gsoltso

Except that the wording of the Executive order and associated governmental paperwork does not mention religion. It mentions controlling the flow of people from those regions based upon other reasons. Which takes us right back to the starting point of - in this clear and narrow definition, the POTUS has sole authority to make those changes as he sees fit.

https://en.wikipedia.org/wiki/Executive_Order_13780

Carl Johnson

Yeah, that's not true.

GUWonder

EO2.0 is a derivative of EO1.0. Is an informed individual going to honestly claim that all of this thing was entirely unrelated to trying to deliver on the "Muslim travel ban"?

zitsky

How stupid does he think we are?

GUWonder

When it comes to US immigration control, some people just want the POTUS to have unlimited authority to discriminate on the basis of religion -- at least when it comes to one religion. For many such people, perhaps the ends justify the means. But I doubt that such people hostile to at least one particular religion would have been big fans of a POTUS having sole authority and using such to make changes to US immigration control so as to allow any and all irregular migrants to the US to stay in the US and be placed onto an easy path to citizenship by such exercise of "sole authority". Even US Presidents are not guaranteed to be entirely above the law in the US -- no matter how much one may think that the ends justify the means that a POTUS may (or may attempt to) use (lawfully or unlawfully).

Even if SCOTUS were to have a majority of Justices bigoted against Muslims and inclined to be a fan of blocking Islam at our borders, these same Justices may also not want a POTUS to have unlimited authority to regularize all those foreigners who engaged in illegal and/or irregular migration. This kind of situation being in the mind of some Justices is why I think the POTUS will end up finding out that the authority is not unlimited in this area.

Boggie Dog

Should the case get heard by the USSC and they find for POTUS will you then state they are all wrong?

GUWonder

I am very certain that this will not be a 9-0 matter in favor of POTUS.

TWA884

Second Reminder!

There is a fine line that separates political discussion from policy debate. We are teetering over it ever so closely.

SCOTUS discussions that have nothing to do with the executive order, which is the subject of this thread, belong in OMNI/PR.

Posts have been edited and deleted.

TWA884
Travel Safety/Security co-moderator

leungy18

The "clear and present danger" test is typically used for 1st Amendment battles, so I don't see how that is relevant.

I understand where you are coming from, but I think what @GUWonder is trying to say is that there are limits as to how far a president's executive order can go, and he's right.

You're correct in that the President has the authority, pursuant to the Immigration and Nationality Act of 1952, to regulate the flow of immigration from said region/class of persons at will. But the way that the President goes about regulating said flow will go under constitutional scrutiny.

I'm specifically talking about Executive Order 13769 -- the first one, which was slapped down in the courts very quickly. Most legal experts will agree that travel ban 1.0 is unconstitutional for violating the 4th, 5th, and 14th amendment rights of green card holders and certain visa holders. Here's a copy of the 9th circuit court of appeals ruling on that first order.

While the judiciary usually defers to the political branches on matters of national security, for the judges to lift the preliminary injunction on an executive order, it is the burden of the DOJ to prove that blocking the executive order would constitute 1) a national security issue and 2) irreparable harm. In my personal opinion, the DOJ's doing a pretty sh*tty job.

I would like to bring to your attention a Department of Homeland Security report that country of citizenship is an unreliable indicator of terrorism.

I don't understand a lot of the points that you're trying to make. I think that most of us on this thread will generally agree that vetting for all visa applicants is necessary, and that there are dangerous individuals in certain parts of the world.

The Trump administration needs to convince the public and the courts that the current vetting system is inadequate and that extreme measures need to be taken — but all I see is political theater that will seriously inconvenience investors, tech companies, universities, hospitals, the families of U.S. citizens, and even U.S. personnel overseas. The links above are to amicus curiae briefs filed by interested parties in the IRAP vs. Trump case that was heard by the 4th circuit en banc.

gsoltso

I am simply reading the actual Executive Order, not the political rhetoric on either side. Per the language of the Executive Order, it makes the case for limiting/changing the way immigration is done from places deemed high risk areas - described clearly as a matter of National Security. You can argue until you are blue in the face to the opposite, but read the wording, and point out where the EO states that it will limit immigration based upon religion - I am unable to find it, could you please quote it for me? Barring something of that nature, the authority of the President is clearly stated, and there are plenty of historical precedents - *almost* universally in the Presidents favor.


Please quote the relevant sections of the Executive Order, that disprove this assertion.

Stupid has absolutely nothing to do with it. It is simply reading how the EO is written, and understanding it as it is written, not as others want it to be written. I am simply taking the order as it is written - without the uninformed commentary, ideologically charged commentary or personal feelings attached to the issue. The simple language in the EO falls directly under the authority of the President, and has for an extended period of time.

Some of us have simply read the actual EO and understand what it says, not what some people keep trying to say it says. I have taken neither side in this argument, I simply read the historical precedents, the wording of the actual EO and wish for people to make arguments based upon the laws/regs/Constitution - not personal opinions. Please point out the sections of the Executive Order that contradict the assertion of authority, and how the specific quotes run contrary to the standing laws/regs/Constitution.

I understand the wording in the original EO was incorrect based upon the authority given to the President (although there are tons of people that will argue both ways). I am not concerned with that particular order, I am concerned with the current one, and the wording of it. I can find no specific wording, that amounts to a "religious litmus test" or that even mentions religion as a deciding factor in any of this. The problem is too many people are entrenched in a specific side of the argument for either side to hear the truth of the EO itself. As worded, this EO falls within the Presidents purview, what will be decided in in courts are only relevant at some date down the road. As the Act and regs/laws are written, Trump can limit the immigration from areas that are defined as having a clear and present danger to the US as a sovereign nation, or to its citizens (or infrastructure, etc, etc). Now, you can argue the reasoning behind the orders, or the results they will incur at later dates, but based upon history, this is simply something the President does as a part of his job.

GUWonder

Jon Lovitz's line from a role on SNL comes to mind: "Yeah, that's the ticket!" This EO-doer knows that role well too.

Motivations matter. And if informed parties are being open and honest, they know what motivated this EO 1.0 and 2.0 and would admit it. It's not like so many federal judges are so dishonest and/or ignorant as to have halted these EOs without having good grounds to do so. Especially when we are talking about multiple judges in a court system historically stacked in favor of the Execuitve Branch but which hasn't been thrown under the bus by the public in general.

Xyzzy

Based on what the judges who reviewed (and stayed) the EO in question had to say, the order itself can not be taken simply on its face. Intent matters. And the intent was made abundantly clear by Trump. It was a staple of his campaign. Have a look at this article that states the following:Have a peek at this article that reads in part as follows:
So, while the EO doesn't address intent, courts absolutely do. They most certainly understand -- and take into account -- the circumstances surrounding issues that come before them. This case is n exception.

Carl Johnson

I don't accept you as an authority on legal interpretation, caselaw, or history until you cite authorities supporting your interpretation and show your reasoning. As I understand it, you're saying the order doesn't explicitly say the intent behind it is to discriminate against Muslims, so there's no discrimination against Muslims. That's faulty interpretation.

Find a similar case that was litigated and decided, show us how it's similar, examine the court's reasoning in the decision of that case, and show how it applies to this situation. Cases that occur to me in which the government authorities didn't say they acting out of improper motives are Tinker v. Des Moines and Brandenburg v. Ohio. Take a look at these, or find your own situation and decision.

leungy18

It's not as simple as you portray it as.

You see, the courts have established precedent that the judiciary can "look beyond" the text or bill in order to establish intent and context -- see McCleary County vs ACLU (2005).

The judiciary, right now, is in uncharted legal territory. There are dozens of legal questions and factors involved in this "travel ban" case. One of the bigger constitutional questions is whether campaign statements can be used to establish intent of religious discrimination.

Not only campaign statements, but also various statements made Mr. Trump and his aides in the past few months. After EO 2.0 was slapped with a temporary restraining order by a 9th circuit district court judge, Mr. Trump claimed that it was a "watered-down version of the first". That wasn't a wise move: he all but admitted that he wanted to accomplish something that was already ruled illegal. There's a reason why lawyers advise their clients to keep their mouths shut before the trial.

Perhaps the term "religious discrimination" is too strong: what the Trump administration needs to prove, or what the ACLU needs to disprove, based on Lemon v. Kurtzman (1971), is secular purpose. Failure to prove secular purpose would mean an Establishment Clause violation.

So, that boils down to this: can the statements of then-candidate Trump be used in the judiciary to establish that the Trump administration did not have secular intent when drafting EO 2.0?

And that leads to a second question -- whether such deference should be granted to the Trump administration. Contrary to what you believe, such deference is not automatically granted. Your opinion of what constitutes the president's job isn't universally shared by all judges.

It is established in Kleindienst v. Mandel (1972) that the U.S. Attorney General has the authority to refuse someone's entry to the United States, under the INA of 1952. The Administrative Procedure Act of 1946 established a barrier to judicial review of visa applications: known as the standard of consular nonreviewability. But it was also established in Zadvydas v. Davis (2001) that the political branches' plenary power over immigration is still subject to important constitutional limitations, and it is the judiciary's responsibility to uphold said limitations.

So based on the standard of consular nonreviewability, the U.S. government has to prove that their denial of visas is "facially legitimate and bona fide". The majority opinion of the 4th circuit en banc takes the concurrent opinion of Kerry v. Din (2015), written by Justice Kennedy. In order to establish a facially legitimate reason for the denial of a visa, all the U.S. government needs to do is quote a statutory provision -- i.e. "national security". To establish bona fide -- well, good faith is pretty straightforward. The 4th circuit's interpretation of Justice Kennedy's opinion is when the plaintiff (the executive branch) makes an affirmative showing of bad faith (unconstitutional intent), the judiciary has the authority to assess the validity of the "facially legitimate" requirement in order to grant the deference to the executive branches under the standard of consular nonreviewability. And so the second question partly circles back to the first: Mr. Trump's intent; whether there are national security concerns, or religious concerns. Even if there are said national security concerns, U.S. v. Robel (1967) holds that claims of national defense cannot deprive people of their constitutional rights.

Obviously, there are judges and justices who will disagree with the majority opinion, their argument being that campaign statements cannot prove that Mr. Trump did not have a secular purpose, among other arguments.

Nevertheless, it is the burden of the Trump admin to prove what you describe as a "clear and present danger" to Americans. And not only that, but prove that the travel ban is necessary to thwart said danger. That is when the courts come in to examine the amicus briefs, based on the totality of information available to the court. This is a political question that the courts have to examine. One side claims that the travel ban is necessary and effective in preventing terrorism, and that current screening methods are inadequate. The other side argues that current screening methods are adequate and that the risk of a terror attack committed by a visa-holder on U.S. soil is low, that most terror attacks are committed by homegrown citizens, and that EO 2.0 is a political farce to rally Mr. Trump's fans in preparation of his 2020 run.

Saying that "the constitution is clear, the constitution says, the simple language of the law says" or something along those lines is an oversimplification of the judicial process. If we were to take a literal approach to jurisprudence, we wouldn't need lawyers to go through law school; a high school grad who could read would do. But the context of EO 2.0 matters more than the text itself.

gsoltso

I am simply reading the EO, if things are done outside of what they outline in the EO, then there would be a case for judicial action. I understand that from your point of view, things may be stacked against everyone but the Executive branch - which is sad. Each branch is supposed to be following the Constitution, and applying laws for all citizens of this country, and to a somewhat lesser extent those that are coming here to visit (there are laws and protections that US citizens enjoy, that non-citizens do not).

The problem is, the EO does not reflect the ability to add in specifics at a later time (based upon religion). This removes the ability of intent to be applied, I think that was a large part of the reasoning behind the second edition - to place this in such a way, that intent, or even the possibility of intent can not be applied through this EO. YMMV where the actual application happens, such as embassies and the like, but I think the actual EO was written in a way to remove the intent against any specific group of people (outside of nefarious bad guys). I may be wrong, but I am pretty sure that was a large part of the reasoning and the actual language in this EO.

I never said I was a legal authority, I said I was simply reading what was written, and found no religious component (pro nor con), as a matter of fact, I found that it seem to be written specifically to remove anything that could be tied to that. Faulty interpretation is when someone reads a set of words, and misunderstands them, or purposely misapplies the regs/rules. Much like reading something that says A is A, and stating that A is B-Z, not what it actually says -that would be faulty interpretation. Each of us has our own interpretations for these things, it does not make it faulty, just different.

I can not argue that it is a more simplistic view, or rather more clearly, a desire that our laws/regs/EOs, etc be written in such a way, that they do specific things. We have reached a point where legalese and judicial writs are so convoluted, that even members of the Judiciary have challenges sorting them out.

I am a huge fan of a law that says "We will do (this action), we will do it this way" The law for jaywalking should not be 8 paragraphs, it should be distilled down to a paragraph, with a specific designation. I realize this is a sort of "Pollyanna" POV, but we should not have bills that are 7000+ pages. We should simplify the laws to where the common citizen can understand them, and act accordingly.

I think that an EO written to specifically address the elephant in the room (namely a religious litmus test), should stand - as long as they can prove the reasoning they are using as the impetus - in this case, National Security.