Breaking: Appeals court upholds ruling blocking Trump's immigration order

The ISIS thugs are muslims so in the interest of religious freedom they should be allowed into the US to impose their religion on everyone. Sounds great. I'm sure that the courts will approve.

 

Wow, that is the text book example of failing constitutional law.

 

Weird, you think Trump's EO was a declaration of war? (This may surprise you, but only the Congress can authorize a declaration of war. See, we aren't a dictatorship.)

Never said they did, but the federal government presents classified evidence in court all the time. Only reason it wasn't presented here is because it doesn't exist.

The ruling makes it clear: The states have standing, the court has jurisdiction, the TRO is prudent, and Trump's order may very well violate the Fifth Amendment (due process). Lemme guess: the Fifth Amendment is also wrong?

I see you still haven't read the decision: "For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument [you know, the Fifth Amendment] in this appeal." There is nothing in the ruling about the "wisdom of the policy." Trump's EO very likely violates the Fifth Amendment (among other Constitutional restrictions).

 

What a crock

 

According to the Ninth Circuit, the EO may have violated the Fifth Amendment. Or should I say the "so-called" Fifth Amendment.

 

Sure seems like that way.

For three weeks President Donald Trump as the CnC was in charge of Americas national security and now the federal judicial branch of government in particular the 9th Federal District Appeals Court and the state of Washington have taken over the job.

(*)(*)(*)(*)... after eight years I was able to go to sleep at night for three weeks not wondering if I, my family and my neighbors and all Americans were safe and after three weeks now the the judicial branch of political activist judges are in charge of defending and protecting America.

It goes further according to the liberal activist judges, if you are a foreigner and have a student, business, tourist, immigration or refugee visa and you're still on foreign soil,... you have full protections under the Constitution as an American citizen. I must be really dumb because I can't figure it out.

As a 5th generation American citizen when I'm outside of the CONUS on foreign soil I have no American constitutional rights... but foreign Muslims do. I'm confused.

Kinda looks like the federal courts of liberal activist judges have ruled they are in charge of protecting America.

I hope they do a better job than the community organizer has done during the past eight years.

For the layman...any terrorist attack against America from tonight on, the left owns it.

 

It was up there with the claim that the 9th circuit judge hates America and stopped Trump's illegal ban for that reason.

 

This one was the best

 

The Left seems pleased that foreign policy and immigration will now be decided in Seattle.

 

We are no longer a nation of laws, just emotion.

 

It'll be interesting to see how the man-child in chief deals with being told no. I'm sure he'll throw a hissy fit and cry like the petulant child he is. His parents could have prevented a lot of these character flaws with a good spanking now and again.

Take notice trump apologists.

 

The finality of this EO will end up with the SCOTUS, I think and I have a very good hunch that the verdict will be fair.

 

The decision must follow the law. These judges aren't appointed to decide what is 'fair'. They are appointed, in theory anyway, to follow the law as written and through precedent. If being 'fair' was the only criteria then either one of us could sit on the SCOTUS..

 

One of those judges was a CONSERVATIVE REPUBLICAN appointed by your hero Bush.


Trump lost because he failed to demonstrate a clear and present danger to the USA and to connect those people he has victimized with any threats. However, knowing how political and how right wing the US Supreme Court, it would not surprise me in the least if it disregards precedent and gives him blanket authority on this matter.

 

Maybe that's why the right could never say fairness with the judges decisions, but I wish to emphasize that the rules of law are established to promote fairness and order and no one is above it.

 

The Ninth Circuit considered 'intent' and predicated their judgement on what Trump may have said during his campaign. That is clearly wrong as it allows the legislature to assume motive with no proof and to undermine a Foreign Relations decision that is Constitutionally allotted to the Executive Branch.

 

3 key Trump mistakes that led to the travel ban court defeat

By Josh Gerstein

02/09/17 11:51 PM EST

President Donald Trump's three-week-old administration took a thrashing from a federal appeals court Thursday as a panel of three judges unanimously rejected his request to resume enforcement of his controversial travel ban executive order.

The 9th Circuit Court of Appeals ruling put into sharp relief several tactical and strategic errors Trump and his aides made in crafting, implementing and defending the order, which the president said was needed to ward off the terrorist threat posed by foreigners entering the U.S.

Introspection does not seem to be one of Trump's strongest personality traits. Even after Trump's own Supreme Court nominee expressed strong discomfort with Trump's public attacks on judges weighing his travel ban case, White House press secretary Sean Spicer made clear that the president had no intention of retreating from his remarks.

"He has no regrets," Spicer said flatly.

Now, several legal experts are urging Trump to withdraw his order altogether, so it can be redrafted in a way that might be more likely to hold up to court review.

Here are three key mistakes that contributed to Trump's courtroom defeat Thursday:

1. The green-card debacle

The White House failure to make clear from the outset that the travel ban did not include U.S. permanent residents, so-called green-card holders, was both a political and legal gaffe of the first order. The confusion led to the detention of more than 100 green-card holders during the first 24 hours the order was in effect and many more thereafter.

That caused major blowback from Congress, because many green-card holders are longtime residents of the U.S. It included many Iranians who fled their country in the 1980s to escape Islamic fundamentalism, a bizarre result for an executive order allegedly aimed at combating radical Islamic terrorism.

But strictly as a matter of legal strategy, the impact on green-card holders was a serious error. Permanent residents have more U.S. constitutional rights than any other category of foreigners. The green-card issue all but guaranteed that opponents of the travel ban would win the early rounds of litigation by persuading judges that these long-term U.S. residents were being unfairly denied entry or detained.

White House officials have insisted that green-card holders were never supposed to be covered by the order, but many experts don't believe that.

"I think they clearly intended to include legal permanent residents," said Jonathan Meyer, a former Department of Homeland Security deputy general counsel. "It was a mistake to do so, compounded by the fact and shows that they did not vet this sufficiently. There's no question that it meant they would face legal defeats ... It's definitely hurt them."

2. The McGahn fix

One of the steps the Trump team settled on to save face while stemming the legal and public outcry over the order's impact on U.S. residents essentially blew up in the White House's face Thursday.

Once the concern about green-card holders was identified, Trump could have simply signed a half-page tweak to his executive order, making crystal clear that U.S. permanent residents were exempt from the order. But he didn't do that, apparently because he or his aides did not want to admit any flaws in the drafting or vetting process. A formal change to the order would have amounted to a concession of such imperfections.

Instead, Trump and his advisers settled on having his official lawyer — White House Counsel Don McGahn — sign a memorandum purporting to offer "authoritative guidance" that the order did not apply to green-card holders. The memo did not say that Trump instructed McGahn to tweak the order or even that the president approved the new "guidance."

"The White House counsel speaks for the president in this context," Justice Department lawyer August Flentje insisted during Tuesday's oral arguments in response to skeptical questions from the only Republican appointee on the three-judge panel, Richard Clifton.

Despite the claims by McGahn and Flentje that the counsel's memo was conclusive, the three judges nearly ridiculed that position.

"At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President," the judges wrote, adding curtly: "That proposition seems unlikely."

And the appeals judges didn't leave it there.

"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," the court wrote.

Some legal experts said the Trump administration's contention that McGahn could clarify the order was bizarre. If Trump wanted to change it, he could have in moments with the stroke of a pen, but the bravado exhibited by the president and his aides seemed to foreclose that possibility.

"There were other options," said George Washington University law professor John Banzhaf. "The president's counsel has no official standing at all ...The Homeland Security Secretary does, the Secretary of State does. Maybe it's not as good as the president himself, but it's a hell of a lot better than the counsel, the president's dog, his wife or his son, all of whom have no official standing whatsoever in the government.

3. Pushing the legal argument too far

Another major tactical mistake came when the Justice Department decided to argue to the 9th Circuit that the courts have no role to play whatsoever in examining immigration-related decisions the president makes on national security grounds.

The claim that Trump's action was unreviewable is a tough one for judges to stomach. Some lawyers say government lawyers might have done better by acknowledging a role for judges but insisting that they must be very deferential to the executive branch.

"I think in the context of this case it was clearly a mistake," said Meyer, now with Sheppard Mullin. "I think it's a mistake almost any time you tell judges you can't look at something."

The claim that that the issue was beyond the province of the courts essentially invited the judges to do just what they did at oral arguments on Tuesday: raise Trump's "Muslim ban" comments and ask whether the courts would have no role in reviewing an immigration-related action explicitly taken to discriminate against a religion or for some other highly dubious reason.

The court's opinion makes short work of that argument. "There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy," the judges wrote.

And while the judges made no reference at the arguments or in their opinion to Trump's extraordinary public attacks on them and the judge who issued the restraining order at issue, this is where Trump's statements may have come into play.

The 9th Circuit ruling goes on to cite a Supreme Court case decided under President George W. Bush rejecting efforts by Congress and the White House to shut down legal cases brought by Guantanamo prisoners. If the courts did not believe Bush was due complete deference in that case, it seems unthinkable that the 9th Circuit would grant such latitude to Trump, given the erratic decision-making processes on display in recent weeks.

"Given the dynamics we've seen in this administration, they had to know that argument would not be popular with almost any judge," Meyer said.

In their ruling Thursday, the judges didn't squarely address the relevance of Trump's "Muslim ban" talk to assessing the legality of his executive order. But it was clear that the fact Trump was on the record suggesting a desire to target Muslims made it almost impossible for the judges to buy into the Justice Department's argument and conclude his order should be entirely immune from judicial scrutiny.

http://www.politico.com/story/2017/...es-that-led-to-travel-ban-court-defeat-234884

 

If the law is designed to be 'fair' it has therefore become a component of the law and these judges need not deviate. The fact is that these judges clearly did put themselves and their feelings above the law. But, as you mentioned, that will likely be decided by the SCOTUS.

The law should not be subject to judicial whim otherwise, as the Democrats learned from Harry Reid's 'nuclear option', the short term win can often lead to unhappy long term consequences.

 

How could you say that Judge Robart and the US appeals court did deviate and place their feelings above the law, what are your basis?

 

Agreed. And if it were issued for national security reasons, it would include different countries.

He said he had to implement this as a surprise so that people didn't flood in during any period of notice, but by not putting countries like Saudi Arabia, Egypt and Jordan on the list (not to mention France or Belgium), he has failed to ban people from countries that HAVE actually committed attacks in the US.

The concept that there needs to be a temporary ban at all has no basis in fact. There is no evidence - none at all - of an emergent threat. Trump says he wants the temporary ban in order to give him time to tighten up the vetting procedures. OK, he can tighten them up. But. First of all, he has said he wanted to do this for over a year; he has known he will be president for three months. Maybe he should have had a plan in place for tighter vetting before now? But leaving his lack of preparation aside, the absence of a temporary ban would not leave the doors wide open for terrorists to come in. People still need visas to get in. The borders are not wide open; they are already pretty much closed to the kind of people Trump says he wants to keep out.

If the purpose of the ban is to allow time to improve the vetting ("extreme vetting"), the ban only makes sense if the tighter vetting applies exclusively to these 7 countries. If the vetting is going to be tightened across the board, then all countries to which it is going to apply should be banned.

This EO is about pandering to Trump's base (and to his and their prejudices). Some people might not like that, but - provided he acts within the constitutional and legal bounds that restrict him (and the courts have yet to determine whether or not he is doing so) - as the president he can do that. However, it is definitely NOT about national security no matter how much he tries to wrap it up in that packaging.

 

Sort of depends on what happens though right? The only way Trump would be vindicated is if a terrorist attack occurs predominantly from people who come from one of those 7 countries because of his order being overturned. Anything else that happens would not help the right. It's not impossible, but historically they have not come from those countries. Hence the conclusion that this ban is not rationally based.

 

I think it's more a matter of persuading more of them to want to kill us. The tipping point will be different for each of them. For some, there's nothing you can do to get them to be an extremist, but for most there is something. If you kill their son or daughter, or maybe their goat, with a drone strike, then they may become more willing to engage in a holy war. When you have a president who bans them, threatens to mistreat muslims already here (registry), threatens to pillage the oil next time, and advocates for killing the families of muslim extremists. Well, time to give the president a mirror to meet the top terrorist recruiter. Obama and Bush did their parts too to make things worse. I mean, think about, if Russia were more powerful than us, invaded us for being bad, killed us for resisting and tried to impose their way of life on us, you can bet that many Americans would be motivated to kill Russians by any means necessary.

 

OP

I confidently predict that because of public demand the court will have to back down over this, and it will cause a severe loss of their credibility. The fact they obviously cannot see it coming speaks volumes.

 

The Law is quite clear.

The Judges were also questioning the intent of the law, the amount of risk to the American people, and that it was a ban on Muslims. All three were getting off track rather than acknowledging that the law was being followed and that there was plenty of precedent..

 

This presupposes the idea that islamists might only come from one particular country and are not united or organized. This is not a nation against nation war but an ideological war that is international. If you were to look at the make-up of ISIS, for example, you would see that Muslims from all over the world are involved, along with sister organizations.

Country of origin is important but Islamic terrorism is a wide spread ideology and its effects not restricted to the US. Had these judges done some research they would have discovered that persons from these countries have all been involved in international terrorism, with Somalian pirates also having become infamous..