Trump travel ban: Appeals court casts skeptical eye at revised order

[Dug]

Months of calling it that before the EO even existed?

Yes. Why are you being intentionally obtuse?

[nacixems]

activist Judge making law, not doing what a judge does. more liberal activist judges pushing a political agenda. this guy is nothing more than another trump hater, and should be removed.

[Spectral]

The core question really is how broadly the 14th Amendment should apply to foreign citizens residing in foreign countries that want to move to the United States. Claims that the policy isn't intended to discriminate against Muslims are all obvious nonsense, so transparent that they're barely worth considering, particularly given that disparate impact doctrine is a working principle in courts. Everything other than figuring out how broad the 14th Amendment should be is just window dressing.

Personally, I don't think equal protection should be applied in immigration at all, I flatly don't think that equal protection of American laws should be applied to people that aren't from here and don't reside here. This appears to be a losing battle on my end though. Given current jurisprudence, I'd expect this ban to be ruled unconstitutional.

What I'd really like to see (but I know won't happen) is a new amendment to clarify and improve upon the 14th. The 14th was designed primarily with freed slaves in mind with a bit of a thought given to Native Americans; the obvious extension a century later is to foreigners, but the actual results aren't what I support and I don't think they're what the majority of Americans support.

[Orbitus]

Careful there, your imperialistic tendencies are showing. American constitution applies only to the American soil, in other words within its borders. Foreign policy is outside of the court's jurisdiction.

Actually no it doesn't. There have been a few court cases that showed that the constitution applies to people in other countries.

[Wyrt]

activist Judge making law, not doing what a judge does. more liberal activist judges pushing a political agenda. this guy is nothing more than another trump hater, and should be removed.

Judges are there to be part of the checks and balance system. Weighing on the legality of laws and EOs is exactly what they're there to do. That's their primary function.

[Orbitus]

Judges are there to be part of the checks and balance system. Weighing on the legality of laws and EOs is exactly what they're there to do. That's their primary function.

But when it goes for them, they are being patriots and scholars. When it goes against them, they are against the constitution and are activist judges. Even though they are doing their jobs.

[Slybak]

The core question really is how broadly the 14th Amendment should apply to foreign citizens residing in foreign countries that want to move to the United States.

This case has virtually nothing to do with the 14th Amendment even in the most abstract sense. Rather, the core questions are:

1) Whether the President's statements about these Executive Orders can be used to review the constitutionality of this order, specifically with regard to its Establishment Clause implications.

This isn't being contested in court. Statements surrounding legal acts, in the case of laws approved by Congress, usually aren't held as dispositive as to the intent or goal of the act in question because there are 535 Representatives and Senators who may each have different motives and intentions when voting for a law. But there's only one person ultimately responsible for the drafting and signing of an Executive Order. If the President says "I'm doing X because of Y," then the constitutionality of Y is valid for judging the constitutionality of X.

2) Whether those statements rise to the level of a 1st Amendment violation.
In other words, "What actually constitutes Y, and does that rise to the level of an unconstitutional rationale?" The petitioners seeking to overturn the E.O. say that both Trump's pre-inauguration and post-inauguration statements about limiting Muslim immigration count as Y, and that the rationale underlying those statements imposes a disfavored status upon practitioners of Islam, and such an imposition rises to the level of an Establishment Clause violation. Lawyers for the government are arguing that only certain statements should be reviewable, and those statements do not do this.

3) Whether the provisions of the 1965 INA supersede the provisions of the 1952 INA.
The 1952 Immigration and Nationality Act abolished the old racial restrictions in U.S. immigration law and replaced them with national quotas. One of its provisions gave the President broad powers to limit the entry of classes of immigrants they deemed "detrimental to the interests of the United States." The 1965 INA prohibited the use of national origin, race, and ancestry as immigration criteria. Are the powers granted to the President in the 1952 INA limited by the provisions of the 1965 INA? Petitioners say they are, the government says that they aren't.

4) Whether, if (3) is true, the E.O. violates that statute.
Everyone involved agrees that this is the case.

5) Whether the states, municipalities, and individuals challenging the E.O. can demonstrate on-going harm that can be stopped through an injunction against the E.O. (i.e. they have "standing").
The government is challenging the standing of certain individual petitioners on jurisdictional grounds, but the courts have already accepted that states and municipalities are experiencing an on-going harm due to the fact that implementing the E.O. affects things like tourism and their budgeting process.

So the main questions are (2) and (3).

[Astalnar]

Actually no it doesn't. There have been a few court cases that showed that the constitution applies to people in other countries.

Once they are inside USA, I presume. Not when they are anywhere else in the world. That's my point.

[Orbitus]

Once they are inside USA, I presume. Not when they are anywhere else in the world. That's my point.

No. When they are applying to be a refugee to the United States, if it says "citizen" anywhere in that amendment, then it only applies to citizens, but since the majority of the amendments, don't say "citizen" in it, they apply to everyone that are either coming to or leaving from our country.