The Constitutional Crisis Thread

[_Res Ipsa]

Parsing the text of her letter http://www.huffingtonpost.com/entry/sal ... 0efeffdd0a I think it's clear that the order was run by the OLC (otherwise, why talk about it). Authority to supervise the OLC is delegated to an AAG, so I see no reason to believe executive order's are routinely run past the AG.

I agree with her that concerns over the conduct of litigation are a different animal. One thing that the OLC never got to see is the full range of legal/constitutional arguments against the executive order. Those became more visible once lawsuits were filed.

It's kind of ironic. She put a "ban" on legally defending the ban until she was convinced otherwise. Kind of like the ban on Syrian refugees.

She probably would have been better off saying the executive order needed extreme vetting...

I agree that we DKS. We may NKS. Frankly, that's why I hadn't been commenting on her actions/firing. I have lots of questions, but I don't have much on which to base an opinion.

To determine whether the executive order is legal/constitutional would take a fair amount of research and analysis. I would like to hope that it was done by somebody. I'd like to hope it was written down in an analysis somewhere.

Listen, tell me where I am wrong. This isn't the first halt on travel/immigration, is it? Other administrations have done this, haven't they? So Trump and his folks, enact a temp 90 day halt on travel/immigration using a list of problematic countries developed by the Obama administration.

So why are folks hopping up and down over this? Because it was poorly executed? What?

Context is everything. I am firmly convinced that populist totalitarians operate in very distinct patterns. One of those patterns is scapegoating. Trump scapegoated immigrants, especially Mexicans and Muslims, throughout his campaign. He sowed fear and loathing of those groups in his rallies. That's how populist totalitarians gain power -- they define an enemy and present themselves as the only on that can save the people from that enemy.

I think we can all agree that the moral response to the holocaust is "never again." I think we can also all agree that the executive order does not order the gassing of Jews. The moral question, I think, is if you are genuinely committed to "never again," when do you start opposing the totalitarian. Do you wait until you see a Jew being gassed? Or until you see a picture of Jews being gassed? Or until you see Jews rounded up? Or until you see newspapers being filled with articles about the criminal jew? Or until you see a travel ban on Jews? Or you hear a politician scapegoating Jews? When, exactly, do you stand up and say "Hey guys. Been there. Done that. Never again."

Looking at past instances of travel bans, it seems to me they were all in response to a specific event that created some legitimate concern. And they were targeted to that even. Here, the entire premise of a ban is the assertion that, somehow, our vetting process is inadequate. Trump went around on the campaign trail and told the flat out lie that we didn't vet refugees at all. And now that lie has been leveraged into the "fact" that our vetting is so inadequate, we have to stop admitting people for some period of time or indefinitely. It makes zero sense. It makes zero sense to indefinitely ban Syrian refugees that have gone through a two-year vetting process from entering the U.S. when no Syrian refugee has ever killed an American in a terrorist incident. The way it makes sense is "See, I'm the guy who can save you from those murderous Muslims"

The ban is theater. It's not needed. It's not justified. It's there solely to portray Trump as a man of action. There is no reason to believe that the ban will save any American's life, and lots of reason to believe it will radicalize some folks into becoming terrorists that wouldn't have otherwise.

I fully support anyone who wants to review our screening processes to improve them. But the ban has nothing to do with that. The ban has to do with promoting the strongman.

When I read the executive order, I began to think "it's time." When I saw the cruel and callous way it was implemented, I was sure. My conscience tells me that it's time to start resisting.

That's the difference for me.

[_Jersey Girl]

Okay, RI, let me try to get on the other side of this.

Why did the list exist to begin with?

Do we know what countries are aiding and abetting terrorists? Who is finding ISIS? Who is radicalizing people?

President is soon to speak, I'll be viewing.

[_Res Ipsa]

Okay, RI, let me try to get on the other side of this.

Why did the list exist to begin with?

Do we know what countries are aiding and abetting terrorists? Who is finding ISIS? Who is radicalizing people?

President is soon to speak, I'll be viewing.

You tell me. Or give me a link so I can see what the people who created it said.

We know that one of the biggest is Saudi Arabia. So, obviously, it's not about aiding and abetting.

All kinds of things radicalize people. One of the best ways is by treating people poorly.

[_Jersey Girl]

You tell me. Or give me a link so I can see what the people who created it said.

I deliver.

https://help.cbp.gov/app/answers/detail ... pdate-2016

[_Res Ipsa]

You tell me. Or give me a link so I can see what the people who created it said.

I deliver.

https://help.cbp.gov/app/answers/detail ... pdate-2016

So, the whole issue is weird to me. So, some countries in the world are eligible for the Visa Waiver Program. But it looks like that list of "banned countries" were never eligible for the program. In fact, it looks like no countries in Africa or the Middle East are eligible for the Visa Waiver Program. https://en.wikipedia.org/wiki/Visa_Waiv ... _countries

But Congress passed a statute that created this new category of countries banned from the program. http://uscode.house.gov/view.xhtml?req= ... ion:prelim) (adding section (a)12) It specifically required Iraq and Syria to be on that list, and deferred to the DHS secretary for other designations. For nationals of those countries, none of this had any effect at all. They needed Visas to come to the U.S. before the banned list was created and they needed them after the banned list was created.

The only actual impact that I can see was on aliens from Visa waiver eligible countries (mostly Europe) who traveled to any of the countries on the banned list after September 11. They would not be eligible for a waiver and so, like most of the world, would have to apply for and receive a Visa in order to enter the United States.

Let me emphasize: the list you are referring to had no effect whatsoever on citizens of the countries on the list. They already had to get Visas. It only affected aliens from other countries who had traveled to those countries. I'm assuming the idea was to use the Visa process to keep, for example, a German national who traveled to Syria to join ISIS, from traveling to the U.S. without a VISA.

So it's a list drawn up for something unrelated to Trump's ban. Trump's ban bars entry from citizens of the country on the list. The Visa Waiver List didn't restrict entry to citizens of those countries at all. The Visa Waiver applied to people of all religions. Trump's refugee ban applies, effectively, only to Muslims.

[_Jersey Girl]

Comparison to Obama immigration ban order 2011. Additional clarification I think. Forgive the formatting.

http://www.pbs.org/newshour/rundown/fac ... ation-ban/

Fact checking Trump’s new immigration order
BY Daniel Bush  January 30, 2017 at 5:24 PM EST

President Donald Trump’s executive order on refugees set off a firestorm around the world this weekend, with broad implications for people seeking entry into the United States.


As the debate heats up, here’s a guide to some of the competing claims being made about the new policy, and how they hold up under closer scrutiny.

The claim: 109 people were affected by Friday’s immigration ban
The rundown: That may be a lowball estimate

President Trump said Monday that his executive order only affected 109 people trying to enter the U.S. this weekend. But several critics have claimed the short-term number could be higher.

The American Civil Liberties Union estimated that between 100 and 200 people were immediately impacted by the order. The New York Times reported that 173 people overseas were blocked from boarding planes to the U.S. And over the weekend, thousands of people protested the orders at airports in New York, Washington, D.C., Detroit and elsewhere around the country as people arriving in the U.S. were detained, making the final number of people unclear.

Adding to the confusion, White House Chief of Staff Reince Priebus said Sunday that “going forward” the executive order wouldn’t block U.S. green card-holders from reentering the country. The comment seemed to contradict part of the original executive order, and opened the door to more questions about how the new policy will be implemented. According to CNN, at least 170 people with green cards were admitted into the U.S. through Sunday afternoon.

Regardless of the number of people affected in the order’s immediate aftermath, it has long-term implications. One news report suggested up to 134 million people worldwide could be impacted by the new travel restrictions.

The claim: Court stays issued over the weekend will block Trump’s order
The rundown: The federal court rulings did not block the entire order

A federal judge in Brooklyn issued a stay Sunday temporarily blocking parts of President Trump’s executive order on refugees. The ruling came after the ACLU filed a lawsuit on behalf of two Iraqi citizens, who were detained at John F. Kennedy International Airport in New York upon arriving in the U.S.

A federal judge in Virginia issued a similar ruling over the weekend blocking travelers who had been detained at Dulles International Airport, outside of Washington, D.C. from being deported. That ruling also ordered that the detained travelers be given access to an attorney.

The decisions were a victory for opponents of the policy. But they’re just the first step in what could be a lengthy legal battle. They also didn’t block Trump’s entire executive order: The rulings only blocked federal officials from deporting green card-holders who were detained after the order went into effect. The court decisions didn’t weigh in on the constitutionality of President Trump’s policy, meaning that some provisions in the executive orders could still be upheld in court.

The claim: Trump’s order is similar to President Obama’s 2011 review of Iraqi visas
The rundown: There are a number of key differences

In defending his executive order, President Trump compared the ban to actions taken by President Obama during his first term in office.“My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months,” Trump said in a statement on Sunday.

But a review of the record shows that’s a big stretch.

In 2011, the Obama administration announced plans to review the status of around 58,000 Iraqi refugees living in the United States. The review was launched after two Iraqi men were arrested on federal terrorism charges in Kentucky that year. (They had tried to ship weapons and money from the U.S. to insurgents in Iraq, and also admitted to building bombs used against American soldiers in Iraq. The men plead guilty and were sentenced to federal prison in 2013).

Obama’s order reviewed the immigration status of the 58,000 Iraqi refugees, and set up a stricter vetting process for Iraqis seeking special visas to enter the U.S. The extra security clearance caused delays in processing visas. The program was eventually rolled back in 2014, then reinstated the following year.

But the program was not a blanket ban on all refugees from Iraq, which is what President Trump imposed with his executive order last week. Obama issued a statement Monday saying his actions never halted Iraqi visas, but instead created a tougher temporary vetting system. The Trump administration’s actions are significantly broader.

President Donald Trump signs an executive order to impose tighter vetting of travelers entering the United States on January 27, 2017. Photo by REUTERS/Carlos Barria

The claim: Trump’s order builds on Obama’s 2015 refugee policy
The rundown: The new order is significantly broader

President Trump and administration officials also compared his executive order on refugees to a visa waiver program put in place by the Obama administration in 2015. But that comparison isn’t totally accurate, either.
In late 2015, Obama signed a year-end spending bill that included a change to an existing visa waiver program. The measure, called the “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015,” placed restrictions on natives of Iran, Iraq, Sudan and Syria applying for U.S. visas. The restrictions also applied to anyone who had traveled to those countries since 2011.

Early last year, the Department of Homeland Security expanded the list of restricted countries to include Yemen, Somalia and Libya. In recent days, Trump administration officials have pointed to these two policies, claiming the Obama administration came up with the list of countries to which the new executive order applies.
The Obama administration did create the list, but the visa waiver program vetted applicants on a “case-by-case basis,” as the Department of Homeland Security noted last February. The program still allowed people from the listed countries to apply for visas, and gave exemptions to certain individuals, such as humanitarian aid workers and journalists. “The new law does not ban travel to the United States, or admission into the United States,” DHS said in its statement last February.

President Trump’s executive order, on the other hand, puts a 90-day freeze, without exemptions, on refugees and visa holders traveling to the U.S. from the seven listed countries. And it indefinitely blocks Syrian refugees from entering the country as well.

The claim: The order makes the U.S. safer
The rundown: A lot of lawmakers — Democrats and Republicans — don’t think so

President Trump said Sunday that the order would make the country safer, while dismissing criticism that it amounted to a de facto ban on Muslims entering the country. “This is not about religion — this is about terror and keep our country safe,” Trump said in a statement.

Some Republicans, including House Speaker Paul Ryan, backed the refugee order. But many GOP officials said they believed the policy would not make the country safer, breaking from the president on one of his signature campaign issues.

Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.) issued a joint statement saying the order could “become a self-inflicted wound in the fight against terrorism.” They added: “This executive order sends a signal, intended or not, that America does not want Muslims coming into our country. That is why we fear this executive order may do more to help terrorist recruitment than improve our security.”

Former Republican officials criticized the order as well. Mitch Daniels, a former governor of Indiana and official in the George W. Bush administration, said he hoped Trump would “rethink” the policy.
“If the idea is to strengthen the protection of Americans against terrorism, there are many far better ways to achieve it,” Daniels, the president of Purdue University, said in a statement.

[Guest]

So, to really try to answer why the VFW list existed to begin with, one has to look at the statute that required the list to be compiled in the first place. That means, uggh, legislative history. It's all available online. https://www.congress.gov/bill/114th-con ... e-bill/158

The bill was introduced in 2015 as HR 158: VISA WAIVER PROGRAM IMPROVEMENT ACT OF 2015

As introduced, the bill simply gave the Secretary of Homeland Security the ability to suspend the Visa Waiver program for countries that failed to provide adequate information on terroristm.

H.R. 158 takes steps to address potential security gaps in
the Visa Waiver Program (VWP) in light of concerns raised about
terrorists attempting to use visa-free travel to enter the
United States. Specifically, H.R. 158 grants the Secretary of
Homeland Security the authority to temporarily suspend a VWP
country from the program, if such country fails to live up to
its agreement to provide terrorism-related information, and
requires notification to relevant congressional committees of
such suspension.

Report from House Committee on Homeland Security https://www.congress.gov/congressional- ... report/369

At some point in the process, the bill was amended. It's title was changed to: VISA WAIVER PROGRAM IMPROVEMENT AND TERRORIST TRAVEL PREVENTION ACT OF 2015

Two countries were placed on a "banned list" -- Syria and Iraq -- even though they weren't part of the program in the first place. Here are some portions of the floor debate that I think show why the list was created.

H.R. 158 takes constructive steps in this direction with provisions
preventing dual nationals of, or those who have recently traveled to,
Iraq, Syria, or other countries of concern, from visa-free travel to
the U.S.

We know that thousands of European citizens have traveled to Syria.
Some are there on humanitarian missions, like Doctors Without Borders,
and we thank them. Some went to fight with ISIS. The visa interview,
conducted by a U.S. consular official, will establish the circumstances
of the visit. If you are a German citizen who visited Syria last year,
you will have the same visa process that every Israeli, every Pole,
every Ethiopian, and every Mexican has. None of us has said it is
unreasonable that people in Thailand, India, or Brazil undergo
interviews for visitor visas. And this change in the Visa Waiver
Program is not unreasonable either.

The bill was specially contrasted with a bill that sounds like Trump's executive order

This visa waiver legislation stands in stark contrast to the
Republican-led refugee bill that was rushed to the floor 3 weeks ago.
That ineffective and mean-spirited bill would shut down the U.S.
refugee program for Syrians and Iraqis fleeing civil war and the
brutality of ISIS. And it does so notwithstanding the fact that
refugees are subject to 18 to 24 months of thorough screening before
ever setting foot on U.S. soil, a more rigorous process than any other
immigrant or traveler to the United States is subject to.
The refugee bill does absolutely nothing to make us safer, and it is
a betrayal of our values. It would have us turn our back on refugee
women and children and on our proud history as a country that provides
safe haven to the world's most vulnerable. I will continue to do
everything in my power to see that it never becomes law.
While the refugee bill showed our country and this body at its worst,
today's bill makes sensible improvements to the security of the Visa
Waiver Program. I thank my colleagues for working with me and the
Department of Homeland Security, the State Department, and the White
House to craft this targeted legislation. I strongly urge its support.

It will also disqualify anyone who has traveled to Syria, Iraq,
Sudan, and Iran within the past 5 years from participating in this
program. In an abundance of caution, we will now require those
individuals to apply for a visa and go through the formal visa
screening process.
It will also give the Secretary of Homeland Security the discretion
to designate other countries that have significant terror concerns, or
become terror safe havens in the future.

But we must go further. More than 30,000 individuals from 100
countries have gone to Syria to join jihadist groups, and 5,000 of them
have Western passports. This includes several of the Paris attackers,
who could have traveled to the United States without a visa.

Mr. Speaker, as I have indicated, in my having been on the floor
today, America is looking for the homeland to be secure, and they are
looking for it to be done in a thoughtful manner.
Just a week ago, I did not vote for a bill that would have stopped
innocent refugees who had been in camps for 2 years or more--mothers
and fathers and seniors and children--because I knew there was a 21-
list vetting system that would ensure that those refugees who had
languished in refugee camps and who had been suffering would be a small
number--an infinitesimal number--coming into the United States.
We heard debate earlier today about another loophole that could be
ended, and that is to stop terrorists from getting guns--a thoughtful
proposal. Most Americans didn't realize the loophole existed.
Now we come to a program that is, likewise, a thoughtful program. It
has nothing to do with refugees. It has nothing to do with ending the
Visa Waiver Program of 38 nations. What it has to do with is, if you
have been in the areas where the caliphate is, where the fight has been
taken to, Syria and Iraq, we just ask for an added interview. I might
imagine that, in the course of that, there will be human rights
activists and journalists. I would imagine, as well, that our officials
who will be doing the interviews will be sensitive to the fact of
legitimate journalists who have gone to do their reporting.

So, to reiterate, citizens of the "banned" countries were in no way affected by the ban. Travelers to those countries were affected by the ban -- they have to get a Visa just like folks in most of the world who want to come to the U.S.

Do you see the difference between the VWP list and Trump's executive order?

ETA: the ACLU and several other rights groups opposed the bill.

[_Jersey Girl]

I'm confused, RI. You don't need to spend more time on me. I need to spend more time (baby steps) on this myself until I understand. You are giving me free education here, thank you.

[_Res Ipsa]

I'm confused, RI. You don't need to spend more time on me. I need to spend more time (baby steps) on this myself until I understand. You are giving me free education here, thank you.

Oh, you're welcome. I think you asked a valid question: Why was the list compiled? That wasn't really answered on the page you linked to, so I decided to try and figure it out. It was interesting and I learned stuff. Thanks for asking the question.

[_Jersey Girl]

I'm confused, RI. You don't need to spend more time on me. I need to spend more time (baby steps) on this myself until I understand. You are giving me free education here, thank you.

Oh, you're welcome. I think you asked a valid question: Why was the list compiled? That wasn't really answered on the page you linked to, so I decided to try and figure it out. It was interesting and I learned stuff. Thanks for asking the question.

I think I'm asking some of the same questions that we all should be asking. And by "we all", I mean all Americans. I'm not wiling to passively accept what the media or the White House is putting out or pass judgement on something unless I at least make an attempt to understand it.

Right now it feels like the media is wholesale condemning every move that Trump makes and I don't feel like I know enough to condemn. The realist part of me knows that I'll probably look back on this period of rapid activity and come to believe that some of his actions were fully warranted and healthy for the country.

I press on...

And what is this Delta airlines computer outage he's talking about? There's too much coming at us at one time to process, or maybe that's just me. I mean is that a case of their throwing stuff against the wall to see what sticks? Damn if I know. idks