Trump bid to reinstate travel ban fails following late night appeals court ruling

originally posted by: DJW001
a reply to: loam

This is not the first time a state has challenged the federal government in court. Calm down.

Just to Clarify...The Federal Government includes the Judiciary, which Trump is attacking in it's entirety..

This isn't State vs. Federal Government...It is unconstitional..It is State, plus US Citizens and Corporations suing Donald acting as President of the USA.

The actual suit (the one filed by the States) is vs. Donald J. Trump et al.

a reply to: loam

Ironically, history may well write that it was the left that killed federalism in favor of states rights.

Up is the new down...

That would be ironic. Things are crazy here in the United States. You'll get no argument from me

I think we can all agree that we're in near crisis. Or - we're actually there. Maybe you'll find it convenient to blame the left for not just going along with whatever happens now?

Is Trump's EO constitutional? Not everyone agrees. Let's let SCOTUS do what it is they do. There's no reason this Muslim ban has to happen immediately. Or - is there? :-)

(oops - I called it a Muslim ban)

Next couple of days should be pretty interesting. Just when you'd think that things could not get any more interesting

a reply to: Spiramirabilis

Fair enough. I agree.

Let's see what happens next. We are all in the apple cart together.

a reply to: Miracula2

The only problem is that extremists don't respect progressiveness.

Tell me about it. That's why I'm clinging so desperately to checks and balances. The only thing standing between America and it's extremists is the rule of law

originally posted by: bigfatfurrytexan
a reply to: DJW001

a bit hyperbolic.

EO's are operational memorandums, not law. Since his job is to execute the law, he has some leeway in interpretation when determining how the execution will take place.

That leeway ends where it violates the constitution and existing laws.

And "hyperbolic" is this from the President

Donald J. Trump
Verified account
‏@realDonaldTrump

Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!

Insane for a President to (again) personally attack a FEDERAL JUDGE..

BUT...He is actually blaming the COURT SYSTEM in it's entirety!

Judicial branch BAD!...THAT is the rhetoric of a 3rd World Dictator attacking other branch's of government that are meant to balance his power.

He is a ridiculous man..And Conservatives and Democrats and everyone in-between who has read the constitution are pointing out the same. Only his most fascist supporters are supporting this.

a reply to: Indigo5

No less insane then a significant portion of Congress sitting out the inauguration of a duly elected President, giving implicit support to the 'not my President' crowd in the streets...or a sitting Supreme Court Justice expressing her subjective condemnation of his character during an election.

originally posted by: loam
a reply to: Indigo5

...or a sitting Supreme Court Justice expressing her subjective condemnation of his character during an election.

Congress? Near 500 folks? Did the entire Chamber declare Trump not their POTUS? Irrelevant comparison.

Justice Ginsberg?...She was not criticizing a President, she was criticizing the abhorrent statements of a private citizen...and EVEN THEN...chose to think carefully and apologize..

“Judges should avoid commenting on a candidate for public office,” she wrote in a brief statement issued by the court, admitting her remarks were “ill advised” and expressing regret. “In the future I will be more circumspect.”

Trump, as President, is attacking and deriding the entirety of the Judicial Branch of government...

He is a despot..

a reply to: loam

Nice Loam - I think we can all work through this together

I really do

a reply to: loam

And...Trump and his cabinet members public statements regarding the intent of the order are relevant and admissible in court.

Trump publically stated that Christian Refugees would be given preferential treatment and Giuliani explained the intent was to create an EO that made a "Muslim Ban" legally defensible.

"The Order’s refugee provisions explicitly distinguish between members of religious faiths. President Trump has made clear that one purpose of the Order is to favor Christian refugees at the expense of Muslims,"

the states argue.

"And the States have plausibly alleged that the countries chosen for the travel ban were chosen in part to disfavor Muslims ... Here, the sham of a secular purpose is exposed by both the language of the Order and Defendants’ expressions of anti-Muslim intent."

While the Justice Department has contended that Trump's authority to restrict foreigners' entry into the U.S. is essentially unfettered and not properly subject to scrutiny by the courts, the states assert that the order was so poorly focused that judges are entitled to question whether it is actually a genuine effort to limit the threat of terrorism.

"For several months [the order] bans all travelers from the listed countries and all refugees, whether they be infants, schoolchildren, or grandparents. And though it cites the attacks of September 11, 2001, as a rationale, it imposes no restrictions on people from the countries whose nationals carried out those attacks," the states argue, calling the order "at once too narrow and too broad."

www.politico.com...


The Presidents latitude with EO's and Immigration ends where existing law and the constitution begin.


Politics aside...I don't see the order standing.

originally posted by: Xcathdra
a reply to: reldra

It absolutely does fall under that doctrine. There is no dispute between the 2 branches of government with regards to the law or EO. The "unconstitutional" argument has failed in every ruling. Judges already addressed the one area in question, people already in the US and provided relief.

All thats left is the political correctness of the EO which is a political question.

The courts have no jurisdiction.

If the courts have no jurisdiction as you say, then why haven't Trump's lawyers put a stop to this yet? Unless you're mistaken, because I can't imagine that Trump would have such incompetent lawyers working for him. So are his lawyers wrong...or are you?

a reply to: Spiramirabilis

Perhaps...and assuming the crazies on both sides do not drag us all down with them.

For what it's worth I just came across this, which means we should be able to see the DOJs argument.

I don't have a lot of time right now but it would be great if someone could chase the actual filing and post a link.

Meanwhile there is this, which I haven't fully read yet.

www.washingtonexaminer.com...

a reply to: loam

Hers is a snippet from your source. This is only a tiny portion of the laws and case law that is on the President's side.

Judicial second-guessing of the president's determination that a temporary suspension of entry of certain classes of aliens was necessary at this time to protect national security would constitute an impermissible intrusion on the political branches' plenary constitutional authority over foreign affairs, national security, and immigration. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952)

("[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.").

"[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien." Knauff, 338 U.S. at 543; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).

In addition, the government argued, "courts are particularly ill-equipped to second-guess the president's prospective judgment about future risks." The reason: "Unlike the president, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process."

The government brief supported the president's decision on both legal and constitutional grounds, starting with the law. And that starts with the Immigration and Nationality Act of 1952, which states:

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.

Quoting cases from 2016 and 1977, the Justice Department argued that, specifically in the context of immigration, "the Supreme Court has 'long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government's political departments largely immune from judicial control.'" "When Congress delegates this plenary power to the executive, the executive's decisions are likewise generally shielded from administrative or judicial review."

SOURCE

The law and the Constitution is obviously on the President's side. Also, I think it is odd that some people think that this will be tied up in court for many years to come and that somehow that would be a good thing.

There is actually no evidence to suggest that this matter will take very long at all.

a reply to: loam

The DOJ took the states case and the judges position point by point and destroyed them.

* - Judge Robart's ruling violated the Constitutions separation of powers by interjecting himself into a situation where the legislative branch delegated their immigration authority to the President.
* - The judge's statements about how many people have been arrested and his conclusion of none presumes the judge knows more about the situation than the President even though the President gets classified info and the judge does not.
* - The judge has no legal right / authority to stop a presidential action when that action is based on the Presidents constitutional authority to conduct foreign policy as well as immigration as delegated to him by Congress.
* - The courts are ill equipped to second guess the Presidents prospective judgement about future risks because they do not receive classified info and the President does.
* - In the realm of immigration SCOTUS has ruled "the Supreme Court has 'long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government's political departments largely immune from judicial control.' "When Congress delegates this plenary power to the executive, the executive's decisions are likewise generally shielded from administrative or judicial review."
* - The states have no legal standing to bring a case on behalf of others affected by the EO.
* - The EO largely affects foreign nationals outside of the US.
* - States cannot bring a lawsuit to stop a presidential national security directive to satisfy a corporation in their state.


As for constitutionality of the order - 4 key points made by the government
* - it is "clear" that "an unadmitted and nonresident alien" "had no constitutional right of entry to this country as a nonimmigrant or otherwise."
* - foreign national in a foreign country has no U.S. constitutional rights to violate.
* - the executive order covers countries previously identified by Congress and the Obama administration as terrorist hot spots and is therefore not based on Trump's alleged animus toward a particular religion.
* - the order does not target Muslims specifically.
* - it is not the role of a U.S. district judge to divine the president's motives.
* - "Judicial intrusion on the political branches' exclusive authority over the admission of aliens, by violating the separation of powers, in itself constitutes irreparable injury," the Department argued.
* - Judge Robart's order violated a court order issued in Boston "that sustained the executive order against parallel challenges."

States standing
* - the state itself, as a state, is not subject to the executive order, and therefore does not have standing to challenge it.


The article concludes with -
By the end of the Justice Department's 24-page brief, Judge Robart's, and the state of Washington's, argument lay in tatters.

Also the reason the appeals court rejected the governments request to stop judge Robart's order immediately was because they did not have enough information to make a ruling. That's why the appeals court order both parties to submit their arguments in the manner they did.

As Laura Ingraham, the conservative radio host who also served as a clerk for Supreme Court Justice Clarence Thomas, tweeted on Sunday: "The law is on Donald Trump's side. Doesn't mean that the courts will follow it."

The argument the DOJ made is the same argument I and others have been making since this started.

originally posted by: Alien Abduct
a reply to: loam

Hers is a snippet from your source. This is only a tiny portion of the laws and case law that is on the President's side.

Judicial second-guessing of the president's determination that a temporary suspension of entry of certain classes of aliens was necessary at this time to protect national security would constitute an impermissible intrusion on the political branches' plenary constitutional authority over foreign affairs, national security, and immigration. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952)

("[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.").

"[I]t is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien." Knauff, 338 U.S. at 543; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).

In addition, the government argued, "courts are particularly ill-equipped to second-guess the president's prospective judgment about future risks." The reason: "Unlike the president, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process."

The government brief supported the president's decision on both legal and constitutional grounds, starting with the law. And that starts with the Immigration and Nationality Act of 1952, which states:

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.

Quoting cases from 2016 and 1977, the Justice Department argued that, specifically in the context of immigration, "the Supreme Court has 'long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the government's political departments largely immune from judicial control.'" "When Congress delegates this plenary power to the executive, the executive's decisions are likewise generally shielded from administrative or judicial review."

SOURCE

The law and the Constitution is obviously on the President's side.

You would think so...if you only read the case made my DOJ..
The argument you cite above is excerpted from the Trump Admins appeal..that was DENIED..by a three judge panel on Saturday.

I recommend consuming both arguments before coming to conclusions as to what Judges rule...because that is what the courts do.

The Trump admin made a case that basically said it was thier authority and courts could not interfere..which is contradicted by the laws and precedent they cite..when those laws are examined in their totality.

This EO is likely to get struck down in my opinion.

Even if it goes to SCOTUS..the EO is structured where conservative justices might very well join the liberal justices in striking it down. It's a legal and constitutional vulnerability, not political one. Conservative jurists are not traditionally fans of Presidents as kings..or being told they are impotent in the checks and balances.

The argument...cuz the President says so..is a very, very weak argument.

a reply to: Indigo5

The denial was issued to get both parties to submit more info so the court could make an informed ruling. It was not denied nor was the legal argument made by the DOJ thrown out / ignored / etc.

I would imagine we will see the same legal argument and then some in their response today.

I would also say, given the argument presented in the article, that the EO will be reinstated and Robart's order will be vacated.

originally posted by: Xcathdra
a reply to: Indigo5

The denial was issued to get both parties to submit more info so the court could make an informed ruling.

AKA...Trump's lawyers failed to make their case (Twice now) and were told to try again..

a reply to: Indigo5

not really no.

Updates - AP

4:35 p.m.

White House Press Secretary Sean Spicer says the Trump administration is not rethinking its strategy over the president's ban on refugees and travelers from seven predominantly Muslim countries from entering the United States.

He says the administration remains confident it will prevail in the lawsuit.

Spicer tells reporters traveling aboard Air Force One the president has "huge discretion" to protect the safety of Americans. He says "clearly the law is on the president's side, the Constitution's on the president's side."

An appellate court this weekend denied the Trump administration's request to immediately set aside a Seattle judge's ruling that put a hold on the ban nationwide. Both sides face a Monday afternoon deadline to file court motions.

4:10 p.m.

Attorneys general from 15 states and the District of Columbia are urging a federal appeals court to uphold a lower court judge's stay on President Donald Trump's immigration order.

The friend of the court brief was filed Monday with the 9th U.S. Circuit Court of Appeals in San Francisco.

The 23-page filing was signed by AGs from California, Connecticut, Delaware, Washington, D.C., Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Virginia.

The officials say Trump's executive order targeting refugees and nationals from seven predominantly Muslim countries hurts their states' economies. They say it also disrupts education and medical services and violates First Amendment-protected religious liberties.

Trump has argued the U.S. must protect its borders from would-be foreign terrorists.

Government lawyers are expected to file court papers later Monday.

Here are the assigned judges.

2:40 p.m.

Two Democrat-appointed judges and one Republican appointee will weigh the appeal involving President Donald Trump's recent immigration order.

David Madden, a spokesman for the 9th U.S. Circuit Court of Appeals, says the court's randomly assigned motions panel for this month will rule on the federal government's appeal of a Seattle judge's order temporarily blocking the travel ban.

The judges on the panel are Senior Judge William C. Canby Jr., appointed by President Jimmy Carter in 1980; Senior Judge Richard Clifton, appointed by President George W. Bush in 2002; and Michelle T. Friedland, appointed by President Barack Obama in 2014.

Washington state, Minnesota and Hawaii are arguing that the San Francisco-based court should allow a temporary restraining order blocking the travel ban to stand. The Justice Department was expected to file its brief Monday afternoon.

*shrug* Appeal. The judge in question is a partisan hack with no grounding in the reality of the legality.