February 7th, 2017

The legal question is not whether immigrants have a right of entry

Cornhead writes:

Foreigners who reside outside of the USA, don’t have a green card or a visa don’t have any constitutional rights. And especially they have no right of entry to the USA.

If it were otherwise, expect about one billion people moving here tomorrow.

Others in the same thread yesterday made similar points—for example, Chester Draws:

People with no right to live in the US are not covered by the Constitution. It’s mental to say non-US citizens have any US rights.

I’m also going to quote Yankee, who writes:

If a nation cannot decide whom it will admit into its country to become a citizen, then it is not a sovereign nation. Period, end of discussion.

The First Amendment is not an issue. Congress, as the legislative body, and the President, as the executive with enforcement, have the final authority. If the people, under the law, have chosen not to admit anyone, or any group of people, for any reason whatsoever, then that is their choice, and there is nothing to appeal to.

I’ve not seen anyone claiming—in the legal sense, that is, rather than the moral sense—that everyone has a right of entry to this country. The more valid question (as Yankee implies) is what branch of the US government gets to decide who is eligible and under what statutes with what restrictions (if any), and also whether the Constitution itself contains any limitations on this power to decide who to admit. As I wrote in my post:

And I agree with Andrew McCarthy that—if we wanted to do so—immigrants of a certain religion could be banned under certain circumstances without violating the Constitution.

So I think the argument asserting that the Establishment Clause (the one I discussed in yesterday’s post) pertains to Trump’s EO is extremely weak, perhaps non-existent.

However, another argument, based on the wording of an immigration statue passed by Congress in 1965, is somewhat stronger. Andrew McCarthy deals with it in this manner:

…[L]et’s consider the claimed conflict between the president’s executive order and Congress’s statute. Mr. Bier asserts that Trump may not suspend the issuance of visas to nationals of specific countries because the 1965 immigration act “banned all discrimination against immigrants on the basis of national origin.” And, indeed, a section of that act, now codified in Section 1152(a) of Title 8, U.S. Code, states that…“no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”…Even on its face, this provision is not as clearly in conflict with Trump’s executive order as Bier suggests. As he correctly points out, the purpose of the anti-discrimination provision…was to end the racially and ethnically discriminatory “national origins” immigration practice that was skewed in favor of Western Europe. Trump’s executive order, to the contrary, is in no way an effort to affect the racial or ethnic composition of the nation or its incoming immigrants. The directive is an effort to protect national security from a terrorist threat, which, as we shall see, Congress itself has found to have roots in specified Muslim-majority countries. Because of the national-security distinction between Trump’s 2017 order and Congress’s 1965 objective, it is not necessary to construe them as contradictory, and principles of constitutional interpretation counsel against doing so.

…Federal immigration law also includes Section 1182(f), which states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate”…Section 1182(f) plainly and sweepingly authorizes the president to issue temporary bans on the entry of classes of aliens for national-security purposes. This is precisely what President Trump has done. In fact, in doing so, he expressly cites Section 1182(f), and his executive order tracks the language of the statute (finding the entry of aliens from these countries at this time “would be detrimental to the interests of the United States”)…Trump’s executive order also expressly relies on an Obama-era provision of the immigration law, Section 1187(a)(12), which governs the Visa Waiver Program. This statute empowers the executive branch to waive the documentation requirements for certain aliens. In it, Congress itself expressly discriminates based on country of origin…So, not only has Congress never repealed the president’s sweeping statutory power to exclude classes of aliens from entry on national-security grounds; decades after the 1965 anti-discrimination provision touted by Bier, Congress expressly authorized discrimination on the basis of national origin when concerns over international terrorism are involved. Consequently, by Bier’s own logic, the 1965 statute must be deemed amended by the much more recent statute.

It takes a bit of patience to follow that. But the gist of it is that there are two statutes that appear to be relevant, although one appears to forbid Trump from barring people from certain countries while the other allows him to do so, especially if the ban is temporary and for national security reasons (Trump’s EO fulfills both of these criteria). McCarthy is arguing (very convincingly, I believe) that the section allowing Trump to do this controls. Those seeking to block Trump would argue that the prohibition listed in the 1965 statue controls.

But neither of these legal arguments is based on the assertion that everyone has a right to come here. They are based on settling a disagreement between statutes, and involve which branch of government has the power to do what, and what statute controls. The challenges as to whether the EO itself is unconstitutional involve a different issue.

70 Responses to “The legal question is not whether immigrants have a right of entry”

  1. Cornhead Says:

    Just saw the NY AG on “Morning Joe.” His argument was all ipse dixit. Everything in the EO is unconstitutional because he said so. Muslims living in Yemen have a right to travel to the US. Because open borders.

  2. Cornhead Says:

    We don’t have a duty to admit anyone to this country. That’s the starting point. All entries to the US are a matter of grace. Admittedly completely closing the border turns us into North Korea, but that’s the basic principle.

  3. F Says:

    Neo:

    Cornhead quotes the NY AG succinctly in his last two sentences: “Muslims living in Yemen have a right to travel to the US. Because open borders.

    And a number of talking heads, including Obama at one point in the past week, have attacked the E.O. because “it’s not who we are.”

    The appeal to the moral dimension is classic Alinsky. And Open Borders is classic Soros. Those two facts are enough to convince me to oppose the effort.

  4. Cornhead Says:

    DOJ brief, “In the immigration context specifically, “[t]he Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016).”

  5. Cornhead Says:

    More from the DOJ brief, “but it is “clear” that “an unadmitted and nonresident alien” “had no constitutional right of entry to this country as a nonimmigrant or otherwise.” Mandel, 408 U.S. at 762.”

  6. Cornhead Says:

    DOJ Reply brief, “The Supreme Court “has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Landon v. Plasencia, 459 U.S. 21, 32 (1982).”

    No constitutional rights.

  7. Juli Says:

    It may not be the legal question, but it sure if the popular question, if my FB feed indicates anything.

    It’s presented as an assumption rather than something to be argued.

  8. Cornhead Says:

    To be clear, the Dems assert that every alien in the world has both a legal and moral right to come to the United States. Because they say so. Ipse dixit.

  9. DNW Says:

    The mechanics of the entire debate escapes me. The “moral” issue is, especially, unfathomable.

    Its claim structure seems to be secular, but based on some not fully explicable notion of an essential and obligatory nonjudgmental solidarity … But, and this is critical, one which is launched from a suppositional predicate (or worldview) which denies the reality of essences, and natures, and objective values.

    How this imagined implication, leveraged off of principles simultaneously announced and denied, works exactly, as I have mentioned 20 times before, has never been explained to me; though I have had nearly innumerable exchanges with committed leftists on the subject.

    Generally they begin by doing things such as quoting Jesus, while denying they are Christian themselves, or obligated as disciples; or, by citing some ostensible duty implied by our traditions and by “what we are”, while discounting whatever traditions or identities they dislike; or, by demanding self-sacrificial solidarity in the name of equality, while simultaneously denying the principle of reciprocity and the duty which it would place on them to acknowledge that the effect of the sacrifice they demand cannot be greater than they are actually – really – able to pay, themselves. Otherwise, of course, they are staking claims based on complementarity and/or charity, not equality.

    Yet the mouths continue to open and close and the noise comes out, and out and out.

    And so it goes as Vonnegut was fond of saying..

    You continue to dig deeper and deeper always hoping but never hitting solid rock; only to find out once again that there is no there, there, to their moral duty “argument”.

    Silence generally ensues at that point, usually followed by an eruption of vitriol. After which, the canned cycle song of solidarity resumes emitting.

    I guess you just have to pass the bill to find out what’s in it.

    Otherwise you will never understand.

  10. Big Maq Says:

    “the Dems assert that every alien in the world has both a legal and moral right to come to the United States. Because they say so” – Cornhead

    Now you go waaay too far. This needs something to back it up, say a quote from the dem platform?

    It is easy, perhaps, to find individuals who might say something akin to this, but you are painting a much broader brush claim.

    You might find fertile ground with Libertarians and anarchists on this.

  11. Cornhead Says:

    From brief of WA and MN, “The States are likely to prevail on our equal protection claim because the Executive Order is motivated by discriminatory animus and cannot survive any level of review.”

    See how that works when one has a basic assumption about the breadth of US constitutional rights? We should clue in the political prisoners in North Korea and Cuba about this.

  12. Big Maq Says:

    Perhaps an analogy is better at explaining the morality of the issue. Recasting philosophical disputes as disagreements over analogies allows us to temporarily sidestep the irreconcilable metaphysical intuitions involved and to approach the central issues of philosophical disagreements from a new perspective that involves tractable concerns, such as the (dis)similarities between cases, paradigmatic examples, plausibilities, and so on. This does not entirely do away with substantial metaphysical issues but simply brackets them for the time being. Focusing on analogies also allows us to identify new lines of both defense and attack regarding a given issue. An outlined dialogical framework that treats philosophical disagreements as persuasion dialogues with analogical argumentation is need. Also needed are identified a number of possible points of contention over analogies on the basis of their global and local evaluation criteria within a dialogue. There is no claim that all philosophical disputes can be recast as disagreements over analogies. Perhaps we could determine how many disputes, and in which fields, are amenable to being recast as disagreements over analogies. The list of points of contention is not exhaustive. Another question involves identifying further points of contention in light of new forms of analogical arguments and their evaluation criteria.

    Sorry, thought I was at the journal of Metaphilosophy.

  13. Big Maq Says:

    @Cornhead – that is a far cry from the claim you made.

  14. OM Says:

    Big Mac:

    Be careful channeling DNW you might get stuck there.

  15. DNW Says:

    “Big Maq Says:
    February 7th, 2017 at 11:08 am

    “Perhaps an analogy is better at explaining the morality of the issue.”

    Did you have one in mind?

    Sorry, thought I was at the journal of Metaphilosophy.”

    No problema. If you wish to bracket our so-called metaphysical intuitions (and that characterization is a contentious matter in itself) in order to instead discuss the role of, or possible utility of discussing analogies as a strategy or as elements in “persuasion dialogues”, perhaps you have an analogy that supports that as well.

    Eventually, we will encounter an actual analogy; one would think.

  16. DNW Says:

    ” OM Says:
    February 7th, 2017 at 11:28 am

    Big Mac:

    Be careful channeling DNW you might get stuck there.”

    Are you disabled?

  17. Richard Saunders Says:

    We all know that the 9th Circuit panel’s decision will depend upon whether the judges make their decision based upon the law or upon Leftism. As a lawyer, I hope for the former; as a political realist, I expect the latter.

    If the panel votes to uphold the TRO, the better strategy would be to request en banc review. There are several moderate and conservative judges on the court who might sway the vote, plus, and more important, the Senate leadership would have more time to push Gorsich’s confirmation through.

    I would expect the consequences of this case to be rather more far-reaching than the Left expects — there are four vacancies on the 9th Circuit Court of Appeals and 15 in the district courts of the circuit. And there is the long-standing possibility of diving the circuit. The Democrats, in the vein of Harry Reid, may have traded a short-term victory for a long-term loss.

  18. DNW Says:

    The reason for the above remark.

    It had just occurred to me, for the first time actually, that I might be saying things that “trigger” you OM.

    If so, if you are experiencing ongoing emotional or physical distress, and your trolling seems to indicate that you are, I truly regret it.

    It’s possible that you come here, to Neo’s site, for a certain style of social reinforcement and validation, and you find my repeated harping on certain argument formulation themes disquieting.

    What I might suggest is that you simply skip any comments I have made and concentrate on, or at least look for, the enfolding chorus, if and when it can be found.

    Again, I do plead guilty to repeatedly voicing frustration over the left’s nonchalant deployment of antinomies and pseudo-arguments, but most of Neo’s readers are well-versed in philosophy and social criticism, and have made similar observations themselves when the circumstance made it relevant to do so.

    There is no reason you cannot post your attaboy one liners, or whatever, and I say what I think should be said, or repeated, and everyone remain happy.

    But if I am somehow trampling of a deficit, physical or psychological or whatever which you bear, then again, I regret the now obvious distress you have experienced.

  19. OM Says:

    DNW:

    More bloviation, do you get paid by the character?

  20. Cap'n Rusty Says:

    The Ninth Circuit will, of course, uphold Robart’s TRO, and later, the injunction. A 4 to 4 split on the Supreme Court, and the Ninth Circuit’s decision will stand.

    Would that we had a Senate Majority Leader with testosterone. He could announce that he is following the precedent of Harry Reid (as in, no filibuster for judicial appointments) and expanding it to include Supreme Court nominations, and concurrently therewith, schedule a Committe vote this morning and a floor vote this afternoon. With Gorsuch on the court, the Constitution will be saved.

  21. DNW Says:

    “Cap’n Rusty Says:
    February 7th, 2017 at 12:10 pm

    The Ninth Circuit will, of course, uphold Robart’s TRO, and later, the injunction. A 4 to 4 split on the Supreme Court, and the Ninth Circuit’s decision will stand.

    Would that we had a Senate Majority Leader with testosterone. “

    Well, at some point, say when you formally have all the cards and are seen as having them, it begins to look less like cowardice or incompetence and more like intention.

  22. Cornhead Says:

    The states don’t have standing. An easy way to kick the case without reaching the merits. A punt. Questions during oral argument might tip their hand.

  23. Bill Says:

    The point no one seems to be making is that making big changes via Executive Orders and Executive Memoranda is a crappy way to run a constitutional republic.

    Remember all the carping against Obama’s “pen and phone”? I was carping right along with you.

    Now I’m carping still, all alone (or at least it seems that way) – deserted by the all the “strict constructionist”/”rule of law” types who really just didn’t like what Obama did with EO’s and are glad they now have their own SOB in office to “get things done”.

    Just because Trump “can” do something doesn’t mean he “should”. I’m not against all EO’s related to immigration, of course. I think those are generally under the proper purview of the Pres. But I am against bull in the china shop actions that haven’t been thought through (I’m a conservative – don’t like urgent actions and certainly not manufactured urgency). The propaganda flying from the white house that Trump had to act urgently because if he had waited a week lots of “bad dudes” would have come in (what, we don’t have any vetting already? Good grief)… I wasn’t born yesterday.

    I have a quaint idea: how about having robust congressional debates about things again?

    Finally – all the simplistic answers . . . You’d think that the best thing to do would just be wall our country off and have no immigration at all, as if every immigrant let in is being let in for purely altruistic and naive reasons. Look – we need rational/sane immigration, because we actually do need immigrants. I get tired of the extremes as if our only two options are either turning the USA into a hermit kingdom or opening the borders completely wide and people (to use Trump’s propaganda “flooding in”). Reality and our nation’s own need is far more complex than that.

  24. Yankee Says:

    Some additional thoughts:

    1. I want to emphasize sovereignty, and the simple principle that this is our country, not theirs. We decide.

    2. As near as I can tell, those on the Left who favor more openness do so because of their notions of equality, fairness, diversity, tolerance, and also make economic arguments in favor of immigration. They also have a romantic sense of immigration, and are blind to its drawbacks. Yet those on the Left are never asked what limit on numbers they favor, or what immigration restrictions they are willing to accept.

    3. With all that the courts have done in recent years, it’s very possible that a clever liberal judge could find justification for a ruling that amounts to open borders. There is no “right to immigration”, but an activist judge could find a way to invent one.

    4. Mr. Trump ran and won by making border security and immigration an issue. But these same issues are prominent in all the other developed Western countries, so it’s not just the U.S. that has to deal with them.

    5. As for the moral sense of entry into the U.S., what is the good of immigration if it is in such numbers, and of such a type, that it ends up changing the character of the nation forever?

    This is just the beginning, so we can expect a lot more debate and political fights over these issues.

  25. DNW Says:

    A man says:

    “Just because Trump “can” do something doesn’t mean he “should”.”

    Sure. But presumably this person would not object in principle to Trump using his executive orders to unwind Obama’s orders, rather than letting them stand?

    And too, in the case of something as egregious as the “social contract” killing “individual shared responsibility mandate”, i.e., that left-fascist abortion of Constitutional powers, some Executive leeway might be allowed in directing its application?

    Or should we just allow the middle class to be raped and expropriated for another year or two to please Jonathan Gruber and those with autogenous disorders?

    I have a small business associate whose monthly insurance payments for him and his wife are now $1,400.00 both; with a $10,000 deductible each.

    Figure it out for yourself. And then tell me, or better the guy who is paying, why social peace – or your drunk of a brother-in-laws’s “private” insurance – is worth the real payer’s suffering that kind of malevolent and cynical expropriation.

  26. Richard Saunders Says:

    Bill — your point is not well taken. Congress did act, they specially gave the President the power to suspend immigration of any alien or class of aliens that he deems detrimental to the interest of the United States.

    In other cases you may be right — not here.

  27. Mark30339 Says:

    There’s an interesting poll at CBS on Christian/Muslim perceptions. http://hotair.com/headlines/archives/2017/02/07/cbs-poll-shows-that-majority-of-democrats-consider-christianity-as-violent-as-islam/

  28. Cornhead Says:

    Yankee

    The Left wants to turn us into Germany. Trump said as much. “They see them (immigrants and refugees) as their (Dem) voters.”

    That’s what this is all about. And cheap coders for Facebook.

  29. Ike Says:

    There is a simple point that disposes of the argument that while President Trump may lawfully ban entry, he ought not to. Here is that point: the management and control over admissions to the U.S. are entirely with the discretion of the President. So what?, you ask. So, arguing about whether the ban is correct as a matter of political tactics or ideology or philosophy or anything else is not relevant and most important isn’t controlling. If I get to decide in my unfettered discretion then your opinion as to whether I ought to do “x” as opposed to “y” doesn’t matter. Period.

  30. Bill Says:

    Nice to see some of you willing to cede unlimited power to the President in this instance.

    There was a reason you didn’t support Obama’s unaccountable power in ignoring immigration laws. Remember.

  31. Mark30339 Says:

    We should keep in mind that the Constitution does not ban discrimination on the basis of race or faith — it imposes strict scrutiny on mechanisms that choose to discriminate on that basis. For example favoring blacks in college admissions apparently has sound enough reasons to let the practice continue.
    .
    The case can be made that Islam is a faith with a long history of violent intolerance. Mohammed’s conduct implies that Infidels can be murdered at will, and their women kept as sex slaves. Of course, if one converts then one has protection. Persons involved in converting a Muslim to Christianity put their lives in grave danger.
    .
    America’s Judeo/Christian culture has fundamental incompatibilities with Islam; severe restrictions on Muslim immigration can be made consistent with our Constitution. Many will say that only a minority of Muslims favor forceful overthrow. A similar minority advocates peaceful co-existence. The majority waits to see who prevails and will acquiesce the result as God’s will (see Kissinger’s book WORLD ORDER). These are not people who are inclined to intervene to protect Christians or Jews from Muslim violence.

  32. Big Maq Says:

    “Now I’m carping still, all alone (or at least it seems that way)” – Bill

    Not alone…
    http://neoneocon.com/2017/02/04/why-didnt-the-trump-administration-make-it-clear-whether-iraqis-who-helped-the-us-would-be-affected-by-his-immigration-eo/#comment-2172000

    But it seems there are few of us who have not joined the red vs blue team sport.

    Or, “100%ism”, as Jay Nordinger might describe that kind of thinking…
    http://www.nationalreview.com/article/444662/perils-100-percentism-c-jay-nordlingers-impromptus-2-7-17
    .

    It was cringe worthy and maddening this weekend to see VP Pence on the shows defending the indefensible because there can never be any admittance of error nor of hyperbole in words or action (e.g. “ban” is not a ban, “moral equivalency” is not moral equivalency, EO was well considered and going as planned, etc.).

    And that is one of the saddest outcomes, as people who, in previous times, would otherwise be considered trustworthy, have to trade that in, in order to be subservient to one man.

    There are many folks on both sides who think that is the path necessary to “win!”. In the short term, maybe.

    dems should have learned that with the last election.

    Seems the GOP / trump admin want to learn it by doing.
    .

    Evidence that an argument is largely a red vs blue construct…

    When the tables are turned, each side adopts the others’ argument.

    Notice the dems are now arguing how they need to obstruct this president on everything, and giving an inch is akin to treason. So, 2008.

    Notice how the GOP are arguing that the dems must do their duty to speedily approve trump’s appointments.

    No doubt, the argument will be made, if it has not already, that an obstructionist block of dems in Congress necessitate even more EOs. And, all those EOs are perfectly within the boundaries of enumerated presidential powers, previously granted by Congress.

    EOs to reverse obama’s EOs / EAs, fine.

    Making new policy? Iffy, especially if one has been arguing that the POTUS has too much latitude to begin with vs Congress. Requires far more consideration and scrutiny, rather than just a bye so many are prepared to give.

  33. Mike Says:

    If the 9th Circus Court keeps the TRO in place, President Trump should simply withdraw it and substitute a new EO. The new EO would suspend ALL immigration for six months. There could not possibly be any religions discrimination claims raised regarding such an EO.

    A previous comment opined that the open borders crowd wants open borders out of humanitarian considerations. I call BS. The open borders crowd HATES the traditional America and wants to destroy it.

  34. neo-neocon Says:

    Bill:

    I haven’t read all the comments, so I’m not sure who you’re referring to when you write:

    Nice to see some of you willing to cede unlimited power to the President in this instance.

    There was a reason you didn’t support Obama’s unaccountable power in ignoring immigration laws. Remember.

    If I’m not mistaken, the lack of support for Obama’s executive orders re immigration involved the idea not that a president didn’t have the power to fine-tune or somewhat modify the enforcement of immigration laws, but that he had to do so in general and basic accordance with existing laws (that’s why McCarthy goes to such pains to demonstrate that Trump is complying with existing laws here).

    In addition, some people felt what Obama was doing WAS in compliance with the law, but they disapproved of the action itself. These same people might disapprove of Trump’s action (or part of Trump’s action, as I do) and yet still consider it lawful (as I do).

    If you recall, Obama was criticized for being unwilling to enforce a restriction on immigration (a definition of which newcomers are illegal in terms of immigration). This was argued to be against his duty regarding the law, and substantially different than restricting a certain class or group of people, temporarily, for security reasons (something Obama also did, and when he did that it was not criticized by the right; and something explicitly allowed by statute).

    Now, that does not mean there are not people all over the country, and here, who I am convinced would allow Trump to do just about anything, including violate our laws and the Constitution.

  35. John Says:

    “This attempt at erasing the plenary power must not go unaddressed. Without the plenary power doctrine, the judicial branch — rather than elected members of the political branches — would be in control of much of the nation’s immigration system as courts apply constitutional or “constitutional-like” standards to all exclusion and deportation cases. Theoretically, the ability of the political branches to determine who should be welcomed to our shores, who should stay, and who should go could be almost completely abolished in favor of a judge-regulated immigration system. Immigration policy decisions would be less likely to be shaped through the political process and would therefore lessen the power of the electorate to control the nation’s future and to decide who we are as a nation and who we will be. Furthermore, detailed political considerations appropriate to expert agency officials may not be adequately considered by judges who are generally without the requisite immigration expertise. This is good for neither citizens nor aliens. Fortunately, the plenary power doctrine rests on a solid foundation and will remain strong, provided that the political branches steadfastly rebuff any attempts to weaken it.”

    http://cis.org/plenarypower

    It would seem to me that if this is allowed then the courts could also decide to declare war. Where would it stop? The courts don’t have the legal power to stop the EO or determine or declare what immigration law is. And no I’m not an attorney.

  36. Cornhead Says:

    Amicus brief, “While Appellants claim a national security interest, there is no basis to believe a national security threat is posed by all nationals of the seven affected countries, much less nationals of those countries who are now here as LPRs or whose visa applications have been approved by the U.S. government.”

    No basis to believe a national security threat exists.

  37. neo-neocon Says:

    Cornhead:

    As I read that excerpt from the brief that you offer, it doesn’t say that there is “no basis to believe a national security threat exists.” It says [emphasis mine], “there is no basis to believe a national security threat is posed by all nationals of the seven affected countries.”

    In other words, to have a temporary restriction on a group of people for national security reasons, we must demonstrate that every single member of that group poses a threat? That would be an absurdity, but that’s how I read it.

    In addition, the brief includes those “who are now here as LPRs”—if I’m not mistaken, this group is not affected by Trump’s EO. As for “those whose visa applications have been approved by the U.S. government” but who are not here yet, how on earth would the government go about proving them to be a risk for the purposes of the EO? That’s what the hiatus is about–to study and if necessary change or tighten the rules about vetting. Surely the brief can’t be seriously claiming that no one who was ever approved for a visa from those countries has ever posed a security risk to us.

  38. Cornhead Says:

    Neo

    The lawyers for the Left will say anything in this case. Unhinged from the law and the facts.

    This is all about raw political power and tearing down Trump.

    My law school classmate was on O’Reilly last night defending Judge Robart. His older brother too. Mike and John McKay. Liberal Republicans. Good guys. Loyal to their friend on the bench, but he sure wrote a crappy decision.

  39. Bill Says:

    BigMaq: well said, and amen on the 100% thinking (Nordlinger’s article).

    “If the 9th Circus Court keeps the TRO in place, President Trump should simply withdraw it and substitute a new EO. The new EO would suspend ALL immigration for six months. There could not possibly be any religions discrimination claims raised regarding such an EO.”

    Think about this. Can you think of any problems/unintended consequences that might occur if we suspended ALL immigration?

    Also, do you want the President to have that kind of power?

  40. neo-neocon Says:

    Cornhead:

    Apparently, Robart hardly wrote a decision at all. He supposedly didn’t include his reasoning.

  41. Bill Says:

    Neo: “If I’m not mistaken, the lack of support for Obama’s executive orders re immigration involved the idea not that a president didn’t have the power to fine-tune or somewhat modify the enforcement of immigration laws, but that he had to do so in general and basic accordance with existing laws”

    True. As I’ve stated earlier, I have a general distrust of the usage of EOs – mainly because Obama basically stated he used them to “act when Congress wouldn’t”. Trump doesn’t appear, to me at least, to even know how the three branches of government are supposed to work. I certainly don’t think he intends to do with slow, methodical and painstaking legislative process what he can accomplish by just driving an EO through the plate glass window (to the cheers of all the “conservatives” and “rule of law” people)

    I understand EO’s are necessary. I don’t trust their over-usage by our modern presidents, and I want presidential power scaled back (regardless of who’s in office).

    I like to think Trump’s ham-fisted use of this EO early in his administration has backfired and will make it harder for him to swing his sledge-hammer in the china shop in the future. But we’ll see.

  42. Bill Says:

    (btw, my question in my comment above at 3:17pm is addressed to Mike. In re-reading it looks like I’m directing it to Maq. Sorry for the confusion).

  43. parker Says:

    No shoes, no shirt, no service. How’s that for an analogy? The EO temporarily halted entry from 7 predominantly muslim (failed and chaotic) nations out of 50 odd predominantly muslim nations. That seems not only under the powers granted POTUS, but a vital necessity.

    The left sees open borders as essential to gaining complete control for their agenda. Duh.

  44. Cornhead Says:

    Neo

    I read Robart’s decision. It is all of seven pages. It is so weak that he put the Circuit in a tight spot. That’s why I say the 9th punts it on standing. Prudent.

  45. Artfldgr Says:

    People with no right to live in the US are not covered by the Constitution. It’s mental to say non-US citizens have any US rights.

    Entry is not a right, its a privelege

    They have the same rights you do

    Rights are not bestowed on you by the state, they exist before the state, and the state that serves under the auspices of an electorate that permits them, is restricted by the constitution, but your not.

    Which right do you think does not apply to everyone?
    and i will show it does

    The problem is that the left wants to distort things and WE LET THEM

    they dont want you to understand what rights are and where they come from and all that
    Why?
    Because under communism, the state creates rights (and takes them away too)
    This makes politicians mini gods..

    so they been working on misusing the term rights the same way they inserted gender into laws as a synonym for sex, but then later, used its full meaning… which poof, suddenly changed the spirit of all the prior laws in which the word sex was not used, gender was, and the debate was never over the full meaning of gender but under the meaning of sex.

    lots of things like this, feminists were the ones that got us used to it
    congressman, congresswoman – Congress person (now communized)
    Manhole cover? Personal Access Way (now communized)
    Chairman, Chairwoman – Chair person (now communized)
    Valentines day – Violence against women day (now communized)

    now there is manspreading, mansplaining (no, not ricky ricardo, that joke is now racist, cause ricky is when spanish were white and mixed not post liberal where they are like blacks and dont, or somethning like that), microagressions, toxic masculinity, violent stares, and tons more.

    no one is born anything, but the exception is white males born racists, and gays are born too, so dont try to change them either… (that idea had to change because their own idea prior was undoing their new idea going forwards)

    here is a list of a lot of things now sexist, meaning they are verboten
    but since they are protected by constitution, shaming and intimidation and hate is how its imposed

    Whats Sexist?
    Domino’s Pizza boxes: Artisan pizza box says “no is the new yes”
    whats sexist? it promotes rape culture…
    (forget that hamuraby has rape laws in the first written laws)
    same applies to the hit song FIRE, done by the pointer sisters, babyface deseree, etc

    Science is sexist AND violent
    cause you attack a problem, and so much sexism they have to change
    (and they are trying… the whole genetics labs here are almost 100% female)
    The University of Wisconsin – Madison (UW) offers “a post-doctorate in ‘feminist biology’ because biological science is rife with sexism and must be changed to reflect feminist thinking,” reports Campus Reform

    Fireworks are sexist
    toxic masculinity, and war… big bad things… cause fighting…

    [edited for length by n-n]

  46. F Says:

    Marc30339: that NBC poll of Democrats looks to me like a lot of moral preening. I sure hope so. If it reflects reality, a whole lot of people need to start getting their news from a different source.

    Cornhead: I hope the 9th Circuit does indeed punt on this and reject it on standing, but if ever there was a court that could affirm, it would be those three. How long before we get a ruling?

  47. Cornhead Says:

    F

    Circuit will probably issue a decision tomorrow. DOJ attorney not so hot. Woman judge is very aggressive in attacking POTUS.

  48. Cornhead Says:

    After listening, WA will win on standing.

    DOJ attorney performed poorly.

  49. neo-neocon Says:

    Cornhead:

    I just read a comment to that effect at Legal Insurrection–that the DOJ attorney is bad.

    I wonder whether the attorney’s heart is in it. How does a particular attorney come to plead the government’s case?

  50. Cornhead Says:

    Judge Clifton, from Hawaii and Yale, is a real lefty.

  51. Cornhead Says:

    Kind of sounds like WA wants to depose POTUS to determine if had an intent to discriminate against Muslims with this EO. Crazy. Pure second-guessing of a national security question by the judiciary of the president.

  52. Cornhead Says:

    Woman judge Friedland is totally against DOJ.

  53. Cornhead Says:

    DOJ should have first started saying that trial court didn’t have nationwide jurisdiction. And then go to POTUS’s plenary authority regarding immigration and national security. He played defense too much.

  54. neo-neocon Says:

    Cornhead:

    It stands to reason that the judges are way to the left. In fact, I think the result was probably a foregone conclusion no matter what the DOJ attorney would have said. But it’s the latter I’m curious about—whether the attorney is doing this half-heartedly, or what.

  55. Cornhead Says:

    DOJ just wasn’t that good. He wasn’t sandbagging. Here’s the thing: We won’t know until after the fact that bad people got in. The EO is about prevention.

  56. Cornhead Says:

    And DOJ never raised irreparable harm issue! They were just delayed for 14 days. Got this from Martha and Judge N on Fox.

  57. F Says:

    Cornhead @ 7:03:

    “The EO is about prevention.”

    That’s what John Kelly said to Congress today. “We won’t know until the bomb goes off if a bad guy got in.”

  58. F Says:

    Cornhead at 7:16: “. . .just delayed for 14 days.” You man there will be no decision on the EO for 2 weeks? Thats as good as no decision at all. Unlimited immigration with the knowledge that the situation might change after 14 days is an open invitation to all the bad guys in the ME to get on a plane!

  59. Cornhead Says:

    F

    A TRO only lasts for 14 days. But I screwed up my comment. I should have written that the people in the 7 countries are only held up for 90 days and that short delay is not irreparable harm. Sorry.

  60. Frog Says:

    The 1965 Immigration Law is yet another of the myriad gifts of the LBJ era. How utterly righteous of the USA not to discriminate.
    Discrimination used to be a word indicating sound judgment, back in that day. The left morphed its meaning, as it has “gay”, “embrace”, “sustainability”, in order to advance its agenda.
    Today, no one says, speaking favorably, “He has discriminating taste”. Heads would explode.

  61. Roy Lofquist Says:

    Are the Democrats deliberately trying to foment a Constitutional crisis? Do they really want another Andrew Jackson in the White House?

    The Dems may have some kind of crazy notion that Jackson is anathema but I’ll bet you $20 that you’re carrying around a picture of him in your wallet.

  62. Bill Says:

    It seems many of you think that before Trump’s EO we had open borders with no vetting, and now that the EO i suspended bad people are pouring in through open borders. Trump seems to believe this too based upon his tweets.

    I’m not naive enough to think that there aren’t people trying to get into our country to do us harm. But I’m also able to spot propaganda. That’s what this is.

    If Trump really was trying to make us safer he would have proceeded just a little more carefully, with better review of his EO and appreciation of the consequences. That’s all he had to do.

  63. Orson Says:

    ipse dixit.

    According to aGallup poll in 2012, over 150 million people in the world want to come to the USA.

    How do these malicious altruists propose we take care of an almost 50% rapid increase in population

  64. Cornhead Says:

    100 Syrians rushed into the USA in two days.

    http://www.washingtonexaminer.com/trump-thwarted-100-syrians-rushed-in-over-just-2-days/article/2614138

  65. Bill Says:

    Orson – I don’t know anyone that I take seriously who is arguing for complete open borders. Even if they are, Trump’s EO isn’t the only thing holding back 150MM immigrants. We already have vetting, quotas, etc.

    Cornhead – the false implications was no vetting had been done to those Syrians. That they were “rushed in”. I don’t believe that is true.

    The idea that we had open borders where anyone from Syria can just walk up and be let in until Trump’s EO was signed is propaganda.

    Wish the volume could be turned down. Of course we have to protect our borders. We need sane controls, vetting, etc. We already have a number in place. Good enough? Man, I wish we could get a good faith debate on that.

    The reason this EO isn’t going the way you want is entirely on Trump and his apparent misunderstanding of how things work, and the damage of just rushing something into implementation. It’s on him.

  66. Cornhead Says:

    Bill

    “Those let into the United States were vetted by the United Nations. The process for Syrians has been criticized due to the lack of background information from the country….”

    How good could the UN vetting in Syria be?

    The whole point is people are getting in since the TRO was issued.

    No irreparable harm for 90 days “to figure what the hell is going on.”

  67. Bill Says:

    No irreparable harm for 90 days “to figure what the hell is going on.”

    I want us to be kept safe as much as you do. However, the roll-out was a train-wreck.

    Also – and I’m questioning this: Is it true that the vetting of refugees into this country is handled solely by the UN? I don’t believe that. On it’s face I don’t believe that, and I imagine whoever wrote it doesn’t believe it either.

    I just looked it up. Here is the Heritage foundation: http://www.heritage.org/immigration/commentary/how-the-refugee-vetting-process-works

    Multiple US Government agencies get involved after an initial UN vetting. An excerpt:

    The State Department

    -Consular Lookout and Support System

    -Consular Consolidated Database

    -Department of Homeland Security

    -TECS (a DHS security system)

    -DHS Automated Biometric Identification System

    National Counterterrorism Center/FBI’s Terrorist Screening Center

    -Terrorist Identities Datamart Environment

    -Terrorist Screening Database

    Federal Bureau of Investigation

    -Extracts of the National Crime Information Center’s Wanted Persons File, Immigration Violator File, Foreign Fugitive File, Violent Gang and Terrorist Organization File (and the Interstate Identification Index)

    -Integrated Automated Fingerprint Identification System / Next Generation Identification

    Interpol

    Drug Enforcement Administration

    Department of Defense

    -Automated Biometric Identification System

    Does this sound like a quick one week process to you?

    Yes we should be kept safe. The real question is if what’s already in place is doing the trick.

    But we already know “what the hell is going on”. There is a LOT of propaganda flying around.

  68. Brian E Says:

    ” Yet those on the Left are never asked what limit on numbers they favor, or what immigration restrictions they are willing to accept.” – Yankee

    You very likely won’t get an answer, even if you ask. My niece, who appears to be having a breakdown following Trump’s election had posted something like ‘Yay Robart’. I asked her if the one million we allow to immigrate per year was sufficient, or whether it should be higher, or completely open border.
    She replied, “I am on the side of humanity….” whatever that means. I asked her again if there was a number she was happy with, but she refused to answer.

  69. Big Maq Says:

    “According to aGallup poll in 2012, over 150 million people in the world want to come to the USA.

    How do these malicious altruists propose we take care of an almost 50% rapid increase in population” – orson

    So we go from a concern / fear of terrorists, to a ban across several countries, to now talking about 150M people who want to immigrate to the US.

    parker a while ago wanted to know who conflates the issues around immigration. Here is one example.

    And, this is not unusual in face to face discussions, afaic.
    .

    I see a similar strain of “confusion” when we talk about “100 Syrians rushed” into the US.

    Could it not be that these people had already been vetted and approved?

    Could it be that they were backloged because they were either turned back, or couldn’t travel in the first place?

    Could it be that they cut short any planned trip to make sure they were not inadvertently caught outside the country, unable to return?

    What is a “normal” number anyway?

    Now, very different story, if it were reported that the approval processes for these Syrians (are they all refugees, even?) were rushed to allow them in during that time.

    BUT, that is NOT what was reported.
    .

    There is a whole lot of red vs blue argumentation going on.

    trump’s EO may well be legal, but I don’t know, not being a legal scholar.

    We can all find scholars we can point to who make a great argument for our preferred solution.

    The additional problem is that folks choose to infuse more than legal argumentation into the matter.

    They are talking like it is some conspiracy in the courts if a decision is not made in their favor. They further speculate about the DOJ sandbagging or otherwise putting their “B” team on the cases.

    The truth couldn’t simply be that there are plausible arguments on either side, and that the fact it is going up the chain of courts is more a proof that there IS a legitimate question about it, than it is of some kind of rigging?
    .

    Could it be that the slapdashery in the constructing of this EO and in the rollout had put a YUGE bullseye on this?

    The rationale / excuse is that there is some kind of “urgency”.

    What “urgency” couldn’t wait a short while to get it right?

    And, if it really is so urgent, why couldn’t it have been prepared to implement on day one, than a week later?

    The claim rings hollow.

    There’s probably better than 50% of the country who think things need to be tightened up, but this false “urgency” may well come across as “railroad”.

    It wasn’t all that long ago that many GOP were demanding to ban travel from Africa following the far scarier ebola threat.

    What came of that? Right! No ban, but no epidemic either? Did everyone forget that?
    .

    Of course, this is all not to say vetting being done now is all it could or needs to be, nor that everyone approved has been “well” vetted.

    Nor is it to say we should throw the door open to all refugees, especially from hotspots where jihadists are in great number (begs the question why Afghanistan, and Pakistan are not also on the list).

    The slapdashery, the bullseye attention and this weak argumentation, all feed into an unnecessary delegitimization of the need and concern for action.
    .

    But, rather than doubling down and going all in on the red vs blue politics, wouldn’t we be better off holding our elected officials accountable, and demanding that they put forth well considered proposals / orders and competently execute them? And, demand that they stop spinning to us when it is obviously not true?

    Or, are we comfortable with more of the same, we so want to have a “win!”?!

  70. Bill Says:

    Big Maq – well said.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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