Miscellaneous And Off Topic Subjects

[iam416]

The Court's approach to standing now, more or less, means any State can challenge any Federal law on anything. In a very strong system of federalism where States can push back against Federal laws at will, that's a good thing. They say bad facts make bad law. I suspect those in favor of an increasingly powerful Federal government will come to rue this decision.

I'm fine with most of the due process arguments. I think that was always the big issue for the EO. I don't think you can rely on the Executive saying, "no, no, it doesn't include legal green card holder or others legally entitled to enter." Those words need to be in the EO. That's what someone like, say, Justice Scalia would say. And I concur.

I depart from the Court on their due process claims for folks not entitled to be in the country. I don't think the cited authority supports those assertions in the least.

The only part of the decision I really dislike is the specific comment that extrinsic evidence of intent can be used to prove up establishment clause issues. I have previously explained why.

I'm also nonplussed by this:

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.

The Court purports to say that it owes the EO lots of deference but can still review it. They don't really give the EO any deference. At all. And more to the point, think about this logic -- we're not going to uphold an EO purporting to protect US Citizens until US Citizens have been killed. Set aside the politics for a second -- think about that standard. It's especially "nonplussing" because the Court has no need to get that far. They have already set forth sufficient grounds to justify the order (namely, they don't the government will succeed).

Overall, nothing has really changed. Once the case was filed in the W.D. of Washington there was only going to be one outcome. The DCt invalidates and the 9th Circuit upholds. I think this could, COULD, be a useful tool to check the Administration's haste. But I only think it ends up as such if the Supreme Court rebukes the EO. The 9th Circuit doing so will not.

Of course, any sane President could easily rewrite the EO to make it clear that it does not apply to folks that have previously been granted to right to come to the US. And that would be that. He would, IMO, win in the Supreme Court. Personally, I'd have an EO ready to go and drop it as soon as the DCt invalidates the original or during the pendency of the appeal -- buy yourself enough time to get the Supreme Court back up to 9 and go in with a more sensible EO.

However, that's absolutely not what will happen. He'll take it to the Supreme Court as quickly as possible. Because he's DJT.

[Dr. Strangelove]

I'm still not sure which of these is closer to the truth:

A) The EO wasn't intended to affect Green Card holders but communication was terrible and bad info circulated down to Customs officials. Stephen Miller the fallguy here

B) The EO WAS intended to apply to GC holders but the Admin backed off when they were caught off guard by the neg reaction. More conspiracy-minded could say they did it as a 'test' of public sentiment

[SeattleLionsFan]

I disagree with your reading, especially as to the deference shown. The Feds failed to provide or cite ANY evidence to support the need for the ban. They were essentially saying that they do not need to show any work, and the court said "nah. You got to have some reason. We will give great weight to your thinking, but there has to be thinking." That seems to me to be completely appropriate.

I fully agree that all in all this is a minor ruling, that is a big deal only because that idiot fucked it up so bad.

[Jeff Buchanan]

Just to be sure, the Appellate Court has validated the 9th CC's TRO and now the two sides will get a full hearing. Right?

[SeattleLionsFan]

Given that Gen Kelly learned of the order at the same time it was being signed, I find it hard to believe that anyone thought beyond, "how can we keep brownish people out of the country?"

[SeattleLionsFan]

Just to be sure, the Appellate Court has validated the 9th CC's TRO and now the two sides will get a full hearing. Right?

They didn't even validate it. They refused to stay the TRO, in part because the govt didn't show that they would suffer irreparable harm or was likely to win.

[Dr. Strangelove]

Talent-

There's something that's been bugging me a bit. Numerous people on Fox, including Judge Napolitano, have been insisting that the President's authority over immigrtion comes from the Constitution and it is virtually unchecked. But is that accurate? There's zero mention of immigration in the Constitution. Doesn't his power derive more from an Act of Congress (the 1952 law, whatever it's called) than anything constitutional?

[hack]

There's the school of thought that Bannon wants to create chaos, and that a properly-executed plan wouldn't do that. I have no idea.

[Wild Hoss]

That’s the type of spin following every Trump fuckup. No. Impulsive douche is impulsive.

[iam416]

I'm still not sure which of these is closer to the truth:

A) The EO wasn't intended to affect Green Card holders but communication was terrible and bad info circulated down to Customs officials. Stephen Miller the fallguy here

B) The EO WAS intended to apply to GC holders but the Admin backed off when they were caught off guard by the neg reaction. More conspiracy-minded could say they did it as a 'test' of public sentiment

I think it was (B). But it matters not -- the EO is vague on the issue and thus subject to the this type of Due Process ruling.

There's something that's been bugging me a bit. Numerous people on Fox, including Judge Napolitano, have been insisting that the President's authority over immigrtion comes from the Constitution and it is virtually unchecked. But is that accurate? There's zero mention of immigration in the Constitution. Doesn't his power derive more from an Act of Congress (the 1952 law, whatever it's called) than anything constitutional?

Napolitano is chucklehead. You are correct. If anyone has any fucking doubt refer them to Article I, Section 8, Paragraph 4 which specifically enumerates as a power of Congress the ability "To establish an uniform Rule of Naturalization."

Congress has ceded much of that power to the Executive in the manner you described.

The argument, I assume, from the chuckleheads is that the Executive is vested with exclusive authority to defend the US and that this EO is defense-focused and immigration-ancillary. I COULD maybe buy that argument if the Constitution was silent on immigration and who has the power. It's not. It's clear. If it's immigration-related, it 's Congress.

I disagree with your reading, especially as to the deference shown. The Feds failed to provide or cite ANY evidence to support the need for the ban. They were essentially saying that they do not need to show any work, and the court said "nah. You got to have some reason. We will give great weight to your thinking, but there has to be thinking." That seems to me to be completely appropriate.

I respectfully disagree, SLF. I don't think Congress or the Executive needs to "show its work" to pass immigration laws. I think, e.g., Obama can up the arbitrary refugee limit from 50,000 to 125,000 without showing his work. But that's not really my point because the "show its work" thing is only an issue b/c of the posture of the case. My problem is the logic that I quoted -- you can't protect someone until someone is dead. I find that vapid.

Just to be sure, the Appellate Court has validated the 9th CC's TRO and now the two sides will get a full hearing. Right?

Correct. Though the 9th C did more than that, they provided an specific roadmap for a ruling that will withstand appeal....heh...at least in the 9th C.

[AlabamAlum]

I tend to side with Talent on this, mainly because his business cards also become sponges when dropped in water.

Oooo, classy.

[iam416]

I also provide all clients with a free smoking monkey!

[SeattleLionsFan]

I don't think that's the logic. I think the logic is that the govt says the ban is necessary for the safety of the US, but there is no evidence that it is necessary for the safety of the US.

[iam416]

I think the logic is that the govt says the ban is necessary for the safety of the US, but there is no evidence that it is necessary for the safety of the US.

And then, of course, the Court says what it thinks is evidence necessary to justify the EO....a terrorist attack from one of those countries.

As I said, I respectufally disagree. I assume we're both comfortable with that.

[iam416]

Finally, with respect to Iraq and Syria, CONGRESS made the determination that they are areas of terrorist concern and for the other 5 countries, the OBAMA Administration made the determination that EITHER the 5 countries:

[have] a government of which has repeatedly provided support of acts of international terrorism

OR

(I) the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;

(II) a foreign terrorist organization has a significant presence in the country or area; and/or

(III) the country or area is a safe haven for terrorists.

Of course, the 9th Circuit will grant no deference to any of that. And, for that matter, I think their hinting at establishment clause issues and how they'd rule would invalidate the 8 USC 1187(a)(12) that makes folks from those 7 countries ineligible for the visa waiver program.