Posted on 02/08/2017 7:10:27 AM PST by Lockbox
Let’s look at sections of the Opinion Justice Anthony Kennedy wrote for Arizona v. United States 567 U.S. ___ (2012)
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982) ; see generally S. Legomsky & C. Rodríguez, Immigration and Refugee Law and Policy 115–132 (5th ed. 2009). This authority rests, in part, on the National Government’s constitutional power to “establish an uniform Rule of Nat- uralization,” U. S. Const., Art. I, §8, cl. 4, and its inher- ent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936) ).
The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici Curiae; see also Harisiades v. Shaughnessy, 342 U. S. 580 –589 (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24–30.
Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. See Gregory v. Ashcroft, 501 U. S. 452, 457 (1991) ; U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring). From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2.
The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.
I agree. That should have been a loud and clear message in the argument . Who knows what the president has been told. He cannot come out and declare something that’s top secret. I can’t believe that “the most powerful person in the land” is put through this.
As a former attorney, I tend to think like a lawyer and this case really could not be more simple.
There is a federal statute which is perfectly on point. Could not be more clear in support of the EO.
There is case law which further supports the EO.
If that’s not enough for you, the US Constitution also backs up the President’s position.
Furthermore, the states of Washington and Minnesota have no standing to sue.
All of the hue and cry about bigotry, fairness, etc are just noise. Irrelevant. The only issue is whether the President had the authority to issue the travel order. The answer is incredibly simple—absolutely. He can do it even without stating any rhyme or reason.
Which court?
But we did just pick up two terrorist that managed to get in.
There is ALWAYS an impending event. Attacks are not spontaneous. It's not if...it's when....
We may want to hold off on an appeal to SCOTUS....if we lose there it would be disasterous
This court that just had the hearing.
Of course we should hold off on a USSC appeal. In a few days or weeks Gorsuch will be on the court and if in the meantime we suffer another terrorist attack it will accrue solely to the Left and their insanity in preventing the President from doing his duty.
So if President Trump had his pick in place on the court, Kennedy becomes the swing vote. Kennedy should rule in favor of President Trump now if the 9th Circus goes against him, as we all expect.
I don’t follow you. Under the current 4/4 split, even if/when Kennedy rules in Trump’s favor the 9th Circuit decision stands.
“I expect the Court to rule in Trump’s favor”
I think they will try to rewrite the EO and let it stand. We’ll see.
If they strike it down they will get overturned. If they just limit the scope the DOJ might not appeal.
Even the 9th semi follows the constitution. They should overturn Roberts decision.
“The attorney for trump yesterday was ill prepared to argue this point.”
Face it, he was a dip$hit! Sessions needs to get his appointment. His Department is full of worthless crap like this guy.
I agree with you - the legal precedent is extremely clear and courts, unlike the short news cycle in the media, are bound by precedent.
The 9th Circuit has gone far afield on many issues regarding social issues, but despite the “social justice” aspect of this lawsuit the law is quite clear and established. In fact, I would be willing to bet there are decisions in every circuit from appeals by illegal aliens that uphold the law. There is also the real important issue of standing - another clear area legally that is a very difficult hurdle for any state to overcome given the statutory authority of Fedgov for borders.
There is another aspect to this case that is far more dangerous - the separation of powers. This deserves the most attention, but it has received very little. If the court upheld this ruling one could make an argument that every executive action could be stalled, stopped, or impeded by the courts. It would be a defacto usurpation of executive authority by a judiciary that is not elected and it could create an endless judicial review of every executive action if the opposition party abused the right to sue. The 9th Circuit has to be aware of this and it is for this reason the case is DOA at SCOTUS.
I understand, correct me if I’m wrong, Justice Kennedy can rule on the 9th Circus decision against President Trump, or he can pass the decision up to the full court. Justice Kennedy is like the gatekeeper for the 9th Circus.
“This case is headed to the SCOTUS.”
And for that period of time before SCOTUS acts, one way or the other, the courts will have “discovered” the Constitutional Right to open, unregulated borders. Soros and Hillary’s dream will have come true. Everyone on Earth has the “right” to come to the U.S.
Oh glory.
Well, I hope you're right but my perception of the Ninth Circuit is that they are so partisan that they will completely ignore the law and legal precedents.
Kennedy in no way, shape or form can unilaterally overturn the 9th Circuit decision if it rules against Trump. All Kennedy can do is (a) decide whether the full court hears the appeal; (b) continue or end the stay pending such appeal. On the former, if he denies the appeal the 9th Circuit decision stands. If he grants the appeal it goes to the full Supreme Court for further review and final decision.
“There is another aspect to this case that is far more dangerous - the separation of powers. This deserves the most attention, but it has received very little. If the court upheld this ruling one could make an argument that every executive action could be stalled, stopped, or impeded by the courts. It would be a defacto usurpation of executive authority by a judiciary that is not elected and it could create an endless judicial review of every executive action if the opposition party abused the right to sue.”
And that is exactly the Democrat nuclear option regarding Trump. They have endless money, lawyers and they pretty much own the judicial branch (enough of it to make this strategy tenable anyway). The Left will sue over every single Trump decision - and even if in the end SCOTUS makes it right, they’ve slow-walked Trump policy through the courts, delaying the implementation of Trump’s program. Which is exactly what they want to do, slow everything down to a snail’s crawl and run out the clock on the Trump Administration - leaving it as an unsuccessful, do nothing administration. This is their strategy, the longer it lasts as a viable strategy, the more damage they do.
Good points.
Where does it go from here?
Even the 9th Circus knows what you say is true but politics dictate! Trump would be wise to tell the 9th Circus to stick it and ignore them if they overturn. He has the full weight of law behind him. He did give them a chance to do the right thing. We’ll see. The judicial swamp is dirtier than the political swamp. Drain that too with the help of congress.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.