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Old 6th February 2017, 07:57 AM   #81
Doghouse Reilly
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Originally Posted by Lothian View Post
Don, is that you?



I have no problem with you criticising the decision. As I said, time will tell who understands the law better.

My issue is with your statement "Not only does that judge not have access to any classified national security information, but he has no expertise in national security matters" and the inherent suggestion that the judge should not be given the option overrule Trump because he does not have the security information available to the President.

That is arguing for a dictatorship.
The judge himself seems to have made it clear that a major reason he issued the TRO is that he disagrees with the necessity of the Executive order, which I think is pretty weak reasoning, legally speaking. Judges should determine whether or not the president has the authority to issue an order, disregarding entirely whether or not they agree with the merits of the order. It's the presidentís job to decide the merits, not a judge's.
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Old 6th February 2017, 07:57 AM   #82
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Originally Posted by sunmaster14 View Post
You obviously haven't read my first post in the thread. Or my second. Or any of the others. I'm happy to debate the merits of the federal government's argument in this case. I think it's a very lopsided argument. The executive order is clearly legal, and the TRO is clearly ridiculous. Which is not to say that the 9th circuit won't uphold it. At least one of the members of the panel that will review it - Michelle Friedlander - seems like a left-winger upon first impression. And the 9th circuit is stocked with liberals. It's by far the most liberal appeals court, as well (naturally) as the appeals court most frequently overturned by the Supreme Court.
And again your stance is it must be judicial bias if the courts decision doesn't agree with your amateur analysis, not exactly compelling. Oh and could you please post details of this government case? As I say so far as I can see the rationale for the ban seems to be 'because the president says so'. I guess when faced with an explanation that would take more than 140 characters Trump is at a loss...
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Old 6th February 2017, 08:02 AM   #83
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Quote:
Given the lack of any clear rationale behind the ban how can anyone be surprised the court overturned it?
Because it isn't the court's job to determine the merits of the order, only whether the order is within the presidentís legal authority or not. The judge did not even analyze that issue in his decision, or if he did, he doesn't share it in his written decision.
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Old 6th February 2017, 08:02 AM   #84
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Originally Posted by Lothian View Post
Don, is that you?



I have no problem with you criticising the decision. As I said, time will tell who understands the law better.

My issue is with your statement "Not only does that judge not have access to any classified national security information, but he has no expertise in national security matters" and the inherent suggestion that the judge should not be given the option overrule Trump because he does not have the security information available to the President.

That is arguing for a dictatorship.
No, it's not because this is only one specific area of executive authority. The standard for reviewing an executive decision concerning exclusion of aliens from the country is rational basis scrutiny, which is the lowest of three tiers of scrutiny with respect to certain kinds of constitutional protection claims. Rational basis scrutiny means that the government need only show that the challenged executive action is rationally related to serving a legitimate state interest. The court need not, and cannot, get into the weeds as to whether or not the state interest really is being properly served.

One of the reasons for this is that the aliens outside of the US simply don't have Constitutional rights. No alien has the right to enter the US. Entry is a privilege, not a property right, that can be granted or removed at the government's whim. Once an alien is on US soil, however, things change.
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Old 6th February 2017, 08:04 AM   #85
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Originally Posted by Doghouse Reilly View Post
I read the judges ruling. If he had an analysis of the law that he based his decision on, he didn't explain it there. He basically skirted the issue. Regardless of one's opinions of Trump, I don't see this standing. It may go to the SCOTUS, of course..

ETA: his judgment basically involved saying that he felt the plaintiffs had merit in their suit, and that he couldn't see any compelling reason for Trump's executive order. That's not a legal analysis of whether or not Trump has the right to make such an order or not. Higher courts will have to deal with that, but to pretend that this judge actually made a decision addressing all the legal aspects involved is absurd.
And how can he do so when Trump has failed to explain his reasons? Trump hasn't pinpointed some flaw in current procedures that he wants investigated or addressed. What you have is a list of countries that seems to have been picked based on being in the news headlines. Now that may be an unfair description but until the administration explains why these countries were selected and why the ban is needed the judges decision seems almost inevitable.

Originally Posted by Doghouse Reilly View Post
Because it isn't the court's job to determine the merits of the order, only whether the order is within the president’s legal authority or not. The judge did not even analyze that issue in his decision, or if he did, he doesn't share it in his written decision.
You have an order that based on current information appears arbitrary and capricious, if it's not the courts place to determine the merits then whose is it? You have people who have completed every requirement of the agencies tasked with controlling entry to the US and been granted visas simply having those visas cancelled with zero explanation provided either to them or the people of the USA, are you okay with that?
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Last edited by Garrison; 6th February 2017 at 08:10 AM.
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Old 6th February 2017, 08:11 AM   #86
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Originally Posted by quadraginta View Post
(I'm sure the fact that Trump's businesses have current or potential interest in those countries which were so inexplicitly exonerated is purely coincidental. )
Really could be coincidental. These are the nations that the Obama administration singled out for a (much, much less extreme) restriction. It's totally conceivable that these nations were chosen from that list. Not all of the omitted nations are necessarily good for Trump, after all.

Usual caveat: what I say here is not support for this asinine Order.
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Old 6th February 2017, 08:13 AM   #87
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I think the basis of the judge's ruling, having read it, is that the EO does irreparable harm to the interests of the state (in this case Washington) by imposing a hardship on families and businesses in the state by disrupting normal travel. That this is an unconstitutional use of executive power. That the president has not shown a compelling reason why he should be allowed to interfere with the welfare of the states.

I agree, having read legal opinions, I don't expect the ruling will stand.
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Old 6th February 2017, 08:15 AM   #88
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Originally Posted by Garrison View Post
And how can he do so when Trump has failed to explain his reasons? Trump hasn't pinpointed some flaw in current procedures that he wants investigated or addressed. What you have is a list of countries that seems to have been picked based on being in the news headlines. Now that may be an unfair description but until the administration explains why these countries were selected and why the ban is needed the judges decision seems almost inevitable.
The list of countries was identical to the list of countries that the Obama administration had already specified as areas of heightened terrorism concern. Visa restrictions were implemented with respect to these same seven countries in early 2016 (based on a law signed by Obama in 2015).

I have attached an abridged (to bring it under 250kb in size) version of the government's brief in the case. I only cut off the cover page and the last couple of pages with lawyer's signatures and the like.
Attached Files
File Type: pdf Defendants Brief on Travel Ban 2Feb2017 Abridged.pdf (208.4 KB, 6 views)
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Old 6th February 2017, 08:33 AM   #89
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Originally Posted by sunmaster14 View Post
The list of countries was identical to the list of countries that the Obama administration had already specified as areas of heightened terrorism concern. Visa restrictions were implemented with respect to these same seven countries in early 2016 (based on a law signed by Obama in 2015).

I have attached an abridged (to bring it under 250kb in size) version of the government's brief in the case. I only cut off the cover page and the last couple of pages with lawyer's signatures and the like.
And if you could just point to the page that explains what's changed between early 2016 and now to require this ban?
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Last edited by Garrison; 6th February 2017 at 08:35 AM.
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Old 6th February 2017, 08:38 AM   #90
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Originally Posted by Garrison View Post
And if you could just point to the page that explains what's changed between early 2016 and now to require this ban?
The President changed, and the new President has a different opinion as to how to do deal with the threat posed by terrorists than the previous President had.

ETA: I didn't see it explicitly mentioned in the brief, but the information is publicly available and rather widely known. Hopefully the judge hasn't been living in a cave for the last year.

Last edited by sunmaster14; 6th February 2017 at 08:40 AM.
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Old 6th February 2017, 08:40 AM   #91
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Originally Posted by sunmaster14 View Post
The President changed, and the new President has a different opinion as to how to do deal with the threat posed by terrorists than the previous President had.
Yes. He has the same brain-dead incorrect view that you'd find on Fox News or Britebart.

Only thing is - now he can make constitutionally questionable executive orders that can get shot down in the courts.
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Old 6th February 2017, 08:43 AM   #92
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Originally Posted by sunmaster14 View Post
The President changed, and the new President has a different opinion as to how to do deal with the threat posed by terrorists than the previous President had.
And there we have it, you want to trust the judgment of Donald J Trump...

Quote:
ETA: I didn't see it explicitly mentioned in the brief, but the information is publicly available and rather widely known. Hopefully the judge hasn't been living in a cave for the last year.
Hopefully he sticks to the legal merits and isn't influenced by the last thing he saw on FOX, unlike the current incumbent in the White House.
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Old 6th February 2017, 08:45 AM   #93
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Originally Posted by C_Felix View Post
Judge James Robart, a George W. Bush appointee
Calling him a Bush appointee is deceptive. Robart was not picked by Bush, he was picked by Senator Pat Murray. Senators play a large role in the selection of district court judges in their home state. Yes, Bush signed off on his appointment, but Robart was never Bush's pick, he was always Murray's pick.
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Old 6th February 2017, 08:48 AM   #94
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Originally Posted by NoahFence View Post
Yes. He has the same brain-dead incorrect view that you'd find on Fox News or Britebart.
The constitution does not require that policy be correct.
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Old 6th February 2017, 08:51 AM   #95
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Originally Posted by Ziggurat View Post
The constitution does not require that policy be correct.
No, it doesn't. But the policy needs to address an issue that actually exists.
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Old 6th February 2017, 08:52 AM   #96
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Originally Posted by Ziggurat View Post
Calling him a Bush appointee is deceptive. Robart was not picked by Bush, he was picked by Senator Pat Murray. Senators play a large role in the selection of district court judges in their home state. Yes, Bush signed off on his appointment, but Robart was never Bush's pick, he was always Murray's pick.
The president appoints the federal judges. Period.

That he gets advice and recommendation from other people is OK, but in the end he's the one responsible. He needs to check. And then sign off. You cannot push off that responsibility to someone else.
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Old 6th February 2017, 08:57 AM   #97
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Originally Posted by sunmaster14 View Post

when a judge appointed by a Democrat overruled the Obama administration (which actually happened at the appellate level from time to time).



Did this outrage you?
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Old 6th February 2017, 09:05 AM   #98
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Originally Posted by NoahFence View Post
No, it doesn't. But the policy needs to address an issue that actually exists.
No, actually, that's not a general constitutional requirement either.
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Old 6th February 2017, 09:11 AM   #99
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Originally Posted by elgarak View Post
The president appoints the federal judges. Period.
Which is why I said it was deceptive (because it left out key information) and not wrong.

Quote:
That he gets advice and recommendation from other people is OK, but in the end he's the one responsible. He needs to check. And then sign off. You cannot push off that responsibility to someone else.
Not relevant to my argument. The relevant point is that this is not a conservative or Republican judge, and given the way the system operates, Bush was never going to fight to try to make sure he was. Whether or not he's a qualified judge is a completely different issue, I didn't argue he wasn't.
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Old 6th February 2017, 09:13 AM   #100
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Originally Posted by Ziggurat View Post
No, actually, that's not a general constitutional requirement either.
I'm not talking about constitutional requirements. I'm talking about the requirement that the president LIVE IN REALITY
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Old 6th February 2017, 09:34 AM   #101
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Originally Posted by Foolmewunz View Post
Maybe it will help clear the situation in your mind if you picture judges as a bowl of Skittles.
Tell the truth, you've been saving that one for just the perfect moment, right?
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Old 6th February 2017, 09:44 AM   #102
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Originally Posted by NoahFence View Post
I'm not talking about constitutional requirements. I'm talking about the requirement that the president LIVE IN REALITY
He does, it's just an Alternate Reality.

Comes with it's own Alternate Facts too!
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Old 6th February 2017, 09:46 AM   #103
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Originally Posted by NoahFence View Post
I'm not talking about constitutional requirements. I'm talking about the requirement that the president LIVE IN REALITY
Yes, actually, you most definitely were talking about constitutional requirements.

Originally Posted by NoahFence View Post
Yes. He has the same brain-dead incorrect view that you'd find on Fox News or Britebart.

Only thing is - now he can make constitutionally questionable executive orders that can get shot down in the courts.
You can retract that part if you wish, but you have to actually retract it, not simply pretend you never said it.
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Old 6th February 2017, 09:55 AM   #104
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Originally Posted by Ziggurat View Post
Yes, actually, you most definitely were talking about constitutional requirements.



You can retract that part if you wish, but you have to actually retract it, not simply pretend you never said it.
HAHA

If they're getting shot down in the courts, he's not really fulfilling the requirements, now is he?
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Old 6th February 2017, 09:59 AM   #105
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Originally Posted by NoahFence View Post
HAHA

If they're getting shot down in the courts, he's not really fulfilling the requirements, now is he?
Are lower courts responsible for interpreting the constitutionality of a law or order, or is it just the SCOTUS?
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Old 6th February 2017, 10:02 AM   #106
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Originally Posted by Argumemnon View Post
Are lower courts responsible for interpreting the constitutionality of a law or order, or is it just the SCOTUS?
If I'm not mistaken the lower courts can interpret it, but if it gets to the SCOTUS, they can either confirm the lower court's findings or overrule it.
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Old 6th February 2017, 10:11 AM   #107
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Originally Posted by Argumemnon View Post
Are lower courts responsible for interpreting the constitutionality of a law or order, or is it just the SCOTUS?
Any court can decide. Whether it is ultimately decided by an appellate court depends on whether or not the losing party appeals. The circuit appeals court has to rule on an appeal that is submitted properly and in a timely fashion. An appeal to the Supreme Court from the circuit appeals court is a much dicier proposition. The Supreme Court only takes cases it thinks are important, which amounts to only about 3% of all petitions for SCOTUS review. In the lingo, the appellant petitions for a Writ of Certiorari. If the SCOTUS doesn't take the case, then it's called "cert. denied." Which means you lose your appeal, although no precedent is set. This will go to the SCOTUS for sure, no matter which way the 9th circuit court of appeals rules. However, if there is a 4-4 tie in SCOTUS, a distinct possibility, the 9th circuit decision will hold.
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Old 6th February 2017, 10:15 AM   #108
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Originally Posted by NoahFence View Post
HAHA
That's a funny way to concede your mistake, but whatever.

Quote:
If they're getting shot down in the courts, he's not really fulfilling the requirements, now is he?
First, the requirements aren't what you claimed they were. Second, it's not a settled issue. But I will note that Robart's stay is basically devoid of legal reasoning.
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Old 6th February 2017, 12:31 PM   #109
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Originally Posted by Doghouse Reilly View Post
The judge himself seems to have made it clear that a major reason he issued the TRO is that he disagrees with the necessity of the Executive order, which I think is pretty weak reasoning, legally speaking. Judges should determine whether or not the president has the authority to issue an order, disregarding entirely whether or not they agree with the merits of the order. It's the presidentís job to decide the merits, not a judge's.

That's not strictly speaking always true. There have been many times where an action by the government has been ruled unconstitutional based on the merit of the action. Any time a 'least restrictive means' test is applied for example, then the judge is basing part of their ruling on the merits of the action.

The question is if this is one of those situations. By the reasoning of this judge, it doesn't look good. There are other grounds where that issue would indeed be relevant though.
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Old 6th February 2017, 03:23 PM   #110
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Originally Posted by Doghouse Reilly View Post
The judge himself seems to have made it clear that a major reason he issued the TRO is that he disagrees with the necessity of the Executive order, which I think is pretty weak reasoning, legally speaking. Judges should determine whether or not the president has the authority to issue an order, disregarding entirely whether or not they agree with the merits of the order. It's the presidentís job to decide the merits, not a judge's.
Laws are frequently challenged on the basis of the government lacking a compelling interest, despite their authority being legitimate. If I recall, this is part of how Prop 8 was overturned, despite that being an issue backed by direct referendum of voters.

If you propose to restrict an individual, you must demonstrate why that individual should be restricted. If you propose to restrict a group by classification, you must demonstrate why the that broad restriction is more efficacious than individual restrictions based on individual circumstances. The latter is a much higher burden of proof and it is the government side that has to articulate and defend it.
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Old 6th February 2017, 03:32 PM   #111
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Originally Posted by Doghouse Reilly View Post
I read the judges ruling. If he had an analysis of the law that he based his decision on, he didn't explain it there. He basically skirted the issue. Regardless of one's opinions of Trump, I don't see this standing. It may go to the SCOTUS, of course..

ETA: his judgment basically involved saying that he felt the plaintiffs had merit in their suit, and that he couldn't see any compelling reason for Trump's executive order. That's not a legal analysis of whether or not Trump has the right to make such an order or not. Higher courts will have to deal with that, but to pretend that this judge actually made a decision addressing all the legal aspects involved is absurd.

The judge says:
1. The (opposition lawyers) have a reasonable chance of winning.
2. The current order causes great disruption.

Those are the two things necessary to temporarily halt the order, per previous Supreme Court rulings on such temporary halts.

The problem is his judgement about whether Trump has compelling reasons or not. The judicial branch does not get involved in that for the specific issue of immigration because the Constitution leaves it in the hands of Congress (and the President, as Congress so decides, and they gave him great leeway for this.) There's even a name for this exact issue, the plenary powers doctrine.

In other words, the judicial branch, thanks to many Supreme Court precedents, is forbidden from substituting its judgement for that of Congress or the President. Constitutionality is one thing, but "It's probably a bad idea" or "The President's reasoning is somewhat specious" amount to someone in the judicial branch exercising value judgements on the immigration rules.

That's a no no.
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Last edited by Beerina; 6th February 2017 at 03:36 PM.
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Old 6th February 2017, 05:08 PM   #112
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Originally Posted by Delphic Oracle View Post
Laws are frequently challenged on the basis of the government lacking a compelling interest, despite their authority being legitimate.
And those tests basically always come from balancing government power against people's rights.

But citizens of foreign countries have no right to immigrate here.
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Old 6th February 2017, 07:35 PM   #113
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Civil liberties are also eligible for those sorts of tests, as are overstepping restrictions placed on the government.
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Old 6th February 2017, 08:17 PM   #114
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Originally Posted by tyr_13 View Post
Civil liberties are also eligible for those sorts of tests, as are overstepping restrictions placed on the government.
There is no right to immigrate to the US. Preventing someone from doing so does not infringe upon any civil liberties. The federal government has absolute power to decide who can immigrate, the constitution places no restrictions upon it. The only relevant question is how much Trump can do through executive order versus what Congress gets to decide, but Robart's decision doesn't seem to have anything coherent to say about that.
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Old 6th February 2017, 08:23 PM   #115
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Originally Posted by quadraginta View Post
Kinda ironic, ain't it?

Using Obama's decisions to justify his own.
Yes, he blames Obama if something bad happens, but takes credit for Obama's success (latest employment numbers).
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Old 6th February 2017, 08:34 PM   #116
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Originally Posted by Ziggurat View Post
There is no right to immigrate to the US. Preventing someone from doing so does not infringe upon any civil liberties. The federal government has absolute power to decide who can immigrate, the constitution places no restrictions upon it. The only relevant question is how much Trump can do through executive order versus what Congress gets to decide, but Robart's decision doesn't seem to have anything coherent to say about that.
That's the "travel ban for new applicants" you're discussing.

Wouldn't you feel that there's something implicit in the acceptance (by the US Dept of State and Homeland Security) of an immigrant for green card status that said person is subject to the laws and rights of the USA? He canned visas that were already issued. A number of green card holders were subject to the order.

We know Trump thinks he can tear up treaties (good luck getting your new allies to sign or honor any in the future) but is there no force of law behind the procedures previously followed? I think his legal team would have a far easier time of it had he not tried to make it effective immediately but done a phasing in period and come to a legal conclusion on already-issued green cards.

(As someone familiar with immigration, I'm referring to green card holders as people who have already arrived at least once. You are not issued the "green card" from overseas. It is effective when approved and stamped and assigned to you at your port of entry. Ergo when they describe "green card holders" as being impacted, I'm talking about people who've been in the US, met all the requirements and have - as is their right - traveled and are now stuck if Trump gets his way.)
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Old 6th February 2017, 08:52 PM   #117
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Originally Posted by Foolmewunz View Post
Wouldn't you feel that there's something implicit in the acceptance (by the US Dept of State and Homeland Security) of an immigrant for green card status that said person is subject to the laws and rights of the USA?
Yes, I would. It was stupid to try to block them, and thankfully the administration has reversed course on that part already. So that isn't part of Robart's decision.
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Old 6th February 2017, 09:24 PM   #118
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Originally Posted by Ziggurat View Post
Yes, I would. It was stupid to try to block them, and thankfully the administration has reversed course on that part already. So that isn't part of Robart's decision.
Well, I think they reversed field only "post-Robart". They were contradicting each other left-right-and-center on whether it included green card holders "from the seven wicked sisters". Priebus contradicted his interpretation within the same day, I believe.

It will be interesting to see what the DoJ* lawyers provide in their defense. If they're smart, they stick with Constitutionality and the powers of the Executive. They'd best not try any of this "Whoa! Since when does the judiciary get to rule on law stuff."

*Is it DoJ or White House Council? I'm not sure. I don't think they should leave it to Sessions. His defense is likely to be, "Well, they're just not like us, you see? Of course we should keep them out."
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Old 6th February 2017, 09:24 PM   #119
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Super Bowl halftime bit with a verse from this song got me thinking.

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I AGREE

This ban is your ban, this ban ain't mine, man
From the Nile of Sudan to Shiraz, Iran
I like that fine wine, in Cannes on Cloud Nine
This ban was made for Iraquis

As I went golfing at Mar-a-Lago
Saw no hijab on Henry Thoreau
He double-bogeyed the Par 4 Nine Hole
A high-ranking Trump appointee

I flew in First Class, enjoyed the foie gras
Had the rib roast at a West Bank outpost
Chutzpah my kind of law, ma
This ban was made for Yemenis.

Court in San Francisco, hear tell from here in Moscow
Won't ban gooks from departing Heathrow
From the Halls of Montezuma to the Shores of Tripoli
This ban was made for Sudanese
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Old 6th February 2017, 09:47 PM   #120
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Originally Posted by Argumemnon View Post
You think you know more about the law than a judge?
If you go by his posts, absolutely.
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