Federal Judge HALTS new travel ban nationwide

[EnglishPete]

Can anybody explain to a layman like me why American law (equal protection clause) would apply to foreigners?

-Google "Zeroth Amendment". Very commonly believed to be part of the Constitution by NYT's core audience.

[EnglishPete]

Can anybody explain to a layman like me why American law (equal protection clause) would apply to foreigners?

In the legal sense there was a court case Yick Wonvs Hopkins that said once an immigrant comes here he is protected under the equal protection laws due to the inhuman way immigrants (Chinese in particular) were treated. In a greater sense many feel (including me) our founders rebel and later founded this country on enlightenment ideals with "the universal rights of man" at the center

The founding fathers of the United States were what would today be called White Nationalists. That's not meant as an argument in favour of against white nationalism, that's just a historical fact.

The preamble to the US constitution says that its written to benefit 'Ourselves and our posterity'. 'Ourselves' means the people of America, in a country where slaves and Indian nations were not citizens. 'Our posterity means our decendents.'

The constitution was of course amended with the fourteenth amendment. This changed the US constitution from being an ethnonationalist document to a civic nationalist document. The Republicans retained aspects of the nationalism of their Whig forerunners but also changed it by explicitly rejecting ethno nationalism and promoting the idea of civic nationalism which was enshrined in the 14th Amendment. The amendment is however still explicitly nationalists. It applies to US citizens and in part to all others subject to the jurisdiction of the US. It explicitly doesn't apply to everyone in the world

[True Federalist (진정한 연방 주의자)]

We'll have to await the conclusion of the review process before we can celebrate anything, but things are certainly looking good. Whether or not this truly amounts to a "Muslim ban" is debatable, but Trump didn't help his case by campaigning on the promise of a Muslim ban. Now any proposal to limit travel or migration from a Muslim majority nation will be immediately viewed as a ban on persons of the Islamic faith, which is exactly the perception the courts and American public should maintain.

Absolutely not , unless it has religious exemptions the order is not a religious ban and it should not be overturned.

So, by that thinking, we should never have struck down literacy tests for voting?  After all, they weren't explicitly racially discriminatory.  Just look at the written words and never mind the effect, right?

That said, this is weak sauce. I expect that by the time it makes it to the Supreme Court, they'll be back to a full court and the EO will mostly be allowed to go forward.  The temporary 90-day ban will be moot as by then the review in policy that it's supposed to give time for should have been long done by the time this get to SCOTUS.

except the 14th 15th and 19th amendments clearly said you coudnt ban citizens from voting for those reasons.

Where in those amendments does it bar literacy tests? You can't logically argue in favor of considering the discriminatory effect of laws and regulations despite them not being in their literal text in some situations while simultaneously holding it doesn't matter in others. The whole history of this EO shows a discriminatory intent that makes it more difficult to be sustained. Granted, this EO would have an easier time in the courts were it not for the explicitly discriminatory language in the first EO. However, you can't unbite an apple.

[EnglishPete]

We'll have to await the conclusion of the review process before we can celebrate anything, but things are certainly looking good. Whether or not this truly amounts to a "Muslim ban" is debatable, but Trump didn't help his case by campaigning on the promise of a Muslim ban. Now any proposal to limit travel or migration from a Muslim majority nation will be immediately viewed as a ban on persons of the Islamic faith, which is exactly the perception the courts and American public should maintain.

Absolutely not , unless it has religious exemptions the order is not a religious ban and it should not be overturned.

So, by that thinking, we should never have struck down literacy tests for voting?  After all, they weren't explicitly racially discriminatory.  Just look at the written words and never mind the effect, right?

That said, this is weak sauce. I expect that by the time it makes it to the Supreme Court, they'll be back to a full court and the EO will mostly be allowed to go forward.  The temporary 90-day ban will be moot as by then the review in policy that it's supposed to give time for should have been long done by the time this get to SCOTUS.

except the 14th 15th and 19th amendments clearly said you coudnt ban citizens from voting for those reasons.

Where in those amendments does it bar literacy tests? You can't logically argue in favor of considering the discriminatory effect of laws and regulations despite them not being in their literal text in some situations while simultaneously holding it doesn't matter in others. The whole history of this EO shows a discriminatory intent that makes it more difficult to be sustained. Granted, this EO would have an easier time in the courts were it not for the explicitly discriminatory language in the first EO. However, you can't unbite an apple.

The fourteenth amendment applies wholly to citizens and partially to all others subject to the jurisdiction of the United States. The fifteenth amendment (like the nineteenth and the twenty fourth) applies to US citizens only. There is nothing in any part of the present US constitution that prohibits, racial, religious, sexual or any other form of discrimination against people who are neither citizens nor subject to the jurisdiction of the US.

This is made clear by the history of the 1925 Immigration act. During the forty years it was in force there was much controversy over the 'Jim Crow' laws of many states that paid lip service to the 14th and 15th amendments whilst undermining them in thinly disguised ways. After decades of argument these were all eventually ruled unconstitutional, as you all know.

However throughout those forty years no one ever suggested that the 1925 act was contrary to the constitution despite the fact that it did not pay any lip service to the idea of race equality, on the contrary it was explicitly and intentionally discriminatory on ethnic grounds. Clearly the idea that potential would be immigrants are covered under the protections of the fourteenth amendment is a modern fabrication by ideologically driven jurists who are unhappy that the Zeroth Amendment is not in the official text. Such a humpty dumpty interpretation clearly runs against the nationalist ideology of the Republican Party at the time they passed the 14th as well the obvious meaning of the words.

[EnglishPete]

Having a glance through the judgement it all seems to be based on the idea that non resident aliens have rights under the constitution, which is contrary to all prior law. He talks about a Muslim man who is being descriminated against in his 'right to associate with family members oversees'. Has anyone ever heard of this 'right' before or did the judge just pull it out of his arse? People have pointed out that as recently as last year the Supreme Court confirmed that First Amendment applies to citizens only and yet one District Judge proclaims it applies to the entire planet because it suits his social justice ideology and never mind the law.

[SteveRogers]

Having a glance through the judgement it all seems to be based on the idea that non resident aliens have rights under the constitution, which is contrary to all prior law. He talks about a Muslim man who is being descriminated against in his 'right to associate with family members oversees'. Has anyone ever heard of this 'right' before or did the judge just pull it out of his arse? People have pointed out that as recently as last year the Supreme Court confirmed that First Amendment applies to citizens only and yet one District Judge proclaims it applies to the entire planet because it suits his social justice ideology and never mind the law.

Except that isn't what the decision is about, and that isn't the legal reasoning the judge employed. You're mixing up the opinion's discussion of standing with the legal reasoning as to why the EO is (likely) unconstitutional. There are two plaintiffs in this suit. One is the state of Hawaii. The other is Dr. Elshikh. Dr. Elshikh is an American citizen. To bring suit, he must show that he has suffered a concrete injury from the government's executive order. The injury that he has suffered is the EO interferes with his ability to associate with family members who will now be denied entry to the U.S. You are correct that there is no constitutional right to visitation by non-citizen family members. But it is not this injury in and of itself that entitles Dr. Elshikh to relief. The injury just allows Dr. Elshikh to bring suit against the government. What entitles Dr. Elshikh to relief is the fact that his injury results from the government's unconstitutional conduct.

The court says the Plaintiffs are likely to succeed on the merits on their claim that the EO violates the Establishment Clause. The Establishment Clause is not merely a grant rights to individual U.S. citizens, but rather an absolute limitation on what the federal government may do. The government may not establish religious tests. Period. Nothing in the first amendment or in any case law makes any exception for matters of immigration. The fact that non-citizens abroad have no constitutional right to challenge an unconstitutional immigration measure is irrelevant because here we have parties in the U.S. with proper standing to challenge the EO.

[(Still) muted by Kalwejt until March 31]

Oh if right-wingers only looked at data showing that they are more dangerous and violent statistically in America then these " dangerous" Muslims... I'm not holding my breath on that.

-I've looked at the data, and Muslims commit over 20x more terrorist attacks per capita than ordinary Americans.

[(Still) muted by Kalwejt until March 31]

Having a glance through the judgement it all seems to be based on the idea that non resident aliens have rights under the constitution, which is contrary to all prior law. He talks about a Muslim man who is being descriminated against in his 'right to associate with family members oversees'. Has anyone ever heard of this 'right' before or did the judge just pull it out of his arse? People have pointed out that as recently as last year the Supreme Court confirmed that First Amendment applies to citizens only and yet one District Judge proclaims it applies to the entire planet because it suits his social justice ideology and never mind the law.

Except that isn't what the decision is about, and that isn't the legal reasoning the judge employed. You're mixing up the opinion's discussion of standing with the legal reasoning as to why the EO is (likely) unconstitutional. There are two plaintiffs in this suit. One is the state of Hawaii. The other is Dr. Elshikh. Dr. Elshikh is an American citizen. To bring suit, he must show that he has suffered a concrete injury from the government's executive order. The injury that he has suffered is the EO interferes with his ability to associate with family members who will now be denied entry to the U.S. You are correct that there is no constitutional right to visitation by non-citizen family members. But it is not this injury in and of itself that entitles Dr. Elshikh to relief. The injury just allows Dr. Elshikh to bring suit against the government. What entitles Dr. Elshikh to relief is the fact that his injury results from the government's unconstitutional conduct.

The court says the Plaintiffs are likely to succeed on the merits on their claim that the EO violates the Establishment Clause. The Establishment Clause is not merely a grant rights to individual U.S. citizens, but rather an absolute limitation on what the federal government may do. The government may not establish religious tests. Period. Nothing in the first amendment or in any case law makes any exception for matters of immigration. The fact that non-citizens abroad have no constitutional right to challenge an unconstitutional immigration measure is irrelevant because here we have parties in the U.S. with proper standing to challenge the EO.

-

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https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm

Hm...

[Tintrlvr]

Having a glance through the judgement it all seems to be based on the idea that non resident aliens have rights under the constitution, which is contrary to all prior law. He talks about a Muslim man who is being descriminated against in his 'right to associate with family members oversees'. Has anyone ever heard of this 'right' before or did the judge just pull it out of his arse? People have pointed out that as recently as last year the Supreme Court confirmed that First Amendment applies to citizens only and yet one District Judge proclaims it applies to the entire planet because it suits his social justice ideology and never mind the law.

This particular Muslim man is a US citizen. And the right to association is extremely well established, as are related rights to maintaining family relationships. Zablocki v. Redhail (1978, establishing a constitutional fundamental right to marriage) and Troxel v. Granville (2000, establishing a fundamental right of parents to have a parental relationship with their children without third-party (in that case, grandparent) interference) are very central cases in jurisprudence on the right to associate with one's family, and a lot of the recent same-sex marriage jurisprudence talks about basically the same concepts. The original seminal case on fundamental rights, Pierce v. Society of Sisters (1925, establishing a fundamental right to private education), which established the idea that there are "unenumerated" rights in the Constitution, is probably one that you would even approve of.

As a more general matter, see: https://en.wikipedia.org/wiki/Fundamental_rights#United_States

The right

[SteveRogers]

Having a glance through the judgement it all seems to be based on the idea that non resident aliens have rights under the constitution, which is contrary to all prior law. He talks about a Muslim man who is being descriminated against in his 'right to associate with family members oversees'. Has anyone ever heard of this 'right' before or did the judge just pull it out of his arse? People have pointed out that as recently as last year the Supreme Court confirmed that First Amendment applies to citizens only and yet one District Judge proclaims it applies to the entire planet because it suits his social justice ideology and never mind the law.

Except that isn't what the decision is about, and that isn't the legal reasoning the judge employed. You're mixing up the opinion's discussion of standing with the legal reasoning as to why the EO is (likely) unconstitutional. There are two plaintiffs in this suit. One is the state of Hawaii. The other is Dr. Elshikh. Dr. Elshikh is an American citizen. To bring suit, he must show that he has suffered a concrete injury from the government's executive order. The injury that he has suffered is the EO interferes with his ability to associate with family members who will now be denied entry to the U.S. You are correct that there is no constitutional right to visitation by non-citizen family members. But it is not this injury in and of itself that entitles Dr. Elshikh to relief. The injury just allows Dr. Elshikh to bring suit against the government. What entitles Dr. Elshikh to relief is the fact that his injury results from the government's unconstitutional conduct.

The court says the Plaintiffs are likely to succeed on the merits on their claim that the EO violates the Establishment Clause. The Establishment Clause is not merely a grant rights to individual U.S. citizens, but rather an absolute limitation on what the federal government may do. The government may not establish religious tests. Period. Nothing in the first amendment or in any case law makes any exception for matters of immigration. The fact that non-citizens abroad have no constitutional right to challenge an unconstitutional immigration measure is irrelevant because here we have parties in the U.S. with proper standing to challenge the EO.

-

You must be logged in to read this quote.

https://www.state.gov/j/prm/releases/factsheets/2017/266447.htm

Hm...

Your point?

[EnglishPete]

Having a glance through the judgement it all seems to be based on the idea that non resident aliens have rights under the constitution, which is contrary to all prior law. He talks about a Muslim man who is being descriminated against in his 'right to associate with family members oversees'. Has anyone ever heard of this 'right' before or did the judge just pull it out of his arse? People have pointed out that as recently as last year the Supreme Court confirmed that First Amendment applies to citizens only and yet one District Judge proclaims it applies to the entire planet because it suits his social justice ideology and never mind the law.

This particular Muslim man is a US citizen. And the right to association is extremely well established, as are related rights to maintaining family relationships. Zablocki v. Redhail (1978, establishing a constitutional fundamental right to marriage) and Troxel v. Granville (2000, establishing a fundamental right of parents to have a parental relationship with their children without third-party (in that case, grandparent) interference) are very central cases in jurisprudence on the right to associate with one's family, and a lot of the recent same-sex marriage jurisprudence talks about basically the same concepts. The original seminal case on fundamental rights, Pierce v. Society of Sisters (1925, establishing a fundamental right to private education), which established the idea that there are "unenumerated" rights in the Constitution, is probably one that you would even approve of.

As a more general matter, see: https://en.wikipedia.org/wiki/Fundamental_rights#United_States

The right

Such 'fundamental rights' to maintaining family relationships, to marriage etc covers the rights of citizens in relationship with other citizens. They do not cover citizens in their relationship with non resident aliens as SCOTUS confirmed just two years ago

You must be logged in to read this quote.

https://www.supremecourt.gov/opinions/14pdf/13-1402_e29g.pdf

[EnglishPete]

The court says the Plaintiffs are likely to succeed on the merits on their claim that the EO violates the Establishment Clause. The Establishment Clause is not merely a grant rights to individual U.S. citizens, but rather an absolute limitation on what the federal government may do. The government may not establish religious tests. Period. Nothing in the first amendment or in any case law makes any exception for matters of immigration. The fact that non-citizens abroad have no constitutional right to challenge an unconstitutional immigration measure is irrelevant because here we have parties in the U.S. with proper standing to challenge the EO.

Even if it were granted that the 1st Amendment applies to foreign policy, including immigration policy, and that the plaintiff had standing (and both points are clearly controversial) the fact remains that there is no religious test in the bill.

The judge gets around this little problem by saying that this ostensibly secular order has a religious purpose i.e. the religious purpose of disfavouring Islam rather than the secular purpose of preventing terrorism. His reasoning is that this order has evolved from his original proposal during the election to temporarily ban all Muslims from travelling to the United States.

He  then asserts, without evidence, that the purpose of the proposed ban on Muslim entry to the US was not, as Trump said at the time, to prevent terrorism but was to ban Muslims from entering the US. In other words he absurdly asserts that proposed Muslim entry to the US ban was its own purpose.

So the judge is saying that a secular test for a stated secular purpose must, in reality, have a religious purpose because it evolved from a proposed religious test and he assumes that that had a religious purpose. In others words he is saying that this secular test has a religious purpose but that it is impossible for a religious test to have a secular purpose. This is pure sophistry and rhetorical sleight of hand from the judge looks for legal sounding excuses to promote his transparent 'social justice' agenda.

[SteveRogers]

He  then asserts, without evidence, that the purpose of the proposed ban on Muslim entry to the US was not, as Trump said at the time, to prevent terrorism but was to ban Muslims from entering the US. In other words he absurdly asserts that proposed Muslim entry to the US ban was its own purpose.

So the judge is saying that a secular test for a stated secular purpose must, in reality, have a religious purpose because it evolved from a proposed religious test and he assumes that that had a religious purpose. In others words he is saying that this secular test has a religious purpose but that it is impossible for a religious test to have a secular purpose. This is pure sophistry and rhetorical sleight of hand from the judge looks for legal sounding excuses to promote his transparent 'social justice' agenda.

It does not matter what "secular purpose" Trump might have mentioned in conjunction with his proposed Muslim ban on the campaign trail. The fact of the matter is that the original Muslim ban that Trump proposed on the campaign trail would be unconstitutional no matter what. Saying "We need to ban all Muslims because terrorism" is no more a legitimate way to skirt the Constitution than saying, "We need to keep black students out of white schools to preserve order and promote effective education." No competent constitutional lawyer could seriously contend that a flat-out Muslim ban would ever pass constitutional muster, nor have the government's lawyers made that argument. The only argument to be had here is over whether or not Trump's EO was intended to take the place of his original proposal for a Muslim ban.

[EnglishPete]

He  then asserts, without evidence, that the purpose of the proposed ban on Muslim entry to the US was not, as Trump said at the time, to prevent terrorism but was to ban Muslims from entering the US. In other words he absurdly asserts that proposed Muslim entry to the US ban was its own purpose.

So the judge is saying that a secular test for a stated secular purpose must, in reality, have a religious purpose because it evolved from a proposed religious test and he assumes that that had a religious purpose. In others words he is saying that this secular test has a religious purpose but that it is impossible for a religious test to have a secular purpose. This is pure sophistry and rhetorical sleight of hand from the judge looks for legal sounding excuses to promote his transparent 'social justice' agenda.

It does not matter what "secular purpose" Trump might have mentioned in conjunction with his proposed Muslim ban on the campaign trail. The fact of the matter is that the original Muslim ban that Trump proposed on the campaign trail would be unconstitutional no matter what. Saying "We need to ban all Muslims because terrorism" is no more a legitimate way to skirt the Constitution than saying, "We need to keep black students out of white schools to preserve order and promote effective education." No competent constitutional lawyer could seriously contend that a flat-out Muslim ban would ever pass constitutional muster, nor have the government's lawyers made that argument. The only argument to be had here is over whether or not Trump's EO was intended to take the place of his original proposal for a Muslim ban.

Not sure why you put "secular purpose" in quotes there. That clearly was the purpose. Trump has never expressed any hatred towards Islam or Muslims. His goal in proposing the 'Muslim travel ban' was to reduce terrorism. Now you are quite right in saying that the consensus amongst legal scholars is that such a policy would be unconstitutional even though it would clearly work as a method of reducing terrorism in the country (compare the rates of terrorism in France to those in Hungary and Poland).

So Trump decided to develop a policy that would have the same beneficial effects of reducing terrorism that a Muslim travel ban would have achieved but without including a potentially unconstitutional religious test. How is that unconstitutional?

[EnglishPete]

Great point made here about the Judge's selective blindness and blatant partisanship  in making his judgment

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And just what is unconstitutional about helping victims of religious persecution? If we had given preference to German Jews before the Holocaust, would that have been unconstitutional? We in fact gave preference to Russian Jews fleeing the Soviet Union during the Cold War. Was that unconstitutional? It is amazing that Judge Watson seems blissfully unaware of the ongoing persecution of Christians in predominantly Muslim countries or the Obama administration’s curious selectivity in admitting refugees. As Fox News reported:

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Disparate impact, anyone? Discrimination? Gross injustice? Where were the lawsuits? Where were the judicial rulings saying that President Obama was favoring one religion over another? Where was Judge Watson and his liberal brethren?[/quote]
http://www.americanthinker.com/articles/2017/03/hawaii_judges_flawed_aloha_akhbar_logic.html