BREAKING: Appeals court denies Trump administration request to reinstate ban

[SteveRogers]

Will Trump acknowledge that these men were in fact judges this time?

[SteveRogers]

Update: Donald wants Easy D, and he does not want to have to wait for it:

Donald J. Trump ‏@realDonaldTrump  2h2 hours ago

You must be logged in to read this quote.

https://twitter.com/realDonaldTrump/status/829384587482656768

[SteveRogers]

3-0? I guess it was an easy D after all.

[SteveRogers]

"SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!"-Trump https://mobile.twitter.com/realDonaldTrump/status/829836231802515457

At worst, its a 4-4 ruling and the 9th circuit decision stands. At best and most likely, there will be defectors. Trump will not be happy.

It's not even a given that SCOTUS will choose to get involved at this stage. They'll probably decline to mess with the stay and will wait for the case to come up to SCOTUS on the merits.

[SteveRogers]

"SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!"-Trump https://mobile.twitter.com/realDonaldTrump/status/829836231802515457

At worst, its a 4-4 ruling and the 9th circuit decision stands. At best and most likely, there will be defectors. Trump will not be happy.

It's not even a given that SCOTUS will choose to get involved at this stage. They'll probably decline to mess with the stay and will wait for the case to come up to SCOTUS on the merits.

There are many legal analysts saying Kagan would likely vote to uphold Trump's decision.

Which analysts? Based on what?

[SteveRogers]

Thank you founding fathers!

Appeals court denies Trump administration request to immediately reinstate ban on travelers and refugees.

Bull.  The president has every right to stop foreigners from coming in to the country.  And soon, it will be done.

Of course he does. Carter did it, Obama did it. This is not a shocking thing, or against the law.

None of the examples you're talking about involved banning people who had already been legally admitted to the United States. Nor did those presidents brag about creating a religious test for entry to the country before enacting their policies. Different circumstances. Different laws.

[SteveRogers]

The difference between Carter, Obama, and Trump. Two of them had expert lawyers that could draft lawful EOs.

I thought Obama was an expert lawyer on his own merits.

That's... kind of the point. Trump on the other hand has clearly never even read the Constitution.

[SteveRogers]

If Trump was smart, he would redraft. Competence matters. I wouldn't be surprised if SCOTUS upheld this decision.

Not along party lines either. I actually think some liberal justices understand that the Constitution is on the side of this decision.

You're missing the point. This EO affected legal permanent residents, the sloppiness just undercuts Trumps argument.

"On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies," the judges wrote. "And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this... The emergency motion for a stay pending appeal is denied."


I read this argument as an amateur liberal opinion. It feels like something written by a 20 year old college student at Berkeley. I do not believe that they have a legal case going forward on Constitutional grounds. At all.

The legality of his EO is sound. Period. The Constitution doesn't talk about discrimination against foreign travelers. A Syrian immigrant is not entitled to due process under United States laws.

What makes you qualified to make such definitive statements? Are you a judge? A lawyer? Did you go to law school? Do you do anything besides watch Fox News all day and parrot talking points?

I believe that this has much more to do with liberal identity politics than anything else. The Constitutionality of this executive order seems quite sound. What is the LEGAL argument, not political, not cultural, but the LEGAL argument against this executive order?

None of the arguments from the judges discussed the law which specifically gives the president authority to suspend the entry of any aliens into the U.S. if he believes their entry would be "detrimental to the interests of the United States." Unless that legal provision is unconstitutional, the president has acted completely within the law. PERIOD.

Nathaniel Gorton of the District Court in Massachusetts cited the law (8 U.SC. §1182 (f)) and said "the decision to prevent aliens from entering the country is a fundamental sovereign attribute realized through the legislative and executive branches that is largely immune from judicial control."

Again, the law 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.


How can any person disagree with the President's authority on this?

The legal argument is that while the statute you cite gives the president certain authority, that authority cannot be applied in a way that violates the Constitution. Surely you agree that no statute ever trumps the Constitution. The Constitutionality of the Executive order turns on two issues:

1. Due Process: Anyone lawful permanent resident or person who has already been granted a Visa is entitled by the 5th Amendment to due process of law. That means that once the government has granted such a person a benefit like a Visa, they are entitled to, at minimum, notice and the opportunity for some kind of hearing before it can be revoked. The president's statutory authority to suspend entry into the country cannot circumvent this Constitutional requirement of procedural due process. Does that apply to new aliens seeking entry to the country going forward? Maybe not, but...

2. Religious Discrimination: Both the First Amendment and the Equal Protection Clause prohibit the government from discriminating against a group based on religion. Yes, that means immigrants too.  The statute you cite can't contravene this Constitutional requirement either. The Constitution plainly forbids a religious test for entry into the country. Does Trump's EO, on the face of the document, amount to that kind of religious discrimination? No. But the argument here is that a court can look behind the document to evidence of its purpose in order to determine if it was motivated by a desire to discriminate against a religious group. In other words, months of ranting and raving about how you want to discriminate against Muslims might turn an otherwise lawful executive order into an unconstitutional one.

To be clear, the 9th Circuit didn't rule definitively on either of these issues. The 9th Circuit held that the government was not likely to prevail on the due process issues. The 9th Circuit chose not to address the likelihood of success on the religious discrimination claim. Both of these issues will be developed by further evidence and legal argument when the case comes back up on the merits.

[SteveRogers]

If Trump was smart, he would redraft. Competence matters. I wouldn't be surprised if SCOTUS upheld this decision.

Not along party lines either. I actually think some liberal justices understand that the Constitution is on the side of this decision.

You're missing the point. This EO affected legal permanent residents, the sloppiness just undercuts Trumps argument.

"On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies," the judges wrote. "And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this... The emergency motion for a stay pending appeal is denied."


I read this argument as an amateur liberal opinion. It feels like something written by a 20 year old college student at Berkeley. I do not believe that they have a legal case going forward on Constitutional grounds. At all.

The legality of his EO is sound. Period. The Constitution doesn't talk about discrimination against foreign travelers. A Syrian immigrant is not entitled to due process under United States laws.

What makes you qualified to make such definitive statements? Are you a judge? A lawyer? Did you go to law school? Do you do anything besides watch Fox News all day and parrot talking points?

I believe that this has much more to do with liberal identity politics than anything else. The Constitutionality of this executive order seems quite sound. What is the LEGAL argument, not political, not cultural, but the LEGAL argument against this executive order?

None of the arguments from the judges discussed the law which specifically gives the president authority to suspend the entry of any aliens into the U.S. if he believes their entry would be "detrimental to the interests of the United States." Unless that legal provision is unconstitutional, the president has acted completely within the law. PERIOD.

Nathaniel Gorton of the District Court in Massachusetts cited the law (8 U.SC. §1182 (f)) and said "the decision to prevent aliens from entering the country is a fundamental sovereign attribute realized through the legislative and executive branches that is largely immune from judicial control."

Again, the law 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.


How can any person disagree with the President's authority on this?

The legal argument is that while the statute you cite gives the president certain authority, that authority cannot be applied in a way that violates the Constitution. Surely you agree that no statute ever trumps the Constitution. The Constitutionality of the Executive order turns on two issues:

1. Due Process: Anyone lawful permanent resident or person who has already been granted a Visa is entitled by the 5th Amendment to due process of law. That means that once the government has granted such a person a benefit like a Visa, they are entitled to, at minimum, notice and the opportunity for some kind of hearing before it can be revoked. The president's statutory authority to suspend entry into the country cannot circumvent this Constitutional requirement of procedural due process. Does that apply to new aliens seeking entry to the country going forward? Maybe not, but...

2. Religious Discrimination: Both the First Amendment and the Equal Protection Clause prohibit the government from discriminating against a group based on religion. Yes, that means immigrants too.  The statute you cite can't contravene this Constitutional requirement either. The Constitution plainly forbids a religious test for entry into the country. Does Trump's EO, on the face of the document, amount to that kind of religious discrimination? No. But the argument here is that a court can look behind the document to evidence of its purpose in order to determine if it was motivated by a desire to discriminate against a religious group. In other words, months of ranting and raving about how you want to discriminate against Muslims might turn an otherwise lawful executive order into an unconstitutional one.

To be clear, the 9th Circuit didn't rule definitively on either of these issues. The 9th Circuit held that the government was not likely to prevail on the due process issues. The 9th Circuit chose not to address the likelihood of success on the religious discrimination claim. Both of these issues will be developed by further evidence and legal argument when the case comes back up on the merits.

The ruling that came out of the 9th was on the legality the TRO that the Seattle judge had placed on Trump's ban. They ruled that it was legal for the ban to be suspended while the courts worked out the constitutionality of the bill.

On the point of constitutionality, the US has banned immigration on similar grounds before many times. We banned Chinese coal workers for fear that they were stealing American jobs. We banned Jewish refugees (Judaism is a religion btw) from Germany during WWII. We've even banned Iranians before during the hostage crisis in the 70's. In all of these cases the constitutionality held. The 9th would be overturning quite the precedent in ruling this unconstitutional.

All of those examples are probably perfectly constitutional, though not really analogous to this case. Did any of those instances involve banning people who were already legal permanent residents of the United States? And as far as I know, the refusal to take in Jewish refugees in WWII was justified, on its face, as a ban on German refugees, not discrimination against a religious group. FDR didn't go around asking his advisors, "how can I disguise a ban on Jews so that its constitutional."

[SteveRogers]

On the point of constitutionality, the US has banned immigration on similar grounds before many times. We banned Chinese coal workers for fear that they were stealing American jobs. We banned Jewish refugees (Judaism is a religion btw) from Germany during WWII. We've even banned Iranians before during the hostage crisis in the 70's. In all of these cases the constitutionality held. The 9th would be overturning quite the precedent in ruling this unconstitutional.

That's why I mentioned the liberals seem to be on the wrong side of history on this one.

You guys just keep throwing around those examples without actually responding to the legal arguments as to why this EO is different.

[SteveRogers]

Trump is not taking his travel ban to SCOTUS

http://thehill.com/homenews/administration/319029-trump-not-planning-to-appeal-travel-ban-ruling-to-supreme-court

To be clear, this just means Trump is not going to appeal the stay order to SCOTUS. There's still a whole case to be had on the actual merits of the executive order that could eventually wind its way up to SCOTUS. All the court drama so far has just been on the preliminary question of whether or not the EO should be put on hold while the case is pending.