9th Circuit Presses Trump Admin On Travel Ban Legality

9th Circuit Presses Trump Admin On Travel Ban Legality


I was looking around in here, Breaking Alternative News, US Political Madness, and didn't see a recent thread on this so if there's one I missed I apologize and feel free to close this one. This story is from yesterday. I think most folks here know the background. The key issue I would address is the idea that the President's campaign statements should be part of the proceedings. I don't see how there's legal precedent for that. After all, if you say you're going to kill someone, and they are murdered the next day, your statement is not going to be enough to convict you if the facts of the case prove you didn't do it. That is precisely what is happening here. Trump said he wanted to do a Muslim ban, that's true. However, the facts of the case are that this is not a Muslim ban. Around 80% of the world's Muslims are unaffected by the order. His statement was that he would stop all Muslims. This doesn't do that. It's pretty black and white. The facts of the case override campaign statements that weren't followed up on.

a reply to: face23785

I see.

So your argument here is that because this will not stop all the Muslims who might come into the US, this is not a ban which will disproportionately affect Muslims or people from majority Muslim countries?

I would caution you that factually, that argument falls flat, because of course, this will disproportionately and as a result of discriminatory attitudes held by the President, or at least touted by him, affect those trying to travel from countries which are home to populations which have a massive Muslim majority.

And as it happens, the example you gave involving a threat to kill, is not in the least water tight. In that example, if you make that threat, you STILL go to jail, because whether you actually killed someone or not, simply threatening to do so is a criminal offence. Furthermore, it is also a prime way to get oneself put under observation, with restraining orders enforced which prevent your being able to access, speak to, or even get within sight of the target of the threat. Mr Trump having already issued his threat, should not be surprised in the least that the judges who have blocked him, have done so. It is their job to prevent injustice being issued forth down any channel they have a say in. They are doing their jobs. If Trump wanted a different outcome, he ought to have kept his far right waffle to himself.

a reply to: face23785

The judiciary is an abject failure if they cannot point out the unlawfulness of the order, but can only refer to Trump's past statements of when he was still a private citizen. It's all nonsense, and all of it delivered by Bill Clinton appointed judges. This is crooked.

a reply to: TrueBrit

Actually your argument is falling flat. You've conceded that it's a false premise that what one says is equivalent to what one does. The hypothetical person in my example is not guilty of murder, but something else based on the facts of what actually happened vs what he said. Extending that to the current situation, Trump is not guilty of trying to institute a Muslim ban, since the order clearly makes no attempt to institute one. The argument that his intention is based in discrimination falls even flatter when the order allows 1.6 billion Muslims (that you're arguing he wants to discriminate against) to immigrate to the US. It simply doesn't add up. The text of the order is not a Muslim ban. It's not a Muslim ban. It's 100% legal.

Let's not forget candidate Obama said he believed marriage was between a man and a woman. He later signed an executive order banning discrimination based on sexual orientation against federal employees. Should this executive order be struck down because his campaign comments were discriminatory against gays? The order isn't, but I mean, who cares what's actually in the order right? We should only judge based on campaign rhetoric right?

Trump's executive order is not discriminatory and it's totally legal. He did not fulfill his campaign rhetoric to ban all Muslims. That's the facts of the case.

I would love to know what clause or portion of the Constitution a temporary partial travel ban violates.

I'll wait.

Hint: Constitution applies to USA citizens.

a reply to: jjkenobi

SCOTUS also ruled a while back it does apply to non-citizens but only once they've made it to the US. Non-citizens presently in other countries planning to travel or immigrate here have no rights under the Constitution.

a reply to: face23785

The argument that his intention is based in discrimination falls even flatter when the order allows 1.6 billion Muslims (that you're arguing he wants to discriminate against) to immigrate to the US. It simply doesn't add up. The text of the order is not a Muslim ban. It's not a Muslim ban. It's 100% legal.

Instead of trying to make this about Obama (it's not, it's about Trump), why don't you look at actual facts? Have you heard of the Hart-Celler act, 1965 which states there cannot be discrimination based on nationality?

If you had, perhaps you wouldn't be so quick to say how legal the proposed ban is..... but you didn't, did you? If you now say you did, why aren't you referring to it? Before you go and use the usual kneejerk reaction, the Obama administration said that immigrants from the countries in question should be subject to further scrutiny when applying for immigration, not that they should be banned.

Stupid things like laws and 'so called' judges shouldn't count if Trump wants something I guess?

cis.org...

The "Ban" if it's discriminatory against anyone, it's against terrorists.

But it seems lots of people want to support terrorists coming into the US... Interesting.

a reply to: uncommitted

I didn't make it about Obama, I simply used him as an example of how ludicrous it is to ignore the text of an executive order and instead rule based on what the person said in the past on the subject when he was a candidate.

As to the Hart-Celler act, it's basic Constitutional law that Congress cannot make laws which trump the Constitution. If Congress wants to change the President's authority over who comes here, it needs to be done by Amendment. The Administration will win at the SCOTUS on those grounds. A first year law school student learns that.

a reply to: TrueBrit

So your argument here is that because this will not stop all the Muslims who might come into the US, this is not a ban which will disproportionately affect Muslims or people from majority Muslim countries?

Is it your argument that race or religion is a legal excuse for illegal actions?

The travel ban rejects VISAs issued from 7 countries based on a history of improper vetting from those countries and/or an unstable governing system in place in them. Just because the countries listed are primarily Muslim, does that mean we are legally required to grant unrestricted access to our country?

There was recently a call to ban Donald Trump from Britain. Since Donald Trump is a Christian, that is illegal because it disproportionately affects Christians. Because he has a religion, Trump should be free to enter British soil at any time, for any reason, and how DARE Britain discriminate over religion!

TheRedneck

originally posted by: TrueBrit
I would caution you that factually, that argument falls flat, because of course, this will disproportionately and as a result of discriminatory attitudes held by the President, or at least touted by him, affect those trying to travel from countries which are home to populations which have a massive Muslim majority.

I would caution you that factually, intentions and reasoning matter behind a law, and the president put forth perfectly lawful reasons as to why he limited (not banned) travel from certain countries which tend to have Muslim majorities--the same reasoning that couldn't include the vast majority of countries with, as noted in the OP, the vast majority of Muslim inhabitants.

The 9th Circuit Court of Appeals, as usual, is interjecting politics into what should be judicial rulings (a 'safe space' from politics, at least in design). Keep in mind that the travel restrictions, in their most recent iteration, leave enough avenues for people from those countries to still get in to the United States, even if it takes a bit of effort on their parts.

It is their job to prevent injustice being issued forth down any channel they have a say in. They are doing their jobs.

Actually, it is the appellate court's job to weigh an issue against current laws on the books, not to "prevent injustices," although that's often a side effect. Would you argue that upholding a conviction for possession of marijuana prevents an injustice, or just upholds the law? There are plenty of unjust laws in the United States, and its not the place of the judicial system to rewrite them, just to issue a ruling (opinion) on said law weighted against the constitution. It's the legislative (or in this case, the executive) system that is responsible for preventing injustices by writing, rewriting, or abolishing laws.

In this instance, according to CNN, we have a court of appeals telling the Justice Department that they have to 'prove the innocence' of the travel restrictions based on their perception of the president's beliefs, which is absolutely ridiculous. What the 9th Circuit should be doing is proving the illegality of the restrictions, which they obviously are required to do if they are ruling it to be illegal, yet seem to be failing at doing thus far. But, I suppose that we'll see how they rule (which I'm willing to place a wager on that I know the impending outcome).

originally posted by: TheRedneck
a reply to: TrueBrit

The travel ban rejects VISAs issued from 7 countries based on a history of improper vetting from those countries and/or an unstable governing system in place in them. Just because the countries listed are primarily Muslim, does that mean we are legally required to grant unrestricted access to our country?

This is what I talk about whenever I mention America's willful amnesia--there is no way that anyone paying attention and avoiding ideological partisan BS can argue against this.

But, oh on, it affects a religion who, at this moment in time, is the poster child for progressive and their screams against perceived injustices, so we must consider that before accepting a travel limitation that has absolutely logical and legitimate concerns at its foundation?

The bloc of people willing to support such an argument as is in the OP, and then those willing to back it and parrot it, is beyond my ability to comprehend. I mean, it can only be about religious discrimination at this point, right? Valid reasons for a law/EO should always override perceived biases by those implementing them.

a reply to: face23785

Is the 9th Circuit U.S. Court of Appeals aware of Title 8 U.S. Code § 1182 - Inadmissible aliens?

If that Court is clearly ignoring that Federal law in their ruling against Trump, and not attempting to make a ruling on the Constitutionality of that law, then that Court may be committing high treason and refusing to enforce or execute the laws of the land.

www.law.cornell.edu...

8 U.S. Code § 1182 - Inadmissible aliens

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

U.S. Code › Title 8 › Chapter 12 › Subchapter II › Part II › § 1182

(a) Classes of aliens ineligible for visas or admissionExcept as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(1) Health-related grounds
(A) In generalAny alien—
(i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance; [1]
(ii) except as provided in subparagraph (C), who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include at least the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices,
(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)—
(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or
(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or
(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict,
is inadmissible.
(B) Waiver authorized

For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g).
(C) Exception from immunization requirement for adopted children 10 years of age or youngerClause (ii) of subparagraph (A) shall not apply to a child who—
(i) is 10 years of age or younger,
(ii) is described in subparagraph (F) or (G) of section 1101(b)(1) of this title; 1 and
(iii) is seeking an immigrant visa as an immediate relative under section 1151(b) of this title,
if, prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the provisions of subparagraph (A)(ii) and will ensure that, within 30 days of the child’s admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations identified in such subparagraph.
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In generalExcept as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),
 is inadmissible.
(ii) ExceptionClause (i)(I) shall not apply to an alien who committed only one crime if—
(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
(B) Multiple criminal convictions

Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.

(3) Security and related grounds
(A) In generalAny alien who a consular officer or the Attorney General knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in—
(i) any activity (I) to violate any law of the United States relating to espionage or sabotage or (II) to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information,
(ii) any other unlawful activity, or
(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means,
is inadmissible.

a reply to: StanleyBolten

There is also this part of the law as well:

(B) Terrorist activities
(i) In generalAny alien who—
(I) has engaged in a terrorist activity;
(II) a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity (as defined in clause (iv));
(III) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity;
(IV) is a representative (as defined in clause (v)) of—
(aa) a terrorist organization (as defined in clause (vi)); or
(bb) a political, social, or other group that endorses or espouses terrorist activity;
(V) is a member of a terrorist organization described in subclause (I) or (II) of clause (vi);
(VI) is a member of a terrorist organization described in clause (vi)(III), unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization;
(VII) endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;
(VIII) has received military-type training (as defined in section 2339D(c)(1) of title 18) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in clause (vi)); or
(IX) is the spouse or child of an alien who is inadmissible under this subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years,
 is inadmissible. An alien who is an officer, official, representative, or spokesman of the Palestine Liberation Organization is considered, for purposes of this chapter, to be engaged in a terrorist activity.
(ii) ExceptionSubclause (IX) of clause (i) does not apply to a spouse or child—
(I) who did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section; or
(II) whom the consular officer or Attorney General has reasonable grounds to believe has renounced the activity causing the alien to be found inadmissible under this section.

Again from a legal U.S.C. lookup website.

www.law.cornell.edu...

Trump even admitted on Television that very statute. I confirmed this statute.

When he blocks unvetted Islamic people from dangerous countries, well the law clearly states that for security and anti-terrorism purposes (securing the border) that the U.S. President has the right to block or detain unlawful aliens.

It is the same as if a UFO crash landed in Arizona and alien beings walked out of their space ship, they would technically be considered illegal aliens and are subject to being detained or blocked from entering the United States.

originally posted by: face23785
a reply to: uncommitted

I didn't make it about Obama, I simply used him as an example of how ludicrous it is to ignore the text of an executive order and instead rule based on what the person said in the past on the subject when he was a candidate.

As to the Hart-Celler act, it's basic Constitutional law that Congress cannot make laws which trump the Constitution. If Congress wants to change the President's authority over who comes here, it needs to be done by Amendment. The Administration will win at the SCOTUS on those grounds. A first year law school student learns that.

You used Obama to deflect from Trump. The Hart-Celler act is part of the motion being passed by the 9th circuit - that you cannot impose quotas (or a blanket ban) based on nationality alone. If the government is going to win that easily then this would have been won several months ago. It wasn't. A first year law student probably though understands that the advice of people posting anonymously on an internet forum isn't worth #

a reply to: uncommitted

It's certainly not a deflection. You're free to pretend it is if you wish. I used a recent example of another president's statements as a candidate vs an executive order he issued on the same subject to demonstrate the absurdity of ignoring the text of an executive order and instead determining it's constitutionality based on what the President said as a candidate, especially when the order doesn't reflect the candidate's comments, which neither Trump's order nor Obama's order that I referenced do. If you don't understand how tha'ts relevent to this issue, I can't help you. I further did address what's going on with Trump's order, which wouldn't have happened if I was "deflecting".

If your point about it not having been resolved yet was valid no court decision would ever be overturned; the first court to deal with an issue would always get things right, and that's not reality. These things often take months or even years to resolve, that was a completely irrelevant statement. Your last statement invalidates your own posts as well as mine, so not sure what your point was there. Is it both constitutional and unconstitutional since we both give # advice? You've talked yourself into a pretzel, but still haven't addressed the fact that the President's authority in this matter as outlined by the Constitution cannot be limited by legislation. An Amendment would have to be passed. Forget law school, this is high school Civics class.

The admittance of refugees or lack thereof is a matter of the state department, not the judicial branch. The judicial branch is not responsible for refugees.

originally posted by: jjkenobi
I would love to know what clause or portion of the Constitution a temporary partial travel ban violates.

I'll wait.

Hint: Constitution applies to USA citizens.

Actually, the Constitution applies to all persons within the borders of the United States.

What it doesn't necessarily do, though, is apply to people outside the borders of the U.S., therefore things like free travel between states and other rights and privileges afforded people in the U.S. are not guaranteed to those outside of our borders.

But like is noted and is the real point in this thread: The immigration laws give the president singular, enumerated power to halt immigration from any people for any reason. The rest of the arguments are just fodder for discussion.

originally posted by: SlapMonkey

originally posted by: jjkenobi
I would love to know what clause or portion of the Constitution a temporary partial travel ban violates.

I'll wait.

Hint: Constitution applies to USA citizens.

But like is noted and is the real point in this thread: The immigration laws give the president singular, enumerated power to halt immigration from any people for any reason. The rest of the arguments are just fodder for discussion.

This is the crux of the issue right here. No moral argument or even law that's been passed can override this. The only thing that can alter this is a Constitutional Amendment. It's very simple, should've been thrown out of every court the lawsuit was filed in on these grounds, but judges aren't all professionals, they have politics and they let them influence their decisions sometimes.

a reply to: face23785

Had anyone taken the time and effort to realize there are many Christians and Jews who live in some of these countries, there would be very little discussion on this matter as it pertains to any religious context.

I have always thought the President's executive orders were the way in which he is directing those who work under the executive branch of our government to do their jobs. This in itself, I would think, should be beyond any judicial orders unless it can be shown to violate the U S Constitution or endanger the preservation there of. This is what is called for in the oath when he took office, and people are trying to keep him from doing the job he has sworn to carry out.

The Constitution is written to cover the citizens of the United States and has not effect nor impact upon the citizens of other nations. If this were other wise, we would already have established a one world government; which I must have missed hearing about.