The New Executive Order: “Here Comes the Judge”–Again

Once again a Federal district court judge has issued a nationwide Temporary Restraining Order (TRO) prohibiting enforcement of the president’s new executive (EO) order temporarily suspending entry into the United States of non-citizens living outside the United States for a period of 90-120 days, with waivers possible for defined exceptions.  The EO identified six nations as targeted by its provisions.  The reasons stated were the possibility or likelihood that these nations were producing or would produce terrorists.  I have reproduced below the district court’s summary of section 2 of the EO because I believe it is crucial to understanding this holding:

“Section 2 of the new Executive Order suspends from “entry into the United States” for a period of 90 days, certain nationals of six countries referred to in Section 217(a)(12) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 5 The Government also requested “an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal” on February 4, 2017 (Emergency Mot. to Stay, No. 17-35105 (9th Cir.), ECF No. 14), which the Ninth Circuit panel swiftly denied (Order, No. 17-35105 (9th Cir.), ECF No. 15). 5 § 1101 et seq.: Iran, Libya, Somalia, Sudan, Syria, and Yemen.6 8 U.S.C. § 1187(a)(12); Exec. Order § 2(c). The suspension of entry applies to nationals of these six countries who (1) are outside the United States on the new Executive Order’s effective date of March 16, 2017; (2) do not have a valid visa on that date, and (3) did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017 (the date of the prior Executive Order, No. 13,769). Exec. Order § 3(a). The 90-day suspension does not apply to: (1) lawful permanent residents; (2) any foreign national admitted to or paroled into the United States on or after the Executive Order’s effective date (March 16, 2017); (3) any individual who has a document other than a visa, valid on the effective date of the Executive Order or issued anytime thereafter, that permits travel to the United States, such as an advance parole document; (4) any dual national traveling on a passport not issued by one of the six listed countries; (5) any foreign national traveling on a diplomatic-type or other specified visa; and (6) any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture. See Exec. Order § 3(b). 6 Because of the “close cooperative relationship” between the United States and the Iraqi government, the Executive Order declares that Iraq no longer merits inclusion in this list of countries, as it was in Executive Order No. 13,769. Iraq “presents a special case.” Exec. Order § 1(g). 6 Under Section 3(c)’s waiver provision, foreign nationals of the six countries who are subject to the suspension of entry may nonetheless seek entry on a case-by-case basis. The Executive Order includes the following list of circumstances when such waivers “could be appropriate:” (i) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long term activity, is outside the United States on the effective date of the Order, seeks to reenter the United States to resume that activity, and denial of reentry during the suspension period would impair that activity; (ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of the Order for work, study, or other lawful activity; (iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations; (iv) the foreign national seeks to enter the United States to visit a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship; (v) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case; (vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of 7 such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government; (vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOAI), 22 U.S.C. § 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under IOIA; (viii) the foreign national is a landed Canadian immigrant who applies for admission at a land border port of entry or a preclearance location located in Canada; or (ix) the foreign national is traveling as a United States Government sponsored exchange visitor.” (see STATE OF HAWAI‘I and ISMAIL ELSHIKH, Plaintiffs, vs. DONALD J. TRUMP, et al., CV. NO. 17-00050 DKW-KSC)

Section 2 is the heart of the EO.  The judge, from Hawaii, and an Obama appointee, and following the plaintiff’s argument in the main, held that the plaintiffs, State of Hawaii and an individual, were likely to succeed on the merits of the case.  The rationale was rooted for the individual mainly in a kind of Establishment Clause argument.  The individual plaintiff’s argument was based on religion, and for the state, based on its “proprietary interest” (including for example, the loss of money at state universities due to lower enrollment (!)).  Below is the individual’s argument as summarized by the judge:

“Plaintiffs assert the following causes of action: (1) violation of the Establishment Clause of the First Amendment (Count I); (2) violation of the equal protection guarantees of the Fifth Amendment’s Due Process Clause on the basis of religion, national origin, nationality, or alienage (Count II); (3) violation of the Due Process Clause of the Fifth Amendment based upon substantive due process rights (Count III); (4) violation of the procedural due process guarantees of the Fifth Amendment (Count IV); (5) violation of the INA due to discrimination on the basis of nationality, and exceeding the President’s authority under Sections 1182(f) and 14 1185(a) (Count V); (6) substantially burdening the exercise of religion in violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 200bb-1(a) (Count VI); (7) substantive violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (2)(A)–(C), through violations of the Constitution, INA, and RFRA (Count VII); and (8) procedural violation of the APA, 5 U.S.C. § 706 (2)(D) (Count VIII).” (STATE OF HAWAI‘I and ISMAIL ELSHIKH, Plaintiffs, vs. DONALD J. TRUMP, et al., CV. NO. 17-00050 DKW-KSC).

This argument to me seems absolutely and unassailably beyond the the authority of any judge in the United States.  First, the individual (the mother-in-law of the named plaintiff) resides outside the country and is not even present in the country, and therefore can have no First Amendment right.  Nor can he have any RFRA right of relief, for the same reason.  Rights, except for those narrowly recognized by the Supreme Court, are not applicable to non-citizen, non-resident individuals–who are not even being held in a prison, as in Guantanamo case (Boumediene v. Bush, 2008).  Nor are Due Process rights applicable.  This is in fact an example of a judge making up a ruling to justify his favored outcome.

In addition, the TRO is issued in case the plaintiffs are likely to succeed on the merits.  Given the novel (to say the least) theory, how could the judge believe they were likely to succeed–unless of course he was thinking about the Ninth Circuit on any appeal, in which case he was probably right.

Third, the president has nearly unlimited authority in cases such as these, granted in Article II and by Congress in the statute cited by the judge.  It looks first of all as if the judge gives almost no authority to a president that belongs to him constitutionally. He is effectively ignoring the Constitution.  Second, I don’t know what kind of strained interpretation of the statute the judge is using to argue that the EO does not comport with it.

As for the Establishment Clause argument in more detail, here is what the judge writes:

“Dr. Elshikh attests that he and his family suffer just such injuries here. He declares that the effects of the Executive Order are “devastating to me, my wife and children.” Elshikh Decl. ¶ 6, ECF No. 66-…These injuries are sufficiently personal, concrete, particularized, and actual to confer standing in the Establishment Clause context.” (Ibid.)

How can one not affected legally by the EO assert standing to sue, alleging an injury that is purely psychic?  Moreover, the judge cites only one case, an American case involving only American citizens living in the United States.

And here is the judge’s reason for alleging that the plaintiffs are likely to succeed on the merits in a trial:

“The Court turns to whether Plaintiffs sufficiently establish a likelihood of success on the merits of their Count I claim that the Executive Order violates the Establishment Clause of the First Amendment. Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, 29 in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.” (Ibid., emphasis added)”

This is without precedent, except in the first EO’s case before the Washington court.  The argument is that the EO disfavors a religion.  How does he arrive at that conclusion?  From remarks made by Donald Trump in campaign speeches.  What?  Is that dispositive of the intent of an executive order?  If that is the case, then any remark any person makes can at any time be taken as proving their intent in issuing any kind of legislation or regulation.  Campaign rhetoric?  And even at that, who is to say that Trump meant Muslims or was just using the term as a convenient label for terrorism?  And don’t most terrorists now come from among Muslims, whether radicalized in other nations of here?  This judge actually gave most weight to Trump’s campaign comments, which, by the way, did not consistently use the term “Muslim ban” at any rate.  The judge dismissed out of hand the government’s arguments, substituting his own mind-reading activity.  He even dismissed the arguments in the EO and by the government that terrorists might be prevented by the EO, saying that he knew better, since some “studies” have “shown” that most terrorists were home-grown.  So what, if that is true?  If most are home-grown, does that mean we can’t prevent the few that are not?  The judge even called the government’s arguments “pretexts” masking their “real” intentions.

There is much more I could say and I have already written too much.  For the present, I can only say that if this decision on trial or appeal should hold up, and make it to the Supreme Court, that court surely would see the naked political agenda and overturn the lower courts.  On the other hand, SCOTUS has not been particularly reliable either.  I see this as potentially another example of a growing constitutional crisis.

 

44 thoughts on “The New Executive Order: “Here Comes the Judge”–Again”

  1. Personally I think district judges should not have the authority to issue rulings with nationwide ramifications. The authority to issue a nationwide stay an EO or legislation from the Federal government should only be invested in the one and only court that was actually created to possess nationwide jurisdiction, that being the Supreme Court.

    But I can’t say I am surprised. 9th Circuit will uphold the stay, SCOTUS will split 4-4, Trump will issue a new order, and it will all start over again.

    It’s a clever tactic (assuming it is actually a thought out tactic and not just liberal judges making ideological rulings) of making Trump repeat the process so much people will begin not to care and it will begin to make Trump look silly.

  2. There is no need for mind-reading, lol. Trump’s intentions have been and still are pretty clear. Ask Rudy Giuliani.

    The revised order still smells like a Muslim ban. It is simply less cruel than the first one.

    Most of your argument reminds me of the classic statement, “I cannot refute an incredulous stare.”

    1. The first EO was not cruel in and of itself. The implementation of it was perhaps indirectly so because of the haphazard way it was implemented. But cruel? No. Neither is this one.

      And the main difference between this new one and the old one should make perfectly clear the reasons for it… because the countries on the list do not cooperate with vetting on their end. After the first order, Iraq agreed to step up to the plate and increase the vetting on their end and was thus exempted.

      As for cruelty, as Dr. Clauson has said, the people affected by the order have no claim to US legal protection, they have no Constitutional rights, they do not live here, are not citizens. Why is it cruel to them? Do you believe that entry into the United States is some sort of universal Human right? It isn’t. It’s a privilege. One that far too many people take for granted.

      1. Can you point to an actual security benefit of this order? Show me a single attack this would have prevented. Just one.

      2. Not the point at all is it?

        The point is that these six countries do not properly vet on their end. So the President, well within his constitutional and legal rights, decided to temporarily suspend (oh, there is that inconvenient word “temporary” again) new applications (another inconvenient word there “new”) from those six nations until the US puts in place its own extra vetting to compensate.

        t doesn’t matter if you think there is a security benefit or not or if I do. The President of the United States does think so and he is privy to much more information than either you or I, What attacks could have been prevented? We can’t know. Sometimes planning attacks takes quite a while. It is an unknown that cannot be quantified and is a poor argument. The 9/11 hijackers were in the US for a while before actually carrying out the attack, training, preparing, planning. Someone might come in and take months or years before actually doing something.

        When Trump’s first order was stayed, there was apparently a rush by numerous people from these countries to get in. Can you tell me for certain (100%) that none of those people have less-than-noble intentions and will not try something in the future? Answer: You can’t.

        As for “still smells like a Muslim ban”… Are you willfully ignoring the fact that dozens of Muslim majority countries and millions of Muslims are not affected by this EO at all? Certainly seems that way. It doesn’t matter what Trump might have said, what matters is what the order actually does and it is most definitely not a Muslim ban.

      3. The definition of cruel – willfully causing pain or suffering to others, or feeling no concern about it.

        Sorry, but I just don’t see that in this EO. Inconvenience, yes. Cruelty, no. If you do see it, then I guess you are right that we disagree on what rises to the level of cruelty.

    2. Well, that’s interesting. So a judge can now purport to know what any person means in any setting at any time, whether it is said in their home, to a friend, to an audience in a campaign, in any unguarded moment, etc.? That is judicial malfeasance. No judge does that, no judge should do that.

      At any rate, the issue is the law and the authority of the president. He has it, Congress further granted it, the courts have consistently agreed. This judge has clearly gone beyond law. And as for Establishment Clause the judge is extending it to a non-citizen not in the US, with no nexus, and misunderstanding the clause.

      1. Darth Vader:
        The security issue is not the issue. Whether most or all terrorists come from here (home grown) or somewhere else is irrelevant. The issue is whether the president has the authority and what are the limits of that authority. By the way, to say there are no terrorists that have come from other nations would be wrong–the 9/11 terrorists overstayed their visas, for example. Moreover, because we can’t point to many examples ignores the possible many that have been intercepted before damage has been done, or kept out before they could get in.

        1. The president has authority under Article II to deal with all and any foreign threats.
        2. The Congress has even extended that by statute.
        3. The courts have consistently upheld that authority, excepting Bomediene.
        4. Establishment Clause extension to a non-resident, non-citizen, who isn’t even here is incredible.
        5. For Hawaii to allege harm is hypocritical since they have not accepted even one immigrant for the last two years. Harm is irrelevant anyway–and a vague claim.

      2. Dr. Clauson, first of all, I’m really interested in your response to my questions in your previous post.

        When the president says that the reason for this ban is due to security reasons, whether or not there is any security benefit is very important.

        9/11 if I’m not mistaken they were from Saudi Arabia, if that country was in the ban he would have a leg to stand on.

        People come to this country for three reasons. To visit family. As a tourist. To work. In all three cases there is an American harmed by arbitrarily blocking entry to this country.

        I’m not even saying that the judge is right or wrong. Just that the president is being dishonest about his motivation.

      3. “I’m not even saying that the judge is right or wrong. Just that the president is being dishonest about his motivation.”

        So your only point in all your comments on this is simply to say you think the President is lying about why he issued the order?

        So completely apart from the debate whether he should or shouldn’t, or needed or didn’t need, to issue the order, what do you think his motive is? I think his motive is to protect the country and even if he, deep in his heart, wanted to ban all Muslims from coming in, that still comes back to wanting to protect the country. If the world’s major terrorist problem were coming from another religion, if radical Muslims were not a security threat, Trump would not be saying anything about Muslims at all one way or another.

        The harsh reality is that the actions of some Muslims affect how others view Muslims in general. It shouldn’t be like that but it is. Increasing security and vetting HELPS, not hurts, those Muslims who are peaceful because it greatly reduces the concerns others have about them. If I meet a Muslim on the street, and I know that because of security vetting the people I see on the streets have been thoroughly checked out, I am not going to nervous about them, wondering if they are a good Muslim, or a bad one. That is good for both me and them.

      4. “People come to this country for three reasons. To visit family. As a tourist. To work. In all three cases there is an American harmed by arbitrarily blocking entry to this country.”

        I will grant that TEMPORARILY being prevented from visiting family is an inconvenience but I am not sure how your logic works on the other two, especially as it relates to just these six countries. It seems quite a big stretch to claim that the tourism industry is being financially harmed or that Americans are being negatively impacted by it because prospective tourists from these six countries can’t visit. And I hardly see how one wanting to come to work and not being able to harms Americans. In fact, common sense would say that the opposite is true. If a non-American is coming here and getting work, considering how many Americans don’t have jobs right now, then Americans are being harmed because they are not getting the job themselves.

      5. Unfortunate here that you have to rely on an informal fallacy to (try to) make your case. Appeal to authority.

        As you said, the president has the authority to do this, but the federal judge(s) has authority as well to stop him, at least temporarily.

        In this judicial game of rock, paper, scissors: rock just met rock.

        By the time this temporary measure gets looked at by the Supreme Court, it will probably be moot anyway.

        All we will have left probably is a failed attempt to ban Muslims. Sigh.

      6. “All we will have left probably is a failed attempt to ban Muslims. Sigh.”

        If Trump’s purpose for the EO was to ban Muslims, then, yes, it’s an epic failure since the EO does not affect Muslims from over 40 of the approx 50 countries that have Muslim majorities. Of course, maybe it doesn’t include 44 or so other countries because the intent is NOT to ban Muslims.

        “Unfortunate here that you have to rely on an informal fallacy to (try to) make your case. Appeal to authority As you said, the president has the authority to do this, but the federal judge(s) has authority as well to stop him, at least temporarily”

        So if the President has the legal authority to do this, how does a federal judge have the authority to stop him? The judge has the authority to stop the President from doing things the President cannot legally do, but since the President can legally do this, and the law that allows him to is very clear, then the judge is over-stepping his own authority to stop it. Problem is that while there is much that can be done when Congress or the President oversteps authority, there it little than can be done when the judiciary oversteps its authority.

  3. Marc–
    Are you willing to go to the next level? Should Republicans begin impeachment proceedings against judges that clearly go beyond the law since they “know” what Donald Trump’s heart is like and his true intentions are.

    1. Darth Vader:
      If you are willing to read his mind, you are going down a long road that will lead to very bad consequences. Courts don’t read people’s minds and I will not either. For all we know, he was using the term “Muslim” as a sort of shorthand, as many people do–since terrorism at present is concentrated in those areas. Campaign rhetoric is often very different from actual legislative language, regulatory language, statements in treatises, cases, etc. THAT is where our evidence comes from, not what a person said in some informal setting in a context that is not intended to hold any legal significance.

    2. Silly question. There is no such thing as absolute certainty when it comes to the law, but any reasonable person would see that DJT was interested in enacting a Muslim ban. How do we KNOW that? His comments in public and in private.

      Let’s put it this way if a Cedarville faculty member signed a doctrinal statement and then went out and told people in private and in public that she did not believe the Bible was the Word of God, how long would it take for that faculty member to be shown the door?

      Or would you and your hopeless colleague affirm that since we cannot KNOW what is in her heart, she would remain employed on the Cedarville faculty?

      Not a perfect analogy, but one with some validity, it would seem.

      1. You actually believe a statement made during a campaign is useable in a court of law to determine legislative intent for an executive order?

        Watch the ad hominem attacks too–“hopeless colleague”?

        Thanks.

      2. Well, I guess I am just not a reasonable person. After all, it is totally unreasonable to pay more attention to what the EO actually SAYS and DOES, and less about what Trump may or may not have said as part of campaign rhetoric months ago.

        Look, you are free to call this a Muslim ban all you want and cite Trump’s campaign rhetoric all you wish. But based on the text of the order and what it does, it simply is not a “Muslim ban”. And that is what is important.

  4. “Well, that’s interesting. So a judge can now purport to know what any person means in any setting at any time, whether it is said in their home, to a friend, to an audience in a campaign, in any unguarded moment, etc.? That is judicial malfeasance. No judge does that, no judge should do that.”

    You are acting as if intention is something new to the legal system. Judging intentions is the basis for determining the difference between a murder and a hate crime, between a murder and manslaughter, and so on.

    It seems pretty clear, based on the testimony of others, that Trump tried to enact a Muslim ban. That in itself is unconstitutional, and from what others have heard him say, he knew it was wrong. He did in anyway.

    Worse, you continue to defend such religious prejudice.

    1. “It seems pretty clear, based on the testimony of others, that Trump tried to enact a Muslim ban.”

      If this EO equals “tried to enact a Muslim ban” then it’s the most epic fail ever of issuing an EO to accomplish a specific goal. I can hear the conversation: “I want to ban Muslims” “Okay, Mr. President, here are six countries that have serious problems with vetting we can temporarily suspend new arrivals from.” “Great, suspending new applicants from 6 out of 50 Muslim countries is a great and effective way for us to intentionally discriminate against all Muslims because of their religion”.

      Give me a break.

      1. Banning Muslims from six countries makes sense if one wants to enact a SUCCESSFUL Muslim ban.

        Banning Muslims from all 50 countries would have raised even more red flags.

        It makes sense to start with only a few countries. Kind of like boiling a frog. Gradually, turn up the heat, or else the frog will jump out.

      2. So you are suggesting that Trump will ADD, or try to add, nations to the ban over time?

        I am sorry, but considering that the second order actually reduced the number from seven to six, because Iraq promised more cooperation, I don’t see how that notion is anything but ludicrous.

  5. There’s a lot of hate going on here. Seriously all of you just chill out and try to be respectful of one another.

    Actually listen to the other side and try to empathize where they are coming from.

    Nathan, Dr. Clauson, over half the country is opposed to this order, it’s commonly perceived to be discriminatory. Why might that be?

    Jeff, anonymous, me, Trump did this for a reason, people are supporting him for a good reason. Does Dr. Clauson seem like a bigot? No, but he supports this order. Where might he be coming from?

    1. “There’s a lot of hate going on here. Seriously all of you just chill out and try to be respectful of one another.”

      What do you consider hate? There is definitely strong and passionate disagreement here, but hate? I don’t see that from those disagreeing with me. Only they know what they think of me.

      “Nathan, Dr. Clauson, over half the country is opposed to this order, it’s commonly perceived to be discriminatory. Why might that be?”

      So what? I am supposed to change my view on something because of polling? Respectfully… no.

    2. You ask, where might Marc Clauson be coming from?

      Perhaps from the notion that Muslim culture might infiltrate American civilization and that such infiltration needs to be nipped in the bud right away?

      As he said, this is not necessarily about security. If the ban was not about security, then what was it about? Merely demonstrating the power of the presidency to issue executive orders? Pure power (and the abuse of power)?

      I don’t hate anyone. But I do hate bigotry.

      1. “Perhaps from the notion that Muslim culture might infiltrate American civilization and that such infiltration needs to be nipped in the bud right away?”

        And being concerned about this makes one bigoted? Is that what you are saying?

      2. “But I do hate bigotry”

        Please define what you mean by bigotry. Because obviously what you consider bigotry does not match what Dr. Clauson or Nathan D. would consider bigotry. If you hate it, please define it.

  6. BTW: Just for the record. If Trump’s EO does not stand, it is not something that will terrible upset me, probably won’t at all. My main beef in this whole argument is that I am defending Trump’s legal right to do what he thinks he needs to and not be hamstrung by judges making ideological rulings not based on the law.

    I am far more concerned with the questions of precedent and separation of powers,etc. than the particulars specific case it revolves around. Anyway, just saying.

    1. Nathan we can all agree on that. The precedent set here is what is important. How much leeway does trump have to do what he thinks is best?

      We just disagree on the proper amount :)

  7. Marc, one does not have to refer to statements made during the campaign in order to make the case that DJT tried to enact a Muslim ban.

    As I said earlier, “There is no need for mind-reading, lol. Trump’s intentions have been and still are pretty clear. Ask Rudy Giuliani.”

  8. The debate on here has been very interesting to read…so many different questions posed and sides being represented. I think the whole “mind reading” thing is an interesting concept that is being discussed on here.

    1. Well, no one NEW from the six listed countries for the temporary 90 day duration of the ban. Anyone already here or already approved is not affected.

  9. Let us lay aside for a moment all points relating to whether or not the President has the power to do this and take a second to witness the opprobrium and utter insensibility of applying the Establishment Clause to this case. Such a ruling makes me long for the days when we were simply arguing over the pedantic matters of where the Ten Commandments could be displayed. Besides being a legal disgrace and a display of constitutional lunacy, this is inherently laced with judicial activism that is baseless in any Court precedent. It is difficult, possibly impossible, to quantify the level of ignorance or blatant disregard (perhaps both) shown for the Constitution in this case. The Constitution has never applied to foreigners, and the idea that the ban disfavors a particular religion wouldn’t pass even the loosest readings of the Court’s religion tests (notably the Lemon test). I can only imagine the ridicule this judge has opened himself up to, all of which he is well deserving of.

      1. No, he is not the one showing his ignorance for the Constitution.

        The Supreme Court has ruled that the Constitution applies to foreigners ON UNITED STATES SOIL and the Alien and Sedition Acts which Jefferson and Madison so strongly opposed dealt with foreigners within US jurisdiction but also, the key point of disdain, was because of the threat of criminal prosecution of speech opposing the government, something clearly at odds with the 1st Amendment.

        The Constitution has never, and no court to my knowledge until now,, has ever ruled that the Constitution applies to foreigners outside of the United States. This EO does not apply to those already in the United States or cleared to be here. It only applies to those who at the time of implementation are outside the United States and the Constitution simply does not apply to them.

  10. If you’re referring to Boumediene v. Bush, I would remind you that the decision was highly partisan, roundly criticized, and without precedent. Scalia and Roberts both wrote scathing dissents of it (and rightfully so). I know that won’t convince you because you likely agree more with the majority (which is perfectly fine), but it’s hardly a sound basis for arguing the Constitution applies to foreigners. That dealt with habeus rights for foreigners, something the Court had already ruled against in Johnson v. Eisentrager. Beyond even that is the fact that we are dealing with an Establishment Clause issue here, which is without Court precedent for foreigners and is just astonishing to say the least (but that is much longer debate than I will get into here).

    Not sure what you wanted to prove with the Report of 1800. That was just a resolution arguing for state sovereignty and against the Alien and Sedition Acts, which is a free speech issue and more domestically oriented anyway. The Enemy Aliens Act, which was a part of that group, is still on the books and still applicable. I’d also mention that this came before Marbury v. Madison, so we don’t even have judicial review at this point in our history, which means no Court precedent.

    1. I was not referring to that specific decision, but even if I had, that alone would support my point and refute yours.

      It is IRRELEVANT who wrote scathing dissents of the decision. For the record, Scalia wrote scathing dissents like the rest of us brush our teeth. Scalia’s judicial activism should have troubled conservatives.

      Anyway, the ruling was what is was.

      You are welcome to your own opinion as to what is constitutional or is unconstitutional. But allow me the right to be unable to care any less what that is. Nothing personal–I just don’t care what you personally think.

  11. Interesting article that highlights some key concerns with the executive order and the correct legal response to it. It will be fascinating to see how far up the courts this goes, and what the be all end decision will be.

  12. Nathan

    Your argument is a complete strawman.

    Obviously, you are right that “The Constitution has never, and no court to my knowledge until now,, has ever ruled that the Constitution applies to foreigners outside of the United States.” But that is not what he said. YOU added the “outside of the United States” part.

    I did not.

    Please try your best in the future to represent honestly competing arguments. Setting up straw man is dishonest.

    1. I hardly consider his omission of “outside the United States” as an issue since the entire point of this discussion is an executive order that affects only those outside the United States. So when, in the context of this discussion, he argues that the Constitution does not apply to foreigners, it is quite logical for me to assume he means “foreigners outside the United States”.

      Matthew is perfectly capable of correcting me if I assume wrongly about his argument, but if I did assume wrong, it is a mistaken assumption only and in no way approaches dishonest behavior, which requires intent to deceive, which is something I did not possess.

      I could accuse you of strawmanning yourself but that would not be accurate either. If I am right and you are wrong about what Matthew meant, then your mistaken assumption would be no more “an intentionally misrepresented proposition that is set up because it is easier to defeat than an opponent’s real argument.” that my assumption would be if I am wrong.

      If that be the case, then at least, like me, I hope it was truly merely a mistaken assumption and not an intentional misrepresentation so you could attack him. Only you can know that for sure.

      Pleasant day :)

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