It’s the little things.
Judge Derrick Watson, a Fed District Court Judge, rules that the financial hardship he thought HI would suffer, and that campaign statements pertaining to foreigners who not only are not citizens but have never been here, ordered a halt to an EO not yet implemented.. which included a NINETY DAY WAIT.
Andrew Jackson famously refused to enforce a SCOTUS decision
itself in Worcester vs Georgia (by no less than John Marshall himself), and it’s time now for the executive to insist the courts have no rights to decide OR enforce the foreign policy of the USA. A federal district court would not DARE to try and use US marshals to enforce anything short of SCOTUS decision and even then, those marshals are the employees of the executive.
This is NOT about Trump and anyone who makes this about #RESIST is a goddamned fool.
There will be other presidents and naked partisanship going the other way will further increase the divide in this totally polarized society.
I abhor the self arrogating powers of the executive which have reached our toilets, and include armed enforcement micro armies for many departments, but this is VERY DIFFERENT. The Constitution makes clear (commander in chief) who the ultimate authority in foreign affairs is (short of war), and chaos beckons on this one as judges who are the product of institutional progressivism, and were appointed to enforce that domestically, extend their IDEOLOGY to a place it has no place.
When the original EO was issued I had argued a mistake was made over VISA and Green Card Holders since they had already cleared due process. This is not the case here. But the visa process is totally warped..
The number of H-1Bs available to profit-making companies is limited by an annual cap established by Congress, but universities are exempt from this cap, as the result of a deal made in 2000 between lobbyists for the tech industry and for universities.
So how many corps made deals with U's and grants to do their R&D with cheaper H1-B's getting around the caps? Trump absolutely needs total reform in the ENTIRE immigration/visa forms in the USA, and he has the congress and senate to do it.
But there is MUCH MUCH MORE…
Eugene Kontorovich, Constitutional Expert at WaPo, and Volokh Conspiracy:
Generally, the president has vast discretion in issuing visas. One of the major arguments against the executive order is that while in principle a president can limit immigration from the seven affected countries, it would be unconstitutional for President Trump in particular to do so, because in his case the action is motivated by impermissible religious bias. The central exhibit for this argument is his campaign statements about a “Muslim ban.”
There is absolutely no precedent for courts looking to a politician’s statements from before he or she took office, let alone campaign promises, to establish any kind of impermissible motive. The 9th Circuit fairly disingenuously cites several Supreme Court cases that show “that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”
Indeed, a brief examination of cases suggests the idea has been too wild to suggest. For example, the 10th Circuit has rejected the use of a district attorney’s campaign statements against certain viewpoints to show that a prosecution he commenced a few days after office was “bad faith or harassment.” As the court explained
, even looking at such statements would “chill debate during campaign[s].” If campaign statements can be policed, the court concluded, it would in short undermine democracy: “the political process for selecting prosecutors should reflect the public’s judgment as to the proper enforcement of the criminal laws.” Phelps v. Hamilton
, 59 F.3d 1058, 1068 (10th Cir. 1995).
The 9th Circuit’s ruling Thursday throws open a huge door to examinations of the entire lives of political officials whose motives may be relevant to legal questions. This introduces more uncertainty and judicial power into legal interpretation than even the most robust use of legislative/administrative history. Without a clear cutoff at assumption of office, attacks on statutes will become deep dives into politicians’ histories.
Mr. Trump, ENFORCE the order, fire any employee who will not follow policy (Reagan v Air Traffic Controllers), and take it to SCOTUS. Then decide. There is only ONE THING, one lawful constitutional method that can prevent the implementation of foreign policy this year.
When in charge…
and make history.