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Governments are instituted among Men,
deriving their just powers from the consent of the governed,
That whenever any Form of Government becomes destructive of these ends,
it is the Right of the People to alter or to abolish it,
and to institute new Government

Saturday, February 04, 2017

Why the ROBARTS HALT was wrong on Trump's travel restrictions, and why the Senate MUST MOVE IMMEDIATELY on Gorsuch

A federal judge in Seattle issued a temporary nationwide restraining order Friday stopping President Trump’s executive order banning citizens of seven countries from entering the United States.
Judge James Robart, who was appointed by former President George Bush in 2003, ruled the executive order would be stopped nationwide, effective immediately.
Hmmmmm, this judge, to place hi on the ‘spectrum’…
According to the Seattle Times, Robart declared “black lives matter” in a court hearing last August in which he decided against a Seattle police union.
Now the actual ruling:
The judge’s decision says he granted the temporary restraining order because the states are “likely to succeed on the merits of the claims;” were likely to “suffer irreparable harm in the absence of preliminary relief;” and because “a TRO is in the public interest.” Robart will rule at a later point on whether to permanently stop the Trump order.
The judge’s ruling says the “states themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.” The residents of the states are affected “adversely” in the areas of “employment, education, business, family relations, and freedom to travel,” the judge’s order says.
There were 2 other federal decisions in court yesterday on the travel restrictions.
In Detroit a judge exempted green card owners (they have been here and being permanent residents, probably have become PERSONS as defined by the Constitution, and thus get the protection of same)
In Boston, a federal judge refused to allow an extension to a temporary halt to the travel restrictions. In direct contrast to Robart, Gorton, in Boston ruled that the plaintiffs had not shown that they were likely to succeed on the merits of their claims,” so “an extension of the restraining order at the present time is not warranted,” reported WBUR.
However, Robarts ruling on the basis of immediate harm to Microsoft (it’s Washington, hello?) and foreigners working with Washington universities who were overseas is the big one. Washington state’s atty genl commented that this will be before the Ninth Circuit Court of Appeals in days and before SCOTUS RAPIDLY.
More than 50 lawsuits have been filed against the order so far, with federal judges issuing temporary injunctions in several states to stop the deportations of people impacted by it.
If a foreigner is here, deportations unless they have committed a crime should be difficult, IMO.
However, border control and national security, are the province of the president. Not the courts. SCOTUS, AND the people who are the issue, people outside the USA are neither citizens nor PERSONS.
But let’s not lose sight that this order is restricted to CURRENT VISA HOLDERS AND PERMANENT RESIDENTS.
Here is a LAWFARE article written the day BEFORE Robarts decision, by a contributor who believes the travel restriction “is, as a matter of policy, monumentally stupid. It is malevolence tempered only by incompetence
A Supreme Court opinion upholding the order would practically write itself. The precedents are full of broad pronouncements highlighting the exceptional place of immigration law in the constitutional canon. Plenary power is no myth.
Precedent by SCOTUS…
“In the exercise of its broad power over immigration and naturalization,” wrote the Court, “Congress regularly makes rules that would be unacceptable if applied to citizens.”
The Court deferred to the legislative scheme even though it involved no plausible national security interests. At the intersection of immigration and national security, the Court has validated harsh results. In Shaughnessy v. United States ex rel. Mezei, the Court upheld the exclusion of a returning permanent resident of 25 years, standing on the basis of secret evidence, even though the exclusion posed the prospect of indefinite detention on Ellis Island (no other country was willing to “take him off our timorous hands,” as Justice Jackson observed in dissent). Mezei was afforded no process: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” In Harisiades v. Shaughnessy, the Court upheld the deportation of long-time permanent resident on the basis of former membership in the Communist Party, even where it was clear that the membership was casual or the attachment to communist ideology had long been abandoned.
But, Peter Spiro goes on …things could change because…
the order serves no counterterror purpose. Refugees are the most vetted of immigrants—no terrorist would take the refugee route into the United States, and in fact none have (leaving aside the minor exception of two Iraqi refugees who faced terrorism charges in 2011 for conduct that occurred prior to entering the US). Not a single terrorist attack has been undertaken in the United States by any national of the seven listed countries…
On the contrary, the travel ban will undermine national security interests by further alienating the Islamic world. Many experts have testified to this fact and there don’t appear to be any credible experts who support the ban. The State Department dissent memo received an unprecedented number of signatures, reportedly a thousand.
Why is this important for purposes of judicial scrutiny? It could help shift the courts away from their historically cautious approach to anything implicating national security values. That is at the heart of jurisdictional barriers to considering foreign relations controversies, which is in turn at the heart of plenary power
Last time I looked, however, POLITICAL ARGUMENTS have hardly swayed SCOTUS in modern times. Judge Roberts statements that SCOTUS did not exist to help make decisions properly made by the ultimate arbiters of Justice, the AMERICAN PEOPLE, at the voting booth (remember the Obamacare ‘it’s a tax’ decision?) sound VERY LOUD.
Trying to base a SCOTUS decision on ‘terrorism has never occurred among refugees’ is IMHO absurd since future prediction can never be made based on past performance.
All of which UNDERSCORES how COMPULSORY it is that Gorsuch receives TOP PRIORITY so that he is sitting when this hits SCOTUS.
CHUCK GRASSELY, call your hearing for monday. Gorsuch, have your paperwork ready. McConnell get the nuke ready.
The danger is not so much that SCOTUS would uphold a 9th Circuit decision in favor of Washington if that happens, but that a tied court would make no decision. If Gorsuch is not in place by the time the 9th circuit court sends this to SCOTUS, the 9th may be SCOTUS in this decision.
This is a momentous decision point. Failure by the Republican  Majority, the Republican Senate Majority Leader, the President to effectively organize Gorsuch into being approved RAPIDLY, while also successfully fighting this suit would be a SYSTEMIC FAILURE of the American System which would have proven that foreigners can gain the rights of the Constitution, and would be as groundbreaking IN THE END, as Brown in 1954.
Those who think Allah is the weapon that will destroy us will gain far more moral building benefits as they interpret a failure to rule in the (ANY) president’s favor on this issue, than the Lawfare author can possibly imagine. THIS is kind of battle, they think, Allah wins.
I know, after 13 years talking with Gulf Arabs every day, THIS is just what I heard.
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posted by Epaminondas at permanent link#


Blogger Always On Watch said...

I have little faith that the GOPe Congress critters will get their act together.

Saturday, February 04, 2017 12:05:00 pm  
Blogger Epaminondas said...

then 4 parties no later than 2024

Saturday, February 04, 2017 1:02:00 pm  

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