Travel ban: Oh for two

[ganthet]

@4th Circuit decision

Behind the casual assertion of consular nonreviewability lies a dangerous idea — that this Court lacks the authority to review high-level government policy of the sort here. Although the Supreme Court has certainly encouraged deference in our review of immigration matters that implicate national security interests, see infra Section IV.A, it has not countenanced judicial abdication, especially where constitutional rights, values, and principles are at stake. To the contrary, the Supreme Court has affirmed time and again that “it is emphatically the province and duty of the judicial department to say what the law is.” [cite omitted] This “duty will sometimes involve the ‘resolution of litigation challenging the constitutional authority of one of the three branches,’ but courts cannot avoid their responsibility.”

@4th Circuit decision

In the typical case, it will be difficult for a plaintiff to make an affirmative showing of bad faith with plausibility and particularity. See, e.g., Cardenas, 826 F.3d at 1173 (applying Din and finding that plaintiff who alleged that consular officer refused to consider relevant evidence and acted based on racial bias had failed to make an affirmative showing of bad faith). And absent this affirmative showing, courts must defer to the government’s “facially legitimate” reason for the action. Mandel therefore clearly sets a high bar for plaintiffs seeking judicial review of a constitutional challenge to an immigration action.

But although Mandel’s “facially legitimate and bona fide” test affords significant deference to the political branches’ decisions in this area, it does not completely insulate those decisions from any meaningful review. Where plaintiffs have seriously called into question whether the stated reason for the challenged action was provided in good faith, we understand Mandel, as construed by Justice Kennedy in his controlling concurrence in Din, to require that we step away from our deferential posture and look behind the stated reason for the challenged action. In other words, Mandel’s requirement that an immigration action be “bona fide” may in some instances compel more searching judicial review.

@Bricker

But passion and moral certitude should not be the basis of constitutional rulings, in my view.

Yes, the 4th CCA is known to be the bastion of devil-may-care emotionalism. Clearly the words in the decision above are from truly wayward judges who have succumbed to a blind rage of “Never Trump” mania mixed in with a Sunday school teacher fervor.

[Snowboarder_Bo]

At this point, I can’t quite remember if this is 0/3 or 0/4:[

Another U.S. appeals court upheld a decision blocking President Donald Trump’s revised travel ban Monday, dealing the administration another legal defeat as the Supreme Court considers a separate case on the issue.

The ruling from a unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals said the president violated U.S. immigration law by discriminating against people based on their nationality and by failing to demonstrate that their entry into the country would hurt American interests.

“Immigration, even for the president, is not a one-person show,” the judges said. “The president’s authority is subject to certain statutory and constitutional restraints.”

It keeps in place a decision by U.S. District Judge Derrick Watson in Hawaii that he based largely on Trump’s campaign statements calling for a “complete and total shutdown” of Muslims entering the U.S.

](http://hosted.ap.org/dynamic/stories/U/US_TRAVEL_BAN_LAWSUITS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2017-06-12-13-35-53)

[ThelmaLou]

What’s the status of the (non)ban vis-à-vis The Supremes?

Geez, there are so many pots boiling on the stove, it’s hard to keep track of them.

[Lemur866]

Can I just say how much I love the Trump administration argument that we need a temporary travel ban on Muslims entering the country until we can figure out what is going on. But because the courts have struck down the travel ban, we can’t even start figuring out what is going on! Never mind that we needed only 90 days to figure it out, we’re completely helpless, paralyzed by the courts.

The strategy of giving up on the travel ban, and just figuring out what is going on so they can start the process of stopping bad hombres from coming here doesn’t seem to have occurred to them.

Almost as if, somehow, the important point was banning muslims from the country and figuring out what was going on was a distant second.

[ThelmaLou]

@Lemur866

…
Almost as if, somehow, the important point was banning muslims from the country and figuring out what was going on was a distant second.

I think the important point was for Trump to say out loud to his loyal sycophants that he was going to ban all Muslims from entering the country and kick out the bad ones out. Doing it? Who cares? He just wanted to get a check mark next to his campaign promise. If courts stop him, that’s on THEM. He did his best, but he was blocked at every turn! Sad. Move on.

[bobot]

@Snowboarder_Bo

At this point, I can’t quite remember if this is 0/3 or 0/4:

And then some:
"The 9th Circuit, however, has now blocked the ban on statutory grounds, holding that Trump “exceeded the scope of the authority delegated to him by Congress.”

The 9th Circuit Just Gave the Supreme Court a New Tool to Block Trump’s...

It has been ruled to be unconstitutional in a new way. Maybe Doper lawers could explain the details.

[Ramira]

@Lemur866

…
Almost as if, somehow, the important point was banning muslims from the country and figuring out what was going on was a distant second.

a pretext rendered transparent by incompetence.

[UDS]

@bobot

And then some:
"The 9th Circuit, however, has now blocked the ban on statutory grounds, holding that Trump “exceeded the scope of the authority delegated to him by Congress.”

Ninth Circuit maintains injunction against Trump's travel ban.

It has been ruled to be unconstitutional in a new way. Maybe Doper lawers could explain the details.

I don’t think it has been “ruled to be unconstitutional in a new way”. The President’s Executive Order is an exercise of powers delegated to him by the Immigration and Naturalisation Act. The court has ruled that the INA does not allow the President to do what he purports to do in this EO; he’s trying to do something which goes beyond the powers he has under the INA. So, what he is doing is not so much contrary to the Constituion as contrary to the INA.

[Bricker]

@ganthet

Yes, the 4th CCA is known to be the bastion of devil-may-care emotionalism. Clearly the words in the decision above are from truly wayward judges who have succumbed to a blind rage of “Never Trump” mania mixed in with a Sunday school teacher fervor.

Well, perhaps a contrast is appropriate:

Having adopted this view of the equities, the courts approved injunctions that covered not just respondents, but parties similarly situated to them—that is, people or entities in the United States who have relationships with foreign nationals abroad, and whose rights might be affected if those foreign nationals were excluded. . . But the injunctions reach much further than that: They also bar enforcement of §2(c) against foreign nationals abroad who have no connection to the United States at all.

The equities relied on by the lower courts do not balance the same way in that context. Denying entry to such a foreign national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself. . . So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below. At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.

(emphasis mine)

From the per curiam order today accepting the cert petition and dissolving the stays issued against the government as to individuals without personal connections to people within the United States.

To be argued in the October term.

Care to wager on an outcome? Anyone?

[Bricker]

It takes four votes to grant cert, and five to dissolve stays. So five justices signed on to that per curiam order dissolving the stays.

In case that info is relevant to anyone interested in predicting anything.

[aldiboronti]

The judicial arena is the only one where you can lose in all the preliminary rounds and still win the final. The thing is it was pretty clear all along that Trump would get a majority for the substance of the ban in SCOTUS if not some of the trimmings which made all the rulings in other Federal courts pretty pointless.

[Richard_Parker]

@Bricker

It takes four votes to grant cert, and five to dissolve stays. So five justices signed on to that per curiam order dissolving the stays.

In case that info is relevant to anyone interested in predicting anything.

They didn’t “dissolve stays.” First, you’re referring to the injunctions, not the stays (the injunctions were stayed). Second, they were modified, not dissolved. The Plaintiffs are still protected, as are those similarly situated.

As for October, my prediction is that the case will be moot.

ETA: A significant victory for the good guys, in my estimation. Looks like conservatives were mostly wrong about their standing arguments.

[ISiddiqui]

@Bricker

From the per curiam order today accepting the cert petition and dissolving the stays issued against the government as to individuals without personal connections to people within the United States.

To be argued in the October term.

Care to wager on an outcome? Anyone?

Not sure if I’m up for wagering, but I think this leans to a splitting of the baby, so to speak. The travel ban will be struck down regarding anyone with personal connections to folks or organizations in the United States (of course they will have to determine what the limits of that ‘connection’ will be) and kept for anyone without connection. Evidently, Thomas, Alito, and Gorsuch wanted the entire preliminary injunction struck down, so Roberts and Kennedy are the ones who have some issues with it and who I think won’t affirm the ban in it’s entirety. Though oral arguments may sway Justice Kennedy one way or another, who knows?

[Johnny_Ace]

So basically the only terrorists the ban will stop currently are those posing as tourists or refugees who couldn’t come up with another plausible explanation. All three of them.

Uh, OK…

[iiandyiiii]

@Richard_Parker

As for October, my prediction is that the case will be moot.

ETA: A significant victory for the good guys, in my estimation. Looks like conservatives were mostly wrong about their standing arguments.

Could you explain your “moot” prediction, and your “victory” estimation?

[Richard_Parker]

@iiandyiiii

Could you explain your “moot” prediction, and your “victory” estimation?

Kennedy and Roberts upholding the most defensible part of the injunctions strongly signals they would likely find against the ban on the merits as to those people. Conservatives had argued that no one had standing, and Roberts is usually pretty sympathetic to that line (to say nothing of them not buying into the national security pretext that Gorsuch and others apparently bought). As a practical matter, the majority of the people affected by the ban will be able to show a bona fide connection, especially since the gray areas will get determined by sympathetic lower courts while SCOTUS is out of the office for the summer.

The case may be moot by October because the clock is now ticking as to parts of the ban (people w/o connections) and SCOTUS expressly said it expected that Trump Admin would perform the vetting review that is the whole reason the ban exists. This is underscored by SCOTUS having added that particular question–is the ban moot–to the questions it certified, suggesting they think it may well be moot come October.

[iiandyiiii]

Thank you Richard Parker!

[Johnny_Ace]

In tangentially-related news:

Trump breaks White House Eid dinner tradition

Notice the difference between words and deeds.

[Bricker]

@Richard_Parker

They didn’t “dissolve stays.” First, you’re referring to the injunctions, not the stays (the injunctions were stayed). Second, they were modified, not dissolved. The Plaintiffs are still protected, as are those similarly situated.

As for October, my prediction is that the case will be moot.

ETA: A significant victory for the good guys, in my estimation. Looks like conservatives were mostly wrong about their standing arguments.

Your civpro notes are right, and it looks like there will be standing for at least some of the US based entities complaining about the effects.

[Czarcasm]

I wonder how the Trump administration will interpret this: As a sign that they can proceed with their plan fully without restriction, or as a sign that they should proceed with due caution until the Supreme Court reviews the case?