Lots and lots of well-prepared lawyers

[Bicycle Bill]

Also, who is he shouting at?

He's just following the Rules of Debate for Demagogues ... When your argument is weak, YELL LIKE HELL!!

-"BB"-

[Guinevere]

Pages 13-18 were an instruction in basic civics. It would behoove the King Trumpanzee and his advisors to read that section and the cases cited therein very carefully. This particular section is one of my favorites: "'political branches' lack 'the power to switch the Constitution on or off at will'). Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the '[r]esolution of litigation challenging the constitutional authority of one of the three branches.'"

And Sue, I love standing issues. Since it an oft-litigated issue in the environmental arena, I'm familiar with several of the cases cited in the opinion. That's always a happy feeling, when you recognize the precedent!

[Guinevere]

Also, this is sure make the Trumpanzees howl: "The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982)."

We know they barely want to afford citizens their Constitutional rghts, much less non-citizens.


Another gem: "Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc., v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added)."

[Sue U]

That's always a happy feeling, when you recognize the precedent!

It's certainly reassuring to know that the court cites the same law you do. I had similar thoughts about the religious discrimination section: "I know what these cases say, and the court is basically outlining the winning argument for the State of Washington to make on remand."

Also, this is sure make the Trumpanzees howl: "The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982)."

We know they barely want to afford citizens their Constitutional rghts, much less non-citizens.

IK,R? Especially when the court said "regardless of 'whether their presence here is lawful, unlawful, temporary, or permanent.'”

[Lord Jim]

Actually, that tweet struck me as pretty mild by Trump standards...

I doubt very seriously that's his last word about the ruling...

[Econoline]

[BoSoxGal]

[Econoline]

It looks to me like he's yelling "SEE YOU IN COURT!" the way he would when a business deal goes sour and he wants to threaten the other side. I don't think he gets that he can't sue the court for ruling against him.

ETA: Or maybe he doesn't even understand that he *DID* just see us in court?

[ex-khobar Andy]

It seems to me that despite the idiotic behavior of this President there are some smart lawyers who will help him to reshape an Executive Order to at least avoid the legal crevasses into which EO 13769 fell. I assume that we will see, perhaps as early as a few days, a new EO. I assume also that there is some mechanism to cancel 13769 because the Washington lawsuit still stands because the original decision (upheld) was a temporary restraining order.

So we will see a new EO. I assume that green card holders and dual nationals will be excluded thus removing one of the major arguments that it caused harm to the plaintiffs who were denied doctors and professors and so on. They might exclude existing visa holders in certain categories (athletes, artists, business, those who worked for the military as translators etc) thus further undermining the 'harm' argument.

My chief reasons for opposing this President on immigration are based on fairness and what we as a country represent. (And I use 'we' in that sentence even though as a green card holder I am not a citizen: but I recognize that this country is not a set of borders or buildings or people, but a set of ideas occasionally flawed in their drafting and/or execution, but nevertheless a pretty good start.) But I am not sure that 'it's not fair!' wins much in the way of credit with a judge. I think we will see a much more carefully drafted EO which will be harder to fight and which will still achieve 95% of what Trump wants and of course will allow him to continue to crow sickeningly about winning.

[Bicycle Bill]

I think we will see a much more carefully drafted EO which will be harder to fight and which will still achieve 95% of what Trump wants and of course will allow him to continue to crow sickeningly about winning.

And knowing him and his talent for bluster and bullshit, it will be about "winning by making a comeback against overwhelming odds".

Let's just say that Donald Dummfukk (or more specifically, his managers) can avoid doing anything blatant enough that might get him impeached.  What are the rules for the process of recalling the Cheeto-man?

The reason I ask is that if Trump resigns, as Nixon did, the Veep (Pence) becomes the POTUS; and it supposedly works the same way if he were to be impeached .... once again, the Veep ascends to the presidency.  But when Wisconsin tried to recall Governor Walker in 2012, an actual recall election was held between Walker and his Democratic opponent Tom Barrett; had Barrett won he would have replaced Scottie in the governor's mansion and Walker's Lieutenant Governor would have also been on the outside looking in.

So maybe if we are able to successfully recall Trump, we can get rid of Pence at the same time.

-"BB"-

[Lord Jim]

I assume that we will see, perhaps as early as a few days, a new EO.

That's apparently what's going to happen...

And whether it's good policy or not, the law grants an enormous amount of discretion and authority to a President regarding immigration policy...

But not an unlimited amount of authority...

(As Lord Dampnut has now discovered...)

It's good news for all of us, to know that Trump will accept the rulings of the courts...

It was never a given that he would....

[Guinevere]

So much for that new E.O. See you in Court, indeed, oh King Trumpanzee

[BoSoxGal]

[Guinevere]

And the Maryland court also issues a TRO:
http://www.bostonglobe.com/news/politic ... story.html

A second federal judge issued a restraining order Thursday blocking enforcement of one of the critical sections of President Donald Trump’s revised travel ban, using Trump’s own comments against him in deciding the ban was likely to run afoul of the Constitution.

The decision from U.S. District Judge Theodore D. Chuang in federal court in Maryland marks another win for challengers of the president’s executive order, which had been slated to take effect at 12:01 a.m. Thursday. Earlier, a different federal judge in Hawaii stopped it.

Chuang’s order did not sweep as broadly as the one in Hawaii, but he similarly declared that even the revised travel ban was intended to discriminate against Muslims. He said those wanting evidence of anti-Muslim intent need look no further than what the president himself has said about it.

Chuang’s ruling won’t upend or call into question the decision in Hawaii, instead offering some measure of reinforcement.

[Lord Jim]

It's going to be interesting to see how the SC is ultimately going to view the use of prior public statements to determine the Constitutionality of the EO argument...(If they decide to view that argument favorably, they won't have just statements he made during the campaign to cite; he provided more fodder for this at his rally last night)

I thought that this order, given the wide discretion Presidents are afforded under the law in this area, was on much firmer Constitutional ground than the previous one. (Laying aside the issue of whether the order is smart from a policy standpoint; I think I've made pretty clear where I stand on that question.)

It avoids a lot of the due process issues by not applying to current Green Card or visa holders, (though it does have some visa holder retroactiveness by applying to everyone issued a visa since the first EO was issued on Jan 27th. I thought that portion of the new EO was the part most likely to be struck down) and it removes the exemptions for religious minorities which was a blatant violation of prohibitions against discriminating against people entering the country based simply on religion.

(If there was a travel ban enacted against people coming from Nigeria, but an exception for people of "minority races" was made, it would be ridiculous to argue that the ban wasn't based on race and aimed at black people. Same thing regarding a ban based on religion when 90% plus of the people in that country belong to the "majority" religion.)

It seemed to me that if one looked at just the four corners of the new EO, for the most part, it would probably pass constitutional muster.

I have been unable to find a version of the Judge in Hawaii's ruling that I can copy and paste excerpts from, but he seems to acknowledge that point:

It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion

(That's from page 30 of the decision)

The whole case the judge makes for finding that the plaintiffs have a likelihood of prevailing is based on the context of statements made outside of the order itself.

Here's a link to the full text:

http://www.cnn.com/2017/03/15/politics/ ... full-text/

Page 30 is where the judge begins to layout his reasoning. On page 33 is where he begins citing numerous quotes (both from during the campaign and the transition; he might want to add what Trump said last night) not just from Trump, but also including Blabbermouth Rudy's revelation that he was asked by Trump to help devise a legal way to impose a Muslim ban, and Roy Cohn Jr. bragging on Meet The Press that the new order was making some minor "technical changes" but that the policy intent was the same as the first.

If the SC ultimately accepts this argument based on the "context" of statements that have been made, rather than just the wording of the order, (and I have no idea what the likelihood of that is) then it would be pointless for the Administration to try and come up with any other wording for a third order, because no matter how they fashion it, they can't "unsay" the things that have been said by Trump and his lackeys about this...

Also, if they do accept this argument, it will have a delicious irony...

It will mean that Trump has hoisted himself on his own petard; the language he used to inflame many of his hardcore supporters to get elected will be the very language that prevents him from imposing what he promised them...

[Burning Petard]

I am not a lawyer and I have never played one on tv. But I have read several majority and minority SC holdings. Back when the Washington Post published a weekly summary of SC actions, I always read the stories.

Seems to me, that if the Supremes are expected to take some notice of legislative history when considering a law, then public pronouncements by the Executive are fair game for informing the SC opinion on Executive Orders.

It infuriates me when Hannity and now The President says "the Constitution says. . ." when it does not say anything like that at all. Folks, it is not that hard to get a copy of the constitution for your self and read it your self. Probably take you less than an hour.

snailgate

[Lord Jim]

Do any of our lawyer-types here know if an EO has ever been successfully challenged on this kind of basis?

[RayThom]

It is an outright ban on Muslims and their religion. I can't imagine the so-called SC justices seeing it any other way. At this juncture I think Lord Dampnut should be mulling over the option to drop this charade and move on to more important things.

[Beer Sponge]

Lawyers for the win! Always been a valuable profession, now the front line defense again tyrrany! You legal minds have my full support, for what that's worth.

[Sue U]

Don't know about an E.O., but looking at the development and context of a law's enactment has been used by the Supreme Court to strike down an ordinance that was (at least arguably, but not really) facially neutral because its intent was to discriminate based on religion. As Justice Kennedy wrote in Church of Lukumi Bablu Aye v. Hialeah:

We reject the contention advanced by the city ... that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause "forbids subtle departures from neutrality," ... and "covert suppression of particular religious beliefs," .... Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked, as well as overt.

The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders....

The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances. First, though use of the words "sacrifice" and "ritual" does not compel a finding of improper targeting of the Santeria religion, the choice of these words is support for our conclusion. There are further respects in which the text of the city council's enactments discloses the improper attempt to target Santeria. Resolution 87-66, adopted June 9, 1987, recited that

residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,

and "reiterate[d]" the city's commitment to prohibit "any and all [such] acts of any and all religious groups." No one suggests, and, on this record, it cannot be maintained, that city officials had in mind a religion other than Santeria.

It becomes evident that these ordinances target Santeria sacrifice when the ordinances' operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object. To be sure, adverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. ... The subject at hand does implicate, of course, multiple concerns unrelated to religious animosity, for example, the suffering or mistreatment visited upon the sacrificed animals, and health hazards from improper disposal. But the ordinances, when considered together, disclose an object remote from these legitimate concerns. The design of these laws accomplishes, instead, a "religious gerrymander," ... an impermissible attempt to target petitioners and their religious practices.

citations omitted.