ACLU Wins - Federal Judge Just Issued A Stay Against Trump's Muslim Ban

[James Madison]

Some parts of interest from the order:

There is no precedent to support this claimed
unreviewability, which runs contrary to the fundamental
structure of our constitutional democracy. See Boumediene
v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that,
even by congressional statute, Congress and the Executive
could eliminate federal court habeas jurisdiction over enemy
combatants, because the “political branches” lack “the
power to switch the Constitution on or off at will”). Within
our system, it is the role of the judiciary to interpret the law,
a duty that will sometimes require the “[r]esolution of
litigation challenging the constitutional authority of one of
the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton,
566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S.
919, 943 (1983)). We are called upon to perform that duty
in this case.
Although our jurisprudence has long counseled
deference to the political branches on matters of immigration
and national security, neither the Supreme Court nor our
court has ever held that courts lack the authority to review
executive action in those arenas for compliance with the
Constitution. To the contrary, the Supreme Court has
repeatedly and explicitly rejected the notion that the political
branches have unreviewable authority over immigration or
are not subject to the Constitution when policymaking in that
context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001)
(emphasizing that the power of the political branches over
immigration “is subject to important constitutional
limitations”); Chadha, 462 U.S. at 940-41 (rejecting the
argument that Congress has “unreviewable authority over
the regulation of aliens,” and affirming that courts can
review “whether Congress has chosen a constitutionally permissible means of implementing that power”).6 Our
court has likewise made clear that “[a]lthough alienage
classifications are closely connected to matters of foreign
policy and national security,” courts “can and do review
foreign policy arguments that are offered to justify
legislative or executive action when constitutional rights are
at stake.” American-Arab Anti-Discrimination Comm. v.
Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).

...

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.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights
also apply to certain aliens attempting to reenter the United
States after travelling abroad. Landon v. Plasencia, 459 U.S.
21, 33-34 (1982). The Government has provided no
affirmative argument showing that the States’ procedural
due process claims fail as to these categories of aliens. For
example, the Government has failed to establish that lawful
permanent residents have no due process rights when
seeking to re-enter the United States. See id. (“[T]he
returning resident alien is entitled as a matter of due process
to a hearing on the charges underlying any attempt to
exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449,
460 (1963))). Nor has the Government established that the
Executive Order provides lawful permanent residents with
constitutionally sufficient process to challenge their denial
of re-entry. See id. at 35 (“[T]he courts must evaluate the
particular circumstances and determine what procedures
would satisfy the minimum requirements of due process on
the re-entry of a permanent resident alien.”).

...

The Government has pointed to no evidence that any
alien from any of the countries named in the Order has
perpetrated a terrorist attack in the United States.7 Rather
than present evidence to explain the need for the Executive
Order, the Government has taken the position that we must
not review its decision at all.8
We disagree, as explained
above.

By contrast, the States have offered ample evidence that
if the Executive Order were reinstated even temporarily, it
would substantially injure the States and multiple “other
parties interested in the proceeding.” Nken, 556 U.S. at 434
(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
When the Executive Order was in effect, the States contend
that the travel prohibitions harmed the States’ university
employees and students, separated families, and stranded the
States’ residents abroad. These are substantial injuries and
even irreparable harms. See Melendres v. Arpaio, 695 F.3d
990, 1002 (9th Cir. 2012) (“It is well established that the
deprivation of constitutional rights ‘unquestionably
constitutes irreparable injury.’” (quoting Elrod v. Burns,
427 U.S. 347, 373 (1976))).

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf

Note that this wasn't a decision saying that the government's executive order was illegal. Just that it is unlikely to be upheld as legal and, due to the irreparable harms suffered by the plaintiffs, a continuation of the ban pending the full appeal is denied.

Very good! You are correct. I'm onto my second reading of the decision.


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[James Madison]

9th circuit court of appeals refuses to intervene and reverse lower court ruling. So Trump loses again.


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You do realize the merits of the case have yet to be litigated?


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[Jimmy Higgins]

9th circuit court of appeals refuses to intervene and reverse lower court ruling. So Trump loses again.


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You do realize the merits of the case have yet to be litigated?


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Yes, thanks for stating the obvious. Trump still lost.

 

[Elixir]

9th circuit court of appeals refuses to intervene and reverse lower court ruling. So Trump loses again.


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You do realize the merits of the case have yet to be litigated?


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Yeah, and if the court rules in Cheato's favor, his EO can be overturned by the next prez. At least for the moment there's a reprieve from the insanity of last week.

 

[Jimmy Higgins]

Off to SCOTUS we go, I presume. Note that a Bush appointee also upheld the decision; even if all the "right wing" SCOTUS justices try to reverse it, a tie still produces a win for sanity and a huge loss for the Tweeter-in-chief.

I doubt if SCOTUS even looks at reversing the stay.

Cleary Trump has absolutely nothing to show there is a viable danger that would lead to lifting the stay.

 

[repoman]

Is it possible (or legal) that Trump will pull back his nomination of Gorsuch for him being concerned about the statements he (Trump) has made about judges?

That seems insane for anyone but Trump. But boy if he did, there is no bag of popcorn big enough...

 

[Ford]

Is it possible (or legal) that Trump will pull back his nomination of Gorsuch for him being concerned about the statements he (Trump) has made about judges?

That seems insane for anyone but Trump. But boy if he did, there is no bag of popcorn big enough...

Trump would be unlikely to pull the nomination, because in order to do that he'd have to concede he was wrong.

As far as the order itself, the simplest solution seems to be to rescind the order and rewrite it in light of the court's decision.

But again, that would mean conceding it was wrong.

As for the Supreme Court, it is worth remembering that this is a temporary ban, and unlikely to be taken up by the Justices before Gorsuch is seated - leading to the very real possibility of a 4-4 tie which would kick it back down to the lower courts and result in another loss for Trump.


This is already popcorn worthy.

 

[RavenSky]

9th circuit court of appeals refuses to intervene and reverse lower court ruling. So Trump loses again.


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wOW, 3 more judges who live in alt-reality.

including another one appointed by Bush.

 

[repoman]

I can imagine Trump screaming "I can't... be... WROOONNNGGG!!!"

 

[James Madison]

Off to SCOTUS we go, I presume. Note that a Bush appointee also upheld the decision; even if all the "right wing" SCOTUS justices try to reverse it, a tie still produces a win for sanity and a huge loss for the Tweeter-in-chief.

I doubt if SCOTUS even looks at reversing the stay.

You are basing this on, what exactly?


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[James Madison]

Is it possible (or legal) that Trump will pull back his nomination of Gorsuch for him being concerned about the statements he (Trump) has made about judges?

That seems insane for anyone but Trump. But boy if he did, there is no bag of popcorn big enough...

Yes Trump may lawfully withdraw the nomination. Presidents have previously withdrawn nominations.


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[Crazy Eddie]

Some parts of interest from the order:

There is no precedent to support this claimed
unreviewability, which runs contrary to the fundamental
structure of our constitutional democracy. See Boumediene
v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that,
even by congressional statute, Congress and the Executive
could eliminate federal court habeas jurisdiction over enemy
combatants, because the “political branches” lack “the
power to switch the Constitution on or off at will”). Within
our system, it is the role of the judiciary to interpret the law,
a duty that will sometimes require the “[r]esolution of
litigation challenging the constitutional authority of one of
the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton,
566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S.
919, 943 (1983)). We are called upon to perform that duty
in this case.
Although our jurisprudence has long counseled
deference to the political branches on matters of immigration
and national security, neither the Supreme Court nor our
court has ever held that courts lack the authority to review
executive action in those arenas for compliance with the
Constitution. To the contrary, the Supreme Court has
repeatedly and explicitly rejected the notion that the political
branches have unreviewable authority over immigration or
are not subject to the Constitution when policymaking in that
context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001)
(emphasizing that the power of the political branches over
immigration “is subject to important constitutional
limitations”); Chadha, 462 U.S. at 940-41 (rejecting the
argument that Congress has “unreviewable authority over
the regulation of aliens,” and affirming that courts can
review “whether Congress has chosen a constitutionally permissible means of implementing that power”).6 Our
court has likewise made clear that “[a]lthough alienage
classifications are closely connected to matters of foreign
policy and national security,” courts “can and do review
foreign policy arguments that are offered to justify
legislative or executive action when constitutional rights are
at stake.” American-Arab Anti-Discrimination Comm. v.
Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).

...

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.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights
also apply to certain aliens attempting to reenter the United
States after travelling abroad. Landon v. Plasencia, 459 U.S.
21, 33-34 (1982). The Government has provided no
affirmative argument showing that the States’ procedural
due process claims fail as to these categories of aliens. For
example, the Government has failed to establish that lawful
permanent residents have no due process rights when
seeking to re-enter the United States. See id. (“[T]he
returning resident alien is entitled as a matter of due process
to a hearing on the charges underlying any attempt to
exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449,
460 (1963))). Nor has the Government established that the
Executive Order provides lawful permanent residents with
constitutionally sufficient process to challenge their denial
of re-entry. See id. at 35 (“[T]he courts must evaluate the
particular circumstances and determine what procedures
would satisfy the minimum requirements of due process on
the re-entry of a permanent resident alien.”).

...

The Government has pointed to no evidence that any
alien from any of the countries named in the Order has
perpetrated a terrorist attack in the United States.7 Rather
than present evidence to explain the need for the Executive
Order, the Government has taken the position that we must
not review its decision at all.8
We disagree, as explained
above.

By contrast, the States have offered ample evidence that
if the Executive Order were reinstated even temporarily, it
would substantially injure the States and multiple “other
parties interested in the proceeding.” Nken, 556 U.S. at 434
(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
When the Executive Order was in effect, the States contend
that the travel prohibitions harmed the States’ university
employees and students, separated families, and stranded the
States’ residents abroad. These are substantial injuries and
even irreparable harms. See Melendres v. Arpaio, 695 F.3d
990, 1002 (9th Cir. 2012) (“It is well established that the
deprivation of constitutional rights ‘unquestionably
constitutes irreparable injury.’” (quoting Elrod v. Burns,
427 U.S. 347, 373 (1976))).

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf

Note that this wasn't a decision saying that the government's executive order was illegal. Just that it is unlikely to be upheld as legal and, due to the irreparable harms suffered by the plaintiffs, a continuation of the ban pending the full appeal is denied.

Well, it says that Trump's primary defense -- that the Courts have no power to review a decision by the executive branch -- is complete bullshit, since that is one of the primary functions of the court in the first place (checks and balances!) and to claim that the courts cannot check the executive branch is a bit like saying that Congress can't override a veto.

 

[Loren Pechtel]

Is it possible (or legal) that Trump will pull back his nomination of Gorsuch for him being concerned about the statements he (Trump) has made about judges?

That seems insane for anyone but Trump. But boy if he did, there is no bag of popcorn big enough...

Yes Trump may lawfully withdraw the nomination. Presidents have previously withdrawn nominations.


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But does Congress have to listen?

 

[Jimmy Higgins]

I doubt if SCOTUS even looks at reversing the stay.

You are basing this on, what exactly?


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Why get involved already if it isn't necessary? If there was an immediate harm, they could but lower courts would have already reversed the stay if the Bannon Admin could provide any info indicating an actual perceived threat.

 

[Jimmy Higgins]

Yes Trump may lawfully withdraw the nomination. Presidents have previously withdrawn nominations.


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But does Congress have to listen?

Harriet Miers comes to mind.

 

[Jimmy Higgins]

Is it possible (or legal) that Trump will pull back his nomination of Gorsuch for him being concerned about the statements he (Trump) has made about judges?

That seems insane for anyone but Trump. But boy if he did, there is no bag of popcorn big enough...

Trump would be unlikely to pull the nomination, because in order to do that he'd have to concede he was wrong.

As far as the order itself, the simplest solution seems to be to rescind the order and rewrite it in light of the court's decision.

But again, that would mean conceding it was wrong.

As for the Supreme Court, it is worth remembering that this is a temporary ban, and unlikely to be taken up by the Justices before Gorsuch is seated - leading to the very real possibility of a 4-4 tie which would kick it back down to the lower courts and result in another loss for Trump.


This is already popcorn worthy.

The problem with rewriting the order is that there isn't much wrong with the existing vetting process. This is just bullshit Bannon, alt-right crap. They can't take the pragmatic approach because it isn't radical or illegal enough for them.

 

[James Madison]

You are basing this on, what exactly?


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Why get involved already if it isn't necessary? If there was an immediate harm, they could but lower courts would have already reversed the stay if the Bannon Admin could provide any info indicating an actual perceived threat.

There is at least one preliminary legal issue to be decided that, if rule in Trump's favor, would render irrelevant the question of "immediate harm" and "actual perceived threat."


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[James Madison]

Trump would be unlikely to pull the nomination, because in order to do that he'd have to concede he was wrong.

As far as the order itself, the simplest solution seems to be to rescind the order and rewrite it in light of the court's decision.

But again, that would mean conceding it was wrong.

As for the Supreme Court, it is worth remembering that this is a temporary ban, and unlikely to be taken up by the Justices before Gorsuch is seated - leading to the very real possibility of a 4-4 tie which would kick it back down to the lower courts and result in another loss for Trump.


This is already popcorn worthy.

The problem with rewriting the order is that there isn't much wrong with the existing vetting process. This is just bullshit Bannon, alt-right crap. They can't take the pragmatic approach because it isn't radical or illegal enough for them.

The 9th Circuit opinion is littered with language of how the EO can perhaps be rewritten in a more seemingly lawful manner and the "vetting process" was entirely unrelated to this portion of the decision.


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[Jimmy Higgins]

The problem with rewriting the order is that there isn't much wrong with the existing vetting process. This is just bullshit Bannon, alt-right crap. They can't take the pragmatic approach because it isn't radical or illegal enough for them.

The 9th Circuit opinion is littered with language of how the EO can perhaps be rewritten in a more seemingly lawful manner and the "vetting process" was entirely unrelated to this portion of the decision.


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This decision doesn't do anything but not interfere.

Regarding vetting, that is allegedly what Bannon is doing this all for, that our vetting isn't good enough. Which is why they created "the pause".

 

[James Madison]

The 9th Circuit opinion is littered with language of how the EO can perhaps be rewritten in a more seemingly lawful manner and the "vetting process" was entirely unrelated to this portion of the decision.


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This decision doesn't do anything but not interfere.

Regarding vetting, that is allegedly what Bannon is doing this all for, that our vetting isn't good enough. Which is why they created "the pause".

Fantastic commentary which isn't germane to what I said in the specific post.


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