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Muslim ban already having effect

Joe Scarborough: Trump’s reckless shot at a federal judge

When a president tweets insults at a Hollywood star, the dignity of his office is tarnished. When a commander in chief uses Twitter to attack a loyal military ally, America’s friends across the globe become unsettled. But when a president uses social media to question the legitimacy of a federal judge following an inconvenient (and temporary) outcome, that is simply unacceptable. From Marbury v. Madison to United States v. Nixon, our federal courts’ power to interpret the Constitution has been sacrosanct. As Chief Justice Warren Burger wrote in U.S. v. Nixon, the concept of checks and balances endures because it has remained (to quote Marbury) “the duty of the judicial department to say what the law is.”

https://www.washingtonpost.com/blog...-card-a:homepage/story&utm_term=.5402ddfa0b4d
 
BobStackFan4Life said:
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I doubt it has been on the books for 100 years since the welfare state is less than 100 years old, but yes, being a public charge is reason for removal. The law permits for somebody to sign an affidavit and effectively swear that they'll take care of them and not the government, but there's obviously no follow-up to that. Would love to see that waiver killed off except in the case of unaccompanied minors.
 
EatLeadCommie said:
I doubt it has been on the books for 100 years since the welfare state is less than 100 years old, but yes, being a public charge is reason for removal. The law permits for somebody to sign an affidavit and effectively swear that they'll take care of them and not the government, but there's obviously no follow-up to that. Would love to see that waiver killed off except in the case of unaccompanied minors.
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Pretty fucked up that they're flooding our country with unaccompanied minors. Would be nice if people quit having children they are unable to provide for and expecting the American government to take care of them.
 
MysteryMen said:
Except for the Giuliani comment. It's not an all or nothing thing. If it can be shown that he intended to prevent muslims from coming to the US, which it seems clear he did, then he will be in trouble.

Also I think there's a good argument that he violated the statute because there's a provision that says you can't discriminate based on national origin
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Giuliani speaking in generalities is now the threshold? Or a candidate's random musings on a campaign trail? God, if only we truly could believe everything candidates said during a campaign! If you're going to take Giuliani at his word, then you have to take Andrew McCarthy's
http://www.nationalreview.com/artic...-goal-ban-sharia-supremacists-not-all-muslims

For decades, Washington has been suicidally unwilling to target our radical Islamic enemies for fear of offending Muslims in general. Trump’s more security-minded approach — which many Americans outside Washington regard as common sense — was to call a temporary halt to the admission of Muslim aliens until the government could figure out an effective way to screen out Islamists from pro-constitutional Muslims who would be an asset to our country.

During the campaign, then, Trump asked Rudy Giuliani — the former New York City mayor and renowned federal prosecutor — to help him develop a policy that would solve this dilemma. Rudy then put together a team of advisers, of which I was a member, to work the problem. Trump’s proposals consequently evolved away from a coarse categorical ban, adopting instead a threat-based approach that would rely on vetting rather than banning, and that would target the places where the threat is most prevalent.

Again, since the threat is radical Islam, the geographical focus would necessarily involve places where that ideology is most prevalent. Those are Muslim places.

McCarthy has a whole host of articles on this subject that are worth reading, FWIW. These two are especially relevant if you have the time
http://www.nationalreview.com/artic...n-entry-seven-muslim-majority-countries-legal
http://www.nationalreview.com/corner/444471/mccarthy-patterico-trump-immigration-order
 
EatLeadCommie said:
Giuliani speaking in generalities is now the threshold? Or a candidate's random musings on a campaign trail? God, if only we truly could believe everything candidates said during a campaign! If you're going to take Giuliani at his word, then you have to take Andrew McCarthy's
http://www.nationalreview.com/artic...-goal-ban-sharia-supremacists-not-all-muslims

For decades, Washington has been suicidally unwilling to target our radical Islamic enemies for fear of offending Muslims in general. Trump’s more security-minded approach — which many Americans outside Washington regard as common sense — was to call a temporary halt to the admission of Muslim aliens until the government could figure out an effective way to screen out Islamists from pro-constitutional Muslims who would be an asset to our country.

During the campaign, then, Trump asked Rudy Giuliani — the former New York City mayor and renowned federal prosecutor — to help him develop a policy that would solve this dilemma. Rudy then put together a team of advisers, of which I was a member, to work the problem. Trump’s proposals consequently evolved away from a coarse categorical ban, adopting instead a threat-based approach that would rely on vetting rather than banning, and that would target the places where the threat is most prevalent.

Again, since the threat is radical Islam, the geographical focus would necessarily involve places where that ideology is most prevalent. Those are Muslim places.

McCarthy has a whole host of articles on this subject that are worth reading, FWIW. These two are especially relevant if you have the time
http://www.nationalreview.com/artic...n-entry-seven-muslim-majority-countries-legal
http://www.nationalreview.com/corner/444471/mccarthy-patterico-trump-immigration-order
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So McCarthy's "word" is that the intent was to ban (Trump's word) Muslim aliens. Thanks for clearing that up.
 
EatLeadCommie said:
Giuliani speaking in generalities is now the threshold? Or a candidate's random musings on a campaign trail? God, if only we truly could believe everything candidates said during a campaign! If you're going to take Giuliani at his word, then you have to take Andrew McCarthy's
http://www.nationalreview.com/artic...-goal-ban-sharia-supremacists-not-all-muslims

For decades, Washington has been suicidally unwilling to target our radical Islamic enemies for fear of offending Muslims in general. Trump’s more security-minded approach — which many Americans outside Washington regard as common sense — was to call a temporary halt to the admission of Muslim aliens until the government could figure out an effective way to screen out Islamists from pro-constitutional Muslims who would be an asset to our country.

During the campaign, then, Trump asked Rudy Giuliani — the former New York City mayor and renowned federal prosecutor — to help him develop a policy that would solve this dilemma. Rudy then put together a team of advisers, of which I was a member, to work the problem. Trump’s proposals consequently evolved away from a coarse categorical ban, adopting instead a threat-based approach that would rely on vetting rather than banning, and that would target the places where the threat is most prevalent.

Again, since the threat is radical Islam, the geographical focus would necessarily involve places where that ideology is most prevalent. Those are Muslim places.

McCarthy has a whole host of articles on this subject that are worth reading, FWIW. These two are especially relevant if you have the time
http://www.nationalreview.com/artic...n-entry-seven-muslim-majority-countries-legal
http://www.nationalreview.com/corner/444471/mccarthy-patterico-trump-immigration-order
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You're missing the point. You seem to think that you can only review a government action if the government says in the text of the document that it has the intent to discriminate. But that's not correct.

Maybe Trump's statements alone wouldn't be enough. Maybe Giuliani's statements alone wouldn't be enough. But a judge is going to look at all of them together, and there's a lot of smoke. Judges are humans too. We all (or at least I think most of us) think that Trump wanted to prevent Muslims from entering the country. A judge is probably going to think the same thing
 
Shooshmoo said:
So McCarthy's "word" is that the intent was to ban (Trump's word) Muslim aliens. Thanks for clearing that up.
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Nope. Saying that the McCarthy says the EO was crafted quite specifically to address threats rather than, as he puts it, "a coarse categorical ban."
 
In the event that this case gets fully briefed and goes up to the SCOTUS on the merits (not just regarding the TRO/PI/stay aspects) it will be fascinating to see what comments from the Trump administration and Trump himself comes in as "officially on the record" as far as intent goes. It's hard as hell to prove intent from facially neutral language in the constitutional context, but the commentary is providing more ammo moving into "smoking gun" territory than the normal case would have.
 
Yeah the tweets he has sent out definitely have some intent behind them that could hurt his case.
 
Deacsfan27 said:
Yeah the tweets he has sent out definitely have some intent behind them that could hurt his case.
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But is that going to trump the ideologies of the justices?
 
MysteryMen said:
You're missing the point. You seem to think that you can only review a government action if the government says in the text of the document that it has the intent to discriminate. But that's not correct.

Maybe Trump's statements alone wouldn't be enough. Maybe Giuliani's statements alone wouldn't be enough. But a judge is going to look at all of them together, and there's a lot of smoke. Judges are humans too. We all (or at least I think most of us) think that Trump wanted to prevent Muslims from entering the country. A judge is probably going to think the same thing
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We're talking in circles. There's a difference between what was said and what was done. So what you're left addressing is what was done and whether or not it falls under the Trump's power to do so. We aren't looking at the wisdom of the EO, but whether or not it is legal and within Trump's authority. I think there is only one matter that is legally dubious due to the language of the EO, and although DHS quickly remedied that with policy clarification, that part of the EO may still require a judicial ruling.

McCarthy's point is pretty clear that the debate comes down to whether or not 1152(a) is in conflict with 1182(f) of 8 CFR. Since they both still exist, it's pretty clear that one does not overrule the other. So can they be read independently of each other and not conflict? Obviously the answer to that is yes. 1182(f) is pretty clear (and I'll add that it mirrors the exact language of the EO about "immigrants or nonimmigrants" that I have problems with and which ensnared green card holders):

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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

People objecting to this EO are objecting simply on the fact that they disagree with what it does, who it targets, and (most importantly) who the President is. Every fucking President uses their authority under 1182(f), but only now is it a problem.
 
Depends on what's actually on the record I would imagine.

Will be fun to watch Roberts' position on this one.
 
Wakeforest22890 said:
In the event that this case gets fully briefed and goes up to the SCOTUS on the merits (not just regarding the TRO/PI/stay aspects) it will be fascinating to see what comments from the Trump administration and Trump himself comes in as "officially on the record" as far as intent goes. It's hard as hell to prove intent from facially neutral language in the constitutional context, but the commentary is providing more ammo moving into "smoking gun" territory than the normal case would have.
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Smoking gun? You mean like when the Obama administration specifically argued that the ACA penalty wasn't a tax and SCOTUS didn't care?
 
EatLeadCommie said:
Smoking gun? You mean like when the Obama administration specifically argued that the ACA penalty wasn't a tax and SCOTUS didn't care?
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Could be wrong, but I believe the standard is different in these two cases. There is no need to show "discriminatory intent" in a health care case.

In fact, I don't believe these are "like" in any real legal regard.
 
EatLeadCommie said:
We're talking in circles. There's a difference between what was said and what was done. So what you're left addressing is what was done and whether or not it falls under the Trump's power to do so. We aren't looking at the wisdom of the EO, but whether or not it is legal and within Trump's authority. I think there is only one matter that is legally dubious due to the language of the EO, and although DHS quickly remedied that with policy clarification, that part of the EO may still require a judicial ruling.

McCarthy's point is pretty clear that the debate comes down to whether or not 1152(a) is in conflict with 1182(f) of 8 CFR. Since they both still exist, it's pretty clear that one does not overrule the other. So can they be read independently of each other and not conflict? Obviously the answer to that is yes. 1182(f) is pretty clear (and I'll add that it mirrors the exact language of the EO about "immigrants or nonimmigrants" that I have problems with and which ensnared green card holders):

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. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

People objecting to this EO are objecting simply on the fact that they disagree with what it does, who it targets, and (most importantly) who the President is. Every fucking President uses their authority under 1182(f), but only now is it a problem.
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Yeah but the intent is what makes it legal or not legal. You can't separate out intent and only look at the text, I don't know why you keep insisting on that.

Also, if you can't see how this is different than other uses of 1182(f) then I don't know what to say. It's never been used to target classes this big.
 
I haven't done extensive reading on it, but I'm surprised a stay was granted. I tend to agree with ELC that this is more of a disagreement over policy rather than whether its permissible. I'm sure a decent argument will be advanced, but there wasn't enough analysis in the district court's order to ascertain exactly what the judge was relying upon to find there was a likelihood of success on the merits. I did like the paragraph or two discussing, at least tangentially, the separation of powers though.

I think it's terrible policy. I think it's a policy more likely to bring net future harm than future benefit. But I also think Donald won so he gets the benefit of the powers of the office. I want this to continue to be a learning lesson for everyone who thought it was fine to either sit on the sideline (not vote), talk as a GOP member about how bad Donald is and say you don't support him but then voted for a third party while ranting non-stop about how awful Hillary was, and for the left to figure out how important it is to coalesce around the nominee if they don't want a clearly worse candidate to win.
 
I think the statutory argument is actually pretty strong. If the president can exclude immigrants from entire countries than that completely swallows up the later-enacted provision banning discrimination based on national origins.
 
Where do you think a temporary ban falls in the statutory/constitutional scheme banning discrimination on national origins? I think it's an interesting legal issue.

I would agree if it's a permanent ban (which this may turn out to be in practice, and I think it's likely that this was the plan from the get go) that it's going to implicate some statutory/constitutional issues. Is there a distinction to be made between a temporary and permanent ban that could smooth any discrepancies that exist between regulatory authority of the executive and constitutional concerns? If so, I think this is where the court would come down.
 
Wakeforest22890 said:
Where do you think a temporary ban falls in the statutory/constitutional scheme banning discrimination on national origins? I think it's an interesting legal issue.

I would agree if it's a permanent ban (which this may turn out to be in practice, and I think it's likely that this was the plan from the get go) that it's going to implicate some statutory/constitutional issues. Is there a distinction to be made between a temporary and permanent ban that could smooth any discrepancies that exist between regulatory authority of the executive and constitutional concerns? If so, I think this is where the court would come down.
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I don't think the length of the ban makes much of a difference from the statutory perspective for two reasons:

1. 1182(f) specifically says that the President can suspend entry for any class for any period he shall deem necessary. So it intentionally does not provide for a time limitation.

2. 1152(a) says categorically that you can't discriminate based on nationality. I don't think there's any way to read that as allowing for temporary discrimination.
 
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