Posted on 05/08/2017 9:07:12 AM PDT by xzins
President Trump’s revised executive order, commonly referred to as the travel ban, will be reviewed by a federal appeals court on Monday afternoon.
The case, International Refugee Assistance v Trump, is centered on a battle between presidential authority and the rights of foreigners to travel to the United States. The Fourth Circuit Court of Appeals in Virginia will decide if the travel order violates the First or Fourteenth amendments to the Constitution or the anti-discrimination section of the Immigration and Nationality Act.
The Constitution does not usually apply to non-U.S. citizens on foreign soil. But a professor of immigration law at Fordham University Law School told Forbes that the First Amendment’s Establishment Clause does apply to the federal government. “I’m not arguing the Constitution gives each person a right to enter,” said Jennifer Gordon. But “when the U.S. government establishes a preferred religion, it violates the Constitution.”
The plaintiffs say that the president’s order is blatant religious discrimination since the six countries involved have mostly Muslim populations: Iran, Libya, Somalia, Sudan, Syria, and Yemen.
Refugee groups will find using the Fourteenth amendments’ Equal Protection clause much tougher. The clause states that “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” As the refugees are not within any state’s jurisdiction it will be difficult to argue that the clause applies to them.
The anti-discrimination section of the Immigration and Nationality Act (INA) will apply. But it will face direct opposition from its own language. The law, passed in 1952, contains a provision in section 212(f) laying out presidential authority.
Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may, may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. INA was amended in 1965 to add the anti-discrimination provision that reads, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
The anti-discrimination provision was enacted later than the original INA so the doctrine of implied repeal may apply. When an Act of Congress conflicts with an earlier one, implied repeal dictates that the later prevails and the earlier is repealed. Implied repeal won’t come into play unless the court is unable or unwilling to reconcile the two provisions with a reasonable interpretation.
The travel order will also be decided on in the Ninth Circuit Court of Appeals at a later date.
The supposed evidence that Trump “discriminates” is based on campaign rhetoric.
First, that ignores his refinement of his rhetoric as the campaign progressed and even moreso afterward.
As a political neophyte, it takes pure mind-reading to suggest that isn’t what he meant all along and what he believes.
Second, it is irrelevant compared to the power of the presidency to control security of the nation.
There is nothing about this order that is not security based and on the nature of the security status in each of the affected nations.
This is like saying the president can’t restrict the entry of Nazis, and therefor can’t restrict the entry of people from Nazi countries. While they are blowing us up. Because we believe in diversity.
Trump should challenge the first executive travel ban, not the second, now that he has his man on the Supreme Court.
All of the judges of the 4th circuit will sit en banc. 2 conservatives have recused themselves, one because of a family relationship to the solicitor arguing for the government.
The 2nd...there is no info that I have seen.
Repub appointees are outnumber by something like 8 - 4 after the 2 recusals, iirc.
IOW, the likelihood that this will be against Trump is very strong.
Judges are political appointments.
Please note: “within its jurisdiction” does not equal “within its borders”. Immigrants still fall under the jurisdiction of their native countries and are not therefore afforded Constitutional protection of their God given rights by the USA. Only U.S. citizens fall under the jurisdiction of any or all of these United States.
Can we just hurry up and get this nonsense to the Supreme Court and smack these idiots down so we can get on with business.
I’m pretty sure that whatever Odunga had on Roberts can’t or won’t be used against him now, but I could be wrong.
There is no person in his/her own foreign country who is under the jurisdiction of the US.
I agree with you completely.
The court only struck down the temporary travel ban.
It was a 90 day travel ban that would have expired by now.
The author of the article seems confused.
Extreme vetting has been in place for a while and the travel ban is not needed. This is moving forward only as a PR stunt at this point.
The supposed evidence that Trump “discriminates” is based on campaign rhetoric.
And of course we had a sitting POTUS who said: “If you like your health care plan, you can keep it.” Tantruming Democrats best be careful here. What’s good for the goose...
Roberts voted with the 4 liberals in a case about allowing states to sue banks because individual citizens were not warned properly about taking out too big a loan during the housing crisis.
The individuals will get none of any money from the suit. The state itself was not an injured party. None of the individuals are party to the suit.
It is a truly odd position for Roberts to find himself in.
Trump is intentionally moving it forward because of the principle involved. He could drop it, because, as you say, they are using extreme vetting anyway.
Roberts definitely considered “If you like your plan you can keep your plan” as he decided the constitutionality of Obamacare. /sarc
Trump's political naivete is irrelevant to the question. No executive order has ever been interpreted on the basis of the intent of its issuer made before he had executive authority.
It's nice the libtards have discovered Originalism, but Originalism doesn't extend to comments made when Trump was a child, a student, a real estate developer, or even a campaigner.
If this logic were applied to 0bamacare, a judge could strike down the law on the basis of fraudulent claims made by Pelosi, Reid, and 0bama while they were campaigning for national healthcare. The district ruling on "intent" made on the basis of campaign rhetoric is a short, straight road to chaos.
If the 4th rules in Trump’s favor, Trump will order the travel ban immediately reinstituted.
If the 9th rules against after that, the case will go to the Supremes.
> a battle between presidential authority and the rights of foreigners to travel to the United States
There is no right for foreigners to travel to the United States.
The first & fourteenth amendments, as well as all the rest, apply only to Americans. All others are not covered by the Constitution. Only upon entry into the United States are foreigners allowed certain protections, but only because we extend them to them out of kindness and generosity. Time to stop this nonsense that foreigners have any access to Constitutional rights. Especially when they are not even physically present.
The judiciary has no business in this The law is clear...Even if it were a ban on Muslims, that is the presidens right to ban them. And if people don’t like it they get to vote against him in the next election.
Liberal judges are trying to ruin representative democracy
Even if it happened AFTER he became president, I would still argue that people can change their view, or they can sometimes wrongly state what they actually believe about something.
In either case, it would mind-reading for a judge to swear that someone had view A when they had view B. And if the written law does NOT indicate any inclination toward view A, but is neutral, then the judge has no basis to use that against a president.
There are about 900 million muslims NOT affected by Trump’s travel temporary restriction. Those countries mentioned do have problems with providing reliable information by which a person could be vetted.
It the 2 circuits disagree it will go to the Scotus.
As POTUS, Trump could appeal to Scotus in any case.
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