aside Is Jonathan Turley Right? Will The Refugee Ban Prevail In The Courts?

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UPDATE 2/9/17: UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT has issued a 27 page decision in favor of the States of Minnesota and Washington (Hawaii joining in ) and against the government. The travel ban has been stayed.

My lay person’s argument against the president’s refugee ban is not strictly a legal one. It is my contention, that those who were the major crafters of this executive order were none other than the president; his chief strategist, Steve Bannon; his National Security Advisor, Ret. General Mike Flynn with input from Senator Jeff Sessions, probably the next US attorney general, along with a newcomer, Stephan Miller.

All of these players have publicly and frequently, advertised their animus towards the religion of Islam in the strongest of terms. The way, this order was handled indicates that it was not vetted through normal channels which is why the roll-out was such a fiasco. Because of this history, the courts should be asking for proof that this order was issued as a result of US national security interests versus the usage of “national security” wording in the text as a pretext for their desire to ban Muslims from having entry into the USA.

The inclusion of the country of Iraq on this list of banned countries is definitely contrary to US national interests because its soldiers have been partnering with US soldiers to defeat a mutual enemy, ISIS. This was a bigly mistake.

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The above tactics by the White House could fit the definitions of “discriminatory intent,” “intentional discrimination,” and disparate treatment” which are legal terms. Some would argue that refugees do not have standing to benefit from US laws, but then the ban did include green card holders (legal residents), as well as indicating a preference towards Christians coming to the US under refugee status.

There are two laws which are the legal underpinnings to our republican President Donald’s recent executive order, banning refugees from seven Muslim majority countries (Iraq, Iran, Syria, Libya, Somalia, Sudan and Yemen) because of national security reasons. One is the Immigration and Nationality Act of 1952. The other is the 1965 Immigration and Nationality Act.

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As per Wikipedia, “the Immigration and Nationality Act of 1952(also known as the McCarran–Walter Act) abolished racial restrictions found in United States immigration and naturalization statutes going back to the Naturalization Act of 1790. The 1952 Act retained a quota system for nationalities and regions. Eventually, the Act established a preference system which determined which ethnic groups were desirable immigrants and placed great importance on labor qualifications.”

“The Act defined three types of immigrants: immigrants with special skills or relatives of U.S. citizens who were exempt from quotas and who were to be admitted without restrictions; average immigrants whose numbers were not supposed to exceed 270,000 per year; and refugees.”Many people have posted cartoons in response to Donald Trump's travel ban

“The Act allowed the government to deport immigrants or naturalized citizens engaged in subversive activities and also allowed the barring of suspected subversives from entering the country.”

“It expanded the definition of the “United States” for nationality purposes, which already included Puerto Rico and the Virgin Islands, to add Guam. Persons born in these territories on or after December 24, 1952 acquire U.S. citizenship at birth on the same terms as persons born in other parts of the United States.”Related image

As per Wikipedia, “the Immigration and Nationality Act of 1965 (also called the Hart–Celler Act) changed the way quotas were allocated by ending the National Origins Formula that had been in place in the United Stated since the Emergency Quota Act of 1921. Representative Emanuel Celler of New York proposed the bill, Senator Philip Hart of Michigan co-sponsored it, and Senator Ted Kennedy of Massachusetts helped to promote it.”

The 1965 Immigration Act, abolished the earlier quota system based on national origin and established a new immigration policy based on reuniting immigrant families and attracting skilled labor to the United States.

As per History.com , “over the next four decades, the policies put into effect in 1965 would greatly change the demographic makeup of the American population, as immigrants entering the United States under the new legislation came increasingly from countries in Asia, Africa and Latin America, as opposed to Europe.”

“The 1990 Immigration Act, modified and expanded the 1965 act, increasing the total level of immigration to 700,000. The law also provided for the admission of immigrants from “underrepresented” countries to increase the diversity of the immigrant flow.”

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NEAL KATYAL

Around 1/31/17, the PBS News-hour sponsored a debate for and against the legality surrounding the president’s refugee ban. Miles O’Brien is the host with Jonathan Turley arguing in favor of the president’s administration and Neal Katyal, debating against the ban. Neal Katyal is a former acting solicitor general under President Obama, and Jonathan Turley is a law professor at George Washington University.

Transcript of the debate on PBS:

MILES O’BRIEN: Aside from the national security concerns, the president’s executive order has ignited a fierce debate on its legality and constitutionality.

Let’s talk about the law, 1965 Immigration and Nationality Act. What does it say, and how might it impact this executive order?

JONATHAN TURLEY, Constitutional Attorney, George Washington University: Well, I think it can have an impact. There’s no question that the law says that you cannot discriminate on the basis of nationality or place of origin.

And that certainly helps the challengers. But like much else in this debate, much of that law has been distorted. It only takes you so far. First of all, the law doesn’t apply to refugees. It applies to immigrants. It’s used when you have visa issues. Also, it doesn’t cover religious discrimination.

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Jonathan Turley, Attorney

Also, in 1990, the act was amended to exclude procedural changes as a form of discrimination. And that reduces the use of the 1965 law, I think, as a serious challenge. And also it means that much of that order, as they challenge, doesn’t fall under the law.

So even if one aspect might be challenged successfully, the other aspects of the order would remain. Federal courts have a longstanding policy to minimize the degree to which they strike down a piece of legislation or executive authority.

MILES O’BRIEN: Neal, the way the Immigration and Nationality Act is written, it mentioned an individual’s place of birth or place of residence. It doesn’t mention religion specifically. The executive order seemed to be narrowly tailored, trying to avoid the use of the word religion.

So, in effect, did they write an executive order which would run afoul of this law?

NEAL KATYAL, Former Acting U.S. Solicitor General: Oh, they did. And don’t be distracted by what you just heard from my friend Jonathan.

So — but let me read the law, first of all — quote — “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of nationality.”

Now, this is most of what the executive order does, discriminates on the basis of nationality. Forget about the refugee provision. It’s about green card holders. It’s about anyone who is applying for a visa, a student, an employee of a company. You know, it applies broadly.

Now, of course, it doesn’t reach religious discrimination. That’s reached by the Constitution, a separate problem with the act. So you have got two different things. We have got, it violates the statute and it violates the Constitution.

And President Trump’s advisers are pretending that this is 1952, in which this 1965 law didn’t exist. But, unfortunately, it does. This is landmark legislation passed contemporaneously with the Voting Rights Act. And it is just blatantly illegal under that law.View image on Twitter

MILES O’BRIEN: All right, I feel like I need a gavel and a black robe here, gentlemen.

Let’s talk about the Constitution for just a moment, if we could. First Amendment, very important amendment, as we all know, the Establishment Clause.

Jonathan, it seems on the face of it that you could make a pretty good argument that this runs afoul of the Establishment Clause, which basically says the United States doesn’t get in the business of choosing religions.

JONATHAN TURLEY: Well, I think the most vulnerable aspect of the order is the one that gives preference to minority religions, and those people that were persecuted under them.

That certainly is the weakest spot. But I’m still skeptical about whether you could make a successful establishment claim. There’s a lot of cases that have to be moved aside to get from here to there if you want to strike down this law.

It is true there’s establishment issues, but there’s also plenary power in the hands of a president.

MILES O’BRIEN: All right, so the administration is trying to be very clear about saying this is not a Muslim ban.

But let’s listen to candidate Trump December a year ago, when he first rolled out this idea.

PRESIDENT DONALD TRUMP: Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.

And then, last Sunday, Rudy Giuliani, close adviser to President Trump in the campaign and through the transition, said this:

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Former Mayor Rudy Giuliani

We focused on, instead religion, danger. It’s not based on religion. It’s based on places where there are substantial evidence that people are sending terrorists into our country.”

MILES O’BRIEN: OK, counselor…Are those comments admissible?

NEAL KATYAL: Absolutely. And here’s the thing.

When I was — my last job was the chief litigation officer for the federal government. And I made — I made — took use of all the precedents that Jonathan was talking about broad power in immigration.

Nothing extends as far as what the president has done. This is religious discrimination. And here’s what the Supreme Court has said about that — quote — “The clearest command of the First Amendment is that one religious denomination can’t be officially preferred to another.”

This executive order prefers Christians to Muslims. You have got it. The president himself said so contemporaneously when he issued the executive order to the Christian Broadcast Network. This is just un-American and unconstitutional.Image result for CARTOONS OF TRUMP'S REFUGEE BAN

MILES O’BRIEN: Jonathan, then-candidate Trump and his adviser, Rudy Giuliani, more recently, did they undermine their own case?

JONATHAN TURLEY: Well, they certainly undermined their case.

I mean, the Justice Department attorneys are in fetal positions every time someone like this speaks about the purpose of a law. But the longstanding view of the Justice Department has been what legislators say about a law as to the motivation of the law is not controlling.

I have been in cases where the Justice Department has maintained that position, that you have to look at the law as to whether it’s lawful or constitutional. The court doesn’t make assumptions about — or speculation about the motivations behind the law. If the law has an otherwise bona fide purpose, the courts tend to go with that.

I don’t see a court, any court saying that what a candidate said on the trail is going to be material in terms of whether this law is struck down. And I’m surprised that Neal even suggests that.

I have been in cases where those types of arguments have been raised, and courts have shot it down. For example, what if — I mean, Trump clearly said that. But he then gave this law to someone to draft, and they came back with a law that is not a Muslim ban.

Now, I don’t like the law, but I don’t think any court is going to look at this law and say it’s a Muslim ban, because it’s not. There’s plenty to object about this law without making it something it’s not. It doesn’t ban all Muslims.

Now, I know people don’t like to say that because they — sort of like Richard III, you want to think of your enemies as worse than they are. You don’t have to think about this law as worse than it is. It is not a Muslim ban on a legal basis.Image result for CARTOONS OF TRUMP'S REFUGEE BAN

MILES O’BRIEN: But, if it walks like a duck, talks like a duck, et cetera, isn’t this legal parsing that they have come to this executive order? And when you look at the context and the comments, you have to come to the conclusion that at least religion was on their minds in some fashion.

NEAL KATYAL: Oh, religion was more than on their minds. I think Jonathan is just wrong.

This is a First Amendment religion challenge in which the motivations of the law will be looked to, and courts do so. And that’s particularly underscored here, because what has the new defense of this law been by the White House? It’s, oh, we’re not focused on religion. We’re focused on security.

MILES O’BRIEN: All right, much to discuss here.

Just in a word, going to the Supreme Court? Will this end up at the Supreme Court?

NEAL KATYAL: No, I think this is indefensible, and I think that the Justice Department, after they lose in district court after district court, won’t bring this even to the Court of Appeals. I certainly wouldn’t have if I were in the government.

MILES O’BRIEN: Jonathan, Supreme Court case?

JONATHAN TURLEY: It could go to the Supreme Court…, but you have to be careful what you ask for.

We’re going to get a new nominee to that court, and might not be the type of court you want to appeal this case, if you’re with the ACLU.

UPDATE 2/6/17: A federal appeals court has announced that it will hear arguments Tuesday (2/7/17) at 6 p.m. Eastern Time on whether to restore President Trump’s immigration order, which a lower court judge has temporarily put on hold.

23 comments

  1. Donald Trump decrees a new order – change that quote on the Statue of Liberty to: Give me your rich, privileged and power hungry! Insanity works as well, if you start interpreting law at it most literal without regard to compassion, common sense and context!

    • Dear 1EarthUnited,

      I bet the president is beginning to rethink the speed and the manic way, he has been issuing these executive orders.

      The following was reported in yesterday’s NY Times, “But for the moment, Mr. Bannon remains the president’s dominant adviser, despite Mr. Trump’s anger that he was not fully briefed on details of the executive order he signed giving his chief strategist a seat on the National Security Council, a greater source of frustration to the president than the fallout from the travel ban.” DT didn’t know about this.

      Ciao, Gronda

      • I find it hard to believe that DT was out of the loop. If he’s playing President, his job IS to stay informed and be on top of issues which affect the lives of thousands!

        No, he has no excuse, he definitely messed up, and there’s a price to pay.
        Too easy to blame his advisor or anyone else for that matter, stop focusing on making yourself look good Donald, and start making better decisions for all ppl you proclaim to work for!

  2. At least 7 courts have heard the DOJ’s arguments against temporary injunctions, and only 1 court denied a TRO. The petitions for the temporary injunctions raise arguments that are not necessarily the same as in other petitions. For example, the petitions filed in Washington state raised issues not raised in the first petition filed in Brooklyn.

    In other words, any legal opinion about the DOJ’s possibility of prevailing would need to address all of the petitions and orders in all of the federal courts that have now heard them and granted TRO’s. The next stage is to argue for or against permanent injunctions.

    The ACLU’s brief last week argued that Trump’s EO violates Immigration law that prohibits denying immigration based on national origin. That is legislation. The new administration under the executive branch cannot strike legislatated law with an EO.

    It appears that much of the DOJ’s argument in Washington state surrounds that the president has executive discretion to enter an Executive Order that addresses national security and immigration AGAINST A FOREIGN GOVERNMENT. And, they justified that argument using the Executive Orders of both Bush presidents. What they omitted from their argument is that when those EO’s were entered, the U.S. was at war with a FOREIGN GOVERNMENT (Iraq) in which immigration was suspended or limited.

    One of the questions put before the attorney for the DOJ in oral argument in the federal court in Washington, was how many citizens of the 7 countries have committed acts of terrorism against the United States. The government’s attorney said that she works in the civil division and could not answer that question.

    The judge in Washington has made a record. He asked the pertinent questions to reach the merits to decide on granting a TRO against Trump’s EO. The transcript of that argument is no doubt going to be provided on appeal to the 9th Circuit Court of Appeals. I briefly scanned the DOJ’s brief asking for a stay of the TRO, but do not remember reading the standard for review. If the standard is abuse of discretion, the DOJ has a mountain to climb.

    • Dear Xena,

      I agree with you. And thanks for the added info. I like the standard, “Abuse of Discretion” which fits the facts of this case.

      There is an attorney who was a guest on a lot of the weekend TV pundit shows, Jonathan Turley who has some credibility. He said for the record that the president has the upper hand legally in the implementation of this ban. He argues that the courts can throw out parts while leaving other parts in tact.

      This got my ire up because it looks to me that this president and his team who suffer from a strong animus towards the religion of Islam pushed through this ban without going through normal channels for a reason. Throughout the campaign, DT was calling for a ban on Muslims.

      I can’t believe that there are those who think this ban can be constitutional when what DT did was, look for some modicum of legal cover by resorting to the words, “national security” in the executive order, to do what he he really wanted to do which was an outright ban on Muslims. Note..that the wording being used now is, “travel ban” versus “Muslim ban.” I have watched surrogates of the president saying on TV that this is not a “Muslim or a religious” ban. If it looks like a duck..walks like a duck, it is a duck. This is a Muslim ban dressed up to appear to be a “national security” concern.

      The attorney, Jonathan Turley disagrees with me when he says, “Now, I don’t like the law, but I don’t think any court is going to look at this law and say it’s a Muslim ban, because it’s not. There’s plenty to object about this law without making it something it’s not. It doesn’t ban all Muslims. Now, I know people don’t like to say that because they — sort of like Richard III, you want to think of your enemies as worse than they are. You don’t have to think about this law as worse than it is. It is not a Muslim ban on a legal basis.” (Excuse me!!!)

      Remember when Kellyanne Conway was using the Bowling Green massacre to justify this ban, but of course the Bowling Green incident never happened and is “fake news.” But where did she get this fake news that she referred to on “Hardball” with Chris Matthews? I am guessing that this erroneous info was shared directly from DT or one of his minions who also believed this fake news. Why the press isn’t asking if the Bowling Green story was part of DT’s thinking when he issued the order, I don’t know.

      Today, WGN TV Chicago (All eyes on 9th Circuit Court of Appeals in battle over Trump’s travel ban) is reporting:

      “In briefs so far, the attorneys general for Washington and Minnesota say that the temporary restraining order should remain in place because they are likely to succeed in their constitutional challenge. They put forward several legal arguments, including that it violates the Establishment Clause in the First Amendment to the Constitution because it shows government preference for one religion over another, and Equal Protection Clause — part of the 14th Amendment — because it discriminates based on religion and national origin.”

      “The government counters that Robart’s injunction should be lifted for now and the executive order should be cleared to go back into effect while the legal process continues.”

      “The government struck back Sunday, arguing that Robart’s order should be lifted and the executive order go back into effect. “Judicial second-guessing of the President’s determination that a temporary suspension of entry of certain classes of aliens was necessary at this time to protect national security would constitute an impermissible intrusion on the political branches’ plenary constitutional authority over foreign affairs, national security, and immigration,” wrote Noel Francisco, the acting Solicitor General.”

      “Hawaii also sought to get in on the action early Monday morning — filing an emergency motion to intervene in the appeal.”

      “The state’s attorney general filed a separate lawsuit against Trump over the travel ban in federal district court in Hawaii last week, and it now argues that Hawaii must be allowed in the case before the Ninth Circuit to protect its interests as well.”

      “The judges who will hear the case — most likely conferring by telephone — are expected to issue a ruling as early as Tuesday. The three-judge panel includes Judge William C. Canby Jr, an appointee of President Jimmy Carter, Judge Michelle T. Friedland, who was appointed by President Barack Obama, and Judge Richard R. Clifton, an appointee of President George W. Bush. It is likely that they will make their decisions based on the legal briefs they receive and not ask for a hearing.”

      “The 9th Circuit is considered one of the most liberal courts in the nation. It’s by far the most geographically diverse with nearly four dozen judges and covers most of the western United States, Hawaii and Alaska.”

      “The loser at the 9th Circuit will most likely go to the Supreme Court. Because the justices are understaffed with only eight judges, there is a chance that they could split on the ruling 4-4.”

      “If that were to occur, they’d be left with simply upholding whatever order the 9th Circuit issued, underscoring the importance of that court’s ruling.”

      Hugs, Gronda

      • With or without the argument about the EO being a ban against Muslims, it still violates Immigration law. In their brief, the ACLU sited 8 U.S.C. § 1152(a)(1)(A). That same statute gives the Secretary of State authority to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

        The TRO entered by the federal court in Brooklyn took the argument into consideration, which is why I say that Turley or any other legal professional giving an opinion has to took at the entire picture. Even if the DOJ prevails in the 9th Circuit based on arguments that the EO does not discriminate based on religion, they can lose in other courts where the arguments are rooted on 8 U.S.C. Sec. 1152. No EO can violate legislated law.

        • Dear Xena,

          I so want you to be right on this one.

          Can you believe the Harvard Professor/ Attorney Alan Dershowitz is siding with Jonathan Turley re the constitutionality of the travel/ refugee/ Muslim ban? As per CNN, ” HE stopped short of calling the ban unconstitutional, noting that (LEGAL) determination is incredibly nuanced.

          Alan Dershowitz is predicting that the State of Washington will probably win the first round with the 9th Federal Circuit of Appeals because of the confusion that would be created if the ct acted otherwise but it will still end up losing, at least in part. He and other attorneys keep talking about whether the State OF Washington has standing. Mr. Dershowitz keeps saying that the family in Yemen (as an example) does not have standing. Of course I am confused.

          Hugs, Gronda

        • The attorney for the Washington Attorney General’s office put his argument nicely by connecting the dots. When Trump says that the EO is to protect America from “terrorists,” he is not referring to Nuns traveling to America from the Vatican. He publicly uses the phrase “radical Islamic terrorist.” Clearly, it’s a ban based on religion and it’s discrimination because he chose 7 countries rather than all countries.

        • Dear Xena,

          You were right, rightt, right on! Amen and Amen!

          This evening 2/9/17, the Federal 9th Circuit Court has issued a 27 page decision in favor of the States of Minnesota and Washington (Hawaii joining in ) and against the government. The travel ban has been stayed.

          Hugs, Gronda

  3. Gronda, my sense is the ban will not stand up to scrutiny, but let’s set that aside. Three comments.

    First, the ban does not make us safer, just the opposite. It demonizes Muslims who are American, related to Americans or citizens of the world. It gives fodder to ISIS and other extremis groups to recruit and say the West has no place for you. The best defense against ISIS extremists is American Muslims and people like the Mayor of London, who is a Muslim, who love their countries no less than other Americans or British.

    Second, tha ban is in direct contrast to our ideals as a country. It makes us look small and like a pariah in the world. We cannot be that shining light on the hill, when we are peeing on people’s heads below. In three weeks, this President has made the world a darker and less safe place. Hopefully, he will learn some lessons, but I am not holding my breath.

    Third, is this roll out shows a strong disregard for due process and execution. To be frank, it shows a significant amount of incompetence in decision-making. The sense is he believes it will happen because I said so. It also shows that the comment “I, alone, can solve this,” is off base.

    He is our President and our success is tied to him, but after three weeks and his post-election comments, my confidence is not very high.

    Keith

  4. This is one that I won’t even try to predict. I might have if logic were still a factor in the decision-making process, but once logic went out the window, my predictions more often fell flat, so i won’t predict tomorrow’s outcome. However a bit of fact here. 94 people have been killed in the U.S. by jihadist terrorism since 9/11, of which none were killed by people from ANY of the 7 nations on Trump’s list. In fact, the majority of those terrorists were American citizens or legal residents. So … as I have been asking for nearly two weeks now … WHERE’S THE FIRE??? Great post, my friend! Hugs!

    • Dear Jill,

      My thinking is that DT and cohorts tried to figure out a plan, that looked like a legit legal way to do what they really wanted to do, ban Muslims.That shouldn’t pass the legal smell test.

      From what I have been reading and hearing, it seems that the president has a very wide, almost impenetrable right to do almost anything under the guise of “national security.” when it comes to immigration. But In this case, many national security official are participants in a legal brief being presented to the court, which is arguing that the president’s ban actually harms US national security.

      The other issue is one of standing. Does the plaintiff have the right to stand (standing) before the court being asked to decide a case.For example, some attorneys are saying that refugees have no standing before this court because, by definition, this right does not extend to non US citizens living outside US territory.

      Frankly, I don’t get this.

      Hugs, Gronda

      • All good, logic-driven points … let’s hope they hold water … we should find out soon. After the DeVos disaster, I’m almost afraid to look at any more news today! Hugs!!!

        • Dear Jill,

          I almost am afraid to hope for a righteous outcome but that is the one thing we must not give up. I wonder if the justices are aware of how many of us live in fear of our president more than we fear the rare instance of a terrorist attack in the US.

          Hugs,, Gronda

        • You are quite right! I fear DT, not the “man” himself, but what his foolish policies and actions are likely to do to the world, far more than I fear the small threat of terrorism. There are much bigger problems for the west than terrorism, which is much more prevalent in the Middle East.

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