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

[ok doser]

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

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

be nice to see the executive powers reined back in

:think: wasn't that one of bammy's campaign promises?

 

[rexlunae]

be nice to see the executive powers reined back in

:think: wasn't that one of bammy's campaign promises?

Seems like he's fulfilling that promise even out of office. But Trump's executive order is on much shakier ground legally than DACA.

 

[jeffblue101]

Donald J. Trump ‏@realDonaldTrump
LAWFARE: "Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute." A disgraceful decision!

The law that never was

The key point for everybody to know about the United States Court Appeals for the Ninth Circuit's opinion regarding President Donald Trump's executive order regarding immigration is that the three judges failed to discuss, or even acknowledge the existence of, the primary law that supports the E.O.

Title 8 United States Code, section 1182(f), which was enacted as section 212(f) of the Immigration and Nationality Act, is entitled "Suspension of Entry or Imposition of Restrictions by President" and states (italics added):

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.
​

On January 27, 2017, President Trump issued Executive Order No. 13769, entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States." The executive order expressly cited 8 USC, sec. 1182(f) and quoted its language three times

President Trump further emphasized the importance of 8 USC section 1182(f) by reading it to the Major County Sheriffs' Association and Major Cities Chiefs Association in Washington, D.C. on February 8, 2017. President Trump told the crowd that "a bad high school student" would understand 8 USC section 1182(f)....

The three judges who issued the unanimous opinion were William C. Canby, Richard R. Clifton, and Michelle T. Friedland. These judges did not cite to, discuss, or quote from 8 USC, sec. 1182(f). They did not quote from those parts of the executive order that cited or quoted 8 USC, sec. 1182(f). If your knowledge about this case were restricted to what is in the opinion by these judges, you would not know that 8 USC, sec. 1182(f) exists. For these three judges, 8 USC, sec. 1182(f) is the law that never was.

All three of these judges were required to take the oath specified in 28 USC, sec. 453:...

Did judges Canby, Clifton, and Friedland each "faithfully and impartially discharge and perform all the duties incumbent upon" them "as judge under the Constitution and laws of the United States"? Their duty was to interpret and apply the law, specifically, 8 USC, sec. 1182(f). If they believe that the law does not apply here, they had a duty to explain why. If they believe that the law is unconstitutional, they had a duty to explain why. They violated their duty. They violated their oath.

If you had to make a list of things that a judge could do that warrants impeachment, deliberately ignoring an applicable law that contradicts the judge's opinion would be on the list.

 

[jeffblue101]

Seems like he's fulfilling that promise even out of office. But Trump's executive order is on much shakier ground legally than DACA.

seriously, how do you reconcile shaky and the clear wording of this statute "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." ?

 

[jeffblue101]

looks like the travel ban is coming back on Monday.
http://www.nbcnews.com/news/us-news...ontroversial-travel-ban-order-sources-n719356

President Donald Trump said Friday that he could issue a new executive order on immigration after an appeals court refused to reinstate restrictions on entry to the United States from seven predominantly Muslim nations.

"The unfortunate part is that it takes time statutorily ... we'll win that battle," Trump said. "But we also have a lot of other options, including just filing a brand new order on Monday."

Asked what changes could be made if a new order were issued, the president replied, "very little."

here is what Trump could do according to Stanford University law professor Michael McConnell

Going Forward

What will happen, going forward? The smartest move by the Administration is to revise the executive order to make clear that it only applies to unadmitted and nonresident aliens, whom the Supreme Court has stated have “no constitutional right of entry to this country as a nonimmigrant or otherwise.” That would render the due process holding of the court, which was the only issue reached, moot.

I fear that slogging forward in the Court of Appeals, before the same panel, is unlikely to be successful, and that returning to the district court will lead to endless battles over executive privilege, in which the Administration will take the same position any executive would take, but which will be treated as uniquely Trumpian defiance of judicial authority. Better to correct the Order and start afresh, with organized implementation and full public explanation.

 

[jgarden]

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

Our conservative "friends" who have spent the last 8 years accusing liberals of ignoring the Constitution are now denouncing the courts for performing their constitutional duties.

Even Trump's own Supreme Court nominee, Judge Gorsuch,has characterized Trump's tweets against the judiciary as “disheartening and demoralizing.”

The Trump Administration is now paying the price of refusing to consult and cooperate with those knowledgeable as to how to craft a presidential ban that could withstand the legal challenges that they should have known would follow!

 

[ok doser]

what's wrong with banning mooslims?

 

[steko]

what's wrong with banning mooslims?

It hurts some people's feelings and makes them feel like people will feel like they are not feeling people.
Do you feel what I'm saying?

 

[ok doser]

 

[steko]

[video]https://www.bing.com/videos/search?q=youtube-+bruce+lee-+%22feel%22&view=detail&mid=3349424C2EC6B988FB203349424C2EC6B988FB20&FORM=VIRE[/video]

 

[patrick jane]

It hurts some people's feelings and makes them feel like people will feel like they are not feeling people.
Do you feel what I'm saying?

I see what you're saying, I feel you

 

[jgarden]

what's wrong with banning mooslims?

Obviously "ok doser" has never heard or taken the time to familiarize himself with the Constitution!

 

[jeffblue101]

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

Our conservative "friends" who have spent the last 8 years accusing liberals of ignoring the Constitution are now denouncing the courts for performing their constitutional duties.

Even Trump's own Supreme Court nominee, Judge Gorsuch,has characterized Trump's tweets against the judiciary as “disheartening and demoralizing.”

The Trump Administration is now paying the price of refusing to consult and cooperate with those knowledgeable as to how to craft a presidential ban that could withstand the legal challenges that they should have known would follow!

they did numerous high ranking congressional staff were used and the Trump listened to the advice of numerous security experts that told Trump that a immediate ban without delay was necessary if he was planning to tighten vetting procedures. but who could have possibly predicted that political hacks masquerading as judges would ignore clear presidential authority.

as for Trumps rhetoric on judges, Don't worry Democrats will make all of Trump's statements seem relatively warm and fuzzy as they insult and slander Judge Gorsuch during Senate confirmation hearings.

 

[ok doser]

Obviously "ok doser" has never heard or taken the time to familiarize himself with the Constitution!

please cite the part of the consitution that states that we can't ban people who want to destroy us

 

[jeffblue101]

please cite the part of the consitution that states that we can't ban people who want to destroy us

it's right next to the imaginary right that allows women to kill their unborn babies on demand.

 

[jeffblue101]

looks like I spoke too soon, looks like the full 9th circuit court could have a say in this as well.
http://legalinsurrection.com/2017/0...-seeks-vote-on-further-review-of-panel-order/

A Judge at the 9th Circuit, whose name is not revealed, has requested a vote be taken whether to conduct en banc (full court) review of the February 9, 2017, Order by a three-judge panel denying Trump’s request for a stay of the District Court Temporary Restraining Order.

That TRO put a halt to all substantive aspects of Trump’s immigration Executive Order, including the temporary halt to visa entry from six failed states known for ISIS and al Qaeda presence, plus state sponsor of terrorism Iran.


Because the 9th Circuit is so large, en banc review only goes to 11 Judges.

The request by a Judge triggers a procedure, outlined in the docket entry and a formal Order, by which the parties have to file briefs stating their position:...

We can all speculate on why a Judge would do this. The Judge may be upset with the panel ruling, which has been extensively criticized, and expects that a larger en banc review may reach a different result....

En banc review would take time. Normally it would take months, but perhaps since initiated by a Judge, it would be expedited. Unless expedited, it’s something of an exercise in futility since the District Court is on an expedited schedule for a preliminary injunction ruling (the next stage in a case after a TRO).

Perhaps that unnamed Judge, however, recognizes the timing problem and is sending a signal to the Supreme Court that this might be a case where the Supreme Court needs to grant the stay of the TRO.

 

[ok doser]

it's right next to the imaginary right that allows women to kill their unborn babies on demand.

ahh - the mysterious 666th amendment :thumb:

 

[Crucible]

That's certainly true, at face value.

What all non-Americans need to know about the law here is that any state can dictate anything and they are in their right to do so up until SCOTUS dictates otherwise.

Thats just the way it goes- they legalized marijuana in Colorado, for example, which was illegal as hell :chuckle:
But the government decided to accept it rather than consider the state a dissident to the Union.

 

[kmoney]

A funny note, in the kindest possible way the 9th Cir. called the White House untrustworthy in addressing its claims of amending its conduct (but not literally amending the order) in relation to Due Process concerns about permanent residents (see: C3, page 21 of the holding). I call this the "pants of fire" rejoinder draped in robes.

I just finished reading the decision and thought that was a good part also.

If you have time and are inclined I'd be interested in what you think about the article I posted earlier National Review. Specifically their 1st and 3rd concerns.

First, the court ruled that the states of Washington and Minnesota had standing to assert legal claims against the Trump administration — mainly on behalf of their state universities and the scholars and students impacted by the order. Here’s the court: We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. Applied more generally, this ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants — merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. While the standing ruling might be more credible if applied to individual immigrants whose exclusion from the country causes specific and identifiable harm to the state, here the court used the possibility of specific harm to confer general standing on states to act on behalf of immigrants as a class. This is extraordinary. .... Third, after paying lip service to deference, the court ignored its own words and dramatically extended ‘potential’ due-process rights beyond green-card holders to citizens from jihadist and jihadist-torn countries seeking to enter the nation for the first time. After an extended discussion of the due-process rights of permanent legal residents of the United States (an unobjectionable and just proposition), the court specifically declined to limit the injunction to green-card holders — or even to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” Instead (and incredibly) it said this: Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel,408 U.S. 753, 762-65 (1972). The court is going to stop enforcement of a temporary pause in entry from jihadist and jihadist-torn countries (while in a state of war against jihadist terrorists) because there are “potential claims” regarding “possible due process rights” even of illegal aliens? That’s not deference. Moreover, if you actually follow the cited legal authorities, you’ll see that none of them are on-point with this case, and all of them deal with highly-specific, individual legal claims. Yet the court used this “authority” to grant sufficient due-process rights to potential immigrants to halt enforcement of a wartime executive order motivated by the desire to protect America from the rising threat of jihadist terror. Astonishng. Read more at: http://www.nationalreview.com/article/444785/ninth-circuit-travel-ban-donald-trump-ruling

Part of point #1 is that the court used "possibility of specific harm to confer general standing", but after reading the decision it appears that there were specific cases presented, not only the possibility, so I don't completely understand that.

 

[kmoney]

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



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

I agree. Calling this a wartime order is a stretch and the administration has apparently not given any evidence to demonstrate the urgency for this EO. I wonder what French would point to to justify calling this a wartime order.

The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.