lonelycrowd

To the disappointment of some conspiracy theorists, the Fourth Circuit finally ruled yesterday. Lawfare posted an analysis that I'm inclined to agree with - the Fourth did a pretty good job of laying out the argument that categorical exclusion violates the intent of Congress, which theoretically could have imposed a blanket ban itself as part of the 2015 Terrorist Travel Prevention Act but chose not to do so. The route to winning over Roberts or Kennedy will have to involve a nuanced argument that the Proclamation violates the intent of Congress, I think, and it's somewhat concerning that only a minority of the judges concurred with that part of the ruling.

lonelycrowd

Reuters just published an extensive report on the state of the hardship waiver process and how frustrating the lack of public information about the hardship criteria has been for many Americans. The article links to a letter sent to Senators Flake and Van Hollen that contains some data on how widespread the rejections have been post-stay. Among the interesting points is the fact that a bulge of hundreds of applicants - albeit a small portion of the overall applicant population - are ending up in a bureaucratic limbo of having been selected for consideration for a waiver but not actually being granted a visa. If we're really going forward with a hardship requirement for certain countries, I don't understand for the life of me why the litigation folks at Consular Affairs are the right people to be making this sort of judgment at the very end of the immigrant visa petition process when USCIS already has a unit that specializes in evaluating relative levels of hardship.

It's interesting that Jeff Flake's office is taking such an active interest in this process. IIRC, he said something to the effect that he'd consider supporting legislation to overturn the Proclamation on Morning Joe a couple months ago.

It's also interesting that State considers very basic information on the number of people in the waiver process to be SBU and not releasable to the public (yet the figures were released anyway). It seems like they really, really don't like discussing this matter with the public. At some point in the near future State will have to start responding to the many FOIA requests it has received about the Proclamation and the events that have followed, and one imagines that those requests will end up before a DC district court judge if the Department continues to maintain that just about everything is confidential or classified.

lonelycrowd

At long last, the first of what I believe will be two parallel lawsuits (one with primarily Yemeni defendants and another with mostly Iranians) alleging that State is going overboard in its strict implementation of the undue hardship standard has been filed in the Ninth Circuit.

lonelycrowd

The amicus briefs are starting to arrive in advance of next month's hearing in the Supreme Court. A particularly interesting one was just filed on behalf of a handful of Republican politicians who served in what may seem like more moderate times, including Ray LaHood and Christine Todd Whitman (of all people!). Their analysis, worth reading for its commentary on the Federalist Papers and King George III alone, appears to build on the separation of powers argument cited by the Fourth Circuit by focusing on the indefinite nature of the travel restrictions mandated by the Proclamation. They note that the restrictions would not necessarily be reversed even if a blacklisted country such as Chad were to pass its 180-day review, a quirk of the Proclamation that I think has not been widely recognized.

lonelycrowd

Chad is off the list, and the White House's announcement indicates that the decision was made on the basis of the 180-day review process set forth by Proclamation 9645. I have not been able to locate any actual documents related to the 180 day review process online, so it appears that we are still being asked to assume in good faith that a fair and equitable effort is being made behind the scenes to resolve whatever concerns forced State to recommend the blanket bans and impose the hardship waiver process on select visa categories (which we *still* know extremely little about).

One of the documents mandated by the Proclamation that we have already discussed on this thread has triggered an interesting lawsuit under the Information Quality Act and Administrative Procedure Act. Basically, the government is being accused of negligence in its practice of including individuals arrested abroad and subsequently extradited to the US in its statistics on foreign-born terrorists.

Also, for those interested, the Supreme Court amicus briefs are finally piling up in favor of the plaintiffs and can be found here. Briefs filed by major law firms are overwhelmingly in opposition to the government's position. It now appears that the early wave of briefs favoring the government was more the result of faith-based conservative organizations taking the opportunity to signal their position than a lack of interest on the part of more progressive interests.

GUWonder

Of blacklisted countries’ nationals hit by the latest EO version, under 500 applicants from such countries were granted a waiver under the EO and issued a visa to the US. 500 is peanuts .

lonelycrowd

Lots of developments as we await a Supreme Court decision. Notably, conoffs are speaking out about the wavier process as a couple of lawsuits focusing on the wavier procedure's compliance with the Administrative Procedures Act move forward. There have also been a few reports on Farsi-language social media that certain consular posts may be becoming a little more compassionate with respect to waiver consideration in recent weeks.

catocony

The decision might come tomorrow, since they added a second day for opinions this week. They will probably add one more day next week, in addition to the usual Monday release.

They have punted on a number of high profile cases this term, such as the gerrymandering cases this week and Masterpiece Cakeshop. They might do the same in Hawaii v. Trump, with a ruling on a very narrow technical issue only.

catocony

Hawaii v. Trump was not released yesterday or today, so it will be next week. Chief Justice Roberts will almost certainly have the majority opinion, so I think it depends if he's in his moderate mood - like with the Carpenter case that was just announced (a real big one), or if he's in his conservative mood.

catocony

No release today. The conventional wisdom at this point is it will be a 5-4 decision in favor of upholding the travel ban. They will have decisions tomorrow and one more day this week.

catocony

As expected, Roberts wrote the opinion, and it was 5-4 to uphold the travel ban. I agree with it - it's constitutional for the Executive Branch to set up immigration parameters. The remedy should be 1) the Legislative Branch to pass bills limiting/controlling Executive action and 2) don't vote for candidates who want to implement stuff like travel bans. Democracy in action.

Boggie Dog

The lower courts decisions seemed to be framed around tweets and not what the Executive wrote in the order. If the legislature wrote a restrictive bill, as you suggest, what executive would sign it?

I agree that the court came to the correct decision based on constitutional powers of the Executive.

catocony

Congress can pass a law without the President supporting it. Vetos can be overridden.

Boggie Dog

Agree 100% that a veto can be overridden, but we both know that getting the required 2/3 majority vote is a difficult task to accomplish.

GUWonder