The "it's not really a Muslim ban" Muslim ban

[Aimless]

I feel like this may merit its own thread because of the intense debates about its multifaceted shittiness.

What will the outcome of the lawsuit be?

Will anyone be compensated for any economical harm this order may have caused?

Will McConnell and Ryan publicly oppose the order? how many Republican congressmen do you believe will?

Will anyone representing the govt or govt institutions be punished for the violations of due process?

[Spenni]

[QUOTE=Aimless;183797]I feel like this may merit its own thread because of the intense debates about its multifaceted shittiness.

What will the outcome of the lawsuit be?

Will anyone be compensated for any economical harm this order may have caused?

Will McConnell and Ryan publicly oppose the order? how many Republican congressmen do you believe will?

Will anyone representing the govt or govt institutions be punished for the violations of due process?[/QUOTE

1. Doubtful
2. Actually if the outcry gets any louder who knows on this one, they may have too just to save their political asses.
3. Probably not but little fuzzy and the Loki probably have more insight on this one.

On a side note I sure hope my army reserve contract ends before this farce continues...

[Loki]

I feel like this may merit its own thread because of the intense debates about its multifaceted shittiness.

What will the outcome of the lawsuit be?

Will anyone be compensated for any economical harm this order may have caused?

Will McConnell and Ryan publicly oppose the order? how many Republican congressmen do you believe will?

Will anyone representing the govt or govt institutions be punished for the violations of due process?

Trump will lose. It's a question of whether the whole order gets nullified or only most parts of it.

No (sovereign immunity).

No. Ryan is already on record supporting it. A few congressmen opposed it, but not particularly strongly. They're probably hoping the courts deal with the problem without forcing them to take a stand.

No (at least I don't see how).

[LittleFuzzy]

I feel like this may merit its own thread because of the intense debates about its multifaceted shittiness.

What will the outcome of the lawsuit be?

(shrugs) There is a strong chance that the order will just be stayed until the directed policies are discussed and properly implemented and then it will be dropped and begun again with them. Certainly if and when those policies are implemented, if they have any kind of religious reference in them, those aspects are going to get struck down. Between the establishment and free exercise clauses, there's just no way in which a policy can be crafted in which a religious test will pass Constitutional muster.

Will anyone be compensated for any economical harm this order may have caused?

No. That's not how suits against government policy work.

Will McConnell and Ryan publicly oppose the order? how many Republican congressmen do you believe will?

I'unno (shrugs)

Will anyone representing the govt or govt institutions be punished for the violations of due process?

No. Again, not how things work for implementing policy. Unless you mean Trump not getting reelected in four years and frankly, we'll probably have worse and more recent things to use for that anyway.

[wiggin]

(shrugs) There is a strong chance that the order will just be stayed until the directed policies are discussed and properly implemented and then it will be dropped and begun again with them. Certainly if and when those policies are implemented, if they have any kind of religious reference in them, those aspects are going to get struck down. Between the establishment and free exercise clauses, there's just no way in which a policy can be crafted in which a religious test will pass Constitutional muster.

So while I hope you're right, I just can't imagine that the administration would be stupid enough to include religious terminology in their policies; they're likely to hide behind 'national origin' and some vague security concerns rather than mentioning Muslims. We all know the motivation here, of course, since Trump was kind enough to tells us outright what he wanted to do, but I'm not sure that is enough to strike it down. Absent 1st or 14th amendment issues wrt religion, are there other grounds you can see for striking this down? Frankly, much as I find it distasteful, wrong-headed, stupid, offensive, and all-around a bad idea, I'm not sure it's illegal.

[RandBlade]

Any religious tests will fail at Supreme Court surely but it could take a while to get there. It looks they've had lawyers etc try to modify this to make it least likely to fail though.

They've already gone for national origin haven't they? eg Muslims from the nation with the most Muslims in the world in it aren't covered by the ban.

As far as I can tell they've only gone for one religious test and that is with refugees. Here they've tried to be 'cute' and phrased it not as banning Muslims but as "prioritising refugees who are a religious minority in their nation". Whether this will be enough to slide past the first Amendment [even assuming it gets that far] I'm not sure on. It's worth remembering that Muslims are minorities in Russia and were minorities in Serbia/Yugoslavia.

The biggest outrage is to have this affect those who've already got visas - which is probably going to make this more likely to fail at the courts. I hope that anyone who already has a visa and already lived in the States gets compensation. I'd think that maybe those who lived elsewhere had never been to the States yet and got visas rejected due to these extra requirements might struggle to get standing, but anyone who's already got permission to have it rescinded like this, I fail to see how that could possibly be legal.

[LittleFuzzy]

So while I hope you're right, I just can't imagine that the administration would be stupid enough to include religious terminology in their policies; they're likely to hide behind 'national origin' and some vague security concerns rather than mentioning Muslims. We all know the motivation here, of course, since Trump was kind enough to tells us outright what he wanted to do, but I'm not sure that is enough to strike it down.

It's not. If you could prove a disproportionate effect on a religious group and demonstrate that the "proper" spirit of the law could still be achieved without such an effect you might convince a court to strike such a policy hitting citizens down though it would be a real uphill struggle. Here, with refugees, prospective immigrants, and other visa-seekers where those directly effected don't even have standing? No, such a law or policy would not be struck down on 1st amendment grounds.

Absent 1st or 14th amendment issues wrt religion, are there other grounds you can see for striking this down? Frankly, much as I find it distasteful, wrong-headed, stupid, offensive, and all-around a bad idea, I'm not sure it's illegal.

Off the top of my head, the best hope is that his policy-crafters exceed executive power and wander into the legislative realm. It's going to be slower and harder to get something like that through Congress (look at the total failure of the GOP to come to any kind of agreement on immigration reform). But no, if it's intelligently constructed, I don't see where it would be unconstitutional. The federal government does explicitly have the power to make exactly these kinds of decisions, to target specific countries or those traveling there (can anyone say Cuba?) and setting restrictions on entry into the US. And the courts are going to defer as much as they can, absent explicit religious references this is very clearly territory for the rational basis standard, and further, it comes down to foreign policy and national security which are topics judges know damn well is not an area they or their branch is suited for.

[LittleFuzzy]

Any religious tests will fail at Supreme Court surely but it could take a while to get there. It looks they've had lawyers etc try to modify this to make it least likely to fail though.

They've already gone for national origin haven't they? eg Muslims from the nation with the most Muslims in the world in it aren't covered by the ban.

As far as I can tell they've only gone for one religious test and that is with refugees. Here they've tried to be 'cute' and phrased it not as banning Muslims but as "prioritising refugees who are a religious minority in their nation". Whether this will be enough to slide past the first Amendment

It is absolutely not enough to get it past Constitutional muster. If the regular implemented policies have language in them like that, they're going to be struck down at least in part. That text is what I was thinking of when I wrote my first reply.

The biggest outrage is to have this affect those who've already got visas - which is probably going to make this more likely to fail at the courts. I hope that anyone who already has a visa and already lived in the States gets compensation. I'd think that maybe those who lived elsewhere had never been to the States yet and got visas rejected due to these extra requirements might struggle to get standing, but anyone who's already got permission to have it rescinded like this, I fail to see how that could possibly be legal.

If they manage to get into the States, they will have standing and their bans would probably be overturned individually because while they are not citizens they will be in the US' jurisdiction which means the Equal Protection clause of the 14th amendment will apply to them, and they will clearly have standing (except maybe in the eyes of someone like Lewk who doesn't understand how non-citizens could ever have standing in US courts) People halted outside the US. . . that's iffier. They won't have standing but in at least some cases there will be people who do have standing (family already in the country for example), but the Equal Protection clause will not apply. They aren't citizens and they won't be in US jurisdiction, and as such there isn't really a cause of action for the courts.

[RandBlade]

It's not. If you could prove a disproportionate effect on a religious group and demonstrate that the "proper" spirit of the law could still be achieved without such an effect you might convince a court to strike such a policy hitting citizens down though it would be a real uphill struggle. Here, with refugees, prospective immigrants, and other visa-seekers where those directly effected don't even have standing? No, such a law or policy would not be struck down on 1st amendment grounds.

The own-goal is that they've not just included visa-seekers but visa-holders. They've included Green Card holders FFS. Surely a Green Card holder has standing to challenge his Green Card essentially being revoked by an executive order?

[RandBlade]

This is interesting. Trump has used a list of nations Obama's administration and Congress chose apparently: https://sethfrantzman.com/2017/01/28...wont-tell-you/

[Khendraja'aro]

This is interesting. Trump has used a list of nations Obama's administration and Congress chose apparently: https://sethfrantzman.com/2017/01/28...wont-tell-you/

Obama didn't BAN people from those countries. If they say: "Okay, we take a closer look at people from those countries!", fine. But an outright ban for everyone? Seriously? Is this moronic "It's all Obama's fault!" thing still going on?

Quote from the comments:

No. The code you cite simply says that nationals from those countries are not covered under the Visa Waiver Program which allows many people to travel to the US without a visa. It just means that these nationals must get a visa. They were not banned.

Next time, Rand, train your reading comprehension.

Quite a number of comments rip this idiot a new one.

[Aimless]

For an account (unconfirmed) of the process that gave birth to this abomination:

https://www.lawfareblog.com/malevole...gees-and-visas

CNN offers extraordinary details:

Administration officials weren't immediately sure which countries' citizens would be barred from entering the United States. The Department of Homeland Security was left making a legal analysis on the order after Trump signed it. A Border Patrol agent, confronted with arriving refugees, referred questions only to the President himself, according to court filings.

. . .

It wasn't until Friday -- the day Trump signed the order banning travel from seven Muslim-majority countries for 90 days and suspending all refugee admission for 120 days -- that career homeland security staff were allowed to see the final details of the order, a person with the familiar the matter said.

. . .

The policy team at the White House developed the executive order on refugees and visas, and largely avoided the traditional interagency process that would have allowed the Justice Department and homeland security agencies to provide operational guidance, according to numerous officials who spoke to CNN on Saturday.

Homeland Security Secretary John Kelly and Department of Homeland Security leadership saw the final details shortly before the order was finalized, government officials said.

Friday night, DHS arrived at the legal interpretation that the executive order restrictions applying to seven countries -- Iran, Iraq, Libya, Somalia, Syria, Sudan and Yemen -- did not apply to people who with lawful permanent residence, generally referred to as green card holders.

The White House overruled that guidance overnight, according to officials familiar with the rollout. That order came from the President's inner circle, led by Stephen Miller and Steve Bannon. Their decision held that, on a case by case basis, DHS could allow green card holders to enter the US.

This is interesting. Trump has used a list of nations Obama's administration and Congress chose apparently: https://sethfrantzman.com/2017/01/28...wont-tell-you/

It's not news, nor is it particularly enlightening. The consequences of this order are much more detrimental to individuals who were not harmed to this extent by the other measures singling out their countries. The list of nations is not at issue, other than as a stark reminder--due to its glaring omissions--of the hypocrisy inherent in all politics. Every country on that list is there for a good reason. And for those reasons they are subjected to a far greater level of scrutiny than other visitors and immigrants. Ultimately, it amounted to tolerable inconvenience. Issues of consistency and hypocrisy notwithstanding, it was a fair tradeoff. Trump's order is not fair. It's also extraordinarily incompetent, other than wrt the terrifying efficacy with which they blindsided everyone.

[Aimless]

Next time, Rand, train your reading comprehension.

Quite a number of comments rip this idiot a new one.

Easy bro, let's keep our eyes on the real enemy. A lot of people made similar mistakes trying to figure out what to think about this.

[Khendraja'aro]

Fun fact: One of our politicians would be affected by this - he has German and Iranian nationality.

And you simply can't get rid of the Iranian nationality - Iran only allows expatriation in very rare cases.

[RandBlade]

Obama didn't BAN people from those countries. If they say: "Okay, we take a closer look at people from those countries!", fine. But an outright ban for everyone? Seriously? Is this moronic "It's all Obama's fault!" thing still going on?

Quote from the comments:



Next time, Rand, train your reading comprehension.

Quite a number of comments rip this idiot a new one.

You have some nerve talking about reading comprehension. Show me where I said that Obama banned people? How about getting some reading comprehension yourself and replying to what I actually write and not what you make up in you own head that I'm writing. If you feel like abandoning your straw man brigade you can apologise at your leisure.

The reason I found the list of nations interesting is as Aimless pointed out for the glaring omissions. Why not include Saudi Arabia for instance?

[Loki]

FYI, the 1965 immigration act blocks discrimination against immigrants on the grounds of national origin (though not religion). Congress sets the parameters of immigration rules.

People with green cards are mostly covered by the constitution. This executive order violates due process, equal protection, and arguably the first amendment.

[Loki]

Off the top of my head, the best hope is that his policy-crafters exceed executive power and wander into the legislative realm. It's going to be slower and harder to get something like that through Congress (look at the total failure of the GOP to come to any kind of agreement on immigration reform). But no, if it's intelligently constructed, I don't see where it would be unconstitutional. The federal government does explicitly have the power to make exactly these kinds of decisions, to target specific countries or those traveling there (can anyone say Cuba?) and setting restrictions on entry into the US. And the courts are going to defer as much as they can, absent explicit religious references this is very clearly territory for the rational basis standard, and further, it comes down to foreign policy and national security which are topics judges know damn well is not an area they or their branch is suited for.

The courts have allowed discrimination on the basis of national origin in the narrow case of presidents using that discrimination as a form of foreign policy (e.g. Cuba, and Iran under Carter). Anything broader is inconsistent with Congressional guidance and therefore unconstitutional.

[Aimless]

Btw Fuzzy when I was talking about punishment for violating due process I was talking about those who were preventing detainees with green cards from talking with their attorneys, eg:

http://www.thedailybeast.com/article...s-unfolds.html

Individual officers should be held accountable for that sort of thing.

[Loki]

I'm sure they can argue that the situation was unclear at the time. They'll get the benefit of the doubt.

Edit: now things are getting interesting. Harder to claim uncertainty. https://twitter.com/DamonSilvers/sta...47937066115072

[Being]

The remaining free world should begin sanctioning the USA immediately. No threats...just put sanctions in place now. Start with banning Trump and gang from traveling to their countries.

[Aimless]

I'm sure they can argue that the situation was unclear at the time. They'll get the benefit of the doubt.

Edit: now things are getting interesting. Harder to claim uncertainty. https://twitter.com/DamonSilvers/sta...47937066115072

Exactly. A number of sources have reported that they've been obstructed even when it should have been clear to the officers in question that such obstruction would violate federal court orders. At this point I'm almost beginning to wonder if this is to hide intentional mistreatment of detainees.

[LittleFuzzy]

The courts have allowed discrimination on the basis of national origin in the narrow case of presidents using that discrimination as a form of foreign policy (e.g. Cuba, and Iran under Carter). Anything broader is inconsistent with Congressional guidance and therefore unconstitutional.

Whatever may be the case for the later policies formulated under this directive, the 120-day freeze IS clearly standard executive foreign policy. If there had actually been intelligence warning of a planned attack it could even have been justified.

Btw Fuzzy when I was talking about punishment for violating due process I was talking about those who were preventing detainees with green cards from talking with their attorneys, eg:

http://www.thedailybeast.com/article...s-unfolds.html

Individual officers should be held accountable for that sort of thing.

Nope, not going to happen. Lack of demonstrable mens rea.

[wiggin]

It's not. If you could prove a disproportionate effect on a religious group and demonstrate that the "proper" spirit of the law could still be achieved without such an effect you might convince a court to strike such a policy hitting citizens down though it would be a real uphill struggle. Here, with refugees, prospective immigrants, and other visa-seekers where those directly effected don't even have standing? No, such a law or policy would not be struck down on 1st amendment grounds.

Off the top of my head, the best hope is that his policy-crafters exceed executive power and wander into the legislative realm. It's going to be slower and harder to get something like that through Congress (look at the total failure of the GOP to come to any kind of agreement on immigration reform). But no, if it's intelligently constructed, I don't see where it would be unconstitutional. The federal government does explicitly have the power to make exactly these kinds of decisions, to target specific countries or those traveling there (can anyone say Cuba?) and setting restrictions on entry into the US. And the courts are going to defer as much as they can, absent explicit religious references this is very clearly territory for the rational basis standard, and further, it comes down to foreign policy and national security which are topics judges know damn well is not an area they or their branch is suited for.

It is absolutely not enough to get it past Constitutional muster. If the regular implemented policies have language in them like that, they're going to be struck down at least in part. That text is what I was thinking of when I wrote my first reply.

If they manage to get into the States, they will have standing and their bans would probably be overturned individually because while they are not citizens they will be in the US' jurisdiction which means the Equal Protection clause of the 14th amendment will apply to them, and they will clearly have standing (except maybe in the eyes of someone like Lewk who doesn't understand how non-citizens could ever have standing in US courts) People halted outside the US. . . that's iffier. They won't have standing but in at least some cases there will be people who do have standing (family already in the country for example), but the Equal Protection clause will not apply. They aren't citizens and they won't be in US jurisdiction, and as such there isn't really a cause of action for the courts.

I don't really understand the legal details well enough - I think it's possible to make most of this executive order stick with careful phrasing and application, but it's also entirely possible that the administration will be less than careful in its application given how badly they bungled it so far. I'm hopeful it can be struck down but I'm not optimistic; even bits that are successfully challenged can probably be reformulated to be acceptable to the courts.



On a broader note, though, I think this might be the first real challenge to the administration. Of all of the egregious missteps of the last week or so, this has occasioned - by far - the most consternation. On an anecdotal level, I am seeing trends that should concern the administration. My peer group, while generally leaning left of center, is not the typical demographic that turns out to protests (let alone those organized by CAIR, an organization with no shortage of skeletons in its closet). They are well-paid, well-educated professionals with families who generally are skeptical of the utility of public protest and have better things to do with their time. Yet, on one day's notice, a substantial subset of my friends are attending the big rally here in Boston this afternoon - with their children in tow (I myself, with no big confidence in the value of such public protests, would likely be there if not for my daughter's naptime). Governments should be nervous when middle class citizens are spontaneously showing up to protests with strollers.

Even so, if the legal challenges are unable to substantially shift the policy, I have my doubts that anything substantive is going to happen. Outrage is something Trump is used to provoking, and it doesn't seem to deter him. I'm frankly at a loss for constructive responses to this an other deeply troubling moves by the administration.

[LittleFuzzy]

Even so, if the legal challenges are unable to substantially shift the policy, I have my doubts that anything substantive is going to happen. Outrage is something Trump is used to provoking, and it doesn't seem to deter him. I'm frankly at a loss for constructive responses to this an other deeply troubling moves by the administration.

Oh yeah. The biggest problem with this order (from the bench's perspective) was its "effective immediately" bit. That's what caused this chaos and that's why those two judges issues immediate stays. This is not a situation where acting with due deliberation is going to hurt the US. But it creates a wonderful moment for Trump as a populist because populists and activists in general hate "due deliberation." It's slow and it tries to make nuances and complexities out of things which they think are simple and easy. The phrase just reeks of compromise, a dirty word to that type (no matter what side of the political aisle they're on). So here Trump is trying to make America safer and the damn courts, bureaucrats, and general Washington mess aren't letting him. Plays wonderfully for those people who elected him in the first place.

[Loki]

On a broader note, though, I think this might be the first real challenge to the administration. Of all of the egregious missteps of the last week or so, this has occasioned - by far - the most consternation. On an anecdotal level, I am seeing trends that should concern the administration. My peer group, while generally leaning left of center, is not the typical demographic that turns out to protests (let alone those organized by CAIR, an organization with no shortage of skeletons in its closet). They are well-paid, well-educated professionals with families who generally are skeptical of the utility of public protest and have better things to do with their time. Yet, on one day's notice, a substantial subset of my friends are attending the big rally here in Boston this afternoon - with their children in tow (I myself, with no big confidence in the value of such public protests, would likely be there if not for my daughter's naptime). Governments should be nervous when middle class citizens are spontaneously showing up to protests with strollers.

Even so, if the legal challenges are unable to substantially shift the policy, I have my doubts that anything substantive is going to happen. Outrage is something Trump is used to provoking, and it doesn't seem to deter him. I'm frankly at a loss for constructive responses to this an other deeply troubling moves by the administration.

There's also this: https://notoimmigrationban.com/

Not that Trump or his "poorly educated" supporters care.

Oh yeah. The biggest problem with this order (from the bench's perspective) was its "effective immediately" bit. That's what caused this chaos and that's why those two judges issues immediate stays. This is not a situation where acting with due deliberation is going to hurt the US. But it creates a wonderful moment for Trump as a populist because populists and activists in general hate "due deliberation." It's slow and it tries to make nuances and complexities out of things which they think are simple and easy. The phrase just reeks of compromise, a dirty word to that type (no matter what side of the political aisle they're on). So here Trump is trying to make America safer and the damn courts, bureaucrats, and general Washington mess aren't letting him. Plays wonderfully for those people who elected him in the first place.

While this won't affect the die-hards, Trump is already polling at 36%. I give it a few months before the Dems start calling for impeachment. And I'd give it 2 years (right after Nov. 2018) for parts of the GOP to join in.

[Aimless]

There will be another war and multiple terrorist attacks before then.

[Aimless]

Nope, not going to happen. Lack of demonstrable mens rea.

I confess I'm having a hard time coming to terms with a blatant violation of due process going entirely unpunished but no doubt the world is just as shitty as you say it is.

[Hazir]

Trump (and he people who wrote this decrete) were incredibly stupid with the way they implemented this policy. What they could have done, without hardly any change of a successfull legal challenge would have been to instruct the embassies in the countries involved to stop issuing all visas pending a change in the vetting of applicants. It would have made it impossible to challenge the policy in the courts.

[Hazir]

I confess I'm having a hard time coming to terms with a blatant violation of due process going entirely unpunished but no doubt the world is just as shitty as you say it is.

I must say that I am a bit surprised the possibility of suiing for damages is the discarded that easily. In Holland the threshold for damages being awarded is very high, but if you can prove that the unlawful application of a policy caused you damages you can sue government.

[Loki]

I must say that I am a bit surprised the possibility of suiing for damages is the discarded that easily. In Holland the threshold for damages being awarded is very high, but if you can prove that the unlawful application of a policy caused you damages you can sue government.

The government must give you the right to sue it. Do you think Trump is in a giving mood?