Thread: US Immigration control - the legal battle Board: Purgatory / Ship of Fools.
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Posted by Barnabas62 (# 9110) on
:
I've taken my own advice to set up a separate issue thread on this important topic. After the Robart decision is separation of powers alive and well. Or, given the Boston decision, has the judiciary itself become too politicised for its own good.
This looks bound for the Supreme Court, very quickly. What are Shipmates views on this legal battle?
Posted by sabine (# 3861) on
:
I'm not convinced that Trump (and several of his syncophants) truly understands the concept of separation of powers. It will be interesting to see how this plays out.
sabine
Posted by Dafyd (# 5549) on
:
quote:
Originally posted by sabine:
I'm not convinced that Trump (and several of his syncophants) truly understands the concept of separation of powers.
I'm not convinced that Trump would care if he did understand.
Posted by Eutychus (# 3081) on
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Either way, it looks like the makings of a fine constitutional crisis.
Posted by Barnabas62 (# 9110) on
:
sabine
I agree that the understanding of separation of powers is an issue. It's clear to me that one of the key original purposes of the constitution was to curb overbearing behaviour. The founders wished "to secure the blessings of liberty" for the people.
Trump is overbearing. And this particular order was shoddy and unclear in its wording and scope. It seems to have been rushed through without full consultation over constitutionality or legality.
Here is Judge Robart's order. Judge Robart was a Bush appointee.
[ 04. February 2017, 12:28: Message edited by: Barnabas62 ]
Posted by sabine (# 3861) on
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And apparently Trump sent out a tweet calling the Judge's qualifications into question. ![[Disappointed]](graemlins/disappointed.gif)
sabine
Posted by Barnabas62 (# 9110) on
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Here's the exact wording of the tweet
quote:
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
Either he chooses to ignore separation of powers or he doesn't understand the principle. Faults in the tweet.
1. The so-called judge is a judge, properly appointed.
2. The opinion does not take law enforcement away from "our country". It is a judicial view of the enforcibility of an executive order and is well within the scope of that judge's responsibilities.
3. Whether it is "ridiculous" (legally sound or unsound) is subject to test by higher court.
4. " .. and will be overturned". Well, there you have it. That's for a higher court to decide. Predicting the outcome of the deliberations of a higher court is a classic illustration of overbearing behaviour.
Trump is an ignorant, bullying asshole. Mind you, that's just my opinion.
[ 04. February 2017, 13:48: Message edited by: Barnabas62 ]
Posted by Og: Thread Killer (# 3200) on
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Because of the scope of the affect of this EO, the amount of legal battles involved is going to be quite large. There will likely be more then one case going to SCOTUS.
We just found out this morning that all Canadian Permanent Residents from those 7 countries have had their Nexus cards (fasttrack border entry) CBC news article here
One aspect of this is they took away Fast memberships taken away. This basically means if you are a PR from those 7 countries, your ability to do business in the US has been restricted.
That's going to be a lawsuit.
Posted by Eirenist (# 13343) on
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Have shipmates seen the film 'Downfall'? Trump's behaviour is alarming!
Posted by Eirenist (# 13343) on
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Presumably this will go to the Supreme Court. Will Trump's recent judicial appointment have the deciding vote?
Posted by sabine (# 3861) on
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Thanks, Barnabas, for posting the text of the tweet. I was working from a phone in a non-wifi area.
I'm holding off assuming anything about Trump's SCOTUS nominee. We won't know until we know.
Also, cases don't immediately go to the Supreme Court. It has to be filed, and then the Court has to decide to hear it.
So, the chaos may continue.
ETA: I've worked with refugee resettlement in the US for a decade. I know that there are many in the pipeline, and efforts will be made to keep things going while we can.
sabine
[ 04. February 2017, 14:35: Message edited by: sabine ]
Posted by sabine (# 3861) on
:
Title of article: "Pope Just Threw Shade at Trump in the Classiest Way Possible"
Didn't mention Trump by name but did mention skyscrapers and real estate deals and exclusion of people.
And also said It’s hypocrisy to call yourself a Christian and chase away a refugee or someone seeking help, someone who is hungry or thirsty, toss out someone who is in need of my help. . .If I say I am Christian, but do these things, I’m a hypocrite.”
sabine
Posted by L'organist (# 17338) on
:
The Donald seems to be under the impression that the bullying, bad-mouthing tactics he has used in his 'business' career will work in public as POTUS.
The more he tweets the more we can all see (if we were in any doubt) that this man is not very bright.
Posted by Barnabas62 (# 9110) on
:
quote:
Originally posted by sabine:
I'm holding off assuming anything about Trump's SCOTUS nominee. We won't know until we know.
I wonder if, during the vetting process, Neil Gorsuch will be asked for his professional opinion of the EO and the Seattle injunction? I think the injunction ruling, and maybe a few others, will be at the Supreme Court for resolution.
Which gives the Trump Administration an interesting dilemma. From what I've read about Gorsuch, I'm not sure he would be a "loyalist" vote on this issue. He wouldn't be the first Republican appointee to disappoint his political sponsor. Life time appointment status can be very freeing!
The Nexus card withdrawal seems very likely to produce another lawsuit (if it hasn't already). Presumable the Nexus fast track is a mutually agreed process which has been unilaterally changed?
Oh boy, this is going to be a good source of business for lawyers.
Posted by sabine (# 3861) on
:
quote:
Originally posted by Barnabas62:
I think the injunction ruling, and maybe a few others, will be at the Supreme Court for resolution.
The Court always has the option not to take up a case (but first, it has to be filed, and of course, the Administration will file). This one seems too big to ignore.
sabine
[ 04. February 2017, 16:01: Message edited by: sabine ]
Posted by sabine (# 3861) on
:
I don't think the ban will hold up under appeal or in the SCOTUS.
But, as a refugee resettlement worker, I'm concerned about what awaits refugees in terms of hate crimes and harassment after they arrive.
Although I'm retired, I continue to volunteer with a resettlement agency and in other efforts. We have lately been educating people about how to help those they see being harassed.
Suggestions from the American Friends Servicde Committee
sabine
Posted by cliffdweller (# 13338) on
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The American public does not seem to be with the President on this one (which may or may not matter much to him now that he's elected).
You ask my response: I was in tears all day last Saturday. I head up our church's team doing refugee resettlement. It was heart-breaking. On Sunday my son & I marched with the protestors at LAX. Due to the congestion of the protestors, we needed to park offsite and walk in. While we were still 2 blocks away, part of a gathering crowd walking to the protest, I was already in weeping. There was amazing support, not only among the protestors, but even among the motorists and travelers whose commute was being hampered by the protests, who would honk & wave or give thumbs up (never the other finger-- a rarity in LA!). When we joined the main protest (4000 people), it was peaceful, very cooperative with the LAPD, who were professional and helpful. Travelers who were arriving were the most inconvenienced (helpfully the LAPD had positioned us away from departure level), yet seemed supportive-- many stopped to take video, join our chants, or explain to children that this is what democracy was about. It was an incredible moment of solidarity.
My 2 seconds of fame was when there was a lull in the led chants as we happened to be walking by AirCanada. I suggested we cheer for Justin Trudeau, who has pledged to take ALL the 90,000 some refugees we are refusing. I expected just the people around me to join in, but soon a large group of maybe 100 or so joined in cheering Trudeau.
Throughout the week I've been seeing my evangelical leadership come out strongly opposed to the ban-- the president of the univ where I teach joined several others in a letter of protest. The leadership of my denom. as well as several other evangelical groups joined other faith communities/leadership in denouncing the ban. World Vision had a lovely viral video showing why this ban is contrary to Christian values.
A lovely moment, but one wonders if Trump knows or cares that the public has turned against him now that he's been elected.
Posted by lilBuddha (# 14333) on
:
quote:
Originally posted by Barnabas62:
Trump is an ignorant,
Demonstrable, there for objectively accurate.
quote:
bullying
Same with this.
quote:
asshole. Mind you, that's just my opinion.
Nope. It is a reasonable, rational and inevitable conclusion.
Posted by Brenda Clough (# 18061) on
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Almost certainly he does not know. He doesn't want to know, and there are none so blind. If his nose is rubbed in it (a million women in pink hats outside his door, say) he declares they are malcontents, or paid for by his opponents. (Still waiting for my check, BTW.)
It will take time for a solid case to wind its way up to the Supreme Court. The best and only hope now is a broad resistance from many different angles. Businesses suffering the impact have to squawk. Churches and rescue organizations have to object. Universities, celebrities, and even sports teams have to set up a yell. Everyone, phone your congresscritter on Monday. And then Tuesday. Every day, if you can manage it.
And I have seen a couple articles now, fervently pleading for the continuing health and work of current Supreme Court justices. If we lose the Notorious RBG and Trump slams in another nominee, the impact may last for our generation.
Posted by sabine (# 3861) on
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People are getting roiled up, and many of them have fallen prey to at least two fallacies: that refugees are not being vetted at all, and that terrorists are using the guise of refugee to gain entry.
Those of us in the resettlement effort are quite worried about harassment of refugees already here and those to come.
As long as refugees are scapegoated and portrayed as evil, they aren't really safe even when they get here.
sabibe
Posted by Enoch (# 14322) on
:
quote:
Originally posted by Barnabas62:
Here's the exact wording of the tweet
quote:
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
I know I'm a foreigner and it's not my constitution, but aren't the judiciary and the legislature also part of 'our country'? And doesn't the President have a duty to uphold the constitution? Or am I missing something?
quote:
I wonder if, during the vetting process, Neil Gorsuch will be asked for his professional opinion of the EO and the Seattle injunction? I think the injunction ruling, and maybe a few others, will be at the Supreme Court for resolution.
Is that a permissible question? Doesn't he have to answer "You should not be asking me this question. This case is sub judice. Besides it would be improper for me to answer without hearing all the submissions".
Posted by Barnabas62 (# 9110) on
:
quote:
Originally posted by Enoch:
quote:
Originally posted by Barnabas62:
Here's the exact wording of the tweet
quote:
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
I know I'm a foreigner and it's not my constitution, but aren't the judiciary and the legislature also part of 'our country'? And doesn't the President have a duty to uphold the constitution? Or am I missing something?
I don't think so, but sabine and I have been musing about whether POTUS actually gets the very point you make. Preserving, protecting and defending the constitution of the United States includes respect for and recognition of the responsibility of the separate powers - in this case the judiciary.
quote:
Originally posted by Enoch:
quote:
Originally posted by Barnabas62:
[QUOTE]I wonder if, during the vetting process, Neil Gorsuch will be asked for his professional opinion of the EO and the Seattle injunction? I think the injunction ruling, and maybe a few others, will be at the Supreme Court for resolution.
Is that a permissible question? Doesn't he have to answer "You should not be asking me this question. This case is sub judice. Besides it would be improper for me to answer without hearing all the submissions".
Oh I'm sure Gorsuch would use that defence, but the public statements of POTUS, the ridiculing of Judge Robart and his ruling, might well be argued as opening the door to such questioning. POTUS is on record as not respecting the separate power of the judiciary to determine, at Supreme Court level if necessary, whether POTUS has acted in accordance with the constitution he has sworn to uphold.
Posted by Enoch (# 14322) on
:
quote:
Originally posted by Barnabas62:
Oh I'm sure Gorsuch would use that defence, but the public statements of POTUS, the ridiculing of Judge Robart and his ruling, might well be argued as opening the door to such questioning. POTUS is on record as not respecting the separate power of the judiciary to determine, at Supreme Court level if necessary, whether POTUS has acted in accordance with the constitution he has sworn to uphold.
But once he's nominated, does the President get to play any further part in the process that leads up to confirmation or rejection of nomination? It would seem rather irregular if he did.
Posted by Sober Preacher's Kid (# 12699) on
:
quote:
Originally posted by cliffdweller:
You ask my response: I was in tears all day last Saturday. I head up our church's team doing refugee resettlement. It was heart-breaking. On Sunday my son & I marched with the protestors at LAX. Due to the congestion of the protestors, we needed to park offsite and walk in. While we were still 2 blocks away, part of a gathering crowd walking to the protest, I was already in weeping. There was amazing support, not only among the protestors, but even among the motorists and travelers whose commute was being hampered by the protests, who would honk & wave or give thumbs up (never the other finger-- a rarity in LA!). When we joined the main protest (4000 people), it was peaceful, very cooperative with the LAPD, who were professional and helpful. Travelers who were arriving were the most inconvenienced (helpfully the LAPD had positioned us away from departure level), yet seemed supportive-- many stopped to take video, join our chants, or explain to children that this is what democracy was about. It was an incredible moment of solidarity.
My 2 seconds of fame was when there was a lull in the led chants as we happened to be walking by AirCanada. I suggested we cheer for Justin Trudeau, who has pledged to take ALL the 90,000 some refugees we are refusing. I expected just the people around me to join in, but soon a large group of maybe 100 or so joined in cheering Trudeau.
Young Trudeau has promised nothing of the kind. Pissing off Trump when he wants to renegotiate NAFTA is not on, it would not be on under any Prime Minister. Altering NAFTA is a throat blow to the Canadian economy.
The only thing Canada has actually done is take in a few medical cases that needed surgery not available in their own countries.
Posted by Alan Cresswell (# 31) on
:
There appears to be a similarity with events in the UK following Brexit when aspects of Brexit were brought before the courts. The assumption by some that the results of a vote trump the rule of law - indeed anyone seeking the clarity of the law were "anti-democratic". The same rejection of the role of the courts in clarifying the extent of the powers of the executive seem to be in play in the US.
Though in the UK our political leaders didn't join in the popular dismissal of the role of the courts, whereas in the US it seems the new President is set on leading the dismissal of the courts.
Posted by cliffdweller (# 13338) on
:
quote:
Originally posted by Sober Preacher's Kid:
quote:
Originally posted by cliffdweller:
You ask my response: I was in tears all day last Saturday. I head up our church's team doing refugee resettlement. It was heart-breaking. On Sunday my son & I marched with the protestors at LAX. Due to the congestion of the protestors, we needed to park offsite and walk in. While we were still 2 blocks away, part of a gathering crowd walking to the protest, I was already in weeping. There was amazing support, not only among the protestors, but even among the motorists and travelers whose commute was being hampered by the protests, who would honk & wave or give thumbs up (never the other finger-- a rarity in LA!). When we joined the main protest (4000 people), it was peaceful, very cooperative with the LAPD, who were professional and helpful. Travelers who were arriving were the most inconvenienced (helpfully the LAPD had positioned us away from departure level), yet seemed supportive-- many stopped to take video, join our chants, or explain to children that this is what democracy was about. It was an incredible moment of solidarity.
My 2 seconds of fame was when there was a lull in the led chants as we happened to be walking by AirCanada. I suggested we cheer for Justin Trudeau, who has pledged to take ALL the 90,000 some refugees we are refusing. I expected just the people around me to join in, but soon a large group of maybe 100 or so joined in cheering Trudeau.
Young Trudeau has promised nothing of the kind. Pissing off Trump when he wants to renegotiate NAFTA is not on, it would not be on under any Prime Minister. Altering NAFTA is a throat blow to the Canadian economy.
The only thing Canada has actually done is take in a few medical cases that needed surgery not available in their own countries.
Well, he certainly said something similar to that here. In reading the actual statement as quoted by PBS I see it's not quite as sweeping a statement as I suggested, but that is the way it has been interpreted here, making him quite the hero, and not just to lefties like myself. I can see he may not have intended it to be quite as comprehensive as we have interpreted it, but he is certainly leaning in that direction.
[ 04. February 2017, 22:44: Message edited by: cliffdweller ]
Posted by Nicolemr (# 28) on
:
I have come to the considered opinion that Trump truly does not understand the separation of powers. I really think he thinks of the presidency as something like the CEO of a company, the big boss, able to do almost anything he likes. He really doesn't understand that the executive branch is meant to be no more powerful than the legislative and judicial branches. I think that's part of what lead him to want to be president in the first place, the lure of ultimate power.
Posted by Sober Preacher's Kid (# 12699) on
:
quote:
Originally posted by cliffdweller:
quote:
Originally posted by Sober Preacher's Kid:
quote:
Originally posted by cliffdweller:
You ask my response: I was in tears all day last Saturday. I head up our church's team doing refugee resettlement. It was heart-breaking. On Sunday my son & I marched with the protestors at LAX. Due to the congestion of the protestors, we needed to park offsite and walk in. While we were still 2 blocks away, part of a gathering crowd walking to the protest, I was already in weeping. There was amazing support, not only among the protestors, but even among the motorists and travelers whose commute was being hampered by the protests, who would honk & wave or give thumbs up (never the other finger-- a rarity in LA!). When we joined the main protest (4000 people), it was peaceful, very cooperative with the LAPD, who were professional and helpful. Travelers who were arriving were the most inconvenienced (helpfully the LAPD had positioned us away from departure level), yet seemed supportive-- many stopped to take video, join our chants, or explain to children that this is what democracy was about. It was an incredible moment of solidarity.
My 2 seconds of fame was when there was a lull in the led chants as we happened to be walking by AirCanada. I suggested we cheer for Justin Trudeau, who has pledged to take ALL the 90,000 some refugees we are refusing. I expected just the people around me to join in, but soon a large group of maybe 100 or so joined in cheering Trudeau.
Young Trudeau has promised nothing of the kind. Pissing off Trump when he wants to renegotiate NAFTA is not on, it would not be on under any Prime Minister. Altering NAFTA is a throat blow to the Canadian economy.
The only thing Canada has actually done is take in a few medical cases that needed surgery not available in their own countries.
Well, he certainly said something similar to that here. In reading the actual statement as quoted by PBS I see it's not quite as sweeping a statement as I suggested, but that is the way it has been interpreted here, making him quite the hero, and not just to lefties like myself. I can see he may not have intended it to be quite as comprehensive as we have interpreted it, but he is certainly leaning in that direction.
It was nice positioning, but it was just that. Canada's immigration programmes have not changed one bit since Trump's announcement.
It was as much hot air as his Electoral Reform promise. It was a dogwhistle, nothing more.
Posted by cliffdweller (# 13338) on
:
More of an anti-dog whistle, since dog whistle has a racist connotation. Whatever it was, it was beautiful, and very well received here in the US
Posted by Barnabas62 (# 9110) on
:
quote:
Originally posted by Enoch:
But once he's nominated, does the President get to play any further part in the process that leads up to confirmation or rejection of nomination? It would seem rather irregular if he did.
He's already playing a part. Waving the "nuclear option" already as a means of "facilitating" Gorsuch's appointment without 60 votes in the Senate. Trump doesn't know when to keep his mouth shut in pursuit of his own agenda. Congress has to "advise and consent" and that is Congress's business, not Trump's.
Enoch, it's all part of a piece. The Democrats will use these hearings to expose further POTUS's contempt for the constitutional separation of powers. That's in play, not just over this particular ruling, but because Trump's early actions have shown either ignorance or contempt for separation of powers. Stupid man. He doesn't know how much his words have become bullets by which he is shooting himself in the foot.
I tell you, I wish I was a fly on the wall and could hear the conversations of those members of his kitchen cabinet who aren't also stupid. I should think it's getting pretty surreal in there.
Posted by Barnabas62 (# 9110) on
:
PS I think Nicolemr has summed up the situation admirably. And it may be worth pointing out one more thing.
The penultimate sentence in the Robart order says this.
quote:
The court concludes that the circumstances brought before it today are such that it must intervene to fulfil its constitutional role in our tripartite government. (italics mine).
This "so-called judge", far from being "ridiculous" demonstrates clearly that he understands what Trump does not, the abiding constitutional significance of the separation of powers in determining whether presidential actions are lawful.
Now I am not enough of a lawyer to know whether he has chosen the right case to nail these particular colours to the mast. The temporary injunction may not stand up to detailed scrutiny. But that does not diminish the justifiable legal criticism of that appallingly shoddy Executive Order and its boorish, ignorant, proponent.
[ 05. February 2017, 00:32: Message edited by: Barnabas62 ]
Posted by orfeo (# 13878) on
:
quote:
Originally posted by L'organist:
The Donald seems to be under the impression that the bullying, bad-mouthing tactics he has used in his 'business' career will work in public as POTUS.
The thing is, there are sufficient millions of Americans who haven't the faintest idea about separation of powers, law-making, past immigration policy or the Muslim world that he might be right.
Posted by orfeo (# 13878) on
:
As for the legal outcome in the end, I honestly don't know. In the long term it scarcely matters, because if Trump actually DOES introduce tougher vetting in a few months time, he's most likely in his rights to do so.
The stupidity is that the transition from "old vetting" to "new vetting" consists of an outright ban. We have all these glaring problems:
1. Calling a ban "extreme vetting" when it in fact abandons the vetting process.
2. Claiming it's about terrorism while only dealing with countries that haven't exported terrorists to the United States.
3. Total confusion about the application to green card holders.
4. Endless suggestions that not having the ban means free-for-all immigration, a straw man that his supporters are extremely ready to take up.
5. Casting aspersions, not for the first time, on a judge for disagreeing with him.
6. A general inability to grasp separation of powers and the limits of his office.
In many ways, this isn't even about the merits of the policy. It's about the sheer incompetence of implementing the policy.
Which is no different to some other things, including his reaction to the deal with Australia. Frequently there's an understandable basic position or issue buried underneath all the bluster, but he simply hasn't the foggiest idea about the processes for government and/or the patience to follow them.
Posted by Golden Key (# 1468) on
:
Re sending all this to the US Supreme Court:
AFAIK, the normal procedure is:
--The Supremes start their session on the first Monday in October. (There's a "First Monday In October" film (drama, not a documentary) that might be worth seeing.)
--They receive info on the cases.
--They have hearings on each one. (Some might be online, at least excerpts.) For many lawyers, appearing there is a dream.
--The next spring or early summer, they hand down their decisions, usually one by one.
Unless there's an emergency procedure, they may not be able to hear these matters right away. I don't remember how that worked for Bush v. Gore. It was wrong for them to handle it when the investigation was incomplete. But I don't know if actually hearing a case out of their usual calendar order was a technical breach.
FWIW. Here's the Supreme Court site. I'm guessing it lists the procedures.
Posted by Barnabas62 (# 9110) on
:
quote:
Originally posted by orfeo:
In many ways, this isn't even about the merits of the policy. It's about the sheer incompetence of implementing the policy.
Well put. A policy to introduce tough and rigourous vetting of prospective immigrants can clearly be brought in by legal means. So far as selective application is concerned that may well be a matter of treaties with other countries.
But this EO included means of implementation which were arguably unfair under the constitution. And the Robart ruling essentially judges that there is a decent argument to be made under the constitution about that. Time will tell whether it is winnable. But all of this could have been avoided by a more patient approach to the EO.
Posted by orfeo (# 13878) on
:
Yes, exactly Barnabas. The main lesson here is that Trump and his team don't have the patience to understand any nuances about what they can and can't do. Alternatively, they do understand them, and don't care.
Posted by Enoch (# 14322) on
:
quote:
Originally posted by Nicolemr:
I have come to the considered opinion that Trump truly does not understand the separation of powers. I really think he thinks of the presidency as something like the CEO of a company, the big boss, able to do almost anything he likes. He really doesn't understand that the executive branch is meant to be no more powerful than the legislative and judicial branches. I think that's part of what lead him to want to be president in the first place, the lure of ultimate power.
I strongly suspect you're right there. He wants to be where in his presence, people are terrified for their futures and he can shout 'you're fired' at them.
quote:
Originally posted by Cliffdweller:
since dog whistle has a racist connotation.
Does it? I didn't know that. What is its connotation? It doesn't have it here. It means one of those little high pitched whistles that dogs are trained to carry out commands to. So its metaphorical connotation is something where as soon as it is mentioned, those who have been 'correctly' socialised automatically have the 'right' reaction, like a trained dog to its whistle.
Posted by Barnabas62 (# 9110) on
:
Well that was quick! News just in, according to the BBC, is that the 9th Circuit Appeals Court has rejected the appeal by the Trump administration to uphold the EO and set aside the Robart ruling. Based on its reputation and track record, the rejection is not a surprise. It will be interesting to see the wording of the rejection.
So much for a "ridiculous ruling" by a "so-called judge". How about a "ridiculous tweet" by a "so-called President". And a "ridiculously worded EO" by a "so-called White House Administration". If the 9th Circuit judges that there is an arguable constitutional case, then the ruling is non-ridiculous. Of course Trump may up the ante, calling the 9th Circuit ridiculous too. As we know, in his own mind he is never wrong.
I suppose there is a possibility that the Trump administration may withdraw the EO for a more considered rewrite. But that doesn't sound like Trump, does it.
So the more likely solution is "Supreme Court here we come", both re the stay of the EO itself, and the constitutional arguments which gave rise to the Robart ruling to stay the EU. And there will now be an impact on the hearings to "advise and consent" re Gorsuch. This brouhaha will not have made that confirmation process any easier.
Posted by Dafyd (# 5549) on
:
quote:
Originally posted by Enoch:
quote:
Originally posted by Cliffdweller:
since dog whistle has a racist connotation.
Does it? I didn't know that. What is its connotation? It doesn't have it here. It means one of those little high pitched whistles that dogs are trained to carry out commands to. So its metaphorical connotation is something where as soon as it is mentioned, those who have been 'correctly' socialised automatically have the 'right' reaction, like a trained dog to its whistle.
AIUI in politics a dog-whistle is a phrase that carries a tacit meaning for those parts of the population that it's aimed at, but which appears innocuous to those other parts of the population that would otherwise find it morally objectionable. (The important part of the metaphor is that only the dogs can hear it.) It's most usually used for coded racist or anti-immigration stereotypes since those are things that politicians other than Trump didn't admit to furthering in public.
Posted by Barnabas62 (# 9110) on
:
PS to my previous post. Apparently the 9th Circuit is prepared to hear further arguments if presented before a Monday deadline. Those arguments may come from the DoJ or from other States contesting the Robart ruling. So there may be further action in the 9th Circuit Appeals Court.
Here is the BBC link.
[ 05. February 2017, 09:18: Message edited by: Barnabas62 ]
Posted by Barnabas62 (# 9110) on
:
I think the basis of the DoJ submission was that this EO was unreviewable by the State. If so, I'm not in the least surprised that they rejected that argument straight away.
Citizens beware. Trump is seeking to undermine the press and the judiciary. Maybe he thinks he already has Congress in his pocket?
He wants to be CEO of the USA.
Posted by Jane R (# 331) on
:
Surely even CEOs are accountable to their shareholders?
Posted by Barnabas62 (# 9110) on
:
That accountability is weaker than the constitutional protection. And it can be circumvented by someone of dictatorial mindset.
Posted by rolyn (# 16840) on
:
Indeed, as much as this episode might look like a storm in a teacup it is actually an early precedent as to just how far DT is prepared to go in implementing his own will, (and the wishes of those who voted him in of course).
Posted by orfeo (# 13878) on
:
This initial ruling was only about what to do in the meantime before an actual appeal is heard. They refused to give Trump the super-quick out.
And the actual appeal is still only an appeal from the first judge's decision, which in itself was a temporary measure. It's a running battle about whether, before any substantive decision, the Executive Order gets to operate or things stay as they were until a week ago.
Posted by L'organist (# 17338) on
:
posted by Barnabas62 quote:
He wants to be CEO of the USA.
Well, that is the line he took throughout the election campaign: in fact he spent a lot of time telling voters that the country should be run as if a company - and he referenced this back to what the voters had seen of him on The Apprentice. Anyone surprised at his style as POTUS so far had plenty of warning.
posted by JaneR quote:
Surely even CEOs are accountable to their shareholders?
Only if they are CEO of a public company - in other words an enterprise with shareholders. The Trump Organisation, the umbrella corporation for all of The Donald's many enterprises, is privately owned so there are no pesky shareholders to ask awkward questions and any laws relating to public companies to do with filing of financial returns, etc, do not apply. Basically, so long as you keep to the rules pertaining to things like employment law, you pretty much can do anything you like as CEO of a privately owned company. The only people likely to have a private stake are family members and they're not likely to rock the boat.
So, if The Donald is going to run USA Inc like Trump International, take a good, long look at the way he runs his companies and his relations with people who may come up against them. The outlook for USA Inc is not good.
Posted by Barnabas62 (# 9110) on
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The point is that his oath of office does not give him permission to run the country in the same way as he has run his businesses. He's there to preserve protect and defend the US Constitution. He doesn't get to redefine unilaterally what that means.
Posted by no prophet's flag is set so... (# 15560) on
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Are trump's well repeated, specific anti-Muslim comments, and the 'how do I ban Muslims legally' statements relevant to a court case? Certainly speaks to the intent and effects of his law.
Even if something about it all is technically legal, the intent to target a group he hates seems quite clear.
Posted by Soror Magna (# 9881) on
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quote:
Originally posted by Barnabas62:
The point is that his oath of office does not give him permission to run the country in the same way as he has run his businesses. He's there to preserve protect and defend the US Constitution. He doesn't get to redefine unilaterally what that means.
And from the look on his face as he took the oath, it was pretty obvious he was thinking, "Huh? What's this constitution thing everyone keeps talking about? I'M THE PRESIDENT!!!!!"
It's like the Presidency is an iceberg and he only saw the 9/10 of the President's job that is above the water. He's already looking pretty rough after only a couple of weeks.
Posted by Barnabas62 (# 9110) on
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Soror Magna
I'm sure you mean 1/10th above the water? Which would make him 90% ignorant about the office to which he has been elected.
Based on the last two weeks, that looks like a reasonable, if slightly generous, estimate.
Makes you wonder how his support team (the clued-up ones anyway) are going to have to explain the depths of his dangerous ignorance.
I mean, take this Robart thing. I'm 74, not a US Citizen, but not too affected yet by marginal brain death. But I can work out what is going on relatively easily. As can orfeo. But what we know is that it can be a hell of a job trying to put dominant alpha males straight about anything they think they know. They are used to getting their own way.
I don't envy the explainers their job.
Posted by Soror Magna (# 9881) on
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![[Hot and Hormonal]](icon_redface.gif)
Posted by orfeo (# 13878) on
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quote:
Originally posted by no prophet's flag is set so...:
Are trump's well repeated, specific anti-Muslim comments, and the 'how do I ban Muslims legally' statements relevant to a court case? Certainly speaks to the intent and effects of his law.
Even if something about it all is technically legal, the intent to target a group he hates seems quite clear.
It might be relevant, yes, because in some circumstances the purpose of a law is relevant to its legality.
Including, I think, some of the US law on due process and equal protection. You can have some impact on people's rights so long as you have a justifiable reason for it.
The fact that there had been no terrorist attacks in the US emanating from the 7 countries in the list definitely came up in the hearing in Seattle, because of the claimed purpose of preventing terrorism.
I get the distinct impression that the courts would be inclined to accept that purpose, and that's probably why it's the one the government is officially using, but then the courts are likely to say there's no evidence the executive order is achieving that purpose.
[ 05. February 2017, 20:33: Message edited by: orfeo ]
Posted by Enoch (# 14322) on
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Won't it depend on US federal law whether the background and rationale behind the Executive Order can be taken into account or whether it must be construed strictly on its actual words, the effect they have, and whether the action is within or without the President's powers under the Constitution?
In England and Wales, this works differently for statutes from the way it does for executive decisions under delegated powers. There's a whole body of law which has developed dealing with the lawfulness and unlawfulness of the latter, a lot of it within my lifetime. It's litigated frequently and with enthusiasm. However, that's our system. The US is quite different. Even the language I'm using may be incomprehensible to a US lawyer.
Posted by Barnabas62 (# 9110) on
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Oh I think any POTUS has wide powers to write an E.O. on an issue of National Security. He just hasn't got absolute authority to write any old piece of crap and argue that it must be enforced because he says so. There is some scope, not necessarily spelled out, for quality control provided it does not frustrate the purpose of the E.O. This feels like it might be a test case and I can't see it stopping before the Supreme Court has a say.
Posted by orfeo (# 13878) on
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Fundamentally, the question is whether something becomes a matter of National Security just because the President says it is a matter of National Security.
One of the most significant cases in Australian legal history, back in the 1950s, said that the Communist Party of Australia didn't become a threat to the defence of the nation just because it was asserted that it was a threat to the defence of the nation. You couldn't "recite yourself into power" in that way.
The most memorable line from the case was that the power to make laws with respect to lighthouses was not a power to make laws with respect to anything that Parliament said was a lighthouse.
Posted by Barnabas62 (# 9110) on
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I shall be interested in the further arguments made on both sides.
Posted by beatmenace (# 16955) on
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quote:
Originally posted by Barnabas62:
Trump is an ignorant, bullying asshole. Mind you, that's just my opinion.
Its good that we can make space for all kinds of minority opinions on the Ship. I doubt you will find many agreeing with you.
Posted by orfeo (# 13878) on
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Beatmenace, here on the Ship you will find plenty agreeing with that sentiment.
-----------------------------------
Anyway, what I'm curious about right now is that the government clearly attempted to argue that this was a "foreign relations" matter.
Now around here, that would be complete nonsense. What I'm wondering is whether there is any US law that says it isn't complete nonsense in the US.
So far, I can't find anything. What I've found so far indicates exactly what I would have assumed, that "foreign relations" refers to things like diplomacy, ambassadors, treaties and the like. I can't find any sign, other than the government's argument, that it has anything to do with admission of individual foreigners into the country.
Posted by beatmenace (# 16955) on
:
quote:
Originally posted by orfeo:
Beatmenace, here on the Ship you will find plenty agreeing with that sentiment.
You missed me being intentionally facetious!
I think so as well.
Posted by Dave W. (# 8765) on
:
quote:
Originally posted by orfeo:
Beatmenace, here on the Ship you will find plenty agreeing with that sentiment.
-----------------------------------
Anyway, what I'm curious about right now is that the government clearly attempted to argue that this was a "foreign relations" matter.
Now around here, that would be complete nonsense. What I'm wondering is whether there is any US law that says it isn't complete nonsense in the US.
So far, I can't find anything. What I've found so far indicates exactly what I would have assumed, that "foreign relations" refers to things like diplomacy, ambassadors, treaties and the like. I can't find any sign, other than the government's argument, that it has anything to do with admission of individual foreigners into the country.
If you'd like to see the administration's case, the Ninth Circuit Court of Appeals has a web page with a collection of documents. The argument for the president's authority starts on page 3 of the "Emergency motion for stay".
Posted by Alan Cresswell (# 31) on
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quote:
Originally posted by orfeo:
admission of individual foreigners into the country.
Surely, by it's very nature, a measure which classifies people solely by nationality (regardless of how arbitrary and illogical the selection of nationalities is) then we're no longer really talking about individual foreigners.
If the new President had seen evidence that some people passing the existing vetting process were still presenting a threat within the US - though, surely, if there was such evidence there wouldn't be a need to fabricate stories about Bowling Green - and, therefore, decided that the vetting process needed to be enhanced to detect the identifiers for those people that would be a different argument. Assuming, of course, that having enhanced the vetting process it was then applied to all regardless of nationality. That would be a targetted measure against individuals posing a potential threat to the US.
Posted by Dave W. (# 8765) on
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The law cited as legal authorization for the Executive Order is 8 USC 1182 (f):
quote:
(f) Suspension of entry or imposition of restrictions by President
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.
Posted by Og, King of Bashan (# 9562) on
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Thanks for the cite to the statute, Dave W. That is a helpful starting point for showing how this works.
So the President does have the power to suspend entry from certain classes of aliens.
However, that power is checked by the Equal Protection and Due Process clauses of the Constitution. If a law targets a protected class (like a law banning immigration or entry for citizens of certain countries), it must survive strict scrutiny. That means that the government has to show that there is a compelling state interest at issue, and that the targeting is necessary to further the compelling state interest.
From the little I have read and seen from the litigation, it seems like the Trump administration is arguing that there is a compelling state interest in protecting the homeland from terrorism, and that this ban is necessary to further that interest.
The counter-argument is that the ban is not necessary to further the interest.
I can see where specific intelligence of actual terrorists trying to enter the United States from, say, Sudan might justify a temporary ban of entry from Sudan. But it seems like, absent this kind of actual known threat, the courts are seeing this as something that is not necessary to further the interest of national security.
(As to the intent, I don't think that will be relevant in this case. There is a question of discriminatory intent when you have a law that is facially neutral but which a plaintiff argues is discriminatory in fact. But when a law or action singles out a protected class specifically, it is presumed unconstitutional, unless the strict scrutiny test is met.)
Posted by orfeo (# 13878) on
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quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by orfeo:
admission of individual foreigners into the country.
Surely, by it's very nature, a measure which classifies people solely by nationality (regardless of how arbitrary and illogical the selection of nationalities is) then we're no longer really talking about individual foreigners.
If the new President had seen evidence that some people passing the existing vetting process were still presenting a threat within the US - though, surely, if there was such evidence there wouldn't be a need to fabricate stories about Bowling Green - and, therefore, decided that the vetting process needed to be enhanced to detect the identifiers for those people that would be a different argument. Assuming, of course, that having enhanced the vetting process it was then applied to all regardless of nationality. That would be a targetted measure against individuals posing a potential threat to the US.
No, I still think we're talking about individuals, just individuals defined by a class. When people turn up at the airport or the immigration desk, they are individuals that the rules are being applied to.
And indeed, the problem here is that the individuals are being defined by a class that takes insufficient notice of people's characteristics. The choice of class is not rational.
The characterisation of the law matters because the government doesn't want to have to face the scrutiny that Og is talking about. They want to say the courts simply can't look into such matters.
[ 06. February 2017, 19:49: Message edited by: orfeo ]
Posted by sabine (# 3861) on
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Several former government officials and CEOs have filed a Friend of the Court brief against Trump's ban. I've tried three times to paste the link (to a Huff Post article re: blowback) but for some reason I'm not having success. The jist of the brief is that many immigrants are / have been leading researchers, artists, entrepreneurs.
ETA: I tried several times and couldn't seem to get the link to work here. An article about the brief is currently on the front page of the Huffington Post under a title about ban blowback
sabine
[ 06. February 2017, 20:08: Message edited by: sabine ]
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Dave W.:
quote:
Originally posted by orfeo:
Beatmenace, here on the Ship you will find plenty agreeing with that sentiment.
-----------------------------------
Anyway, what I'm curious about right now is that the government clearly attempted to argue that this was a "foreign relations" matter.
Now around here, that would be complete nonsense. What I'm wondering is whether there is any US law that says it isn't complete nonsense in the US.
So far, I can't find anything. What I've found so far indicates exactly what I would have assumed, that "foreign relations" refers to things like diplomacy, ambassadors, treaties and the like. I can't find any sign, other than the government's argument, that it has anything to do with admission of individual foreigners into the country.
If you'd like to see the administration's case, the Ninth Circuit Court of Appeals has a web page with a collection of documents. The argument for the president's authority starts on page 3 of the "Emergency motion for stay".
What's interesting to me here is that at times they refer to foreign affairs, national security and immigration, as 3 distinct topics, and then other times the "immigration" bit mysteriously drops off. Do a search for the term "foreign affairs" in the document and you'll see where it loses its companion.
Which I find interesting because to me it's quite clear that "immigration" has been the big issue. Something I view as quite distinct to "foreign affairs".
They do cite at least one case from the 1950s which, if the quote isn't horribly out of context, seems to agree with mixing it into one big pot.
[ 06. February 2017, 20:09: Message edited by: orfeo ]
Posted by no prophet's flag is set so... (# 15560) on
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I'm still on whether a law like this has to be reasonable or not. Does it merely have to meet technical legal requirements?
We're told that some of our professional decisions have to meet a standard of any reasonable person, and some have to meet the standard of typical informed professional.
Does any sort of standard apply? I was considering the readily available information that it isn't reasonable because of the leaving out of countries which have actually produced terrorists and the inclusion of countries which haven't. This would appear to make the law unreasonable to the lower of the standards of any informed person. But perhaps the courts don't have this sort thing there?
Posted by Alan Cresswell (# 31) on
:
quote:
Originally posted by orfeo:
quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by orfeo:
admission of individual foreigners into the country.
Surely, by it's very nature, a measure which classifies people solely by nationality (regardless of how arbitrary and illogical the selection of nationalities is) then we're no longer really talking about individual foreigners.
If the new President had seen evidence that some people passing the existing vetting process were still presenting a threat within the US - though, surely, if there was such evidence there wouldn't be a need to fabricate stories about Bowling Green - and, therefore, decided that the vetting process needed to be enhanced to detect the identifiers for those people that would be a different argument. Assuming, of course, that having enhanced the vetting process it was then applied to all regardless of nationality. That would be a targetted measure against individuals posing a potential threat to the US.
No, I still think we're talking about individuals, just individuals defined by a class. When people turn up at the airport or the immigration desk, they are individuals that the rules are being applied to.
Well, of course, people present themselves at immigration as individuals. But, individuals are defined as an intersection of a wide range of class characteristics - nationality, religion, age, education, gender ... That intersection of classes is unique for each individual, once you have an adequate number of classes to consider. If you treat people as individuals then you consider all the different classes that describe them. When you only consider one class (eg: nationality) then they are no longer seen as individuals but representatives of that class.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Alan Cresswell:
When you only consider one class (eg: nationality) then they are no longer seen as individuals but representatives of that class.
And this is why I think trying to treat it as "foreign relations" is wrong. An Australian ambassador is a representative of Australia. I am not.
Posted by Og, King of Bashan (# 9562) on
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quote:
Originally posted by no prophet's flag is set so...:
I'm still on whether a law like this has to be reasonable or not. Does it merely have to meet technical legal requirements?
If it targets a protected class (the argument is that it targets people by country of origin) the government must show that the law is necessary to achieve a compelling state interest. Which is actually quite a bit more stringent than reasonableness.
Posted by Barnabas62 (# 9110) on
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I did like this.
Sometime later today, I guess we will find out just how much the judiciary has "got this".
Posted by sabine (# 3861) on
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One of the judges on the appeals court hearing the case today was a refugee.
sabine
Posted by Barnabas62 (# 9110) on
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I listened to the oral arguments and this is going to be a close call. The counsels for both sides had a few holes shot in their arguments. Listening to the appeal judges, I don't think they were in agreement with one another.
[ 08. February 2017, 00:39: Message edited by: Barnabas62 ]
Posted by orfeo (# 13878) on
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quote:
Originally posted by sabine:
One of the judges on the appeals court hearing the case today was a refugee.
sabine
Well, you can bet what Trump will say about that if he doesn't get his desired ruling.
Posted by Barnabas62 (# 9110) on
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For any of you who may wish to hear the oral arguments and the questions of the appeal justices, here is a link.
For those of you who don't have the time, by common consent, Flenje for the DoJ (who I understand was a late substitute) didn't do a very good job, Purcell for Washington State did better.
I think Purcell lost the argument that the E.O. transgressed the Establishment Clause, i.e. that the E.O. was, by wording or intent, discriminatory on religious grounds. That doesn't rule out a continuation of the stay simply to avoid a further period of chaos re rollout, but that chaos could be removed by some wording modifications re scope.
If there was any sense in the Trump administration, they would avoid the Supreme Court and fix the scope and rollout problems by other means. A week's consultation about the best way of doing that would probably be a lot quicker than going for some kind of "victory" in the Supreme Court.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by Barnabas62:
If there was any sense in the Trump administration, they would avoid the Supreme Court and fix the scope and rollout problems by other means. A week's consultation about the best way of doing that would probably be a lot quicker than going for some kind of "victory" in the Supreme Court.
Yeah, but see, Trump's Executive Orders are the Best. He's got the Best Executive Orders. They can't possibly be improved upon. They're so amazing, even he's impressed by how good they are. Only liars will say different.
Posted by Enoch (# 14322) on
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We've made Executive Orders great again.
Posted by lilBuddha (# 14333) on
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New American immigration test
Posted by Brenda Clough (# 18061) on
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Many conservative religious leaders weigh in against the executive order.
Posted by Gramps49 (# 16378) on
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Thought some people here may like this explaination of the significance of Execuitve Orders.
Posted by Barnabas62 (# 9110) on
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On the wider issue of Trump's attacks on the judiciary, there are now 3 D's in place. Gorsuch has confirmed his observation that they are 'demoralising' and 'disheartening'. An open letter to the DoJ from many lawyers has characterised these attacks as 'destructive'.
The problem now is the increased politicisation of the 9th Circuit Appeals Court decision. I think this gets to the Supreme Court if they keep the Robart order in place. But I'm no longer clear what the constitutional basis would be for continuing the stay.
Posted by Gee D (# 13815) on
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AIUI, what happened was that the first instance judge granted what we'd call an interlocutory injunction, an order to preserve the status quo pending a full hearing. The experience here is that such decisions are very hard to overturn on appeal; even harder is obtaining the special leave necessary to appeal to the High Court (our equivalent of SCOTUS).
Of course, US jurisprudence may well differ. Is anyone able to give an informed comment please?
[ 09. February 2017, 09:52: Message edited by: Gee D ]
Posted by Barnabas62 (# 9110) on
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Judge Robart made the order because he thought that there was a good chance that the case against the EO was winnable in a full hearing. The appeal court is free to take a different view, overturn Robart.
It's no longer clear to me that the case is winnable on constitutional grounds. I think it's a terrible EO but that doesn't mean the President lacks the authority both to issue it and clarify its application. If the Establishment argument fails, and I'm sure it does, what's left looks pretty thin.
Posted by Dave W. (# 8765) on
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quote:
Originally posted by Barnabas62:
If the Establishment argument fails, and I'm sure it does, what's left looks pretty thin.
Why are you so sure this argument fails?
Posted by Barnabas62 (# 9110) on
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After listening to the oral evidence, I realised there was a clear distinction between Trump's pre election anti-Muslim promises and the content of the EO. There was a key exchange with Purcell where he acknowledged that even if the President had an intention to establish a religious preference, the EO was not the vehicle to use to do that. He did argue that further disclosure might provide more evidence of real intent. But that seemed to me to be more an argument to be used about a different EO.
Plus the argument on selectivity was the powerful evidence that the seven countries chosen were a particular security risk, as the Obama presidency had argued. Not just because they were majority Muslim countries.
[ 09. February 2017, 18:38: Message edited by: Barnabas62 ]
Posted by Barnabas62 (# 9110) on
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Two further developments.
1. There will be a ruling today before close of court business.
2. There are moves by Republicans to split up the 9th Circuit 'on the grounds that it is too big and too slow'. These moves have of course nothing to do with its liberal reputation ...
Posted by Nicolemr (# 28) on
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And the court has ruled, siding with the judge who overturned the ban. ![[Smile]](smile.gif)
Posted by Barnabas62 (# 9110) on
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A 29 page ruling, apparently, and a repudiation of the DoJ appeal. No doubt the ruling will be available to read shortly. The geek in me can't wait to see!
Posted by Dave W. (# 8765) on
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It's right here. A pretty thorough rejection of the case for an emergency stay; the court doesn't say the government might not win its case at a later stage, I don't see any place where they offer particular reasons for them to hope they might.
The court said the university interests gave the states' standing; the EO is reviewable, despite the national security aspect; the government hasn't shown that it's likely to win on the Due Process Clause claim (views reserved on the Establishment Clause and Equal Protection claims); there's no reasonable way to limit the scope of the TRO; balance of hardships is in the states' favor given the absence of evidence of harm from the government and abundant evidence from the states.
[ 09. February 2017, 23:00: Message edited by: Dave W. ]
Posted by Og: Thread Killer (# 3200) on
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They also came down hard on the administration's line about the courts having no jurisdiction. At one point they stated no evidence was provided on one aspect because the only thing the government lawyers said was the court must not review the EO.
Pretty damning stuff this.
Going to SCOTUS of course.
[ 09. February 2017, 23:47: Message edited by: Og: Thread Killer ]
Posted by Barnabas62 (# 9110) on
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Thanks Dave. I've read the ruling now. A bit late here, so I'm going to sleep on it. My gut feel is that it is bold!
Posted by simontoad (# 18096) on
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Trump's tweet was a pisser - SEE YOU IN COURT!
It's like he didn't expect to lose at this stage, and is so surprised that he's tweeeting in angry caps. I find this very very funny.
The other thing is that he seems to be saying to the people who constituted the court in this case that he's going to see them in court. Or he might be saying it to the Attorneys-General who are bringing the action, and they're the top legal officers in their respective states.
Personally, I'm not very excited about the prospects of this matter on its merits. I'm guessing, and I have read none of the materials, that maybe people with valid Green Cards will be excluded, and maybe people who are citizens of other countries as well as those listed will be excluded.
I'm also a bit wobbly on whether the ban is about Islam, or about the capacity of the American Department of Immigration (can't remember what you call it) to satisfactorily investigate the background of migrants from these countries, on the basis that the Governments are hostile to US interests or are too chaotic to be of any use. The key point here is the exclusion of countries like Jordan and Saudi Arabia, on the basis that there is a strong and multilayered relationship between the US Govt and their Governments ( It seemed to take ages for the Administration to cotton onto this argument).
Please don't misunderstand me. I loathe Trump and his executive order. They are appallingly harsh, take no account of individual circumstances during the period of the ban and are inspired by racism. It's just that courts apply legal principles, not political ones. That's why demagogues hate an independent judiciary.
Posted by orfeo (# 13878) on
:
quote:
Originally posted by simontoad:
I'm also a bit wobbly on whether the ban is about Islam, or about the capacity of the American Department of Immigration (can't remember what you call it) to satisfactorily investigate the background of migrants from these countries, on the basis that the Governments are hostile to US interests or are too chaotic to be of any use.
The whole problem is that the Trump administration is extremely wobbly on this as well.
If you have a ban, it doesn't enhance your ability to satisfactorily investigate the background of migrants. It removes the need to investigate them at all.
There is a lack of a rational connection between the text of the order and the stated aims of the order.
[ 10. February 2017, 05:00: Message edited by: orfeo ]
Posted by lilBuddha (# 14333) on
:
quote:
Originally posted by orfeo:
There is a lack of a rational connection
I think you've found the motto for the Trump administration.
Posted by Golden Key (# 1468) on
:
simontoad--
{This wanders a bit, but does arrive somewhere.}
Re Jordan and Saudi Arabia:
AIUI, they've been friends of the US for a long time, in a region that doesn't like us much. Much/most of that is about oil, AFAIK. ("Frienemies" might sometimes apply.) The late King Hussein of Jordan also worked with the US as a peace-maker in the region.
OTOH, some of the 9/11 terrorists came from Saudi Arabia. (Not sure about Jordan.) When the last 38(?) pages of the 9/11 report were released in the last couple of years, it looked like Prince Bandar might be implicated--fundraising, IIRC. And he's so close to the Bush family that he's nicknamed (by them, I think) "Bandar Bush". So more and more complications.
AIUI, Pres. Obama chose those seven countries because of situations at that time. From what I've heard, T is constantly comparing himself to Obama, and trying to do what O did--and go further. Maybe because he's really not up to the job, didn't really want the *job*, didn't expect what's involved, and is clueless as to what to do, now.
Putting aside the question of whether T really means anything he says, for longer than it takes him to say it: During the campaign, he repeatedly talked about banning Muslims. So I think the immigration exec. order is meant to fulfill that.
I think it's also possible that he never intended to really do it, because he never thought he'd win. (A couple of days ago, I posted--I think it was on this thread--a link to an article where his long-time friend Howard Stern says similar things about T not wanting the job, and only wanting NBC to pay him more for his "Apprentice" show.)
So he's in a job he doesn't want, possibly doing things he doesn't truly believe in.
I wonder if it would do any good to gently point out to him the immigrants in his family: Melania, Ivana (1st wife), mother from Scotland, and grandparents from Germany. And his grandfather was scared of possible ill feelings towards Germans from Americans, so he pretended the family was Swedish. IIRC, T didn't know the truth until he was an adult. If he could get even a glimmer of that, then he ***might*** back off a bit.
FWIW, etc.
Posted by Golden Key (# 1468) on
:
Ok, this is what I posted on the election aftermath thread, and mentioned above:
quote:
Originally posted by Golden Key:
Interesting perspective from a long-time friend of Trump:
"Howard Stern Claims Donald Trump Wants Hillary Clinton to Be President." (Yahoo)
Lots of other insights.
Posted by Ricardus (# 8757) on
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What I find hilarious is Mr Trump complaining that judges are political. Er ... wasn't a major factor in his election his ability to nominate a conservative judge to the Supreme Court?
Posted by Golden Key (# 1468) on
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Ah, but judges who agree with him are Right and True. The other bozos are Political and Wrong. (A view shared by many people about judges who agree with them.)
The same goes for "stacking the Supreme Court". People want Supremes that hold the views they want them to hold. So a Democratic president will use openings on the bench to put a liberal or moderate judge in. The reverse for Republicans.
We're at a point where several elderly Supremes could retire or die. That would give whichever president a chance to stack the court, providing Congress confirms the nominated judge. IMHO, it would be a very bad thing if Trump and the Republicans get a chance to do that. May the current Supremes, even the conservatives, be well--and may the Notorious RBG live long and prosper! (Rollling Stone)
Posted by Boogie (# 13538) on
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'The decision immediately set off a political firestorm on both sides of the aisle. Donna Brazile, the chair of the Democratic National Committee, celebrated the decision in a statement. “This is a massive blow to the White House. The court upheld that we do not discriminate based on religion. That is what terrorists do, and what terrorists want us to do.”
Exactly.
I think the judges have him tied up in knots. He won't understand half of the ruling - if he can read it to the end without exploding and running to twitter ![[Roll Eyes]](rolleyes.gif)
Posted by Jane R (# 331) on
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Golden Key: quote:
Ah, but judges who agree with him are Right and True. The other bozos are Political and Wrong. (A view shared by many people about judges who agree with them.)
That reminds me of a throwaway line from a Michael Flanders monologue "Our council is strictly non-political. They're all Conservative."
Posted by BroJames (# 9636) on
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I'm a g-nu! ![[Yipee]](graemlins/spin.gif)
Posted by Barnabas62 (# 9110) on
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It is a very clever preliminary ruling, leaving the stay in place but also leaving open plenty of room for different findings on the merits of the case. And it leaves plenty of room for the White House to issue a replacement E.O. to achieve the stated objectives.
The preliminary findings on the Establishment Clause are bold. They allow a process of discovery which might even include an interview with the President re intention. His words and Giuliani's words open the door to that.
The real irony over geographic limitations (the scope of the stay) is that the ruling uses Texas v the US which stayed an Obama E.O. re illegal immigrants! That's still in play because the Supreme Court divided 4-4 over the issue.
Alan Dershowitz argued on CNN that if the real and urgent intention was to protect the US, all the White House has to do is to issue another E.O. Trump's SEE YOU IN COURT tweet reveals both his pride and his stupidity. He wants to win his way even though it is easier and quicker for him to win another way.
[ 10. February 2017, 09:09: Message edited by: Barnabas62 ]
Posted by Gee D (# 13815) on
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quote:
Originally posted by Barnabas62:
It is a very clever preliminary ruling, leaving the stay in place but also leaving open plenty of room for different findings on the merits of the case. And it leaves plenty of room for the White House to issue a replacement E.O. to achieve the stated objectives.
That is because it is only an interim order, an order staying action until both sides have the opportunity to present their full evidence and the argument based on that evidence. It is a standard sort of decision, although there seems to have been a reversal of the burden of proof which would be applied here.
Posted by Enoch (# 14322) on
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Sorry Golden Key. This is trivial I know, but this is what "Supremes" conveys to me! ![[Killing me]](graemlins/killingme.gif)
Posted by Barnabas62 (# 9110) on
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@ Gee D
I think the problem for the Government appeal to stay the stay is that they produced no evidence. Rather, they asserted non-reviewability based on a particular view of the law. Which left the Appeal Court free to examine that assertion as a matter of law.
[ 10. February 2017, 10:24: Message edited by: Barnabas62 ]
Posted by simontoad (# 18096) on
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Arguing that the difference between Egypt, Jordan and Saudi Arabia and the 7 countries named is about the relationship between the US and the various Governments has the ring of truth to me. I'm pretty sure that all three were places where people went when they were renditioned in the months after 9/11 and during the early days of the Iraq war. That requires a very close relationship between the intelligence communities.
Orefo I think mentioned something that made me think Orefo thought the travel bans were permanent. My understanding is the Syrian bans are permanent, but the others are for a 90 day period, subject to an order by the Court. Yes, that last bit was for Donald.
An academic exercise: 1.Don swore to uphold the constitution of the USA before a crowd of 20 or so people. 2. That constitution sets up the framework for the American system of checks and balances, including the legal system at a federal level. 3. At some point, if Donny keeps criticising the Court isn't he failing to uphold the constitution, surely grounds for impeachment?
In Australia, pollies don't generally talk in public about matters before the courts. Apart from being smart, this protects them from committing the offence called "Contempt of Court", allowing a judge to call the person before them and deal with them by fine, tongue lashing or imprisonment.
Does Donny run the risk of being in contempt of court in the USA? Does your law allow judges to lash offending Presidents with their tongue?
Posted by orfeo (# 13878) on
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No, I don't think the bans are permanent. What I think is that the bans display exactly the same stupid thinking I encountered once in my professional work: that the way to "transition" from System A to System B is to first stop System A, then put System B in place once you've figured out.
It's stupid because in the meantime there is no system in place. If Trump had his way, there would be no vetting rules for people from these countries for several months. A ban means there are no criteria for determining which people can come in. No one can come in.
Posted by Barnabas62 (# 9110) on
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I think something like that was in the mind of the appeal court. What was already in place for those 7 countries was a more stringent vetting process ( courtesy of the Obama administration). The EO aim was to replace that with an even more stringent vetting process - as yet unspecified - after the pause. But there is no evidence to suggest that anything more is needed.
Trump just wanted something which enabled him to claim he was honouring his promise as a candidate.
Posted by lilBuddha (# 14333) on
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quote:
Originally posted by Barnabas62:
Trump just wanted something which enabled him to claim he was honouring his promise as a candidate.
And without damaging the flow of oil and other monetary and political considerations. This is the biggest component of the pile of bullshit that this is.
They've made the world less safe in order to make money. Times like these, I wish there truly was a vengful god. These bastards deserve to roast for a very long time.
Posted by Brenda Clough (# 18061) on
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quote:
Originally posted by orfeo:
No, I don't think the bans are permanent. What I think is that the bans display exactly the same stupid thinking I encountered once in my professional work: that the way to "transition" from System A to System B is to first stop System A, then put System B in place once you've figured out.
It's stupid because in the meantime there is no system in place. If Trump had his way, there would be no vetting rules for people from these countries for several months. A ban means there are no criteria for determining which people can come in. No one can come in.
It is an idiotic operating policy in more than one arena.
Here is a long and heartrending account of how Repeal Now Replace Someday Later works when you use it on health insurance.
Posted by RuthW (# 13) on
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quote:
Originally posted by Og: Thread Killer:
Going to SCOTUS of course.
But not right away, right? I thought it would now go back to the lower court. All that's happened is that the appeals panel has upheld the temporary stay. The lower court hasn't ruled on the EO, just stayed it until it does have a ruling. So I think now it goes back to the lower court, where the discovery process could be entertaining.
Posted by cliffdweller (# 13338) on
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Fyi: bans were 120 days, not 90. And yes, Syrian ban is "indefinitely"
Posted by Siegfried (# 29) on
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quote:
Originally posted by RuthW:
quote:
Originally posted by Og: Thread Killer:
Going to SCOTUS of course.
But not right away, right? I thought it would now go back to the lower court. All that's happened is that the appeals panel has upheld the temporary stay. The lower court hasn't ruled on the EO, just stayed it until it does have a ruling. So I think now it goes back to the lower court, where the discovery process could be entertaining.
DoJ could appeal the 9th Circuit's rejection of a stay on the TRO to SCOTUS, but it'd be a long shot, both because the district judge has briefs and arguments calendared on the merits, and the current 4-4 split of SCOTUS--a tie upholds the 9th Circuit.
Posted by Barnabas62 (# 9110) on
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I think the SCOTUS would send any immediate appeal against the TRO back to the lower court for a hearing on the legal merits of the case against the EO. That is because the merits of the case against the EO have not yet been heard.
Judge Robart would judge that case. If it was upheld that the EO was unconstitutional, it would then go back to the 9th Circuit Appeal Court. If the ruling on the merits was confirmed, then it would go to SCOTUS.
Far, far simpler to draft a replacement EO. Oh wait! Something is going on in Virginia - and other places.
I think the EO is screwed for months, if not permanently. The 'I got this' cartoon looks pretty much spot on.
Posted by Alan Cresswell (# 31) on
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quote:
Originally posted by Siegfried:
the current 4-4 split of SCOTUS
The 4-4 split references the Presidents who appointed the judges, four appointed by Republican Presidents and four by Democrat. Right?
That doesn't seem to me to necessarily mean that they will rule along the lines of the party of the President that appointed them - especially when it isn't entirely clear that the question is one of Democrat vs Republican. If the judges rule according to party lines then that means that the Supreme Court is not independent of the legislature or executive.
It would seem foolish to simply assume that the four judges appointed by Republican presidents would rule in favour of Trump, and those appointed by Democrats against. If the stay on the EO is lawful then the judges should rule in favour of it, if it isn't then against. If (as appears to be the case) there are legal arguments both in favour of the stay on enforcing the EO and in putting the EO back into effect until such a time as the courts have ruled on the legality of it then the judges should rule according to their understanding of the law and the strengths of arguments presented. I see no reason why they should divide along the party political lines of the Presidents who appointed them.
Posted by Barnabas62 (# 9110) on
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Alan
The precedents are in favour of any immediate appal to SCOTUS re the TRO being referred back to the lower court. This has nothing to do with politics, everything to do with SCOTUS being the last court of appeal. In exercising this function, they much prefer to have the arguments on the merits of the case (does the EO violate constitutional rights?) the subject of both hearings and appeal in the lower courts. It gives them more to bite on.
On your general point, I think you are right. I wouldn't second-guess the way the judges would vote on the merits of this case. The preliminary findings by the 9th Circuit re standing, due process and establishment (i.e. religious discrimination) may not stand up to more thorough scrutiny. Lawyers from different parts of the political spectrum are saying that.
But if Trump continues his war of words against the judiciary, that is bound to be counter-productive. They will find a way of delivering a lesson.
Gorsuch's comments probably represent a very common belief. The SCOTUS is not a political pawn, particularly over issues of separation of powers.
Posted by sabine (# 3861) on
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The administration may be rewriting the travel ban so it can pass legal muster.
sabine
Posted by Alan Cresswell (# 31) on
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quote:
Originally posted by Barnabas62:
In exercising this function, they much prefer to have the arguments on the merits of the case (does the EO violate constitutional rights?) the subject of both hearings and appeal in the lower courts. It gives them more to bite on.
Certainly things should progress through the lower courts first.
But, have I missed something? I thought the appeal that the DoJ just lost wasn't about whether the EO violates constitutional rights, but rather whether or not the EO should be in effect while the courts consider that question. So, the question of the constitutional legality of the EO is still with the lower courts and unresolved. The appeal court has agreed with the original court ruling that the EO should not be in effect until it has been ruled constitutional (if that is the way the ruling will go). If the current Administration wishes to have the original EO in effect while the lower courts deliberate then the next move is the Supreme Court.
Posted by Barnabas62 (# 9110) on
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Yes, that's right in theory. But all that is required for the TRO to remain in effect is that there is a good chance (not a certainty) of winning on the merits of the case. The standard of proof is lower than for a consideration of the merits.
I suppose SCOTUS could rule "no chance" but that would be brave in advance of evidentiary hearings. That's why they normally bounce back such appeals. I suppose they might rule that the Robart and the 9th Circuit have had a complete brainfart on standing, due process or absolute executive authority in national security cases, but based on what I've read about precedents that doesn't strike me as very likely.
Posted by Golden Key (# 1468) on
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Enoch--
quote:
Originally posted by Enoch:
Sorry Golden Key. This is trivial I know, but this is what "Supremes" conveys to me!
Yes. That's one of the reasons people use it. Plus it's shorter than saying "Justices of the US Supreme Court".
Posted by Carex (# 9643) on
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quote:
Originally posted by Alan Cresswell:
quote:
Originally posted by Siegfried:
the current 4-4 split of SCOTUS
The 4-4 split references the Presidents who appointed the judges, four appointed by Republican Presidents and four by Democrat. Right?
Actually it refers more to how then tend to vote, regardless of who appointed them. 4 tend to argue a more conservative interpretation of the Constitution, and 4 a more liberal one.
While this tends to correlate with the party of the President who appointed them, there have certainly been some surprises in that regard over the years.
Posted by sabine (# 3861) on
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quote:
Originally posted by sabine:
The administration may be rewriting the travel ban so it can pass legal muster.
sabine
Watching the news now, and this seems even more likely.
sabine
Posted by Barnabas62 (# 9110) on
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Indeed. Looks as though someone has found a way of getting POTUS to face the short term realities.
Posted by RuthW (# 13) on
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quote:
Originally posted by Alan Cresswell:
It would seem foolish to simply assume that the four judges appointed by Republican presidents would rule in favour of Trump, and those appointed by Democrats against.
Indeed, and they don't reliably do that. Justice Roberts wrote the decision that upheld the constitutionality of Obamacare, much to many Republicans' chagrin. He is said to have his eye on how he will be seen when people are writing the history of the Roberts court, and to my way of thinking it can only be a good thing if the Chief Justice cares about the legacy he leaves.
Posted by anteater (# 11435) on
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As with Brexit, so with Trump, I wish that rage could be tempered with sober analysis, and the queue of people desperate to add there insults to the growing pile would diminish.
Now I have no doubts that the EO was badly written and I have no doubt that the courts are right in pushing back, but what happens is that the news gives such a one sided picture that when people realise that Trump has just made draconian an order of the Obama administration to place restriction on people from the countries covered by the EO, they go to the other extreme and rant about Obama being just the same and the liberal elite media loving Obama when he restricts immigration from the seven countries but excoriates Trump.
So, SFAIK the situation is as follows:
1. The need to have closer control over people entering the US from a designated list of 7 countries was instigated by Obama and Trump has just used his list of countries. (so presumably Obama excluded Saudi because of Trump's business interests there???? As is often suggested).
2. If Trump's ban is anti-Muslim so was Obama's if you stick to the wording.
3. Trump's is much more extensive. Obama limited to banning visa-free access, Trump is trying to ban all access.
4. Neither was permanent.
5. And perhaps most damaging, Obama's action will be seen in the context of someone who was in no sense of the word, anti-muslim. Trump has consistently emphasized an islamophobic stance, and it would surprise me if he disowned the adjective. Which make 2 distinctly shaky, although as far as the courts are concerned it was true.
I still think that makes is a foolish EO, and I would hope is gets over-turned, and others may think the context irrelevant.
I don't.
Posted by lilBuddha (# 14333) on
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From the Guardian regarding the Obama order:
quote:
Unlike Trump’s order, the Obama policy applied only to Iraqi refugees and never specifically prohibited entry,
[ 11. February 2017, 16:43: Message edited by: lilBuddha ]
Posted by cliffdweller (# 13338) on
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Obamas order simply slowed down visas to allow for some specific new vetting. Trumps is a complete ban, of indefinite length for Syrians, with no new process specified to justify it. Trumps ban gives priority to Christians which when you're talking about Muslim majority countries makes it a de facto Muslim ban. Obamas did not
Posted by lilBuddha (# 14333) on
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Trump's is a grandstanding lie. It avoids countries in which his companies do business and creates the facade that he is doing something. And it increasing danger rather than reduce it.
Posted by Barnabas62 (# 9110) on
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Yes. I heard an argument on CNN that the current visa restrictions applying to these 7 countries are as tough as possible, short of an outright ban. There is a good deal of grandstanding involved in these moves. Including the bluster against the judiciary.
Posted by Golden Key (# 1468) on
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Jane--
quote:
Originally posted by Jane R:
Golden Key: quote:
Ah, but judges who agree with him are Right and True. The other bozos are Political and Wrong. (A view shared by many people about judges who agree with them.)
That reminds me of a throwaway line from a Michael Flanders monologue "Our council is strictly non-political. They're all Conservative."
LOL. That reminds me of a quote attributed to Mark Twain: "I'm not a member of any organized political party. I'm a Democrat."
Posted by Barnabas62 (# 9110) on
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The replace/rewrite option is beginning to look less likely following Stephen Miller's highly combative round of interviews this weekend.
I'm a long way away, but it also looks likely to me that the Miller-Bannon axis represents the "hawk" advisory voice in the White House, likely to resist more "dovey", conciliatory voices from other advisors.
We'll see this week, I guess.
Posted by Brenda Clough (# 18061) on
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What's frightening is the sense that nobody is at the wheel -- anything could indeed happen. Remember the days when you could open the newspaper and not blanch in terror? It was only last fall...
Posted by Barnabas62 (# 9110) on
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Robart has accepted 'SEE YOU IN COURT', ordered that the hearing on the merits of the EO take place before him. It looks like he may have wrong-footed the White House again.
[ 14. February 2017, 08:10: Message edited by: Barnabas62 ]
Posted by Barnabas62 (# 9110) on
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With a new Executive Order due (indeed overdue according to White House promises) this story gives some further insight into the tension between facts and alternative facts.
It includes the following fascinating quote.
quote:
“The president asked for an intelligence assessment. This is not the intelligence assessment the president asked for,” a senior administration official said
Oh dear! Let's have some more alternative facts supporting the Trump POV. Other facts must be "politically motivated and poorly researched".
Posted by simontoad (# 18096) on
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reminds me of the Bush Administration post 9/11. The Trump Administration's reason for running around like headless chooks are self-administered.
Posted by Golden Key (# 1468) on
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simontoad--
Well, we did actually have 9/11, so there was reason to do something. But Dubya et al did the wrong things, in the wrong way, and faked the Saddam Hussein connection, so that Dubya could work on his father issues.
Posted by simontoad (# 18096) on
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yeah, true. But that wasn't until they had calmed down a bit and asked themselves how they could make money out of the situation. No Iraq invasion and we might have had a completely different story.
Posted by Barnabas62 (# 9110) on
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Back on the main track, I read that at least four states are lined up to challenge the second Executive Order. I'll be watching further developments with interest. Trump's campaign words may still come back to haunt him, despite the watered down language of EO2.
Posted by Golden Key (# 1468) on
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simontoad--
quote:
Originally posted by simontoad:
yeah, true. But that wasn't until they had calmed down a bit and asked themselves how they could make money out of the situation. No Iraq invasion and we might have had a completely different story.
My understanding is somewhat different. Dubya was already looking for a way to get Saddam, for trying to kill Dubya's dad. And, at some time during all this, Saddam challenged Dubya to a personal fight. Dubya didn't take him up on it, but I thought he should have. It would've been much more ethical and honorable than starting a war over a personal grievance.
Haven't looked up details for a long time. But IIRC it wasn't long before Dubya went to his staff and told them to find some way to connect 9/11 to Saddam. He, and Rumsfeld, Cheney, and probably Ashcroft truly believed that Iraqis would view the Americans as liberators, and literally strew flowers on their path. I think there may have been some expectation that a liberated Iraq would reward us with oil.
With all those pieces, I think they would've gone in, even without the possibility of oil. That mess wasn't as simple as simple greed.
Posted by Barnabas62 (# 9110) on
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quote:
Originally posted by Barnabas62:
Back on the main track, I read that at least four states are lined up to challenge the second Executive Order. I'll be watching further developments with interest. Trump's campaign words may still come back to haunt him, despite the watered down language of EO2.
Trump's campaign words and those of his team since inauguration have indeed come back to haunt him.
It will now be very interesting to see if the 9th Circuit follows suit. Bob Ferguson has already argued that these words provide real evidence of the discriminatory intentions of Trump and his administration. This may yet end up in the Supreme Court.
The legal battle re immigration may not be the only legal battle Trump has on his hands either, judging by what came out yesterday about the Congressional investigation into into the Russian connection and wiretaps. The FBI have evidence. Will Comey be compelled (by subpoena if necessary) to produce it?
[ 16. March 2017, 06:20: Message edited by: Barnabas62 ]
Posted by Boogie (# 13538) on
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Yep, looks like he's going to be mired in legal goo for years to come. Good news for the USA?
Amnesty International put it well - commending Judge Watson for focusing his ruling on Trump’s past comments on blocking Muslims from entering the country. “The public has not been fooled by this executive order and neither have the courts,” said Naureen Shah, the national security and human rights director of Amnesty’s US branch.
“You cannot describe bigotry in some other way and expect people to believe you are no longer discriminating when you have been so blatant about it all along.”
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