of 2 in Arivaca, AZ; the 2 individuals murdered in Brockton, MA; and the 2 individuals murdered at the Knoxville Unitarian Universalist Church in Knoxville, TN.

If I added them up correctly, that’s 215 persons killed – not counting the injured. With the exception of the Oklahoma City Federal Building bombing, every single attack above was perpetrated since 2001. All were carried out by persons determined to be right wing terrorists.

Global Terrorism Database

Wiki on Right Wing Terrorism

I’ll leave it to you to do the apples-to-apples comparison of only the number injured which, as you correctly point out, is not a “non-existent” problem.

Here is a very good article that parses the numbers, if you’re interested: Fact Check by McClatchy on Ongoing Fears and Rumors about Refugees

I have no issue with approaches that are actually effective in preventing terrorism attacks on our soil. But based on the actual numbers outlined above, nothing the Trump crowd proposes addresses the actual issue – which is clearly a far lesser concern than domestic terrorism perpetrated by Right Wing extremism in comparison.

[puddleglum]

@XT

If anyone else is having a hard time keeping up with what the core issues on this, I found this CNN article that talks about it in less heated language and charged atmosphere of hostility than this thread:

There is a video associated with this link as well that might be worth watching as it also goes into some detail on the rationale being used in the block. I honestly don’t know enough about the law to know who is right. Both sides seem to have a point, though of course I’m hoping the side doing the blocking has the right of it as I think this ban is a mistake. I wish people could be a bit less heated and cutting in this thread, since this DOES seem to be one of those debates that is highly technical and isn’t intuitively obvious how it works. The EO is legal. What the courts are doing seems to be as well wrt this block, and it’s one of the things the federal court is SUPPOSED to do if they feel there could be or is an infringement on the Constitution. A good case can be made either way, and the resolution is probably going to be highly technical and beyond most non-lawyer posters to really follow.

This sounds crazy. Take the issue out of it. Action A is constitutional but not if president B does it because the court knows that president B has hate in his heart and therefore is only doing normally constitutional action A because of that hate. Therefore Action A is unconstitutional.

Apply it to gun control. The Assault Weapons ban is unconstitutional not because of the ban itself but because the president when campaigning said she would like to pass broader gun control which would have been unconstitutional. Therefore because the person wanted to do something unconstitutional they can’t do something constitutional.

If the travel pause would have been constitutional for Obama it should be constitutional for Trump. The constitution doesn’t change because of who is president and whatever malevolence he hides in his heart.

[HurricaneDitka]

@Aspenglow

Yup.

And in response to that indefensible, dreadful attack that was horrendous but killed no one, it seems the view of Trump and his supporters is to build an ineffectual, jaw-droppingly expensive wall that infuriates and inflames the anger of our traditional ally to the south; enact laws that persecute Muslims and provide fodder for terrorist recruiters abroad but do precisely nothing to actually prevent potential terrorists from entering the country; build up our military to an insane level, and permit law enforcement to carry out search and seizure, invasion of privacy and basically employ Brown Shirt tactics in their dealings with American citizens and legal residents.

With proportionality of response in mind, I wonder what response is appropriate to, say, the killing of 168 individuals in the Oklahoma City Federal Building bombing; the killing of 9 in the Charleston church shooting; the killing of 3 in the Colorado Springs attack on Planned Parenthood; the killing of 2 police officers in Las Vegas; the killing of 3 individuals in Overland Park, Kansas; the state trooper killed in Blooming Grove Township, PA; the 4 individuals killed in a tri-state attack in 2012; the 2 police killed in St. John’s Parish, LA; the 6 Sikh individuals killed in the Wisconsin Sikh Temple shootings; the 3 individuals killed in the FEAR group attacks; the 1 individual murdered in Carlisle, PA; the 1 individual killed in a suicide attack by plane in Austin, TX; the shooting of 3 police officers in Pittsburgh, PA; the 1 individual killed at the Holocaust Memorial Museum; the assassination of George Tiller, late-term abortion physician, in Wichita, KS; the murders of 2 in Arivaca, AZ; the 2 individuals murdered in Brockton, MA; and the 2 individuals murdered at the Knoxville Unitarian Universalist Church in Knoxville, TN.

If I added them up correctly, that’s 215 persons killed – not counting the injured. With the exception of the Oklahoma City Federal Building bombing, every single attack above was perpetrated since 2001. All were carried out by persons determined to be right wing terrorists.

Global Terrorism Database

Wiki on Right Wing Terrorism

I’ll leave it to you to do the apples-to-apples comparison of only the number injured which, as you correctly point out, is not a “non-existent” problem.

Here is a very good article that parses the numbers, if you’re interested: Fact Check by McClatchy on Ongoing Fears and Rumors about Refugees

I have no issue with approaches that are actually effective in preventing terrorism attacks on our soil. But based on the actual numbers outlined above, nothing the Trump crowd proposes addresses the actual issue – which is clearly a far lesser concern than domestic terrorism perpetrated by Right Wing extremism in comparison.

Your conclusion is that the “actual numbers” show that something “is clearly a far lesser concern than domestic terrorism perpetrated by Right Wing extremism in comparison”. I imagine that that something is Islamic terrorism, because we’re discussing the ban on Muslim immigration in this thread, but it would be very helpful if you’d state it clearly so that I don’t have to guess at your meaning. And, of course, Islamic terrorists have run up the score on both right-wing and left-wing terrorists, both domestically and globally, far surpassing them in dead and injured victims.

ETA: I think it’s a safe assumption that I don’t really buy into the “proportionality of response” idea like you do.

[CarnalK]

@puddleglum

This sounds crazy. Take the issue out of it. Action A is constitutional but not if president B does it because the court knows that president B has hate in his heart and therefore is only doing normally constitutional action A because of that hate. Therefore Action A is unconstitutional.

Apply it to gun control. The Assault Weapons ban is unconstitutional not because of the ban itself but because the president when campaigning said she would like to pass broader gun control which would have been unconstitutional. Therefore because the person wanted to do something unconstitutional they can’t do something constitutional.

If the travel pause would have been constitutional for Obama it should be constitutional for Trump. The constitution doesn’t change because of who is president and whatever malevolence he hides in his heart.

But you are making a contradiction. If he campaigned on banning Muslims, it’s not hidden in his heart.

[UltraVires]

@CarnalK

But you are making a contradiction. If he campaigned on banning Muslims, it’s not hidden in his heart.

But his point stands. Let’s say Trump advocated forcing all Muslims into death camps and exterminating them. The courts tell him that is unconstitutional and he may not do it.

Does it follow that he may not then legislate at all with respect to immigration because we “just know” he is doing it out of hatred?

The gun control example is apt. If Politician A proposes a ban on all guns, but finds out it is unconstitutional, is a law he proposes that disallows young children from buying guns unconstitutional because we know what the real purpose of the law is?

[gigi]

@ckalli1998

Oh, and his name is Giuliani, Rudy Giuliani who is an American patriot.

What is your definition of the patriot and how does Giuliani fit it?

[XT]

[QUOTE=puddleglum]
This sounds crazy. Take the issue out of it. Action A is constitutional but not if president B does it because the court knows that president B has hate in his heart and therefore is only doing normally constitutional action A because of that hate. Therefore Action A is unconstitutional.
[/QUOTE]

A lot of things wrt the law SOUND crazy, no doubt. However, the courts are a check on the presidency. I think they are supposed to be doing what they are doing here. In the end, a higher court is going to decide whether or not this ban is Constitutional and whether or not stopping said ban is something the courts can and should do. That’s how I see it at this point, anyway. Again, I’m no lawyer nor do I play one on the SDMB…and I haven’t stayed in a Holiday Inn Express in ages, so damnedifIknow…

[QUOTE=UltraVires]
Does it follow that he may not then legislate at all with respect to immigration because we “just know” he is doing it out of hatred?

The gun control example is apt. If Politician A proposes a ban on all guns, but finds out it is unconstitutional, is a law he proposes that disallows young children from buying guns unconstitutional because we know what the real purpose of the law is?
[/QUOTE]

They would and probably should be looking deeper at intent, yes. Again, IMHO. Though if I’m being honest, I can see how if this was being done in other ways and for other issues how I might take exception to this…and I’m guessing that others would feel differently about it if it was being used against what they feel is the correct way in another issue. What I HOPED that the article I linked to would do is to put out how both sides are actually looking at this, without all of the heat and rancor. For my part, as I said, it’s too technical…I don’t actually know enough about this aspect of the courts wrt Presidential EOs, if there is precedence for this action (always a big thing in the law), or how the higher courts are likely to view this and rule on it. Haven’t got a clue. Maybe some of the 'doper legal beagles will come on and give their take, hopefully in English…

[DrDeth]

@iiandyiiii

Mike Huckabee suggests that Trump ignore the judge’s ruling – citing (get this) motherfucking Andrew Jackson, who went ahead with ethnic cleansing (also known as the Trail of Tears) against the rulings of the SCOTUS.

So yes, at least one prominent Republican is now defending ethnic cleansing.

Worcester v. Georgia* didnt lead to the Trail of Tears, and Andrew Jackson had been out of office for over a year when President Martin Van Buren gave the order to start the removal. Not did Jackson say: "“John Marshall has made his decision, now let him enforce it.” That was Horace Greeley.
*wiki *Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from being present on Native American lands without a license from the state was unconstitutional.
*

Basically the dec said a individual state couldnt impose its laws upon tribal lands. But the Feds could, and that is exactly what happened when *President Martin Van Buren *gave the order to start the removal.

[boytyperanma]

@gigi

What is your definition of the patriot and how does Giuliani fit it?

Using your political capital to prop up third world dictators who murder there own people is a sure sign of a patriot.

[iamthewalrus_3]

@UltraVires

But his point stands. Let’s say Trump advocated forcing all Muslims into death camps and exterminating them. The courts tell him that is unconstitutional and he may not do it.

Does it follow that he may not then legislate at all with respect to immigration because we “just know” he is doing it out of hatred?

The gun control example is apt. If Politician A proposes a ban on all guns, but finds out it is unconstitutional, is a law he proposes that disallows young children from buying guns unconstitutional because we know what the real purpose of the law is?

This argument is compelling to me, and the gun control analogy is apt.

As much as I dislike Trump, the text of the law or the EO has to be controlling when determining whether it’s constitutional. How can we be said to be a nation of laws if an executive order would be constitutional if one president signed it, but not another?

[drad_dog]

@iamthewalrus_3

This argument is compelling to me, and the gun control analogy is apt.

As much as I dislike Trump, the text of the law or the EO has to be controlling when determining whether it’s constitutional. How can we be said to be a nation of laws if an executive order would be constitutional if one president signed it, but not another?

Because the law is concerned with intent?

[iiandyiiii]

@DrDeth

Worcester v. Georgia* didnt lead to the Trail of Tears, and Andrew Jackson had been out of office for over a year when President Martin Van Buren gave the order to start the removal. Not did Jackson say: "“John Marshall has made his decision, now let him enforce it.” That was Horace Greeley.
*wiki *Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from being present on Native American lands without a license from the state was unconstitutional.
*

Basically the dec said a individual state couldnt impose its laws upon tribal lands. But the Feds could, and that is exactly what happened when *President Martin Van Buren *gave the order to start the removal.

There were multiple Indian “removals” that make up the Trail of Tears – several of them occurred under Jackson, and were directly related to this case.

[drad_dog]

@UltraVires

But his point stands. Let’s say Trump advocated forcing all Muslims into death camps and exterminating them. The courts tell him that is unconstitutional and he may not do it.

Does it follow that he may not then legislate at all with respect to immigration because we “just know” he is doing it out of hatred?

The gun control example is apt. If Politician A proposes a ban on all guns, but finds out it is unconstitutional, is a law he proposes that disallows young children from buying guns unconstitutional because we know what the real purpose of the law is?

Wouldn’t it depend on whether there was an electronic trail of evidence leading to the disputed legislation? if there is isn’t that knowable?

[jshore]

@iamthewalrus_3

This argument is compelling to me, and the gun control analogy is apt.

As much as I dislike Trump, the text of the law or the EO has to be controlling when determining whether it’s constitutional. How can we be said to be a nation of laws if an executive order would be constitutional if one president signed it, but not another?

You are confused here. Issues of discrimination necessarily hinge on intent. It is not illegal to not hire a Black person for any number of reasons, but if you are not hiring them for discriminatory reasons, then it is illegal.

And, actually the gun control analogy is not apt at all. What is the analog to discrimination in the gun case? Are you saying there are anti-discrimination laws against certain objects. (“You can’t discriminate against a gun just because it’s a gun”?)

I think the problem that the Trump Administration is running into here is basically that they can’t fool judges as easily as they can fool a significant fraction of the public. So, they think they can call anything they want “necessary for national security” and thus have the President’s broad powers for national security hold precedence. Too bad they left a huge public trail showing what their actual motivations were (and that they can provide no compelling logic to justify their actions on the basis of national security).

One thing I haven’t seen talked about: We are already approaching the 60 day mark for this Administration and even for the issuance of the 1st EO. At some point, it seems like it almost becomes moot: They will have had their 120 days to do whatever magical thing they needed to do about reviewing vetting. Or, are they going to claim that somehow the ban not going into effect did not allow them to review their vetting procedures?