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Debates Forum

  1. 09 Feb '17 19:06 / 2 edits
    From what i can glean its has gone to the appellant court of the ninth circuit believed to be one of the most liberal in the country? After watching the initial request for a temporary restraining order on the Executive order posted by No.1 and not really understanding the full complexity of the legal arguments mostly because of legalese I wonder how the forum thinks it will go? Also is there any precedent in allowing views that were expressed prior to Mr Trump taking office as being pertinent to the executive order in the claim that its primary purpose is discriminatory? e.g Rudolph Giuliani,

    From the court filings, including the briefs now submitted to the Ninth Circuit, the protections of religion, equal protection, and due process emerge as central. Under the First Amendment, there should be no laws “respecting an establishment of religion” or “prohibiting the free exercise” of religion. The 14th Amendment’s command that government shall not make or enforce laws which deny to any person “equal protection of the laws,” added to the Constitution after the Civil War, was made applicable to the federal government through the Fifth Amendment; those provisions are also likely to inform the Ninth Circuit’s decision. Additionally, the Fifth Amendment’s Due Process Clause protects people from having rights denied without sufficient legal process and even from having some fundamental rights denied, no matter the process.

    For either the Religion and Equal Protection Clause arguments to gain purchase, judges will likely have to find that the EO intentionally targets Muslims. But that word barely appears in the almost 3,000 word EO. That 1886 case of Yick Wo, involving Chinese noncitizens, is again helpful.

    The Court pronounced that although a “law itself be fair on its face and impartial in appearance,” if it is “applied and administered by public authority with an evil eye and an unequal hand,” it will be evaluated accordingly.

    In most contemporary situations, establishing the “evil eye” — an intent to discriminate — in a seemingly impartial law is an insurmountable hurdle. Lawmakers generally do not make statements targeting religious or other groups, and even if one legislator is so boorish, the legislature as a whole can disavow that legislator as an outlier.

    Here, however, the EO is promulgated by the person of the president, who is repeatedly and widely on the record discussing the need for a Muslim ban. Additionally, the president’s intent is corroborated by at least one well-known person, Rudolph Giuliani, who claims to have offered advice in how to draft the EO so that the “Muslim ban” would not, in fact, look like a “Muslim ban.”

    Moreover, the EO itself does address religion. In its subsection on resuming refugee claims, which the EO suspends for 120 days, it instructs the government to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.” In the seven nations covered by the EO, the majority religion is Islam. Thus, unless the government considers different sects of Islam as minority religions, only non-Muslims would be eligible for a claim of religious-based persecution.

    http://www.vox.com/the-big-idea/2017/2/7/14537716/trump-court-immigration-constitution-refugee-ban
  2. 09 Feb '17 20:03
    Originally posted by robbie carrobie
    From what i can glean its has gone to the appellant court of the ninth circuit believed to be one of the most liberal in the country? After watching the initial request for a temporary restraining order on the Executive order posted by No.1 and not really understanding the full complexity of the legal arguments mostly because of legalese I wonder ho ...[text shortened]... tp://www.vox.com/the-big-idea/2017/2/7/14537716/trump-court-immigration-constitution-refugee-ban
    too wordy, hmm, ok lets cut to the chase who thinks it was a deliberate ploy to exclude Muslims and who thinks the argument will stand?
  3. Standard member sh76
    Civis Americanus Sum
    09 Feb '17 20:19
    Originally posted by robbie carrobie
    too wordy, hmm, ok lets cut to the chase who thinks it was a deliberate ploy to exclude Muslims and who thinks the argument will stand?
    The President gets a lot of discretion in this sort of thing so motive will be key, as in Yick Wu.

    I think the 9th circuit panel will invalidate the ban and I think SCOTUS will split 4-4 unless Gorsuch is confirmed by the time the case gets there.

    It wouldn't be the worst thing in the world for Trump for the ban to stand. It would give him a chance to go back to the drawing board and more carefully craft a new order.
  4. Standard member HandyAndy
    Non sum qualis eram
    09 Feb '17 20:21
    Originally posted by robbie carrobie
    too wordy, hmm, ok lets cut to the chase who thinks it was a deliberate ploy to exclude Muslims and who thinks the argument will stand?
    Deliberate ploy, yes. Lower court ruling upheld, EO vacated. Trump will juggle the language and reissue.
  5. 09 Feb '17 22:17
    Originally posted by sh76
    The President gets a lot of discretion in this sort of thing so motive will be key, as in Yick Wu.

    I think the 9th circuit panel will invalidate the ban and I think SCOTUS will split 4-4 unless Gorsuch is confirmed by the time the case gets there.

    It wouldn't be the worst thing in the world for Trump for the ban to stand. It would give him a chance to go back to the drawing board and more carefully craft a new order.
    a 4-4 split what will that mean? will the ban remain? Trump has not done well to berate and belittle the judiciary, that was a very bad idea. Politically if the ban is annulled he will go to the people, look what I am up against, the media and the judiciary. Agreed it was hastily drafted and its implementation a nightmare.
  6. 09 Feb '17 22:20 / 3 edits
    Originally posted by HandyAndy
    Deliberate ploy, yes. Lower court ruling upheld, EO vacated. Trump will juggle the language and reissue.
    He has allegedly removed all the Islamic paraphernalia from the Whitehouse including prayer mats etc left by Obama for visiting dignitaries etc but its difficult to tell if its genuine so much fake news these days. I think it will go to the supreme court like Sh76 has intimated. I think it will be difficult to prove that he had an anti Islamic motive because his motive for helping minorities in predominately Islamic countries cannot be construed as bias as they are the most likely to be persecuted.
  7. Subscriber Sleepyguy
    Reepy Rastardly Guy
    09 Feb '17 22:26
    You'd think he would have started with getting Gorsuch confirmed BEFORE starting fights with the courts. Like duh.
  8. Subscriber no1marauder
    It's Nice to Be Nice
    09 Feb '17 23:27
    Reuters and other outlets are reporting that the Ninth Circuit has unanimously upheld Judge Robart's TRO thus stopping implementation of the Executive Order at least until the District Court holds a preliminary injunction hearing which won't happen for at least a couple of weeks.

    I don't think the SCOTUS will touch this at this stage and seriously doubt whether it splits on it.
  9. Subscriber Sleepyguy
    Reepy Rastardly Guy
    09 Feb '17 23:36
    Originally posted by no1marauder
    Reuters and other outlets are reporting that the Ninth Circuit has unanimously upheld Judge Robart's TRO thus stopping implementation of the Executive Order at least until the District Court holds a preliminary injunction hearing which won't happen for at least a couple of weeks.

    I don't think the SCOTUS will touch this at this stage and seriously doubt whether it splits on it.
    Read this for some face palm inducing fun facts from Byron York.

    http://www.washingtonexaminer.com/a-fact-free-debate-on-immigration-order/article/2614298

    Tired of all the winning yet? Jeez what a loose canon.
  10. Subscriber no1marauder
    It's Nice to Be Nice
    09 Feb '17 23:57
    The Appeals Court Order is here: https://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf

    I'm reading it now.
  11. 10 Feb '17 00:08 / 1 edit
    9th court is liberal as can be, on to the supreme court.

    https://www.google.com/amp/s/bc.marfeel.com/amp/www.nationalreview.com/bench-memos/373273/ninth-circuit-leading-pack-most-reversed-jonathan-keim?
  12. Subscriber no1marauder
    It's Nice to Be Nice
    10 Feb '17 00:09
    Excerpt:

    the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene
    constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.

    There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.

    pp.13-14 (emphasis added)

    A slap down for the Imperial Presidency.
  13. 10 Feb '17 00:17
    We'll see if yhey get reversed, again.
  14. Subscriber no1marauder
    It's Nice to Be Nice
    10 Feb '17 00:19
    Originally posted by Eladar
    9th court is liberal as can be, on to the supreme court.

    https://www.google.com/amp/s/bc.marfeel.com/amp/www.nationalreview.com/bench-memos/373273/ninth-circuit-leading-pack-most-reversed-jonathan-keim?
    One of your assertions busted:

    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.

    pp.20-21

    The Fifth Amendment clearly states that "no person" shall be deprived of the procedural rights it mentions. http://constitution.findlaw.com/amendment5.html
  15. Standard member HandyAndy
    Non sum qualis eram
    10 Feb '17 00:30
    Originally posted by robbie carrobie
    a 4-4 split what will that mean? will the ban remain?
    A 4-4 Supreme Court split means that the government appeal is denied and the restraining order is upheld. No ban.