MADNESS: 9th Circuit Court rules against Trump's legal travel ban

[annabenedetti]

Here is an interesting critical take on the ruling
http://www.nationalreview.com/article/444785/ninth-circuits-donald-trump-travel-ban-ruling-dangerous

I read it, and it was interesting. One thing that caught my attention, though:

"The court is going to stop enforcement of a temporary pause in entry from jihadist and jihadist-torn countries (while in a state of war against jihadist terrorists) because there are “potential claims” regarding “possible due process rights” even of illegal aliens? That’s not deference. Moreover, if you actually follow the cited legal authorities, you’ll see that none of them are on-point with this case, and all of them deal with highly-specific, individual legal claims. Yet the court used this “authority” to grant sufficient due-process rights to potential immigrants to halt enforcement of a wartime executive order motivated by the desire to protect America from the rising threat of jihadist terror. Astonishng."

David French has written several books, one of them a defense of Christian churches, homes, and schools, and another about the rise of ISIS (co-written). His book about ISIS is a call to war, and I can't help but wonder if French comes from the same apocalyptic mindset as Stephen Bannon. Because this isn't "wartime" in the sense he seems to imply that it is, and by extension of that implication, that somehow this "wartime executive order" has a better motivation and a greater urgency so I'm left wondering if he's expecting that meeting a slighter standard is reasonable.

 

[Town Heretic]

Reading through the ruling and the government's challenge. The "can't review" bit is pure legal madness, contrary to the Constitution and the weight of holdings approaching the point, as the Court rightly noted. My concern is that while the president has put this before the Court and in its jurisdiction and authority (an odd approach if you don't think they have it) he may try to utilize the argument in a move to unilaterally dismiss and set aside the authority of the Court and proceed according to his desires at some point, which would set up a dangerous situation for all of us. You want to worry about an imperial presidency, this is how it starts to form. Not with executive orders, but in setting the foundation to act without regard for Constitutional constraints.

The good news on that point is that Congress isn't likely to side with that power grab, given it would inarguably reduce its own power along the same lines.

A funny note, in the kindest possible way the 9th Cir. called the White House untrustworthy in addressing its claims of amending its conduct (but not literally amending the order) in relation to Due Process concerns about permanent residents (see: C3, page 21 of the holding). I call this the "pants of fire" rejoinder draped in robes. And beyond the blunderbuss DP problems, the Court find serious 1st Amendment concerns, which however couched in the language of the Executive is a clear green light preference for non-Muslims and therefore a discriminatory litmus aimed at Muslim refugees. So we have a Discrimination and a serious Equal Protection clause problem in one neat package.

Look, cutting through a lot of particulars, the principle problem here reduces to reasonable foundation. Stating you have a power to act doesn't guarantee an unencumbered exercise. By way of, a DA is empowered to prosecute you, but he has to make the case for it. A judge is empowered to provide an ex parte, emergency order, but not without evidence for the necessity that permits it in the absence of full representation of the parties impacted. And a president can limit immigration, even extraordinarily, but not without compelling need and evidence thereof that would overwhelm other legal interests.

 

[annabenedetti]

Thanks TH, I appreciate your analysis.

 

[jeffblue101]

Washington Post: The 9th Circuit’s dangerous and unprecedented use of campaign statements to block presidential policy

Generally, the president has vast discretion in issuing visas. One of the major arguments against the executive order is that while in principle a president can limit immigration from the seven affected countries, it would be unconstitutional for President Trump in particular to do so, because in his case the action is motivated by impermissible religious bias. The central exhibit for this argument is his campaign statements about a “Muslim ban.

While the 9th Circuit did not address this at great length, focusing instead on due-process arguments, it did accept the basic validity of the form of the states’ argument. “The States’ claims raise serious allegations and present significant constitutional questions,” wrote the court.

There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive. The 9th Circuit fairly disingenuously cites several Supreme Court cases that show “that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” But the cases it mentions do nothing more than look at legislative history — the formal process of adopting the relevant measure...

Indeed, a brief examination of cases suggests the idea has been too wild to suggest. For example, the 10th Circuit has rejected the use of a district attorney’s campaign statements against certain viewpoints to show that a prosecution he commenced a few days after office was “bad faith or harassment.” As the court explained, even looking at such statements would “chill debate during campaign.” If campaign statements can be policed, the court concluded, it would in short undermine democracy: “the political process for selecting prosecutors should reflect the public’s judgment as to the proper enforcement of the criminal laws.

There are sound policy reasons for ignoring campaign statements or promises to shed light on subsequent official action. For one, campaign promises are often insincere, designed to appeal to voters. Indeed, they are explicitly instrumental, and their goal is not policy outputs, but election. Moreover, implemented laws or policies are often substantially different from promises, as is the case here...

the Constitution’s oft-forgotten opinion clause supports disregarding pre-inauguration statements. The Constitution puts at the president’s service the officials of the administration and requires they advise him as asked. What it means here is that the president must be seen as the unitary head of the executive branch and the pinnacle of a process of executive decision-making. That process is the only constitutionally recognized executive process. A candidate’s possible plans or promises are not part of the process. The opinion clause also suggests a president cannot be bound by the oral statements of federal officials (like Rudy Guiliani), especially when not “upon any Subject relating to the Duties of their respective Offices.

By accepting the use of preelection statements to impeach and limit executive policy, the 9th Circuit is taking a dangerous step. The states’ argument is in essence that Trump is a bigot, and thus his winning presidential campaign in fact impeaches him from exercising key constitutional and statutory powers, such as administering the immigration laws.


This would mean that Trump is automatically disbarred, from the moment of his inauguration, of exercising certain presidential powers, not because of his actions as president, but because of who he is — that is, how he won the presidency.

At oral argument, the judges asked if Trump could ban travel from all majority-Muslim countries. The question should be reversed. If the plaintiffs cast Trump’s views of immigration as impermissible, by this reasoning he cannot take the otherwise clearly legal action of restricting immigration from any of the world’s 50-odd majority-Muslim countries. This would mean that immigration system as created by Congress — which depends on broad executive discretion — will have essentially been destroyed.

this ruling is so messed up, Trump has no choice but to keep challenging it or else it will set a precedent that enables other liberal Judges to place injunctions on all of Trump's executive orders

 

[jeffblue101]

the Court find serious 1st Amendment concerns, which however couched in the language of the Executive is a clear green light preference for non-Muslims and therefore a discriminatory litmus aimed at Muslim refugees. So we have a Discrimination and a serious Equal Protection clause problem in one neat package.

Alan Dershowitz

On Thursday’s broadcast of MSNBC’s “Hardball,” Harvard Law Professor Emeritus Alan Dershowitz stated that the 9th Circuit Court of Appeals’ ruling against President Trump’s immigration order is “not a solid decision.” And “looks like it’s based more on policy than on constitutionality.”

Dershowitz said, “Look, this is not a solid decision. This is a decision that looks like it’s based more on policy than on constitutionality. There are many, many flaws.”

He added, “I think this court opinion will not ultimately be sustained by the Supreme Court. Take, for example, the argument that it’s an establishment of religion, because it favors Christians or other religious minorities. In 1944 we passed the War Refugee Act, which specifically was designed to rescue a hundred thousand Jews, and everybody knew the purpose was to rescue jews. That didn’t establish Judaism as the state religion of the United States. I think the establishment argument will fail in the Supreme Court. I think the standing arguments may fail in the Supreme Court.”

1944 War Refugee Act per wiki

The War Refugee Board, established by President Franklin D. Roosevelt in January 1944, was a U.S. executive agency created to aid civilian victims of the Nazi and Axis powers. Created largely at the behest of Roosevelt's Secretary of the Treasury Henry Morgenthau, Jr., Roosevelt "stressed that it was urgent that action be taken at once to forestall the plan of the Nazis to exterminate all the Jews and other persecuted minorities in Europe"....

Roosevelt on January 16, 1944. He agreed to create the War Refugee Board, issuing Executive Order 9417.[2] Credited with rescuing tens of thousands of Jews from Nazi-occupied countries, through the efforts of Raoul Wallenberg and others, the War Refugee Board is the only major effort undertaken by the United States government to save the lives of Jews during the Holocaust....

so why is not a problem to single out Jews in the face of religious prosecution in the hands of the Nazis but not Christians in the hands of ISIS and supposedly "moderate" Muslims?

 

[jeffblue101]

wow this ruling just keeps getting worse, Jihadists now have a right to sue the U.S. government to stay
http://www.breitbart.com/big-govern...circuit-allow-911-hijacker-sue-stay-come-u-s/

The judgment of the Ninth Circuit upholding the temporary restraining order (TRO) against President Donald Trump’s recent executive order restricting travel from seven terror-prone countries would have allowed one of the 9/11 hijackers to sue the government to come to, or stay in, the United States.

Under the court’s novel theory of legal standing, “injuries” to public universities that result from foreign students and teachers not being able to enter the country give the states standing to sue.

Moreover, the court held that foreigners with visas have due process rights under the Fifth Amendment of the U.S. Constitution, even though the precedent it cited applied to people already in the United States. Those due process rights could also be asserted by states on behalf of people in the U.S. illegally or “who have a relationship with a U.S. resident or … institution,” the court held in its ruling.

Hani Hasan Hanjour was one of the four pilots in the September 11, 2001 attack. He flew American Airlines flight 77 into the Pentagon, killing 184 people, including everyone on the flight. He was in the U.S. on a student visa, according to the 9/11 Commission report.

He was from Saudi Arabia, a country not covered by the executive order. By the reasoning of the Ninth Circuit, however, Hanjour would have due process rights to challenge his exclusion from the United States once he had been granted a student visa. His relationship with a U.S. “institution” — in this case, an English as a Second Language school in Oakland, California — would have been enough to grant him standing. A state could have sued on his behalf even while he was still abroad.

 

[Town Heretic]

Alan Dershowitz
1944 War Refugee Act per wiki
so why is not a problem to single out Jews in the face of religious prosecution in the hands of the Nazis but not Christians in the hands of ISIS and supposedly "moderate" Muslims?

Did you notice the "everybody knew" clause in his response. The fact was that the FDR's order wasn't a part of an action aimed at denying any other group entrance into the U.S. and it's provisions allowed for both the particularly targeted Jew AND "other vicitms of enemy persecution." In other words, if you were in any group Hitler had singled out for extermination you were covered by the order. What everyone actually "knew" at the time is that by that time it was almost entirely about the Jews and Hitler's dogged determination to leave their annihilation as his legacy.

The discrimination in play here is two fold. First, on no other basis than the particular faith of the adherent it gives to one group of people what it summarily and without examination denies the other, denies then singularly on the basis of their faith. Secondly, it does this without particular, articulated threat, as should be the basis for any such advance and is silent in the face of repeated requests on the point. Alan knows that's world's apart, but he's no fan of Muslims so he's tilting the board a bit.

 

[jeffblue101]

Did you notice the "everybody knew" clause in his response. The fact was that the FDR's order wasn't a part of an action aimed at denying any other group entrance into the U.S. and it's provisions allowed for both the particularly targeted Jew AND "other vicitms of enemy persecution."

actually Trump's order is less Christian centered than FDR's Jewish centered order
"Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality"

In other words, if you were in any group Hitler had singled out for extermination you were covered by the order. What everyone actually "knew" at the time is that by that time it was almost entirely about the Jews and Hitler's dogged determination to leave their annihilation as his legacy.

The discrimination in play here is two fold. First, on no other basis than the particular faith of the adherent it gives to one group of people what it summarily and without examination denies the other, denies then singularly on the basis of their faith. Secondly, it does this without particular, articulated threat, as should be the basis for any such advance and is silent in the face of repeated requests on the point. Alan knows that's world's apart, but he's no fan of Muslims so he's tilting the board a bit.

why are you denying reality, it's already a well known fact that Christians and other religious minorities are being prosecuted to such a degree that they even avoid the refugee camps in fear of being of killed.

The State Department Turns Its Back on Syrian Christians and Other Non-Muslim Refugees

Over the past five years of Syria’s civil war, the United States has admitted a grand total of 53 Syrian Christian refugees, a lone Yazidi, and fewer than ten Druze, Bahá’ís, and Zoroastrians combined. That so few of the Syrian refugees coming here are non-Muslim minorities is due to American reliance on a United Nations refugee-resettlement program that disproportionately excludes them. Past absolute totals of Syrian refugees to the U.S. under this program were small, but as the Obama administration now ramps up refugee quotas by tens of thousands, it would be unconscionable to continue with a process that has consistently forsaken some of the most defenseless and egregiously persecuted of those fleeing Syria....
The gross underrepresentation of the non-Muslim communities in the numbers of Syrian refugees into the U.S. is reflected year after year in the State Department’s public records. They show, for example, that while Syria’s largest non-Muslim group — Christians of the various Catholic, Orthodox, and Protestant traditions — constituted 10 percent of Syria’s population before the war, they are only 2.6 percent of the 2,003 Syrian refugees that the United States has accepted since then....


Syria’s Christian population, which before the war numbered 2 million, has since 2011 been decimated in what Pope Francis described as religious “genocide.” Tens of thousands of Aleppo’s 160,000 Christians alone have fled, many to Lebanon, after 1,000 of their community, including two Orthodox bishops, were abducted and murdered...Thousands of Yazidis, who numbered 80,000, have left after many of their girls and women were enslaved by ISIS in Raqqa. In Homs, Hassake, and elsewhere, the non-Muslim minorities face, in addition to Assad’s barrel bombs and war’s deprivations, targeted execution, rape, kidnapping, and forced conversion to Islam, prompting their exodus.

Like Iraqi Christians who opt for church-run camps over better-serviced U.N. ones, Syrian minorities fear hostility from majority groups inside the latter. According to British media, a terrorist defector asserted that militants enter U.N. camps to assassinate and kidnap Christians. An American Christian aid group reported that the U.N. camps are “dangerous” places where ISIS, militias, and gangs traffic in women and threaten men who refuse to swear allegiance to the caliphate. Such intimidation is also reportedly evident in migrant camps in Europe, leading the German police union to recommend separate shelters for Christian and Muslim migrant groups.


.

 

[jeffblue101]

Reading through the ruling and the government's challenge. The "can't review" bit is pure legal madness, contrary to the Constitution and the weight of holdings approaching the point, as the Court rightly noted. My concern is that while the president has put this before the Court and in its jurisdiction and authority (an odd approach if you don't think they have it) he may try to utilize the argument in a move to unilaterally dismiss and set aside the authority of the Court and proceed according to his desires at some point, which would set up a dangerous situation for all of us. You want to worry about an imperial presidency, this is how it starts to form. Not with executive orders, but in setting the foundation to act without regard for Constitutional constraints.

Jonathan Turley

Thursday on MSNBC’s “The 11th Hour,” George Washington University Law School professor Jonathan Turley reacted to the Ninth Circuit Court of Appeals decision to uphold a stay by a lower to halt President Donald Trump’s executive order restricting immigration to the United States from seven predominantly Muslim nations.

Although the court ruled in the opponents of the Trump order’s favor, the law still was on Trump’s side and that the Trump administration was using the “virtually the identical arguments” the Obama administration had used in defense of its immigration policy.

“Well, it was a poorly crafted executive order, and it was a terrible rollout,” Turley said. “But I still think that the law favors the administration once you get to the merits. I don’t agree with many of those, some of those cases. But the courts have been highly deferential to the president, and they generally don’t second-guess. I think the people also have to acknowledge that the Trump administration here is making virtually the identical argument to the Obama administration.”

“The Obama administration argued the president’s judgment on administration was largely unreviewable,” he continued. “He argued that he could even refuse or order the failure to enforce immigration laws. But the arguments were very, very similar. And for all the Democrats objecting now, I didn’t hear a peep of objection from them when just last year these arguments were being made by the same Justice Department.”

I'm so sick of this hypocrisy. Apparently our Liberal judges think it's perfectly valid when Obama uses the same argument but it's not okay for Trump. Pure madness

 

[rexlunae]

what does the balance of power have to do with suspending a lawful order. they can still review without suspending. this is just a political cheap shot by leftist judges.

They can, yes, but the preliminary injunction was granted on the grounds of the balance of the injuries to the parties, and the likelihood of prevailing on the merits. The court deemed that these considerstions warranted an injunction, and a total of four judges have agreed. Is it really a shock that the President can't just fire off a dictate revoking the rights of individuals without any sort of due process or even individualized consideration and no review?

 

[rexlunae]

Jonathan Turley

I'm so sick of this hypocrisy. Apparently our Liberal judges think it's perfectly valid when Obama uses the same argument but it's not okay for Trump. Pure madness

Ok. So lets consider that. Obama's immigration executive order was challenged by several states. Since he wasn't taking away the rights of anyone, there is a much more difficult question of standing. The program be offered to the undocumented was a form of administrative deferment of action, something that is frequently uncontroversial. He never argued that the courts lacked the power to review his action. And ultimately, the courts did issue an injunction against it. So, I don't really see the hypocrisy.

 

[jeffblue101]

They can, yes, but the preliminary injunction was granted on the grounds of the balance of the injuries to the parties, and the likelihood of prevailing on the merits. The court deemed that these considerstions warranted an injunction, and a total of four judges have agreed. Is it really a shock that the President can't just fire off a dictate revoking the rights of individuals without any sort of due process or even individualized consideration and no review?

what rights do non-legal aliens seeking admission to the united states have? certainly not due process since that would allow jihadists to sue the government as well. Trump clearly followed the law given by congress to control immigration into our country, no lawsuit should stand a remote chance given the wording of the law.

 

[rexlunae]

what rights do non-legal aliens seeking admission to the united states have?

Fewer than legal residents, more than none. But Trump's order had nothing to do with illegal immigrants.

certainly not due process since that would allow jihadists to sue the government as well.

I don't really follow that logic, in part because I don't think you understand what due process is. For instance, if we were to charge a jihadist with a crime in our courts, due process would be the legal case against them. As far as them suing, there's certainly no general reason why they couldn't sue the government, although there are any number of reasons why the courts might decide that they aren't entitled to do so in a give case. Due process, in fact, includes their right and opportunity to plead their innocence, and since this is a nation of laws, I wouldn't want to see them deprived of that right.

Trump clearly followed the law given by congress to control immigration into our country, no lawsuit should stand a remote chance given the wording of the law.

That's a question for debate, and further litigation. Meanwhile, the temporary injunction stands, unless SCoTUS knocks it down.

 

[Crucible]

NEWSFLASH:

Courts can decide on literally anything.

It doesn't mean that it's righteous or legal- there is no magical force permeating court buildings.

 

[rexlunae]

NEWSFLASH:

Courts can decide on literally anything.

It doesn't mean that it's righteous or legal- there is no magical force permeating court buildings.

That's certainly true, at face value.

 

[jeffblue101]

Due process, in fact, includes their right and opportunity to plead their innocence, and since this is a nation of laws, I wouldn't want to see them deprived of that right.

that's nice but the current law, since we are a nation of laws, says something to the contrary.

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

That's a question for debate, and further litigation. Meanwhile, the temporary injunction stands, unless SCoTUS knocks it down.

there shouldn't be an injunction when the law is so clear on the matter, this injunction is just a political attack meant to disrupt an order that is time sensitive.

 

[rexlunae]

that's nice but the current law, since we are a nation of laws, says something to the contrary.

That just isn't true.

there shouldn't be an injunction when the law is so clear on the matter, this injunction is just a political attack meant to disrupt an order that is time sensitive.

Four judges have looked at this case so far, and none of them have felt that the law was so clearly on the President's side. From what I understand of it, which is limited, I admit, the law is a bit muddled on the authority of the President. And that's before you introduce Constitutional arguments.

 

[ok doser]

...(alan dershowitz is) no fan of Muslims....

good for alan dershowitz! :thumb:

 

[Town Heretic]

That just isn't true.

Four judges have looked at this case so far, and none of them have felt that the law was so clearly on the President's side. From what I understand of it, which is limited, I admit, the law is a bit muddled on the authority of the President. And that's before you introduce Constitutional arguments.

I think people need to read through the whole ruling. It can be understood by a layman for the most part. Here's a link:


Holding in full

And all I can say to jeff is that I've given you my best understanding of where things are and why and it gels with the three actual, deciding appellate judges, one of whom was appointed by Bush and was a registered Republican in his home state.

Now the 9th Cir. had a particular job, to decide on the stay based on the merits of presented arguments and the likelihood of damage against the potential for success whether the stay should remain in force. The S.Ct. may well hear and ultimately find some, but until it does, trying to yell liberal at it is the actual, demonstrable politicalization of the point.

 

[rexlunae]

I think people need to read through the whole ruling. It can be understood by a layman for the most part. Here's a link:


Holding in full

And all I can say to jeff is that I've given you my best understanding of where things are and why and it gels with the three actual, deciding appellate judges, one of whom was appointed by Bush and was a registered Republican in his home state.

Now the 9th Cir. had a particular job, to decide on the stay based on the merits of presented arguments and the likelihood of damage against the potential for success whether the stay should remain in force. The S.Ct. may well hear and ultimately find some, but until it does, trying to yell liberal at it is the actual, demonstrable politicalization of the point.

I enjoyed the part where they discussed the lack of clarity of the chain of command from the Whitehouse. And I also appreciated that they used the precedent of Texas v. United States (challenging President Obama's DACA) to apply the injunction nation-wide.

Also, for being a ruling concerning a temporary restraining order, there is a lot of reasoning toward the merits of the case. Seems pretty bad for the Trump administration.