Most Read
Image 01 Image 02 Image 03

4th Circuit upholds injunction against Trump revised travel Executive Order

4th Circuit upholds injunction against Trump revised travel Executive Order

Executive Order “in context drips with religious intolerance, animus, and discrimination”

https://www.youtube.com/watch?v=npvd-VVqh9Q

The 4th Circuit Court of Appeals, which heard the case en banc, has upheld substantially all of the Maryland District Court injunction against Trump’s revised travel Executive Order in an opinion (pdf.) dripping with politics. (Full embed at bottom of post).

The opinions (including concurring and dissenting) are 200 pages, so it will take some time to digest, but you’ll get the message from the opening paragraph:

“The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.”

The opinion is so bad, it’s hard to know where to start. Perhaps the best place is this completely foolish statement on page 17:

The Second Executive Order does not include any examples of individuals from Iran, Libya, Sudan, Syria, or Yemen committing terrorism-related offenses in the United States.

Sorry, respected and honored Judges, that’s not your call. That’s the President’s call, and the President doesn’t need to recite examples in an order or wait for people from these countries to engage in terrorism in the U.S.  (We know that people from these countries have in fact committed terrorist acts in the U.S., but that’s actually beside the point for the legal analysis. It is not up to the judges.)

The most egregious focus of the majority opinion was relying on Trump’s campaign statements (starting at page 18):

The First and Second Executive Orders were issued against a backdrop of public statements by the President and his advisors and representatives at different points in time, both before and after the election and President Trump’s assumption of office. We now recount certain of those statements….

The Court then goes on for several pages recounting news clippings and campaign statements. This is a task, the dissent correctly pointed out, that will have both a chilling effect on political speech and is legally irrelevant as to a specific Executive Order after taking office. The Court concluded that the national security justifications were a sham (page 52-60):

Based on this evidence, we find that Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose. And having concluded that the “facially legitimate” reason proffered by the government is not “bona fide,” we no longer defer to that reason and instead may “look behind” EO-2….

The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s primary purpose is religious. Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States….

As a candidate, Trump also suggested that he would attempt to circumvent scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion….

These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly….

EO-2 cannot be read in isolation from the statements of planning and purpose that accompanied it, particularly in light of the sheer number of statements, their nearly singular source, and the close connection they draw between the proposed Muslim ban and EO-2 itself.

The court concluded (page 69):

EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs. We therefore find that EO-2 likely fails Lemon’s purpose prong in violation of the Establishment Clause.22 Accordingly, we hold that the district court did not err in concluding that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim.

The only part of the lower court injunction that was vacated was that part naming Trump personally:

“In light of the Supreme Court’s clear warning that such relief should be ordered only in the rarest of circumstances we find that the district court erred in issuing an injunction against the President himself. We therefore lift the injunction as to the President only. The court’s preliminary injunction shall otherwise remain fully intact.”

Three Judges (Niemeyer, Shedd, Agee) dissented:

While the [District] court acknowledged the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to enter the Order and also acknowledged that the national security reasons given on the face of the Order were legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that courts are precluded from “look[ing] behind” “facially legitimate and bona fide” exercises of executive discretion in the immigration context to discern other possible purposes, id. at 770. Relying on statements made by candidate Trump during the presidential campaign, the district court construed the Executive Order to be directed against Muslims because of their religion and held therefore that it likely violated the Establishment Clause of the First Amendment.

I conclude that the district court seriously erred (1) by refusing to apply the Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents…..

The majority reworks the district court’s analysis by applying Mandel, albeit contrary to its holding, to defer only to the facial legitimacy of the Order but not to its facial bona fides, despite the Mandel Court’s holding that “when the Executive exercises
this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests” of the plaintiffs. Mandel, 408 U.S. at 770 (emphasis added). In addition, the majority, after violating Mandel, then adopts the same new rule of law adopted by the district court to consider candidate Trump’s campaign statements to find the Executive Order’s stated reasons “pretext[ual],” ante at 51, and then to rewrite the Order to find it in violation of the Establishment Clause. This too is unprecedented and unworkable.

The dissent took particular issue with the reliance by the majority on Trump’s campaign statements:

In affirming the district court’s ruling based on the Establishment Clause, the majority looks past the face of the Order’s statements on national security and immigration, which it concedes are neutral in terms of religion, and considers campaign statements made by candidate Trump to conclude that the Order denigrates Islam, in violation of the Establishment Clause. This approach (1) plainly violates the Supreme Court’s directive in Mandel; (2) adopts a new rule of law that uses campaign statements to recast the plain, unambiguous, and religiously neutral text of an executive order; and (3) radically extends the Supreme Court’s Establishment Clause holdings…..

The Supreme Court surely will shudder at the majority’s adoption of this new rule that has no limits or bounds — one that transforms the majority’s criticisms of a candidate’s various campaign statements into a constitutional violation.

More to follow.

——————–

4th Circuit Decision Upholding Injunction Against Trump Travel Executive Order by Legal Insurrection on Scribd

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

We are in the midst of a Judicial Insurrection.

    dystopia in reply to sidebar. | May 25, 2017 at 2:44 pm

    We need a new term: judicial nullification. The Court is reflecting a larger left-wing insurrection.

    legalbeagle in reply to sidebar. | May 25, 2017 at 3:55 pm

    No where does the Constitution give a non-citizen, not in possession of a valid Visa a right of entry into the United States. Congress has Article I power to “To establish a uniform rule of naturalization”.

    It is a simple concept. Sad that these judges got it wrong. Just replace Muslim with North Korean and it makes more sense to liberals.

      practicalconservative in reply to legalbeagle. | May 25, 2017 at 4:18 pm

      I guess during World War II we could not have banned Japanese travel to the United States since the Japanese have a distinct race and religion. We would have had to have given Visa’s to their soldiers?

      Milhouse in reply to legalbeagle. | May 25, 2017 at 9:02 pm

      Naturalization has nothing to do with entry into the US.

        counsel in reply to Milhouse. | May 26, 2017 at 8:41 am

        Perhaps immigration law is not your specialty. The Judicial interpretation of the text is more important than the exact phraseology. To see the interpretation in action, here is an excerpt from see Arizona v. United States, 567 U.S. (2012)

        Held:
        1. The Federal Government’s broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to “establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U. S. 1, 10.

        Liberty Bell in reply to Milhouse. | May 26, 2017 at 9:10 am

        As you so amicably said below: “Bulldust. The naturalization process and Visa (or entry) process go hand in hand. Or was Congress wrong in establishing Immigrant Visas?

        Pettifogging pea brain.

          Milhouse in reply to Liberty Bell. | May 26, 2017 at 11:51 am

          Far from going hand in hand, they have no connection whatsoever. An immigrant need never seek naturalization if he doesn’t want to, or he may seek it at any time regardless of when he immigrated.

          Congress’s power over immigration is not based at all on the constitution. The Supreme Court invented it 100 years after the constitution was ratified. It’s currently law, but originalists ought to have difficulty with it.

    practicalconservative in reply to sidebar. | May 25, 2017 at 4:17 pm

    If this judicial pareidolia is allowed to stand this unholy feat of judicial legerdemain could be pirated to attack Obamacare in the Courts.

    Simply put the framers of Obamacare intended to use it as a stepping stone to nationalizing healthcare. Since nationalization of private business is not allowed and the intent of the framers predominates Obamacare is unconstitutional by these judges ill conceived judicial fiat.

      Since nationalization of private business is not allowed

      Since when?

        sequester in reply to Milhouse. | May 26, 2017 at 9:14 am

        Since we are still a capitalist rather than Socialist nation (for the time being) and the seizure of private property is frowned upon.

          Milhouse in reply to sequester. | May 26, 2017 at 11:56 am

          Nothing in the constitution says so. On the contrary, the constitution explicitly authorizes the taking of private property for public use, and merely requires just compensation, which of course comes with any nationalization. When has any western country ever nationalized anything without compensation?

          But you’re even farther off base than that, because nationalizing the health insurance business would not even involve any such seizures, so no compensation would be necessary.

I’m no legal scholar, but since this court has now stated that you can rule against an Executive Order based on the campaign rhetoric of a candidate, could one legally go after Obama’s Executive Orders in the same fashion?

You know, use the extreme bias of this court to fight fire with fire?

    Of course not. The courts have a pre-determined right conclusion. They will contradict themselves in their reasoning in order to reach the pre-determined right conclusion.

    This is typical logic of John Rawls:

    1st: “Original Position” – determined the “correct” position

    2nd: “The Overlapping Consensus” – make up any excuse you need to affirm said position and convince others

    3rd: “Public Reason” – Only actions that lead to the “correct” position are legitimate, thus actions that lead to an “incorrect” position *must* be wrong, axiomatically.

    4th: “Courts of Constitutional Interpretation” – The above three steps are turned into precedent and law by judicial fiat.

    The courts logic, to wit: Open borders is the correct position, and any argument that supports that (e.g. Islamophobia is bad, “for the children”, &c.) will be employed to further that position; the courts then declare the correct position is the only position by delegitimizing the alternative.

    More on that: http://politicalhat.com/2016/10/03/the-veil-of-john-rawls-ignorance/

    Liberty Bell in reply to Mr. Izz. | May 25, 2017 at 3:43 pm

    Your no “Legal Scholar. Don’t worry Mr. Izz, neither are these judges.

    derf in reply to Mr. Izz. | May 25, 2017 at 3:46 pm

    That’s what I said when the first injunction was put in place.

    The Roberts Court went out of its way to ignore the legislative history of Obamacare (where we have congressmen/senators and the president himself bending over backwards to reassure people that the mandate was not a tax, that it was a penalty). Yet the only way Roberts could see to not invalidate the entire law was to hold that the penalty was a tax, which clearly was not what the writers of the monstrosity had in mind, and expressly refuted).

    It is a dangerous, slippery slope to start talking about factoring in (often outrageous, then modified or retracted) campaign statements or positions on issues that then have policies enacted and facially are not a problem. What if I say something, then acknowledge that it was a stupid thing to say. How does the court then decide that my acknowledgement was real or heartfelt or ___________.

    This is madness.

      don’t forget during oral arguments the lawyers also said it wasn’t a tax.

      Milhouse in reply to derf. | May 26, 2017 at 12:07 pm

      The Roberts Court went out of its way to ignore the legislative history of Obamacare

      No, it didn’t. You’re simply lying.

      The court explicitly acknowledged that history, and the fact that the politicians involved in drafting and passing it repeatedly insisted it was an unconstitutional penalty and denied that it was a constitutional tax. But so what? Who cares what they said? Legislators’ motives and intentions are irrelevant when determining what it was that they did. For that one must look at the thing itself, not at what they said about it. And when one looks at the thing itself it is clearly a tax and not a penalty.

      What’s more, the court didn’t invent this approach; the decision cited a precedent from the 1930s that was directly on point. That case considered this exact same question from the opposite perspective: Congress tried to disguise a penalty by calling it a tax, but the court correctly saw through that lie and determined that no matter what Congress chose to call it, it was in fact a penalty.

      TLDR: Congress lies, and if it calls something a penalty but it waddles and quacks like a tax then it’s a tax, and vice versa.

      The issue here, though, isn’t what the order does but why it does so, and for that one must look at what the president has said.

        The issue here, though, isn’t what the order does but why it does so, and for that one must look at what the president has said.

        This analysis ignores Kleindienst v. Mandel, 408 U.S. 753 (1972), as discussed in the dissents.

    Milhouse in reply to Mr. Izz. | May 25, 2017 at 9:14 pm

    could one legally go after Obama’s Executive Orders in the same fashion?

    If one could find an 0bama order whose true motive clearly differs from its ostensible motive, and whose true motive is impermissible, then certainly. Can you think of such an order? For instance, his campaign promise to bankrupt the coal industry clearly show the true motive for the anti-coal regulations his EPA issued, but that motive is perfectly permissible, so establishing it would not achieve anything.

So, Obama’s intolerance and animus towards white Americans in his attempt to “Brown America” by flooding immigrants “of color” into the US in order to permanently reduce the influence of the majority “white” Americans is unlawful discrimination?

    Milhouse in reply to NoFlow. | May 25, 2017 at 9:17 pm

    It would be if you could establish it. Unfortunately there’s no evidence for it. I think it’s a reasonable supposition, but that’s all it is.

But the Constitution defines the rights of AMERICAN CITIZENS! This is not a 1st Amendment issue. It’s a sovereignty issue. The Constitution clearly allows the POTUS to bar ANYONE, from ANYWHERE, and for ANY reason from entering the country.

Another defective decision by yet another court that either doesn’t understand or doesn’t accept the US Constitution. We so need the Article V Convention.

Instead of nitpicking at Trump every day on his radio show on his idiotic never-ending NeverTrump campaign, Mark Levin should be recruiting Trump to endorse his campaign for the Article V Convention. It’s the fastest way to getting it done.

    The Bill of Rights is declarative and restrictive upon the government. Liberties are independent of, and antecedent to, governments, including the status of citizen. So no, the Bill of Rights protects people from the governments violation of their inalienable rights, period.

    That being said, being allowed into the country when you are foreigner is not a right, and that lack-of-right is the only legitimate point when it comes to prohibiting entry.

      I’m not a lawyer but it sounds to me like your explanation arrives at the same conclusion. No one has an inalienable right to enter the US and so if denied entry, an applicant cannot her his/her constitutional rights were violated.

    Milhouse in reply to Pasadena Phil. | May 25, 2017 at 3:32 pm

    But the Constitution defines the rights of AMERICAN CITIZENS!

    Bulldust. The constitution explicitly protects the rights of every person within its jurisdiction; it makes no distinction between citizen and alien, or even between those with and without the legal right to be in that jurisdiction.

    The Constitution clearly allows the POTUS to bar ANYONE, from ANYWHERE, and for ANY reason from entering the country.

    Really? Where? You can scour the constitution all day and you will not find this anywhere.

      No, the Constitution doesn’t grant the President (really, the Executive Branch) the power to decide unilaterally who may or may not enter the country, but current immigration law does.

      I see your point: Phil is wrong because he said the Constitution grants that power. But he’s correct in the claim that the President (read: Executive Branch) DOES have that authority.

      A true statement doesn’t become untrue when the wrong source is cited.

        Thank you.

        Milhouse in reply to Archer. | May 25, 2017 at 9:25 pm

        Phil’s claims were about the constitution. They were both comically wrong.

        Current law, as invented by the Supreme Court in 1889, does give Congress that power, and Congress has largely delegated it to the president, with certain exceptions. That precedent is still binding, though it would be difficult for an originalist to defend it. That does not make Phil’s constitutional position correct.

          Barry in reply to Milhouse. | May 26, 2017 at 8:10 am

          If the constitution establishes the congress, and congress makes law consistent with the constitution as ruled upon by the SC, and that law gives absolute power to the president to reject immigrants wholly by class,

          Then why is that not derived from the constitution?

          Milhouse in reply to Milhouse. | May 26, 2017 at 12:11 pm

          Phil made two specific claims: (1) “the Constitution defines the rights of AMERICAN CITIZENS!” (2) “The Constitution clearly allows the POTUS to bar ANYONE, from ANYWHERE, and for ANY reason from entering the country”. Both claims are false.

      “Bulldust”

      Wow. That’s harsh. Never saw it coming. I’ll have to spend a few moments in my happy space to restore my emotional center.

      SDN in reply to Milhouse. | May 25, 2017 at 8:38 pm

      The Constitution is not a suicide pact. No matter how many wish to make it one.

    No, the Constitution and Bill of Rights define rights of ALL PEOPLE, but due to national sovereignty can only be legally applied to people on American soil and subject to American law.

    Not just American citizens; people on American soil.

    (Notice that illegal immigrants’ 4th Amendment rights against illegal search/seizure and 5th Amendment rights against self-incrimination are still upheld, even though they are not American citizens. Same with anyone here legally on a student or work visa; still not American citizens, but their rights are still upheld.)

    Both documents protect the people’s rights by limiting the government. Period. Full stop. If the government has limits, those limits apply to all government interactions, with ALL PEOPLE.

    It was set up that way on purpose.

Judicial overreach at its finest. As Judge Niemyer writes:
“I conclude that the district court seriously erred (1) by refusing to apply the Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents. The district court’s approach is not only unprecedented, it is totally unworkable and inappropriate under any standard of analysis”
“seriously erred”; “radically extending” the establishment clause. This is going to get wiped out by the Supreme Court.

Supremes reverse in 3, 2, 1….

ObeliskToucher | May 25, 2017 at 3:30 pm

Nice touch by Niemeyer to highlight (p 163) the way the majority ruling mangles a statement in Kennedy’s Din ruling. Kennedy may want to stick around another year just to ask questions at the hearing…

    Your comment got me to turn to the portion of the dissent you mention and the immediately following pages. What a pleasure it is to read a well-reasoned and legally sound opinion.
    Thanks.

The Court has not delivered a legal argument, it has staked out a political position—pretty damn close to “emanations of penumbras” all over again.

Obviously the control of the Executive Department is a Constitutional issue, and this should be pushed further. The only tactical question is, is the Supreme Court safe from the knee-jerk Progressives yet, or do we have to wait longer?

Pelosi Schmelosi | May 25, 2017 at 3:36 pm

“Intolerance, animus and discrimination”

BAKE THE DAMNED CAKE!

The easiest way to tell when a judicial decision is total BS, is to look at the length of the decision. The longer the decision, usually the less founded in legal precepts, logic and common sense and the more it is a way to justify a shaky or totally faulty decision. The main decision, in this case, runs 80 pages, with concurring arguments running another 64 pages. And, while it may seem compelling,. on its face, a shallow analysis of the reasoning shows that it falls below that exhibited on most morning television judge shows. When one reads the main decision and the concurring ones, the basic argument is that the EO is based solely upon anti-Islamic feelings inherent within the current administration. They base this on THEIR interpretation of campaign rhetoric made by the President during a campaign. The justices totally rejected the administration’s explanation that this ban was temporary, that it was not all inclusive, that it applied to ALL applicants for admission from the designated countries regardless of religion and that all the named countries either lacked any reliable vetting system for its populous,had a system which could not be counted upon to be accurate due to its demonstrated animus to the US or both.

This was not unexpected. But, it merely reduces the stature of the federal judiciary.

“…inntolerance…”

Nope

“…animus…”

Nope.

“…and discrimination.”

Sure. We have every right to discriminate for or against anyone admitted to our nation.

Everyone “discriminates” every day, and for perfectly sound reasons. You and I “discriminate” between hamburger and T-bones. It’s a necessary part of living.

Here, it’s just a sound provision…made for a time…to assure public safety.

I’m not going to attempt to fisk this opinion, but only crazy argues with crazy. Suffice it to say that that the judiciary is now a co-conspirator in every single Islamic terrorist plot.

They want you dead.

Surah 3:151

“We will cast terror into the hearts of those who disbelieve for what they have associated with Allah of which He had not sent down [any] authority. And their refuge will be the Fire, and wretched is the residence of the wrongdoers.”

Surah 8:12

“[Remember] when your Lord inspired to the angels, ‘I am with you, so strengthen those who have believed. I will cast terror into the hearts of those who disbelieved, so strike [them] upon the necks and strike from them every fingertip.'”

Sahih al-Bukhari – Book of Fighting for the Cause of Allah (Jihaad) – (122) Chapter: “I have been made victorious…”

” Narrated Abu Huraira:

Allah’s Messenger said, “I have been sent with the shortest expressions bearing the widest meanings, and I have been made victorious with terror (cast in the hearts of the enemy), and while I was sleeping, the keys of the treasures of the world were brought to me and put in my hand.” Abu Huraira added: Allah’s Messenger has left the world and now you, people, are bringing out those treasures (i.e. the Prophet did not benefit by them).

Reference : Sahih al-Bukhari 2977
In-book reference : Book 56, Hadith 186
USC-MSA web (English) reference : Vol. 4, Book 52, Hadith 220
(deprecated numbering scheme)”

These judges want to admit people who take the above as religious obligations as lived by their perfect example, Muhammad, into the United States.

    Ragspierre in reply to Arminius. | May 25, 2017 at 6:13 pm

    No.

    This makes the majority argument for them.

    AND it is the last thing that T-rump’s order does.

    This one was much more carefully crafted and run out so as to EXPRESSLY make clear that it was NOT about Muslims (which it is NOT). It IS about vetting people only from certain nations/regions where vetting is particularly problematic, and who could be a danger to the U.S.

      SDN in reply to Ragspierre. | May 25, 2017 at 8:39 pm

      So what? The majority is composed of a pack of suicidal fools.

      Arminius in reply to Ragspierre. | May 25, 2017 at 11:09 pm

      Shorter Ragspierre. I hate you and I want you dead.

      How long do you think that’s going to fly?

      Ragspierre in reply to Ragspierre. | May 26, 2017 at 7:34 am

      You’ve lost your reason.

      I have no trouble saying what I mean, and I meant no such thing.

      AND what I said was right. You and that idiot above you are how the court gets to its terrible decision.

        guyjones in reply to Ragspierre. | May 26, 2017 at 5:23 pm

        Rags, why are you always so quick to descend to hurling personal insults whenever you’re challenged, or, someone expresses a disagreement with you? It’s perpetually dismaying. I’d hope that you’d be able to realize that maintaining some modicum of civility in attempting to convey your opinions is a far more effective and credible means of discourse.

The opinion is 200 pages because it’s all, very bit of it, BS. If the decision was actually based on real law and the Constitution, it would take one page to say so and explain.

“…an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

So we have judges on the panel who appear to be triggered by invisible dog whistles. Nice of them to put the entire order “in context” for us ordinary people who might accidentally read the words and decide they mean just what they say.

That would be just terrible.

I have a question.

Obama said that with his DACA / “dreamer” Executive Order, he “changed the law”. And prior to that he has said that he did not have the authority to unilaterally change the policy.

Is that not de facto evidence that even if his EO could survive the usual judicial scrutiny (which it shouldn’t since he didn’t have the authority to do what he did), under this current 4th / 9th Circuit version of scrutiny his EO should be invalidated because he thought he was changing the law and was bragging about it?

    derf in reply to derf. | May 25, 2017 at 6:35 pm

    Contrast the “changing of the law” with Obama’s DACA / immigration EO that created not only a whole new class of immigrants not provided for by law AND granted them legal status and perks in direct contravention of the will of Congress (they couldn’t get anything similar passed by even an all democrat Congress) to Trump’s EO that cites and uses the authority given to the President by the legislative branch to temporarily ban (8 USC 1182(f) ) immigration from 6 countries identified by the prior administration as being countries that could not vet adequately immigrants.

    And Trump is the lawless one? The fascist? Come on. This ruling upends the rule of law and turns the law on its head.

    Milhouse in reply to derf. | May 25, 2017 at 9:32 pm

    Is that not de facto evidence that even if his EO could survive the usual judicial scrutiny (which it shouldn’t since he didn’t have the authority to do what he did), under this current 4th / 9th Circuit version of scrutiny his EO should be invalidated because he thought he was changing the law and was bragging about it?

    No, because wishing to change the law is not an impermissible motive. The president can’t change the law, but he has every right to want to. The plaintiffs’ argument in the current case, to which the administration stipulates for now, is that a desire to exclude Moslems from the country is illegitimate, and anything done in pursuit of such a goal is illegal.

      derf in reply to Milhouse. | May 25, 2017 at 10:31 pm

      “No, because wishing to change the law is not an impermissible motive. The president can’t change the law, but he has every right to want to.”

      You’re missing the point. Obama, over and over again said that he wished he could unilaterally change the immigration law, but that he couldn’t. He then went (and in an election year) and did what he said that he could not do. After the fact, he boasted that he “changed the law” with his executive order.

      On record for saying he did’t have the authority to do something. Multiple times. He does it. Then he boasts about he, as the president (?emperor?) changed the law (which he undoubtedly did). And that’s the point. He boasted of changing the law, without going through Congress (actually going against the express will of Congress).

      But you’re OK with it because….

        Milhouse in reply to derf. | May 26, 2017 at 12:18 pm

        Because what he said is irrelevant. What he thought is irrelevant. All that matters is what he did, not why he did it.

        You seem to be claiming that his previous statement that he lacked the power to do this should have estopped him from doing it, but that won’t fly; he could simply say he changed his mind.

        In this case, though, it’s all about motive. The order is being challenged not on the basis of what it does but on why. An impermissible motive would make the order illegal. So it matters what he has said, even during the campaign.

an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.

That sounds like a judge with an ideological ax to grind using his bias to determine context, not a reasoned legal opinion when based on the actual EO.

Based on that alone, SCOTUS should take him to the woodshed.

The judges are Pro-Choice. Judgement: principles don’t matter. People should be judged by the color of their clump of cells (i.e. [class] diversity).

In any case, it’s not a ban. It’s not a Muslim ban. It’s not even a significant delay in nations with competent governance. It doesn’t affect the majority of Muslims globally. It does affect Jews, Christians, Atheists, etc.

Baby trial. GREGORY, Chief Judge, presiding.

Breaking news: Martin Luther King, Jr’s statue pulled down. Venues with his name defaced by people wearing hoods… masks.

ahad haamoratsim | May 25, 2017 at 8:15 pm

“And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. ”

It was a dark and stormy complaint – – –

The law as farce.

So far the administration has stipulated that an order intended to reduce Moslem immigration would be illegal. Its argument has been that the instant order was not made such a motive. Maybe it’s time to change course. Go back to court saying “All right, your honors, have it your way. Let’s stipulate (without admitting) that the order is intended to have such an effect. How is that impermissible? Chae Chan Ping v. United States (1889) is still valid law, and is binding on this court. The Chinese Exclusion Act was constitutional, despite its blatantly racist motivation, because Congress has plenary power over immigration. Now an originalist judge might have a problem with a power that has no basis in the constitution’s text, and that the Supreme Court invented 100 years later, but you’re not originalists, and besides, binding, remember? So if it’s lawful to deliberately refuse all Chinese people admission to the USA, then why not all Moslems? And if deliberately excusing all Moslems would be lawful, then a fortiori this order, which doesn’t do that, must also be lawful.

    nebel in reply to Milhouse. | May 26, 2017 at 1:30 am

    You do realize that the federal courts are disregarding the law to order the political outcomes that the judges want? Even if the case so was so strong that the constitution explicitly stated that the president could ban entry into the US on the basis of religion, the courts would still fabricate fatuous rationales to get the results they want. I am sure you can think of more than a few issues the courts settled w prove my point.

      Milhouse in reply to nebel. | May 26, 2017 at 12:22 pm

      No, I do not “realize” that. You are asserting it, but that doesn’t make it true. So far the administration has admitted that an anti-Moslem motive would invalidate the order. Let it change tack and argue that the order is valid on its face regardless of motive, and see what the courts say to that.

      If a court ever does blatantly disregard the law and rule purely based on its own wishes, then the president should publicly declare the purported ruling to be ultra vires and void, and refuse to obey it.

The three dissents are worth reading — they are cogent and well-written, pointing out the inherent sophistry and dishonesty of the majority’s opinion, including granting standing where none exists, ignoring inconvenient, long-standing and well-established precedent, casual factual distortions, taking quotes from caselaw out of context, crafting entirely novel and unprecedented judicial tests out of thin air, and, above all, ignoring the public’s national security interest.

Worth perusing, if for no other reason than to reassure one’s self that there still exist at least a few judges left in America who are capable of giving the U.S. Constitution primacy over their subjective political loyalties, contortionist legal reasoning and their transparent desire to reach a politically palatable result.

The ten judges ruling for the plaintiff were all clinton and/or obama appointees. With the exception of gregory who was originally a clinton appointee and was renominated by bush as part of his compromise

The three judges ruling for the government were all bush I or bush II appointees.

thalesofmiletus | May 26, 2017 at 10:36 am

The Constitution IS a suicide pact after all!

In the meantime, per politico article , the number of visas from the six countries are down.

http://www.politico.com/story/2017/05/25/trump-muslim-visas-238846

So, there is a decrease due to people not applying for a visa, or the people processing these visas are taking greater care in vetting, or both. And there is a delay in premium processing of H1B visas for up to 6 months since the State Dept want to take care of the backlog of requests by people wo did not pay for the faster processing.

https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions

Font Resize
Contrast Mode
Send this to a friend