There could be funny business, but there really doesn't have to be.
travel ban injunction
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There could be funny business, but there really doesn't have to be.
Joe Fan
10,000+ Posts
Joe Fan
10,000+ Posts
Here is some more on today's oral argument
Hard to believe this might be a close vote
And, of course, Ruth-baby wanted to tawk about the burdens placed upon the 10-yr old palsy victim
http://dailycaller.com/2018/04/25/supreme-court-trump-travel-ban/
Hard to believe this might be a close vote
And, of course, Ruth-baby wanted to tawk about the burdens placed upon the 10-yr old palsy victim
"The U.S. Supreme Court appeared deeply divided Wednesday over the lawfulness of President Donald Trump’s travel sanctions.
Though a tenuous majority appeared to favor the administration, the liberal bloc peppered Solicitor General Noel Francisco with brutal hypotheticals and heart-wrenching examples of migrants denied entry to the United States since Trump took office.
Justice Elena Kagan asked Francisco how thoroughly the court could review a ban on migration from Israel enacted by an openly anti-Semitic president, while Justice Ruth Bader Ginsburg wondered why a ten-year-old with cerebral palsy from a sanctioned country was denied a visa, despite exceptions proscribed for immigrants seeking medical care.
The coalition challenging the ban makes two different arguments. Their principal claim is that the sanctions exceed Trump’s authority under the Immigration and Nationality Act (INA), which prohibits discrimination on the basis of nationality in the issuance of visas. They also claim the administration’s true purpose is to disfavor Islam, in violation of the First Amendment.
In rebuttal, the administration says these proposed limitations “cannot be squared with the statutory text or historical practice [of] past Presidents, and would diminish the ability of this and future presidents to use those provisions to protect the United States and conduct foreign affairs.”
The third iteration of the president’s travel sanctions were assessed against various nationals from Chad (which has since been removed from the list), Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The penalties were crafted through an interagency process that sought to identify states that fail to satisfy specific security and information-sharing criteria. This broad-based review places the proclamation on surer legal ground, a point to which Francisco repeatedly returned during Wednesday’s proceedings.
Justice Anthony Kennedy, who likely holds the deciding vote, appeared to agree, noting the order at issue was more detailed than similar proclamations issued by former Presidents Jimmy Carter and Ronald Reagan....."
Though a tenuous majority appeared to favor the administration, the liberal bloc peppered Solicitor General Noel Francisco with brutal hypotheticals and heart-wrenching examples of migrants denied entry to the United States since Trump took office.
Justice Elena Kagan asked Francisco how thoroughly the court could review a ban on migration from Israel enacted by an openly anti-Semitic president, while Justice Ruth Bader Ginsburg wondered why a ten-year-old with cerebral palsy from a sanctioned country was denied a visa, despite exceptions proscribed for immigrants seeking medical care.
The coalition challenging the ban makes two different arguments. Their principal claim is that the sanctions exceed Trump’s authority under the Immigration and Nationality Act (INA), which prohibits discrimination on the basis of nationality in the issuance of visas. They also claim the administration’s true purpose is to disfavor Islam, in violation of the First Amendment.
In rebuttal, the administration says these proposed limitations “cannot be squared with the statutory text or historical practice [of] past Presidents, and would diminish the ability of this and future presidents to use those provisions to protect the United States and conduct foreign affairs.”
The third iteration of the president’s travel sanctions were assessed against various nationals from Chad (which has since been removed from the list), Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The penalties were crafted through an interagency process that sought to identify states that fail to satisfy specific security and information-sharing criteria. This broad-based review places the proclamation on surer legal ground, a point to which Francisco repeatedly returned during Wednesday’s proceedings.
Justice Anthony Kennedy, who likely holds the deciding vote, appeared to agree, noting the order at issue was more detailed than similar proclamations issued by former Presidents Jimmy Carter and Ronald Reagan....."
http://dailycaller.com/2018/04/25/supreme-court-trump-travel-ban/
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My favorite sentence in the ruling was this. "We express no view on the soundness of the policy." It's about time that a judge ruling on a controversial case realized that what he thinks of a policy is wholly irrelevant to what his judgment should be. His job is to answer questions of law - not to judge the merits of it. That's what legislators and presidents are for.
Once again you're proven right about the four libs on the Court.
NJlonghorn
2,500+ Posts
Yes, and no. There were two separate dissents. The one written by Sotomayor and joined by Ginsburg was the liberal diatribe you would expect from the two of them. References to Koramatsu (sp?), charges of blatant racism, etc.
Breyer's dissent was much more limited. It correctly recognized that the so-called "travel ban" isn't a ban at all. It is a set of restrictions on travel from certain countries. He pointed to the existence of a waiver program that individual immigrants could apply for. Interestingly, this was a key point in Roberts' majority opinion as well.
Where Breyer departed from the majority was on a pretty narrow point. Breyer felt that there is evidence that the waiver program isn't being implemented in good faith. He points to statistics showing that entry waivers have been extraordinarily scarce and that consulates have been given scarce and contradictory guidance. Thus, he would remand the case to the lower courts for consideration of that limited issue. If the findings were that the waiver program is being implement as President Trump directed in his proclamation, then Breyer would uphold the travel restrictions. If the waiver program is a farce, Breyer would be open to reconsidering the restrictions.
I know it is easy to look at a case and say "see, he voted against Trump." But that is an overly simplistic analysis. Truth is, Breyer voted to take a closer look at a small component of what Trump has done. Breyer didn't rule one way or another on that component, and what he did say about the broader issues in the case was entirely in Trump's favor.
By the way, the most radical opinion imho is Kennedy's concurrence. It takes a small and subtle but critical step back form Madison v. Marbury, conceding that SCOTUS doesn't always have authority to rule on questions of constitutionality. It's only one vote, but that would be a huge sea change in the law. Deez would like it, I think.
It's fashionable on the Right to support overturning Marbury, and in a dangerous trend, it's becoming "cool" to support reviving the Lochner doctrine. (Don Willet has hinted at this.) I don't fit into those camps (especially the "revive Lochner" band of intellectually dishonest hacks). I support dumping the substantive due process doctrine in its entirety (including incorporation). It conflicts with the text, and it's arbitrary, which has made it the dominant vehicle of judicial tyranny and the biggest threat to modern democracy. If we dumped it, that would solve 90 percent of my objections to the Court.
Joe Fan
10,000+ Posts
There goes that darn Supreme Court again
Paying attention to "legal rules"
Who do these people think they are?
Not sure if I have them all but here are many/most of the Muslim countries not included the travel ban--
Turkey
Saudi Arabia
Iraq
Kuwait
Lebanon
Jordan
Egypt
Pakistan
Bangladesh
Kazakhstan
Uzbekistan
Turkmenistan
Kyrgyzstan
Tajikistan
Algeria
Morocco
Tunisia
Nigeria
UAE
Qatar
Bahrain
Oman
Indonesia
Malaysia
Azerbaijan
Mauritania
Senegal
Kosovo
Gambia
Mali
Guinea
Sierra Leone
Burkina Faso
Albania
Arguably Chad, the UK, France, Germany and Sweden
Paying attention to "legal rules"
Who do these people think they are?
Not sure if I have them all but here are many/most of the Muslim countries not included the travel ban--
Turkey
Saudi Arabia
Iraq
Kuwait
Lebanon
Jordan
Egypt
Pakistan
Bangladesh
Kazakhstan
Uzbekistan
Turkmenistan
Kyrgyzstan
Tajikistan
Algeria
Morocco
Tunisia
Nigeria
UAE
Qatar
Bahrain
Oman
Indonesia
Malaysia
Azerbaijan
Mauritania
Senegal
Kosovo
Gambia
Mali
Guinea
Sierra Leone
Burkina Faso
Albania
Arguably Chad, the UK, France, Germany and Sweden
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The healine is right. Unchecked power is dangerous. That's why unelected courts shouldn't be making immigration policy when their sole job is to answer questions of law.
Joe Fan
10,000+ Posts
How about just one unelected liberal judge in Hawaii being able to cause a nationwide stay the proper execution of presidential power simply because he/she was unhappy with the results on an election?
@Mr. Deez
What do you think about this blurb concerning Breyer's dissent:
http://www.scotusblog.com/2018/06/opinion-analysis-divided-court-upholds-trump-travel-ban/
"Justice Stephen Breyer filed a dissenting opinion, which was joined by Justice Elena Kagan. In particular, Breyer focused on the exemption and waiver programs on which the majority partly relied to uphold the order. If the government is applying those programs as they are written, he posited, then the order is more likely to be legitimate – including because the programs “would help make clear” that the September 2017 order is not targeting Muslims, by allowing them to come to the United States when it is clear that they do not pose a security risk. But Breyer cited evidence suggesting that the exemption and waiver programs are not in practice providing any actual relief from the order, including an affidavit from a U.S. consular official describing the waiver process as “window dressing” and averring that he and others like him do not have the discretion to grant waivers. Because no court has had a full opportunity to consider this issue, Breyer would send the case back to the trial court for further development, and he would keep the order on hold until the issue is resolved."
Bystander says: It seems there needed to be further evidence as to whether the law AS WRITTEN (which Breyer seems to believe is Constitutional) was being followed. Someone can still sue and demand that the waiver discretion authority be pushed down to those who the law contemplates having that discretion couldn't they? To me it's the same thing as having an immigration law that is being ignored. How do you make the government follow the law as written?
There seems to be some HEAVY IRONY if you get my drift as Breyer was appointed by Bill Clinton.
What do you think about this blurb concerning Breyer's dissent:
http://www.scotusblog.com/2018/06/opinion-analysis-divided-court-upholds-trump-travel-ban/
"Justice Stephen Breyer filed a dissenting opinion, which was joined by Justice Elena Kagan. In particular, Breyer focused on the exemption and waiver programs on which the majority partly relied to uphold the order. If the government is applying those programs as they are written, he posited, then the order is more likely to be legitimate – including because the programs “would help make clear” that the September 2017 order is not targeting Muslims, by allowing them to come to the United States when it is clear that they do not pose a security risk. But Breyer cited evidence suggesting that the exemption and waiver programs are not in practice providing any actual relief from the order, including an affidavit from a U.S. consular official describing the waiver process as “window dressing” and averring that he and others like him do not have the discretion to grant waivers. Because no court has had a full opportunity to consider this issue, Breyer would send the case back to the trial court for further development, and he would keep the order on hold until the issue is resolved."
Bystander says: It seems there needed to be further evidence as to whether the law AS WRITTEN (which Breyer seems to believe is Constitutional) was being followed. Someone can still sue and demand that the waiver discretion authority be pushed down to those who the law contemplates having that discretion couldn't they? To me it's the same thing as having an immigration law that is being ignored. How do you make the government follow the law as written?
There seems to be some HEAVY IRONY if you get my drift as Breyer was appointed by Bill Clinton.
NJlonghorn
2,500+ Posts
This makes the same point I was making, but more articulately. Thanks for posting it, @bystander.
I too would love to hear what @Mr. Deez has to say about this. If he reads Breyer's dissent and gives it some thought, I suspect he will find it reasonable. He may not agree with it, but it isn't from the loony left like Sotomayor's dissent is.
Seattle Husker
10,000+ Posts
I think we all expected the Supreme Court to affirm the POTUS prerogative to manage the immigration process, specifically for National Security reasons.
Keep in mind that V1 was more targeted at muslim countries. 1-2 of the Muslim countries were removed and North Korea was added in V2 to remove the appearance of a religious targeting. The process worked to force the Trump Admin into V2.
Keep in mind that V1 was more targeted at muslim countries. 1-2 of the Muslim countries were removed and North Korea was added in V2 to remove the appearance of a religious targeting. The process worked to force the Trump Admin into V2.
No doubt. It's a big lesson learned (whether it should have merit or not is arguably a debate point) that the Court considers things outside the law as written. Penumbra intent versus strict construction?
How many "Muslim" countries is the tipping point to be considered a Muslim ban? One? Eight? Thirty two?
OUBubba
5,000+ Posts
Good question. To me, any "muslim ban" that is going to be effective should probably ban travel from the country that 15 of the 19 9/11 hijackers were from. If it doesn't then it's not a ban for "security".
Here's the list: Iran, Libya, Somalia, Syria and Yemen, North Korea and Venezuela. From Politico.com: "The administration has cited poor cooperation with U.S. officials, terrorist activity and technical hurdles to properly document their own travelers as reasons for the latest iteration of the ban." They also added that NK and Venezuela were included as legal "window-dressing." Knowing that the Left is incapable of seeing any good-faith even when Trump goes to the bathroom I will still try to make sense of the list by asking one question: Is there a chance that our relatively good relationship with the Saudi's has mitigated the problems?
Joe Fan
10,000+ Posts
Speaking of Marbury, didnt FDR overrule them once? I think it was the Steel case?
OUBubba
5,000+ Posts
We have had a good relationship with them for decades but you know that. I will admit that their populace worries me and if that place ever flips it could be a real poop show.
No doubt. I considered them to be rogue and not representing the government per se. But rogue is dangerous and if our vetting procedures between us and Saudi Arabia were on par with say Syria then they would deserve to be on the list until things were tightened up somehow.
The big steel case that involved a fight with the White House was Youngstown Sheet & Tube v. Sawyer, but that was the pissing match with Truman during the Korean War.
Joe Fan
10,000+ Posts
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