The Constitutional Crisis Thread
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_Res Ipsa
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Re: The Constitutional Crisis Thread
Oral argument has been set for 3:00 tomorrow. Not sure what that means. Normally, the Court of Appeals won't review a TRO. On the other hand, this isn't a normal case.
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951
― Hannah Arendt, The Origins of Totalitarianism, 1951
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_Res Ipsa
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Re: The Constitutional Crisis Thread
Well, I read all the briefs and listened to the argument. And my prediction is ... I dunno. The issues are pretty complex and both sides have some good arguments. I think the biggest weakness is standing. If the court dismisses based on lack of standing, all that means is that lots of individual suits will be filed after the executive order is reinstated.
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951
― Hannah Arendt, The Origins of Totalitarianism, 1951
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_Jersey Girl
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Re: The Constitutional Crisis Thread
Res Ipsa wrote:Well, I read all the briefs and listened to the argument. And my prediction is ... I dunno. The issues are pretty complex and both sides have some good arguments. I think the biggest weakness is standing. If the court dismisses based on lack of standing, all that means is that lots of individual suits will be filed after the executive order is reinstated.
I listened to about 10 minutes of it online.
Here is the thing. The President (no matter who it is, in this case Trump) does have the power to enact an executive order just like he did, doesn't he? I've read the regulation, god help me, I can't remember the number of it to save my life.
Please don't take any of the above to mean that I think he went about it appropriately, but he DOES have the right and power to do it, doesn't he?
I can't see how this is going to land. I just cannot.
Failure is not falling down but refusing to get up.
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Chinese Proverb
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_Res Ipsa
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Re: The Constitutional Crisis Thread
I think he has the legal authority because that's what the statutes say. The States made an argument that the executive order violates an anti-discrimination provision that appears in a different section of the INA, but I don't think it's a good argument. One of the amicus briefs made some narrow arguments about portions of the refugee statutes that may have some merit.
So, the real question is whether the order is constitutional. There are cases that give the president almost total discretion in immigration matters. But those are also cases that led to incidents in history we regret, like the Chinese exclusion and Japanese internment. So I expect the Court will recognize some Constitutional limits at least for visa holders with a substantial connection to the US -- students already going to school here, people working here, etc. The Establishment Clause/Equal Protection Clause also provides some limitation, but it's unclear whether the evidence of animus toward Muslims will be enough to overcome the facial neutrality of the order. I'm not sure there has ever been a case where campaign statements were used to show intent to discriminate.
One thing is for sure -- the clerks who work for the three judges are earning their keep this week. (Newly graduated law students from the top of their classes)
So, the real question is whether the order is constitutional. There are cases that give the president almost total discretion in immigration matters. But those are also cases that led to incidents in history we regret, like the Chinese exclusion and Japanese internment. So I expect the Court will recognize some Constitutional limits at least for visa holders with a substantial connection to the US -- students already going to school here, people working here, etc. The Establishment Clause/Equal Protection Clause also provides some limitation, but it's unclear whether the evidence of animus toward Muslims will be enough to overcome the facial neutrality of the order. I'm not sure there has ever been a case where campaign statements were used to show intent to discriminate.
One thing is for sure -- the clerks who work for the three judges are earning their keep this week. (Newly graduated law students from the top of their classes)
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951
― Hannah Arendt, The Origins of Totalitarianism, 1951
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_Res Ipsa
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Re: The Constitutional Crisis Thread
Media says the 9th Circuit has left the TRO in place. I'm trying to track down a copy of the decision.
Here's the opinion. http://cdn.ca9.uscourts.gov/datastore/o ... -35105.pdf
The TRO stays in place.
The TRO was reviewed as a Preliminary Injunction. But the District Court had ordered briefing on whether to convert the TRO into a preliminary injunction. I wonder if the States will move to have that briefing canceled in light of the 9th Cir. review. I'm guessing not, because the District Judge thought he was issuing a TRO. But stranger things have happened.
I believe the denial of the feds' motion to stay the TRO can be appealed to the Supreme Court.
Here's the opinion. http://cdn.ca9.uscourts.gov/datastore/o ... -35105.pdf
The TRO stays in place.
The TRO was reviewed as a Preliminary Injunction. But the District Court had ordered briefing on whether to convert the TRO into a preliminary injunction. I wonder if the States will move to have that briefing canceled in light of the 9th Cir. review. I'm guessing not, because the District Judge thought he was issuing a TRO. But stranger things have happened.
I believe the denial of the feds' motion to stay the TRO can be appealed to the Supreme Court.
Last edited by Guest on Thu Feb 09, 2017 11:38 pm, edited 1 time in total.
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951
― Hannah Arendt, The Origins of Totalitarianism, 1951
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_EAllusion
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Re: The Constitutional Crisis Thread
Trump's Twitter is gonna be lit tonight.
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_Res Ipsa
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Re: The Constitutional Crisis Thread
He already tweeted "SEE YOU IN COURT." I wonder where he thinks they've been?
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951
― Hannah Arendt, The Origins of Totalitarianism, 1951
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_EAllusion
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Re: The Constitutional Crisis Thread
I literally laughed out loud at Trump's tweet. It's one of this finest moments. I've said it before, but we live in a real dark version of Being There.
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_Jersey Girl
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Re: The Constitutional Crisis Thread
R I. The ruling came through on my phone. How much you wanna bet Trump mouths off his way to losing his Supreme Court pick? Gotta run in Walmart. Not joking!
Failure is not falling down but refusing to get up.
Chinese Proverb
Chinese Proverb
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_Dr. Shades
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Re: The Constitutional Crisis Thread
Jersey Girl wrote:Gotta run in Walmart. Not joking!
I suggest walking in it. It reduces your chances of colliding with other shoppers.
"Finally, for your rather strange idea that miracles are somehow linked to the amount of gay sexual gratification that is taking place would require that primitive Christianity was launched by gay sex, would it not?"
--Louis Midgley
--Louis Midgley