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Old 7th February 2017, 12:46 PM   #161
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Originally Posted by tyr_13 View Post
Actually...it kind of is. Twice at least.

Deciding who qualifies as 'really' in what religion was a constitutional violation.
These decisions all affect citizens and US residents, who have rights under US law that foreign non-residents do not have. They do not serve as precedent for this question. The second link is a bit of a mess to sort through so I haven't made heads or tails of it yet beyond that, but the issue in the first link is clearly about the free exercise of religion, and not the establishment of religion.
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Old 7th February 2017, 12:55 PM   #162
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Originally Posted by Ziggurat View Post
These decisions all affect citizens and US residents, who have rights under US law that foreign non-residents do not have. They do not serve as precedent for this question. The second link is a bit of a mess to sort through so I haven't made heads or tails of it yet beyond that, but the issue in the first link is clearly about the free exercise of religion, and not the establishment of religion.
The Constitution does not limit such protections to citizens nor residents; it limits what the government can do. It does not say, 'Congress can make no laws respecting an establishment of religion, or prohibiting free exercise thereof for citizens and residents'.

Are you having trouble with the tabs? My script blocker was giving me a bit of trouble, but the link should have had the opinion tab open, with full text available clicking the other links on the page such as 'read more'.

For context, this is part of the decision on Establishment grounds,
Quote:
Any suggestion that Hosanna-Tabor’s asserted religious reason for firing Perich was pretextual misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful is the church’s alone.
Because the government can't make the determination of who is really in the religion and who is not, only the church must be allowed to make that call. This exact same principle applies to a Muslim ban, unless it were to rely on self-reporting. Then it would still be questionable if it were Constitutional AND be even more stupidly ineffective.
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Old 7th February 2017, 12:56 PM   #163
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Just for the record, the US government, from 1989 onward, essentially granted instant refugee status to anybody from the Soviet Union who could prove (or perhaps even claim) to be Jewish. It did so for certain other minority religious groups in the Soviet Union, Iran, and a few Southeast Asian countries.

The relevant legislation was the Morrison-Lautenberg Amendment of 1989, which was renewed annually. As far as I know, no court has ruled on whether or not such legislation violates the Establishment Clause. I would have thought because it obviously doesn't. Of course, Trump has never been President before, so I can see how the Establishment Clause may soon be granted broader application never before envisioned.
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Old 7th February 2017, 01:06 PM   #164
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Originally Posted by tyr_13 View Post
The Constitution does not limit such protections to citizens nor residents; it limits what the government can do. It does not say, 'Congress can make no laws respecting an establishment of religion, or prohibiting free exercise thereof for citizens and residents'.

Are you having trouble with the tabs? My script blocker was giving me a bit of trouble, but the link should have had the opinion tab open, with full text available clicking the other links on the page such as 'read more'.

For context, this is part of the decision on Establishment grounds,


Because the government can't make the determination of who is really in the religion and who is not, only the church must be allowed to make that call. This exact same principle applies to a Muslim ban, unless it were to rely on self-reporting. Then it would still be questionable if it were Constitutional AND be even more stupidly ineffective.
I'll admit I only skimmed it, but I don't think the decision says anything that broad. It says the government cannot decide who is an official position in a religious institution, not who is or is not an adherent of that religion. If the government couldn't decide who was a member of a religion, then pretty much the entire apparatus for addressing religious discrimination and religious rights would be thrown into chaos.
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Old 7th February 2017, 01:17 PM   #165
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Originally Posted by tyr_13 View Post
The Constitution does not limit such protections to citizens nor residents;
It limits a lot of things to citizens and residents, and if you insist on making the distinction, aliens on US soil. For example, equal protection clause has no meaning on foreign soil.

Quote:
Are you having trouble with the tabs?
Maybe. I don't have a script blocker, but it's still giving me a giant wall of text that I don't intend to work my way through.

Quote:
Because the government can't make the determination of who is really in the religion and who is not, only the church must be allowed to make that call.
And why is the church allowed to make that call? Because making that call for them interferes with their free exercise of religion. This is a free exercise case, not an establishment case. That should be obvious since the suit wasn't about any government action.

Quote:
This exact same principle applies to a Muslim ban, unless it were to rely on self-reporting. Then it would still be questionable if it were Constitutional AND be even more stupidly ineffective.
Sure, there's a major problem with efficacy, but that's not what we're discussing. And if we apply the same principle, we don't get the answer you assume. Whose free exercise of religion is being infringed by the US government? Nobody's, actually, because nobody has a right to immigrate to the US, and the US isn't preventing anyone from exercising their religion anywhere. If some foreign government is infringing this right, that doesn't create any liability for the US. So how does preventing someone from immigrating to the US infringe upon their constitutional rights? It doesn't.
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Last edited by Ziggurat; 7th February 2017 at 01:19 PM.
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Old 7th February 2017, 04:35 PM   #166
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Never a good day for the admin when the government lawyer says -- mid-argument -- he's not sure he's convincing the Court
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Old 7th February 2017, 05:21 PM   #167
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Originally Posted by Sabrina View Post
...

The plain fact is, there already is a system in place for what many would call "extreme vetting". Here's how it works:

<snipped for brevity>

The entire process can take 12-18 months, and that's if everything is done in a timely fashion. It is constantly being refined, and it's worth noting that thus far only two Iraqi terrorists have ever slipped through the cracks since this system was implemented, and it's processed literally thousands of refugees. That's a damn good record however you slice it, so clearly our current vetting process works and works damn well. Here's a link to an infographic that explains it even better, if you're a more visual than textual learner. Given that, does a Trump supporter in this thread want to explain to me exactly how that process can be improved upon?
I appreciate your taking the time and trouble to post the above. Obviously the vetting process has worked very well and has been refined over the past sixteen years. I think it's worth noting that the two Bowling Green suspects were reportedly identified after the military developed a data base of persons whose fingerprints were found on IEDs used against U.S. military forces in the Middle East. Once the data base was established they started running people through it, including people who had already been granted visas or entry to the U.S.

I think it is shameful for Trump, Pence and others in the administration to say, "We need to do some checking before letting people enter," implying the current process is very cursory.

One intelligence official I saw interviewed on PBS said, the reason that -- unlike in Europe -- we have not seen any 'sleeper cells' established in the U.S. is because of the lengthy vetting process. That terrorist organizations are not going to spend time and resources trying to get people into the U.S. when they know the approval process can take 18-24 months and the chances are the persons will be denied entry anyway. It's just not worth it.
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Old 7th February 2017, 07:31 PM   #168
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Originally Posted by Stacko View Post

I listened to the live stream and gov't lawyer seemed to flounder under questioning by the justices; lots of hesitation and "um, err, uh". WA state lawyer seemed much better prepared and articulate. Much of questioning centered on issue of the state's standing.
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Old 7th February 2017, 07:47 PM   #169
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Originally Posted by ferd burfle View Post
I listened to the live stream and gov't lawyer seemed to flounder under questioning by the justices; lots of hesitation and "um, err, uh". WA state lawyer seemed much better prepared and articulate. Much of questioning centered on issue of the state's standing.
Yes, he was horrible. I don't know why they didn't stick with Michelle Bennett who argued in the district court for the government. She did a pretty good job.

There were so many easy questions that guy couldn't field. Why he couldn't distinguish a wife suing on behalf of her husband trying to get back into the country and a state suing on behalf of its residents so they can enjoy the arrivals of unnamed aliens getting into the country is beyond me. I mean sure, a wife may have a need to screw her husband, and the state may have a need to screw its people, but the screwing really is quite different in the two cases.
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Old 7th February 2017, 10:07 PM   #170
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Originally Posted by sunmaster14 View Post
Yes, he was horrible. I don't know why they didn't stick with Michelle Bennett who argued in the district court for the government. She did a pretty good job.

There were so many easy questions that guy couldn't field. Why he couldn't distinguish a wife suing on behalf of her husband trying to get back into the country and a state suing on behalf of its residents so they can enjoy the arrivals of unnamed aliens getting into the country is beyond me. I mean sure, a wife may have a need to screw her husband, and the state may have a need to screw its people, but the screwing really is quite different in the two cases.
Honestly, I was a bit flabbergasted that they took their overall approach. Is the case being manipulated by Teh Donald/Bannon because they want to rally supporters behind it? Why bother with all this "because the Congress named those as "counties of interest"" nonsense. Their hard line defense should simply be on the basis of constitutionality. Hell, I'm against them but know that that's their most easily defensible route.

Someone in a very biased blog commented yesterday that Trump's team wants this in the Supreme Court but not until he's got his 5-4 majority. Is this why they called in a muddle-headed attorney?
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Old 7th February 2017, 10:21 PM   #171
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Originally Posted by Foolmewunz View Post
...

Someone in a very biased blog commented yesterday that Trump's team wants this in the Supreme Court but not until he's got his 5-4 majority. Is this why they called in a muddle-headed attorney?
Doubtful. You give team Trump too much credit.

I've been saying all along and I still say it, if you want to understand Trump, just look at the DSM V.

While the people around him are independent of Trump's mental illness, they are nonetheless limited by it. Trump is offended the courts are not bowing down. But the courts are not bowing down. Trump is not waiting for Gorsuch to be confirmed. The team might be thinking that, but Trump isn't.

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Old 7th February 2017, 10:23 PM   #172
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I'd like the court to get to the need for the ban. Refugees can be banned for fiscal reasons. The visitors and students are vetted perfectly well now. They canneven be sent back if something new turns up from their past.
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Old 8th February 2017, 02:02 AM   #173
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Originally Posted by Foolmewunz View Post
Honestly, I was a bit flabbergasted that they took their overall approach. Is the case being manipulated by Teh Donald/Bannon because they want to rally supporters behind it? Why bother with all this "because the Congress named those as "counties of interest"" nonsense. Their hard line defense should simply be on the basis of constitutionality. Hell, I'm against them but know that that's their most easily defensible route.

Someone in a very biased blog commented yesterday that Trump's team wants this in the Supreme Court but not until he's got his 5-4 majority. Is this why they called in a muddle-headed attorney?
Is there any reason to think the government will have grounds to appeal if they don't like the verdict?
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Old 8th February 2017, 03:44 AM   #174
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Originally Posted by Darat View Post
Is there any reason to think the government will have grounds to appeal if they don't like the verdict?
Well, if they don't introduce constitutionality and the current case is heard solely on the dicey basis they offered, they might not actually have any grounds to appeal and the Supremes (not likely but it's possible) could refuse to hear it. But I doubt it. I'm pretty sure the Supremes would hear it even if his lawyers keep tripping themselves up. We are decades past the era when the Supreme Court was apolitical.

Because the decision was made in a U.S. District Court (it's referred to as a Washington court but it's a federal court, not State of Washington) it is now in the District Court of Appeals. The only step above that is the Supreme Court.

There are legal wrinkles within wrinkles, though. The current Court of Appeals or the Supremes could decide to rule on the very narrow issue of whether that first court has a right to issue a TRO, thus avoiding having to actually tackle the question of immigration policy.
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Old 8th February 2017, 05:57 AM   #176
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Originally Posted by Foolmewunz View Post
Well, if they don't introduce constitutionality and the current case is heard solely on the dicey basis they offered, they might not actually have any grounds to appeal and the Supremes (not likely but it's possible) could refuse to hear it. But I doubt it. I'm pretty sure the Supremes would hear it even if his lawyers keep tripping themselves up. We are decades past the era when the Supreme Court was apolitical.
The Supreme Court will definitely hear the overall case if the government loses at in the 9th circuit court of appeals, since there is technically a circuit split, with district courts in different circuits making different contradictory rulings. Technically, though, what's before the 9th circuit court of appeals is the issue of staying the district court judge's TRO. Given that that's an interlocutory appeal, which requires the lower court's approval, it's possible that the appeals court might just reject it out of hand. A bit of a mess. A TRO is supposed to be for such a short time that appealing it is moot, in theory. I expect though that the appeals court will make a more substantive ruling about whether a TRO was proper or not. Which then the Supreme Court may review (not a sure thing).

Quote:
Because the decision was made in a U.S. District Court (it's referred to as a Washington court but it's a federal court, not State of Washington) it is now in the District Court of Appeals. The only step above that is the Supreme Court.
Your nomenclature is a bit confused. Most people would think you meant the Court of Appeals for the District of Columbia Circuit, if you wrote District Court of Appeals. Which is one of the thirteen appeals court. The current appeal is before the Ninth Circuit Court of Appeals, which is generally acknowledged to be the most liberal appeals court (and, not coincidentally, the appeals court most overturned by the Supreme Court).

Quote:
There are legal wrinkles within wrinkles, though. The current Court of Appeals or the Supremes could decide to rule on the very narrow issue of whether that first court has a right to issue a TRO, thus avoiding having to actually tackle the question of immigration policy.
For sure, they won't make a substantive ruling as to the legality of the executive order itself in this round. They'll only rule whether a stay of an injunction is appropriate. The Constitutional directive to make narrow rulings about only the issues before the court is one of the reasons the legal process in the US is so frustratingly slow and tedious. That doesn't mean we won't get a strong indication of which way the court is leaning on the more substantive issues, however. Theoretically, a final decision against the government would require more development of the facts behind the reasoning for the executive order. Of course a decision in the government's favor could be made quite quickly based on the clear Constitutional authority and the four corners of the executive order (which clearly doesn't use religion as a guiding policy).
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Old 8th February 2017, 04:20 PM   #177
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Originally Posted by Ziggurat View Post
It limits a lot of things to citizens and residents, and if you insist on making the distinction, aliens on US soil. For example, equal protection clause has no meaning on foreign soil.
Neither the Establishment Clause, nor the Free Exercise Clause, have that limit.



Quote:
Maybe. I don't have a script blocker, but it's still giving me a giant wall of text that I don't intend to work my way through.



And why is the church allowed to make that call? Because making that call for them interferes with their free exercise of religion. This is a free exercise case, not an establishment case. That should be obvious since the suit wasn't about any government action.

Sorry that my link isn't working for you well. Let me clear some things up though. The court explicitly ruled based on both clauses.

Quote:
According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.
Choosing who is 'really' of a faith falls into the exact same reasoning. The government has no place 'picking' who is of what faith.


Quote:
Sure, there's a major problem with efficacy, but that's not what we're discussing. And if we apply the same principle, we don't get the answer you assume. Whose free exercise of religion is being infringed by the US government? Nobody's, actually, because nobody has a right to immigrate to the US, and the US isn't preventing anyone from exercising their religion anywhere. If some foreign government is infringing this right, that doesn't create any liability for the US. So how does preventing someone from immigrating to the US infringe upon their constitutional rights? It doesn't.
It doesn't matter if immigration is a right or not, the government can't punish, nor reward you, for what religion you follow. It shouldn't even try to tailor laws or policy to aid or hinder specific religions. Preventing them from immigrating based on their religions is an overstep of the limits placed on the government in the Constitution.
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Old 8th February 2017, 06:01 PM   #178
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Originally Posted by tyr_13 View Post
Neither the Establishment Clause, nor the Free Exercise Clause, have that limit.
But again, no religion is being established here, and nobody's free exerse of religion is being limited by the US government either.

Quote:
Sorry that my link isn't working for you well. Let me clear some things up though. The court explicitly ruled based on both clauses.
Quote:
According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.
Choosing who is 'really' of a faith falls into the exact same reasoning. The government has no place 'picking' who is of what faith.
No, it's not exactly the same reasoning. When you decide who can minister in a church, you're controlling that church, and therefore establishing a religion. Youre also interfering with the free exercise of religion by that church. But neither apply here. No religious organization is being controlled in any way. Nobody's choice of worship is being controlled in any way by the US government either. All that's happening is people are being prevented from immigrating, something that nobody has any constitutional right to.

Quote:
It doesn't matter if immigration is a right or not, the government can't punish, nor reward you, for what religion you follow.
That has never been tested. Government frequently discriminates in immigration on the basis of factors that it would never be allowed to discriminate on domestically.

Quote:
It shouldn't even try to tailor laws or policy to aid or hinder specific religions.
"shouldn't" is different than "cannot".
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Old 9th February 2017, 04:23 PM   #179
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9th Circuit upholds injunction/stay on the travel ban.

No urgent need for the travel ban to continue while addressing the Constitutionality of the Exe. Order.

Unanimous decision.
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Old 9th February 2017, 04:29 PM   #180
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Haha
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Old 9th February 2017, 04:29 PM   #181
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Oooh, there's going to be some really angry tweets coming...
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Old 9th February 2017, 04:45 PM   #182
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Originally Posted by Cleon View Post
Oooh, there's going to be some really angry tweets coming...
And he may have to think twice about sending out Kellyanne Conway to deal with the press:

Trump aide Kellyanne Conway 'wrong' over Ivanka plug

Quote:
The standards chief of the US Congress says a senior Trump aide was "wrong, wrong, wrong" to promote Ivanka Trump products on live television.
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Old 9th February 2017, 04:47 PM   #183
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Apparently repeatedly saying you're going to enact a Muslim ban is not a good idea when trying to ban people from the country for "completely unrelated reasons".
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Old 9th February 2017, 04:47 PM   #184
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Originally Posted by Cleon View Post
Oooh, there's going to be some really angry tweets coming...
The last sane person in Trump's camp (is there a sane one left) must be trying to tie his thumbs, right now. Hopefully, Bannon-think wins out and he decides to go to war with the judges in the Circuit Court of Appeals. One thing about judges is that they may hate each other or all think that they're smarter than the other guy, but also all think that that black robe is a form of sanctification. Even the Supremes will circle the wagons to an extent.

Upstream judges:
First they came for the family court judges but that didn't bother me, I got past that level thirty years ago.
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Old 9th February 2017, 04:50 PM   #185
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Who didn't see his reply come in ALL CAPS?

SEE YOU IN COURT!

Uh, kiddo, you just lost in a court.
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Old 9th February 2017, 04:52 PM   #186
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Originally Posted by NoahFence View Post
Who didn't see his reply come in ALL CAPS?

SEE YOU IN COURT!

Uh, kiddo, you just lost in a court.
We have achieved all caps!? And the WA AG has the last laugh:
DENIED. UNANIMOUS. PER CURIUM.
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Old 9th February 2017, 05:02 PM   #187
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So the whole "It is not really Muslim Ban" routine is not playing that well...
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Old 9th February 2017, 05:02 PM   #188
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Originally Posted by Stacko View Post
I bet Trump wishes he could just settle this case.
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Old 9th February 2017, 05:08 PM   #189
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Originally Posted by Stacko View Post

I'm sure he just "misspoke" ... all those times.
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Old 9th February 2017, 05:08 PM   #190
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Originally Posted by dudalb View Post
So the whole "It is not really Muslim Ban" routine is not playing that well...
The trick is to uphold the security of the nation and the Constitution at the same time.
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Old 9th February 2017, 05:17 PM   #191
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Originally Posted by Ziggurat View Post
It limits a lot of things to citizens and residents, and if you insist on making the distinction, aliens on US soil. For example, equal protection clause has no meaning on foreign soil.



Maybe. I don't have a script blocker, but it's still giving me a giant wall of text that I don't intend to work my way through.



And why is the church allowed to make that call? Because making that call for them interferes with their free exercise of religion. This is a free exercise case, not an establishment case. That should be obvious since the suit wasn't about any government action.



Sure, there's a major problem with efficacy, but that's not what we're discussing. And if we apply the same principle, we don't get the answer you assume. Whose free exercise of religion is being infringed by the US government? Nobody's, actually, because nobody has a right to immigrate to the US, and the US isn't preventing anyone from exercising their religion anywhere. If some foreign government is infringing this right, that doesn't create any liability for the US. So how does preventing someone from immigrating to the US infringe upon their constitutional rights? It doesn't.
So you are OK with religious discrimination on the part of the US Government?
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Old 9th February 2017, 05:41 PM   #192
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Originally Posted by NoahFence View Post
Who didn't see his reply come in ALL CAPS?

SEE YOU IN COURT!

Uh, kiddo, you just lost in a court.
He thinks this is like one of his many lawsuits. He can just lawyer up and overwhelm the opposition by being willing to spend more money than they are.

He's in for a bit of a surprise as to how this works.

BTW: The AG from Washington state thanks Donald Trump for getting him elected governor next November.
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Old 9th February 2017, 05:46 PM   #193
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Is the Sunmasterziggurat Court not in session? I just don't know where to go with my opinions until our learned scholars explain to us how two independent courts are technically and legally wrong and that it will take a stacked Supreme Court to undo their activist malevolence.
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Old 9th February 2017, 05:49 PM   #194
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Old 9th February 2017, 05:54 PM   #195
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Originally Posted by Sabrina View Post
I don't know of a single person in the government who doesn't think the EO was flat out stupid and entirely useless.

While it is true that ISIL and other terrorist groups can be easily found in the seven countries named in the ban, they can also be found in the countries NOT named in the ban (i.e. Saudi Arabia, Egypt, Oman, Turkey, and multiple countries in the Levant and Africa). Trump's stated reason for the ban was to prevent terrorism, however there have been no terrorist attacks against US interest from any of the seven named countries for many years, unlike the countries NOT named on the list (i.e. fifteen of the nineteen hijackers on 9/11 being from Saudi Arabia).
Sabrina, I am totally with you here, but if I may make a completely pedantic remark, you mean "e.g.", not "i.e." there. Sorry, just a pet peeve of mine which should not distract from your main point, but some of us are really unable to help ourselves from commenting on these misuses of terms.

No offense intended, but if I didn't post this, I would grind my teeth to nubs. You understand, I hope.
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Old 9th February 2017, 06:05 PM   #196
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Originally Posted by Foolmewunz View Post
Is the Sunmasterziggurat Court not in session? I just don't know where to go with my opinions until our learned scholars explain to us how two independent courts are technically and legally wrong and that it will take a stacked Supreme Court to undo their activist malevolence.
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Old 9th February 2017, 06:09 PM   #197
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Full transcript here

Trump's ego is predictably the dominant factor in his response. They could rescind the order and write a better one. Instead Trump is doubling down on his fear mongering saying we need this EO, we're not safe.

Of course the real problem doesn't exist, we already have extreme vetting. Maybe it needs tweaking, maybe not. The improvements Trumpers have been tossing around were impossible to carry out, ask people what internet sites they've surfed? Oh yeah right, they're going to tell you. Or search their phones? Like they wouldn't have thought of that and got a new one?
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Old 9th February 2017, 06:13 PM   #198
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Originally Posted by dudalb View Post
So you are OK with religious discrimination on the part of the US Government?
I didn't say I was OK with it. I said I don't think it's unconstitutional. Do you understand the difference between these two statements?

I don't understand this belief that people seem to have that the constitution will magically keep the government from doing anything bad, and that conversely anything bad the government does must be unconstitutional.
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Old 9th February 2017, 06:14 PM   #199
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Originally Posted by phiwum View Post
Sabrina, I am totally with you here, but if I may make a completely pedantic remark, you mean "e.g.", not "i.e." there. Sorry, just a pet peeve of mine which should not distract from your main point, but some of us are really unable to help ourselves from commenting on these misuses of terms.

No offense intended, but if I didn't post this, I would grind my teeth to nubs. You understand, I hope.
[sidetrack] Well at least explain the two:

e.g. = for example

i.e. = in other words

Google:
Quote:
I.e. and e.g. are both abbreviations for Latin terms. I.e. stands for id est and means roughly "that is." E.g. stands for exempli gratia, which means “for example."
[/sidetrack]
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Old 9th February 2017, 06:16 PM   #200
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"Denial of the reversal of the suspension of the ban rescinded."

I'm not sure where we are now but I think it's good.
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