patrick.net

from the 80% overturned 9th Circuit. SCOTUS is going to retain the powers of the President to conduct national security and foreign policy via his powers of Visa issuance.

9th Circuit's unprecedented interference in the power of POTUS to decide these things will be overturned, Bigly.

And for God's sake let's divide the over-extended 9th circuit in two (or three)

Take it on up to the SCOTUS. All they have to do is agree that the President didn't mean what he said to pass it. ;)

Rew says

Take it on up to the SCOTUS. All they have to do is agree that the President didn't mean what he said to pass it. ;)

Nope, they just have to say Courts can't "Second Guess" Presidential National Security Policies, which is exactly what the 9th Circuit did.

The other Court to hear the travel ban tossed out the complaint.

Rew says

Take it on up to the SCOTUS. All they have to do is agree that the President didn't mean what he said to pass it. ;)

Same happened with Obamacare.

You mean the 4th Circuit, which ... ahem ... also ruled it unconstitutional via the 1st amendment. ;)

Trump better get Jared busy remaking the government. Looks like there are many courts that need to be re-educated. (wink)

TwoScoopsMcGee says

powers of the President

I have been trying to understand the strategy behind the way the ban got written, and the litigation strategy.

Candidate Trump's initial suggestion was quickly revised to address Constitutional concerns, and practically every Constitutional scholar agreed that his revised suggestion to ban Muslim immigration was Constitutional.

The current litigation involves a temporary Executive Order that is due to expire and thus to become moot any day now.

For a long time, certain Republicans have advocated a "unitary executive" and really broad executive power. I suspect they wrote the ban this way so they could try to get a precedent saying Presidents can do whatever they want. It's the "big opening offer", to place a psychological anchor for subsequent negotiations. The President could still legally order an actual ban consistent with what he's been saying since before he got the nomination. His administration saying the President can do whatever he wants without judicial review, and arguing that even his own statements are irrelevant and inadmissible, seems related to trying to expand executive power and eliminate judicial review of executive decisions.

Rew says

ruled it unconstitutional via the 1st amendment.

No court has actually done that. The administration has not litigated the constitutionality of banning Muslims. They have instead argued that the Order isn't a Muslim ban, and that the President's own statements are irrelevant and inadmissible. It is conceivable that the religious Republicans in the administration want a ruling saying religion prevails over secular law, even above national security, so you're playing into their hands by saying they've got one.

Rew says

Trump better get Jared busy remaking the government. Looks like there are many courts that need to be re-educated. (wink)

Yep. SJW crap has grown bigly since Carter banned Iranians and Shi'a.

curious2 says

seems related to trying to expand executive power and eliminate judicial review of executive decisions.

I'm not a huge fan of the unitary executives, but it is indeed unprecedented for SCOTUS to interfere in what is wholly a national security/foreign policy directive.

TwoScoopsMcGee says

from the 80% overturned 9th Circuit. SCOTUS is going to retain the powers of the President to conduct national security and foreign policy via his powers of Visa issuance.

9th Circuit's unprecedented interference in the power of POTUS to decide these things will be overturned, Bigly.

The 9th 78% overturned as opposed to the 87% 6th or the 85% 11th or the 78% 3rd? You should look beyond fox/breitbart once and a while , it was the 43% 4th that has upheld the ban recently not the 9th.

bob2356 says

The 9th 78% overturned as opposed to the 87% 6th or the 85% 11th or the 78% 3rd? You should look beyond fox/breitbart once and a while , it was the 43% 4th that has upheld the ban recently not the 9th.

Nice stats. Thanks for that.

TwoScoopsMcGee says

I'm not a huge fan of the unitary executives, but it is indeed unprecedented for SCOTUS to interfere in what is wholly a national security/foreign policy directive.

The President has made a poor case and he himself, by his own words, has called into question the legality of the order by highlighting the intent he is imposing it in. He has done that because it is to his political advantage only. This plays as a "Government not doing what it should" issue to the base, but to the base alone. This is Bannon crafted and orchestrated EO. There never was anyway this was going to be ruled as legal. It's not about that. It's not about protecting you or me. It's about us drawing the line in the sand and saying:

"I'm on this side. Which are you on?"
"Really. That's awful. I'm over here."

Get it?

Question: With this at play, what do they want most to occur right now?

bob2356 says

The 9th 78% overturned as opposed to the 87% 6th or the 85% 11th or the 78% 3rd? You should look beyond fox/breitbart once and a while , it was the 43% 4th that has upheld the ban recently not the 9th.

I don't ever read Fox, and only go to "Democracy Dies By Our Deep State" anti-democratic WaPo and NYT to mock them.

Two district court judges upheld the travel ban.

This is an unprecedented power grab by Federal Appeals courts to second guess the President.

SCOTUS will uphold much of the Travel Ban, since it clearly delineates nationalities, not religions.

TwoScoopsMcGee says

This is an unprecedented power grab by Federal Appeals courts to second guess the President.

Yeah! What is this!? Some sort of systems of checks and balances? This is unprecedented!

Rew says

Yeah! What is this!? Some sort of systems of checks and balances? This is unprecedented!

Not at all. The idea that courts can re-brand a temporary ban on travel from several wartorn countries (with recent or current massive Jihadi problems) and one major terrorism sponsor is "anti-Islam" is Dangerous. Courts have no Constitutional National Security portfolio. Dangerous Precedent; specific countries, not religions, were named.

The only part that might be legit is favoring minority religions over majority religions. But the travel ban itself is unquestionably legit for national security.

I remind you that Carter not only banned Iranians but required Iranian Visa Holders, inc. Students, to report to immigration authorities by a deadline, which if missed would be automatic expulsion when discovered. He too, was subject to a Federal Court that suspended the ban; this was overturned by a higher Court very quickly.

TwoScoopsMcGee says

SCOTUS will uphold much of the Travel Ban, since it clearly delineates nationalities, not religions.

They might, or they might say it's moot due to expiring by the time it reaches them.

Nationalities vs religions shouldn't be the deciding factor, IMO. In fact, religions would be more in line with the existing bans on totalitarians and others who advocate the violent overthrow of our government. Also, examples like Ayaan Hirsi Ali and the bloggers getting murdered in Bangladesh illustrate why some people need legitimately to get out of countries that have too many Muslims.

Looking at history, when Japan bombed Pearl Harbor, some Japanese Americans helped the Japanese. They were probably Shinto believers, because Shinto commands obedience to the emperor. The FDR administration responded by interning Californians of Japanese ancestry, which was a mistake IMO. He put a German American (Eisenhower) in charge of fighting Germany, and America could have made better use of Japanese Americans in fighting Japan.

The key question isn't where people came from, but where are they trying to go. If they are trying to get out of an Islamic country to avoid being killed by Muslims, then they could probably tell us a lot about that country and how to defend against the people trying to kill us. If they are trying to get out of China so they can advocate Islam here, then we should suggest they migrate to Pakistan instead.

Just more Obama appointees who feel a need to #resist despite taking an oath to uphold the Constitution. They have exposed a weakness in the government powers, whereby through process of delay and denial, activist judges can tie up necessary execute orders for months or years. We need fast track status for judicial reviews of critical orders. If Trump wants to declare eminent domain on the city of Chicago to build a Presidential palace, we should have a speedy process in place that would determine the legality of such all the way to the final arbiter.

TwoScoopsMcGee says

re-brand a temporary ban on travel from several wartorn countries

They didn't re-brand anything. That was Trump's branding and spin on campaign and even now.

TwoScoopsMcGee says

But the travel ban itself is unquestionably legit for national security.

That case wasn't made. The immediate harm appears to outweigh any potential benefit. We don't just comply with the President because he says, "I need to infringe on your constitutional rights, because I need to keep you safe. It's just temporary. Don't worry about it."

Fools this will turn into a "Can the President do what ever he wants" case in Trump's fully loaded Republican SCOTUS in three years from now.

curious2 says

The key question isn't where people came from, but where are they trying to go. If they are trying to get out of an Islamic country to avoid being killed by Muslims, then they could probably tell us a lot about that country and how to defend against the people trying to kill us. If they are trying to get out of China so they can advocate Islam here, then we should suggest they migrate to Pakistan instead.

The problem is obviously that the bad hombres are typically neither forthcoming regarding their intent nor truthful when questioned.

I've still yet to see how one implements a ban based on religion. Even if you could obtain religious records on everyone (which seems very dubious), do you ban anyone who has ever been to a mosque? Otherwise, its pretty easy for someone to say they've converted to Christianity if they want to come to the US.

joeyjojojunior says

Even if you could obtain religious records on everyone (which seems very dubious), do you ban anyone who has ever been to a mosque?

For example, with regard to Syria, current policy imports 98% Sunni Muslims into NATO. The "refugee" process includes free Korans, hijabs, etc. So, we do have a screening policy, but it's backwards.

Conversely, Mecca and Medina are for Muslims only. Funny story about Medina: it used to be called Yathrib, until the original inhabitants made the mistake of welcoming Mohamed and his followers. Within a decade of his arrival, the exemplary "perfect man" had killed or enslaved the entire original population, and to this day the city is for Muslims only. So, our "allies" have religious restrictions, even though we pretend not to.

joeyjojojunior says

The problem is obviously that the bad hombres are typically neither forthcoming regarding their intent nor truthful when questioned.

And yet we are told to rely on government vetting, e.g. of the Ohio State "refugee" who ran over and stabbed 11 people before being shot by police. (And then the Democrats' VP nominee deplored that act of gun violence.)

I'd be very skeptical of anyone in a Burqa or even Hijab, and the immediate family.

Cartoons and blasphemy can be very useful, along with encouraging people to consider other places where they would be happier. Islam commands believers to go to Mecca, they must absolutely do that. I'd be extremely skeptical of anyone who chooses to go there.

Our Israeli allies have a lot of experience questioning people e.g. to protect airport security. Contrary to what our "intelligence" consultants for the CIA might have you believe via "Zero Dark Thirty" and other fake and misleading stuff, torture doesn't help. Psychology does, and alcohol btw. If you have a group of "refugees", set up a contest to see who can draw the funniest cartoons of Mohamed, encourage participants to vote on the winners.

Tenpoundbass says

Fools this will turn into a "Can the President do what ever he wants" case in Trump's fully loaded Republican SCOTUS in three years from now.

As a Star Wars fan, to me, that had a strikingly similar tone to Emperor Palpatine.

curious2 says

And yet we are told to rely on government vetting ...

To enter as a refugee, absolutely. To enter as a tourist, absolutely. The attacks will mostly come form within, now, people who are radicalized here in the US, not over seas.

curious2 says

torture doesn't help.

Putting it mildly. Not only doesn't it help (work), it is used as a means to recruit and do harm back to us.

curious2 says

For example, with regard to Syria, current policy imports 98% Sunni Muslims into NATO. The "refugee" process includes free Korans, hijabs, etc. So, we do have a screening policy, but it's backwards.

But that's because there is no reason to hide one's religious beliefs at present. That would obviously change if our policy changed.

curious2 says

I'd be very skeptical of anyone in a Burqa or even Hijab, and the immediate family.

Are you really so naïve to think terrorists hoping to bypass a Muslim ban and enter the US would wear a Burqa or Hijab?

curious2 says

Cartoons and blasphemy can be very useful, along with encouraging people to consider other places where they would be happier. Islam commands believers to go to Mecca, they must absolutely do that. I'd be extremely skeptical of anyone who chooses to go there.

Me too. Are you going to set up a waystation where all visitors to Mecca must stop and sign in on their journey? Else how would you know who has visited?

curious2 says

torture doesn't help

Agreed 100%.

joeyjojojunior says

Else how would you know who has visited?

KSA has tight border control, even a wall. They don't even allow some Muslim sects into the country. PatNet has at least two threads on that. Also, as I've said elsewhere, we should offer everyone a free one-way ticket to Mecca, on condition that they can never come back here.

joeyjojojunior says

terrorists hoping to bypass a Muslim ban and enter the US would wear a Burqa or Hijab?

The official vetting process already includes social media, and government programs are already recording social media too.

Jihadis all move to CA-free healthcare, free board and lodging with the lefties. problem solved for all of us.

lostand confused says

Jihadis all move to CA-free healthcare, free board and lodging with the lefties. problem solved for all of us.

"Canada also gives us a test case to compare to America’s plan. In five years we can check back and see how it turned out for them. If it worked, we can reassess. Until then we obviously need to wall-off Canada."

curious2 says

KSA has tight border control, even a wall.

What does that have to do with the US not being able to document who goes to Mecca?

curious2 says

The official vetting process already includes social media, and government programs are already recording social media too.

Not sure how this is relevant. It has nothing to do with the fact that Muslims hoping to enter the US despite a Muslim ban would clearly NOT wear a burqa or hijab.

curious2 says

They'd need to change more than their clothing: they'd need to change all their friends, retroactively, and their own past, in order to go undetected. And, again, see the other comments about how Israelis manage to catch people lying to them.

Right--so really you're banning anyone who's ever been a Muslim at any time in their life, even if they've denounced Islam and converted to Christianity. Which is fine, but just wanted to be clear.

curious2 says

They can't get to Mecca without clearing KSA border control.

I'm assuming you mean foreigners entering Saudi? Does that mean you'd also ban anyone who entered Saudi Arabia?

Rather than dance with trolls, I'll simply quote the 9th Circuit:

"For reasons further explained below, we need not, and do not, reach the Establishment Clause claim to resolve this appeal."

The 9th Circuit also called that claim "controversial" and said the District Court should have avoided even writing about it.

Likewise in my own comments, I've said what I've said, and I have not created the imaginary strawmen certain trolls would prefer to dance with.

I read some of the decision and was appalled. First, any politician that makes simplified claims while campaigning could be second-guessed by the Court. Second, they are talking about wanting to see studies and surveys - totally inappropriate for the Court to demand such a thing, or they are reducing the President's plenary powers (much older than the unitary executive concept), and third, Congress already gave the President additional powers to restrict travel and immigration half a century ago, and it has been successfully used since then. Finally, by only listing 6 countries, one of which is a state terror sponsor and the others all places where there is or recently has been an Islamist Insurgency, it's clear it isn't a Muslim ban - Egypt, India, Pakistan, Indonesia, the most populous Muslim countries, aren't on the list at all. it's an enormous stretch to call it a Muslim Ban, unless the Courts are taking simplified and campaign communications (Twitter isn't exactly friendly to long explanations and caveats) as intent.

If courts take this line of reasoning, if the a future President issues an EO about banks, after campaigning to "Smack the Banksters" and "Muzzle the Financial Industry", the banks could get an injunction by claiming "Oh, well the 9th Circuit Court in the Muslim Ban case said... it's clear the president was prejudicial to our rights based on his stump speeches ... being persecuted for our occupation"

In fact, previous court decisions have called the idea of using campaign statements to block the attempts of elected officials to accomplish things as "Dangerous". Fred Phelps whinging about being brought up on state defamation and disorderly conduct charges by a DA who mentioned him several times during the campaign, promising to prosecute him : http://caselaw.findlaw.com/us-10th-circuit/1224862.html

And remember, "I Hate Fags" Phelp was a native born citizen, not an Iraqi with a work visa, and the issue was primarily one of due process; the "Muslim Ban" revolves around Presidential portfolio of national defense and foreign policy, where courts have been exceptionally hesitant to 'second guess' the President. The Immigration and Nationalization Act has never been struck down, nor have similar laws.

Bunch of fucking traitors.

i don't think even Trump cares that much about these. maybe the tax reform.

if there is an attack chances are it will be on the east coast.

yeah economy will tank but at the same time good buying opportunity.

"The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show. The President’s authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.
***
Under Article I of the Constitution, the power to make immigration laws “is entrusted exclusively to Congress.” Galvan v. Press, 347 U.S. 522, 531 (1954); see U.S. Const. art. I, § 8, cl. 4 (“The Congress shall have Power . . . [t]o establish an uniform Rule of Naturalization . . . .”)....
***
Contemporaneous to enacting the Civil Rights Act of 1964 and the Voting Rights Act of 1965, Congress passed the INA of 1965 to eliminate the “national origins system as the basis for the selection of immigrants to the United States.” H.R. Rep. No. 89-745, at 8 (1965). Section 1152(a)(1)(A) was enacted as part of that act, and provides:
[N]o 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. 8 U.S.C. § 1152(a)(1)(A) (emphasis added).
***
EO2’s focus on nationality “could have the paradoxical effect of barring entry by a Syrian national who has lived in Switzerland for decades, but not a Swiss national who has immigrated to Syria during its civil war.”"

Domestic legislation enacted around the same time lists race, sex, and national origin together with religion. Congress chose to omit religion from the list in this particular statute, and to retain earlier bans on totalitarians and persons advocating the violent overthrow of our government. For this reason among others, I think candidate Trump's proposed Muslim ban would stand a better chance than his hastily implemented ban on specific nationalities.

The first question is what SCOTUS might decide, if they take the case. The next question will be whether the President has the resolve to order an actual Muslim ban like what he campaigned on. Meanwhile, I appreciate that the 9th Circuit stated expressly in its opinion what I have been trying to say in my comments: the petitioners' claim of allegedly unconstitutional discrimination on the basis of religion is not even being reached in this case, much less decided. I think the 9th Circuit accomplished a lot by clarifying that.

So to Recap:
4th says it violates the 1st amendment
9th says it is not within the Presidents power to order a travel ban if he cannot show a case for why one is needed

Bottom line: should have just listened to Sally Yates in the first place.

I think Trump is right on this and should win, however, ever since John Benedict Roberts' contortion over Obamacare I have a very diminished expectation for them to rule to the letter of the law. FFS it seems like the leftists on the bench just rule by feelz alone.