Lots and lots of well-prepared lawyers

[Scooter]

Indeed, what I remember hearing at the time was that the ban was temporary, 90 days IIRC, in order to create a better screening process. 90 days came and went, have there been ANY changes to the screening process? The lack of any attempt to do so would, I imagine, factor into a court's interpretation of the intent of the EO in any further appeals.

[Sue U]

There's plenty of First Amendment law that looks beyond the words of the enactment to determine the actual purpose.

Regarding Presidential Executive Orders?

Doesn't matter whether it's a Presidential Executive Order, an Act of Congress, a municipal ordinance or a school board policy. Governmental action is governmental action when it comes to the First Amendment.

Rather than seeing taking this appeal as a "nakedly political act", I believe that if the Supreme Court fails to accept this appeal it will be because of the Court's well-known institutional predilection to avoid making rulings in controversial cases if it can find any excuse to do so.(In this case the lack of a split between the Circuit Courts)

ETA:

Certainly in this particular instance, a very strong case can be made that the public statements made clearly and overwhelmingly indicate a certain intent behind the order...

But going beyond this one EO, there will certainly be others (issued by this President and subsequent Presidents) where the record of public statements are more ambiguous and/or contradictory.

If federal judges are going to be permitted to sift through these statements and arrive at their own conclusions as to which ones to use and which ones not to use, and how to interpret the ones they choose to include when they are ruling on the Constitutionality of an EO, then some sort of standards and guidelines are needed specifically to prevent the process from becoming a "nakedly political" one...

The "institutional predilection" to avoid rulings on constitutional issues if they can be avoided is not only sound (and conservative) judicial policy, but also a matter of constitutional authority and limitation of the federal courts. The Article III requirement of a "case or controversy" for the court to adjudicate prohibits the Supreme Court and all other federal courts from issuing advisory opinions, which it seems is precisely what you'd have the Court do in this case. Moreover, as a general rule when deciding a case, a court seeks to decide as little as possible in order to dispose of the matter, which for numerous reasons of public policy is a Good Thing.

We already have a sizeable body of law that speaks to the limits of power when governmental acts curtail constitutionally guaranteed freedoms. This case raises nothing new in that regard; it is axiomatic that the government may not act in derogation of constitutional guarantees. The only real "issue" here might be clarification of the technical operation of the Immigration and Nationality Act, but strictly as a matter of statutory interpretation, that is not an issue of such significance to warrant cert without a circuit split.

[Lord Jim]

In a few short minutes this morning, Il Boobce managed to completely undermine his press spokesman (okay, nothing new there) his Homeland Security Secretary, and his own Justice Department lawyers who will be attempting to defend this EO:

Trump: 'I Am Calling It What We Need and What It Is, a TRAVEL BAN'

In four tweets on Monday morning, President Donald Trump doubled down on his “travel ban” and criticized his own Justice Department for watering down the original ban – out of political correctness, he said.

The four tweets, printed below, started coming at 6:30 a.m.

-- “People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN.

-- The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.”

--The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!

--In any event, we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!”

As CNSNews.com reported, at least two Trump administration officials in late January rejected the phrase “travel ban.”

Homeland Security Secretary John Kelly on January 31 said President Trump’s first executive order stopping immigration from seven predominantly Muslim countries for 90 days was “a temporary pause,” “not a travel ban.”

“I’d like to clarify that the most recent executive order does—what it does and does not mean. This is not a travel ban” Kelly said on Jan. 31. “This is a temporary pause that allows us to better review the existing refugee and visa vetting system.”

Kelly also said the order was not a “ban on Muslims,” as critics insist that it is.

On the same day, Trump spokesman Sean Spicer told reporters at the White House briefing, “It's not a travel ban. …What it is is to make sure that the people who are coming in are vetted properly from seven countries that were identified by the Obama administration. A ban would mean people can't get in. We've clearly seen hundreds of thousands of people come into our country from other countries.”

The travel ban issue returned to the headlines on Saturday, when President Trump tweeted after the terror attack in London: “We need to be smart, vigilant and tough. We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!”

The original travel ban, issued by executive order on Jan. 27, applied to seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen).

A district court in Washington immediately blocked enforcement of the ban nationwide, and a few weeks later, a panel of the Ninth Circuit Court of Appeals refused to lift that injunction pending appeal.

On March 6, the Trump administration issued a revised executive order, removing Iraq from the list of countries, among other changes.

But on March 16, a federal judge in Maryland put Trump’s second order on hold, and the Fourth Circuit Court of Appeals upheld that injunction.

http://www.cnsnews.com/news/article/sus ... travel-ban

Here's how Washington State Attorney General Neal Katyal reacted:

Neal Katyal
✔
@neal_katyal

Its kinda odd to have the defendant in HawaiivTrump acting as our co-counsel.We don't need the help but will take it!
5:00 AM - 5 Jun 2017

Once again Trump shows that not only does he not care about the best interests of the United States, he doesn't even care about the success of his own policy initiatives, that he claims are important to him...

All he cares about is throwing rhetorical red meat to his hardcore Trumpanzee followers for a news cycle, no matter what damage that entails...

Watching his "strongly support" number in the polls drop from 30% to the high teens must really have him spooked...

[wesw]

well, if you are banning people from traveling it is a travel ban..., DUH!

abandoning weasel words is a positive step.

[Burning Petard]

Why is not this whole thing moot?

When POTUS announced the first executive order on this, he stated it was an emergency response to a very important problem that needed immediate attention and the ban would be in place for only 90 days, while new procedures were worked out for identifying the very bad guys (since labeled 'losers')

OK. Serious Security Risk. Danger to the Safety of Americans every where. During this time the naughty people in the court system have been stalling. SO ?

POTUS said it was a big risk. It has been 90 days. All those new procedures should be implemented by now. Or did the Executive Branch simply sit on their hands and do nothing, except fight it in court?

snailgate

[Big RR]

I guess the same people who would have developed the new procedures were the lawyers hired to fight the court injunctions? Face it, there was never any intent to develop new procedures. Trump's latest comments show he never considered it anything temporary.

[Sue U]

well, if you are banning people from traveling it is a travel ban..., DUH!

abandoning weasel words is a positive step.

If you are "abandoning weasel words," why not just call it a Muslim ban? DUH!

[wesw]

if it were, I would.

[BoSoxGal]

[wesw]

hello pot......

[Guinevere]

The 9th Circuit upholds the Hawaii District Court -- and agrees with the Fourth Circuit.

http://www.cnn.com/2017/06/12/politics/ ... index.html


Goodbye the only real hope of getting SCOTUS to take the case (a split between the circuits, as Sue has been saying).

[RayThom]

The CNN link that Guin posted failed to bring up the ruling link. This may be better:

For me, the simple layman, page 70 seemed to explain it best.
https://www.documentcloud.org/documents ... Order.html

[Sue U]

I mentioned earlier in this thread that as a matter of sound judicial policy, courts avoid constitutional questions whenever they can, and decide as little as possible to support a ruling. The Ninth Circuit was reading my posts, obvs:

The district court held that Plaintiffs were entitled to preliminary relief because they had made a strong showing of success on the merits of their Establishment Clause claim. Applying the secular purpose test from Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), and relying on the historical record that contained “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order,” the district court concluded that EO2 was issued with an intent to disfavor people of Islamic faith. See Hawai‘i TRO, 2017 WL 1011673, at *12–16. In so doing, the district court decided an important and controversial constitutional claim without first expressing its views on Plaintiffs’ statutory claims, including their INA-based claim. See id. at *11 n.11.

The INA claim was squarely before the district court and briefed and argued before this court. Mindful of the Supreme Court’s admonition that “courts should be extremely careful not to issue unnecessary constitutional rulings,” “[p]articularly where, as here, a case implicates the fundamental relationship between the Branches,” we think it appropriate to turn first to the INA claim. Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989) (per curiam); accord Lying v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”).

After first determining that Plaintiffs have standing to assert their INA-based statutory claim, we conclude that Plaintiffs have shown a likelihood of success on the merits of that claim and that the district court’s preliminary injunction order can be affirmed in large part based on statutory grounds. For reasons further explained below, we need not, and do not, reach the Establishment Clause claim to resolve this appeal. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”).

(Emphases added.)

Not only does this opinion reinforce the principle of judicial restraint, it further undercuts any reason the Supreme Court might have had to review the case: the decision now rests solely on the statutory interpretation of the Immigration and Nationality Act, which is a narrow question about the technical operation of a statute rather than a broad policy question about constitutional issues.

As I said above:

The only real "issue" here might be clarification of the technical operation of the Immigration and Nationality Act, but strictly as a matter of statutory interpretation, that is not an issue of such significance to warrant cert without a circuit split.

Is I psychic, or what?

[RayThom]

Sue U sez,

Is I psychic, or what?"

Maybe it's just good lawyering, heh? If something happens to my big time, CA attorney, friend, can I put you on retainers? You appear to know your legal shit.

[Guinevere]

I mentioned earlier in this thread that as a matter of sound judicial policy, courts avoid constitutional questions whenever they can, and decide as little as possible to support a ruling. The Ninth Circuit was reading my posts, obvs:

The district court held that Plaintiffs were entitled to preliminary relief because they had made a strong showing of success on the merits of their Establishment Clause claim. Applying the secular purpose test from Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), and relying on the historical record that contained “significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order,” the district court concluded that EO2 was issued with an intent to disfavor people of Islamic faith. See Hawai‘i TRO, 2017 WL 1011673, at *12–16. In so doing, the district court decided an important and controversial constitutional claim without first expressing its views on Plaintiffs’ statutory claims, including their INA-based claim. See id. at *11 n.11.

The INA claim was squarely before the district court and briefed and argued before this court. Mindful of the Supreme Court’s admonition that “courts should be extremely careful not to issue unnecessary constitutional rulings,” “[p]articularly where, as here, a case implicates the fundamental relationship between the Branches,” we think it appropriate to turn first to the INA claim. Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989) (per curiam); accord Lying v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.”).

After first determining that Plaintiffs have standing to assert their INA-based statutory claim, we conclude that Plaintiffs have shown a likelihood of success on the merits of that claim and that the district court’s preliminary injunction order can be affirmed in large part based on statutory grounds. For reasons further explained below, we need not, and do not, reach the Establishment Clause claim to resolve this appeal. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (“f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.”).

(Emphases added.)

Not only does this opinion reinforce the principle of judicial restraint, it further undercuts any reason the Supreme Court might have had to review the case: the decision now rests solely on the statutory interpretation of the Immigration and Nationality Act, which is a narrow question about the technical operation of a statute rather than a broad policy question about constitutional issues.

As I said above:

The only real "issue" here might be clarification of the technical operation of the Immigration and Nationality Act, but strictly as a matter of statutory interpretation, that is not an issue of such significance to warrant cert without a circuit split.

Is I psychic, or what?

In any event, there is no question you are well-prepared, as in the caption above....

[Econoline]

• Gorka: Mr. President?
  
  Trump: Yes?
  
  Gorka: Brace yourself, it's bad news. The court has ruled against your travel ban. Again.
  
  Trump:
  
  Gorka:
  
  Trump:
  
  Gorka:
  
  Trump: I have to use the bathroom.
  
  Gorka: Give me your phone first, Mr. President.

(source...so yeah, Jim, the above is probably just a guess.... )

[Lord Jim]

Well, you guys know how much I hate to say I told you so...

But...

Parts Of Trump's Travel Ban Are Revived As Supreme Court Agrees To Hear Case

June 26, 201710:34 AM ET

The Supreme Court says it will decide the fate of President Trump's revised travel ban, agreeing to hear arguments over immigration cases that were filed in federal courts in Hawaii and Maryland, and allowing parts of the ban that's now been on hold since March to take effect.

The case centers on the president's move to block new visas for travelers from six majority-Muslim countries for 90 days, and to suspend the U.S. refugee program for 120 days.

The justices removed the lower courts' injunctions against the ban "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States," narrowing the scope of two injunctions that had put the ban in limbo.

http://www.npr.org/sections/thetwo-way/ ... travel-ban

If you follow the link, you can see the entire decision. Since the only dissents that appear at the end of the decision are from Alito, Thomas and Gorsuch (Who "concurred in part and dissented in part" because they wanted to re-instate the entire EO) there's a very good chance that this decision was 9-0....

You would think that any Justice dissenting from a ruling as important as this would have included a written dissent...

[Bicycle Bill]

Like rats going through a granary, Trump and Co. continue to eat away at civil rights, personal freedoms, and the American Constitution.  Nibble away a bit here, nibble away another part there ..... sooner or later it will be all gone, or what little will remain will be useless once they get done pissing and shitting all over it.

Reminds me of the old truism about how to eat an elephant..... one bite at a time.  Trump seems to have learned that lesson and learned it well.

And just a thought to throw out there .... remember the spring of 2015 when WalMart closed five stores in four states citing "plumbing problems"?  The conspiracy whack-os had a field day claiming that Obama and the US military were planning to enact martial law that summer under the guise of a Special Ops exercise called "Jade Helm", and that the government would use the shuttered Wal-Mart stores as "processing facilities" for Americans once martial law was in effect.

Well, we all know that Sears and K-Mart are closing a damned sight more than five stores all across the country.  Has anybody checked to see if the Dept of Homeland Security or some other as-yet-unnamed governmental agency dedicated to the apprehension, incarceration, and eventual removal/elimination of illegal immigrants, non-citizens, and other 'undesirables' isn't quietly acquiring some of these properties for their own nefarious purposes?  Seems to me that they would make excellent "relocation" centers in keeping with Trump's stated intent to "Make America Lily-White Great Again".

-"BB"-

[ex-khobar Andy]

Two letters in the NYT make excellent points.

The decision by the Supreme Court to allow parts of President Trump’s travel ban to proceed smacks of the favoritism that we saw just before the start of World War II. Because my family and I, refugees from Hitler’s Germany, had relatives living in New York City, we were allowed to immigrate in 1939 to the United States. Yet many German Jews who did not have connections in this country were not so lucky. Most of them never made it and perished in the gas chambers.

Is this a precedent that we should really follow?

PETER SAMTON, NEW YORK

and

Why does the travel ban litigation continue? Isn’t it moot? By its terms, the travel ban is a temporary, 90- to 120-day moratorium on certain travel. The professed purpose was to allow the government time to investigate and upgrade immigration procedures, on an emergency basis, while preventing malefactors from slipping into the country before this work was done.

About 150 days have passed since President Trump signed the first executive order, more time than the government said was needed to implement the necessary upgrades to immigration security. Assuming that the administration was reasonably diligent, shouldn’t the changes have been made by now, rendering the ban unnecessary?

ROBERT M. KLINGON, NEW YORK

[Long Run]

Bad facts make bad law.

Apparently the high court agreed.