SCOTUS>Trump Era Immigration Cases Re: Executive Orders

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SCOTUS>Trump Era Immigration Cases Re: Executive Orders

#1

Post by Addie » Thu Feb 02, 2017 4:38 pm

Lawfare Blog
Litigation Documents & Resources Related to Trump Executive Order on Immigration

President Donald Trump’s executive order banning entry into the United States by immigrants and refugees from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen is facing legal challenges in a number of federal jurisdictions.

Below is a roundup of the documents in ongoing litigation related to the executive order. We will update this post as further information comes in.


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Re: Trump Era Immigration Cases Re: Executive Order

#2

Post by Whatever4 » Fri Feb 03, 2017 7:53 pm

Breaking News:

Federal judge in Washington State halts Trump travel ban nationwide. Customs and immigration say they will abide by it. Waiting on word from the White House

CNN report


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Re: Trump Era Immigration Cases Re: Executive Order

#3

Post by Tiredretiredlawyer » Mon Feb 06, 2017 10:51 am

Amicus brief filed by technology companies:
http://apps.washingtonpost.com/g/docume ... nies/2322/


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Re: Trump Era Immigration Cases Re: Executive Order

#4

Post by Tiredretiredlawyer » Tue Feb 07, 2017 11:30 am

To you practicing lawyers, how accurate is this assessment of the Washington/Minnesota case?
http://www.vox.com/2017/2/7/14514792/tr ... ce=twitter
Thanks! :lovestruck:


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Re: Trump Era Immigration Cases Re: Executive Order

#5

Post by Mikedunford » Tue Feb 07, 2017 11:39 am

Not exactly practicing, but as the most recent one here to take ConLaw -

I think the article is dead on the money. For the Federal Courts, this is not primarily going to be a case about immigration; it's not primarily going to be a case about discrimination. It's going to be a case about judicial review.


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Re: Trump Era Immigration Cases Re: Executive Order

#6

Post by Dan1100 » Tue Feb 07, 2017 12:09 pm

Tiredretiredlawyer wrote:To you practicing lawyers, how accurate is this assessment of the Washington/Minnesota case?
http://www.vox.com/2017/2/7/14514792/tr ... ce=twitter
Thanks! :lovestruck:
Well, I haven't been an actual lawyer for more than 20 years, but my swag is that the Circuit Court of Appeals isn't going to want to make a monumental decision like this on virtually no record at all. There is a reason why you can't appeal Temporary Restraining Orders.

There is no evidence at all, other than a few affidavits, for the court to review for sufficiency. Just a quickie hearing that the government obviously was not really prepared for. I just can't imagine any appellate judge wanting to issue a decision that is going to cause all hell to break loose on that little evidence, especially since they are going to have to jump through hoops to do it. Plus, it would be a bad precedent, they have to know that the Orange Menace is going to have a lot of TROs against it over the next 4 years and the Circuit Court of Appeals isn't going to want to review them on virtually no record either.

My guess, appeal denied because TRO's can't be appealed.

What happens after the Preliminary Injunction gets issued, I have no insight at all.


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Re: Trump Era Immigration Cases Re: Executive Order

#7

Post by Tiredretiredlawyer » Tue Feb 07, 2017 12:33 pm

Dan1100 wrote:
Tiredretiredlawyer wrote:To you practicing lawyers, how accurate is this assessment of the Washington/Minnesota case?
http://www.vox.com/2017/2/7/14514792/tr ... ce=twitter
Thanks! :lovestruck:
Well, I haven't been an actual lawyer for more than 20 years, but my swag is that the Circuit Court of Appeals isn't going to want to make a monumental decision like this on virtually no record at all. There is a reason why you can't appeal Temporary Restraining Orders.

There is no evidence at all, other than a few affidavits, for the court to review for sufficiency. Just a quickie hearing that the government obviously was not really prepared for. I just can't imagine any appellate judge wanting to issue a decision that is going to cause all hell to break loose on that little evidence, especially since they are going to have to jump through hoops to do it. Plus, it would be a bad precedent, they have to know that the Orange Menace is going to have a lot of TROs against it over the next 4 years and the Circuit Court of Appeals isn't going to want to review them on virtually no record either.

My guess, appeal denied because TRO's can't be appealed.

What happens after the Preliminary Injunction gets issued, I have no insight at all.
Thank you!


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Re: Trump Era Immigration Cases Re: Executive Order

#8

Post by Mikedunford » Tue Feb 07, 2017 12:38 pm

Dan1100 wrote:
Tiredretiredlawyer wrote:To you practicing lawyers, how accurate is this assessment of the Washington/Minnesota case?
http://www.vox.com/2017/2/7/14514792/tr ... ce=twitter
Thanks! :lovestruck:
:snippity:

My guess, appeal denied because TRO's can't be appealed.
That's my guess as well, but I started doubting that when I saw "30 minutes per side" set for the argument.


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Re: Trump Era Immigration Cases Re: Executive Order

#9

Post by Chilidog » Tue Feb 07, 2017 12:49 pm

As far as the issue goes of the revocation of visas already granted, can the argument be made that once a visa is granted, the United States is asserting a nominal jurisdiction over the grantee, and thus the due process standard applies?



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Re: Trump Era Immigration Cases Re: Executive Order

#10

Post by Jeffrey » Tue Feb 07, 2017 1:41 pm

Not sure if this was posted here previously but this is the brief the DOJ filed in defense on the ban:

http://apps.npr.org/documents/document. ... tive-Order

Would love to hear contrary opinions because as a non-lawyer it looks to me like the DOJ's argument is concrete, the President does have absolute power in this situation and isn't even subject to judicial review.



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Re: Trump Era Immigration Cases Re: Executive Order

#11

Post by Mikedunford » Tue Feb 07, 2017 2:19 pm

Jeffrey wrote:Not sure if this was posted here previously but this is the brief the DOJ filed in defense on the ban:

http://apps.npr.org/documents/document. ... tive-Order

Would love to hear contrary opinions because as a non-lawyer it looks to me like the DOJ's argument is concrete, the President does have absolute power in this situation and isn't even subject to judicial review.
The key paragraph in that section is probably this one:
The Supreme Court’s decisions in Kerry v. Din, 135 S. Ct. 2128 (2015), and Kleindienst v. Mandel, 408 U.S. 753 (1972), also do not support even limited judicial review of the State’s claims here. In those cases, U.S. citizens sought review of the denial of a third-party visa on the ground that the citizens had an independent constitutionally-protected interest in the third-party’s admission to the country— either a marital relationship or a First Amendment interest. The State, in contrast, has no independent constitutional rights to invoke with respect to the denial of admission of aliens affected by the Order.
In that paragraph, the DOJ is doing what lawyers refer to as "distinguishing" cases that do not support their arugment. In both those cases, the US government's decision to deny a visa to a third party was challenged. And in both those cases, while the courts ultimately ruled in favor of the government's decision to deny issuance of a visa, there was meaningful judicial review. The DOJ is arguing that those cases are different from this one purely because the state "has no independent constitutional rights to invoke." It's a valiant attempt to distinguish, but not the most compelling I've ever read.

In Kerry v Din, a badly fractured court upheld the decision to deny a visa. Kennedy's concurring opinion in Din (which Alito joined) is likely to be the most important to the ultimate outcome here. Kennedy, relying on earlier cases, found that is was important to respect Congress' plenary power to make rules in this area, but he did not hold that review was entirely unavailable. What he said was that the exercise of discretion in this area would be upheld provided that the government could provide “a facially legitimate and bona fide reason for its action.” In addition, he also noted (in dicta) that the court could look deeper if there was "an affirmative showing of bad faith."

To me, that suggests that the Executive Order is not unreviewable, and that the outcome may rest on whether Justice Kennedy views the EO's recitation of "terrorist threat" as sufficient to meet the "bona fide" requirement, or if he thinks that a more detailed examination of the motives for the EO is appropriate. Could go either way, but he did elect to go deeper into motives in the gay rights cases.


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Re: Trump Era Immigration Cases Re: Executive Order

#12

Post by Jeffrey » Tue Feb 07, 2017 2:37 pm

I think the case the DOJ cites later on kills the argument entirely:
“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).
Trump is basically citing plenary power doctrine and that seems to be the current rule.



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Re: Trump Era Immigration Cases Re: Executive Order

#13

Post by Chilidog » Tue Feb 07, 2017 3:11 pm

Jeffrey wrote:I think the case the DOJ cites later on kills the argument entirely:
“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).
Trump is basically citing plenary power doctrine and that seems to be the current rule.
But once that visa IS granted, does that confer some measure of constitutional protection?

When the US grants a visa to an alien, does that confer some measure of US jurisdiction over that alien, and in turn the rights granted by the constitution to all persons under US Jurisdiction?



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Re: Trump Era Immigration Cases Re: Executive Order

#14

Post by Mikedunford » Tue Feb 07, 2017 3:31 pm

Jeffrey wrote:I think the case the DOJ cites later on kills the argument entirely:
“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).
Trump is basically citing plenary power doctrine and that seems to be the current rule.
First, that deals with "initial admission" only. Second, that deals with "constitutional rights" only. Third, that deals only with the rights of the alien outside the country, and not with the rights of anyone inside the country. So the case does not apply in cases where someone has already entered, which will at a minimum include the cases of all the permanent residents, and potentially to those who have entered on other multiple-entry visas that permit residence and work. That case also doesn't bar claims based that the exclusion was made counter to US law, which at least opens the door to the argument that the subsequent passage of the immigration law forbidding nationality-based discrimination limits the President's ability to restrict on that basis; it may also allow for other arguments (such as procedural invalidity of the order). Finally, the case doesn't exclude the possibility that someone else inside the country can bring a claim that the exclusion of an alien or aliens is impairing their own constitutional (or other) rights. (Both Din and Mandel were such cases.)

I wouldn't be surprised if the courts ultimately decide that the Executive Order should be upheld at least in large part, but I don't think there's a very strong argument to be made that the decision is entirely unreviewable. The meat of the case is much more likely to involve the standard of review, and, in particular, whether the courts should apply a very deferential, bare-bones rational basis glance, or if they should take the rational basis with teeth approach that Justice Kennedy articulated in the Lawrence, Windsor, Obergefell line of cases.


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Re: Trump Era Immigration Cases Re: Executive Order

#15

Post by Dan1100 » Tue Feb 07, 2017 3:44 pm

Mikedunford wrote: :snippity: That case also doesn't bar claims based that the exclusion was made counter to US law, which at least opens the door to the argument that the subsequent passage of the immigration law forbidding nationality-based discrimination limits the President's ability to restrict on that basis; :snippity:
I'd think (guess) that the normal rules of statutory construction would say that the prior statute giving the president plenary authority was modified/limited by the subsequent statute to day "unless it is based on nationality or religion based discrimination". If Congress had not meant that modification to apply to the president's plenary authority, it would have said so.

Of course, Trump will say that it is based on national security, not nationality or religion based discrimination, so like Mike says the really issue is how closely the courts are going to look at that assertion.

edit: I still think they aren't going to want to do any of that stuff without some kind of record, so today's result will be "you can't appeal TROs".


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Re: Trump Era Immigration Cases Re: Executive Order

#16

Post by Jeffrey » Tue Feb 07, 2017 4:55 pm

Dan1100 wrote:
I'd think (guess) that the normal rules of statutory construction would say that the prior statute giving the president plenary authority was modified/limited by the subsequent statute to day "unless it is based on nationality or religion based discrimination".
I'm assuming the Cornell USC website is up to date, but their version of 1182 says nothing about "unless it is based on nationality or religion". Congress would have to add that in but hasn't.

https://www.law.cornell.edu/uscode/text/8/1182



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Re: Trump Era Immigration Cases Re: Executive Order

#17

Post by Dan1100 » Tue Feb 07, 2017 4:59 pm

Jeffrey wrote:
Dan1100 wrote:
I'd think (guess) that the normal rules of statutory construction would say that the prior statute giving the president plenary authority was modified/limited by the subsequent statute to day "unless it is based on nationality or religion based discrimination".
I'm assuming the Cornell USC website is up to date, but their version of 1182 says nothing about "unless it is based on nationality or religion". Congress would have to add that in but hasn't.

https://www.law.cornell.edu/uscode/text/8/1182
They "added" it by implication with the later statute that Mike referred to that says that no immigration can be based on nationality or religion. I'll add a citation for you in a little bit.

edit: Here you go.
8 U.S. Code § 1152 https://www.law.cornell.edu/uscode/text/8/1152

(a) Per country level
(1) Nondiscrimination
(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, 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.
Section 1152 was enacted in 1965 (well after Section 1182(f)), and will/should/may be interpreted to modify/ limit the prior enacted Section. Note that it specifically spells out Sections that it does not apply to and Section 1182 isn't one of them. Congress passed a broad anti-discrimination measure that applies to all immigration law edit: immigrant visas and that's what it means.

The argument is well stated on page 13 of the Amicus Brief by the tech companies.

http://agportal-s3bucket.s3.amazonaws.c ... panies.pdf


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Re: Trump Era Immigration Cases Re: Executive Order

#18

Post by Tiredretiredlawyer » Tue Feb 07, 2017 6:04 pm

ACLU case filed. Complaint for Declaratory Judgment is here: https://www.aclu.org/legal-document/com ... e-relief-0. 38 pages filed in Maryland.


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Re: Trump Era Immigration Cases Re: Executive Order

#19

Post by Lani » Tue Feb 07, 2017 6:08 pm

I'm confused about which thread to post this on :confused: so I'm putting it on both immigration threads. Live streaming is underway. Listen here: http://www.ca9.uscourts.gov/media/view_ ... 0000010884


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Re: Trump Era Immigration Cases Re: Executive Order

#20

Post by SLQ » Tue Feb 07, 2017 6:11 pm

Lani wrote:I'm confused about which thread to post this on :confused: so I'm putting it on both immigration threads. Live streaming is underway. Listen here: http://www.ca9.uscourts.gov/media/view_ ... 0000010884
Ooh. Good question by Judge Clifton: "Aren't the existing procedures designed to provide extra scrutiny for those 7 countries?"

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Re: Trump Era Immigration Cases Re: Executive Order

#21

Post by busterbunker » Tue Feb 07, 2017 6:14 pm

Live on CNN



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Re: Trump Era Immigration Cases Re: Executive Order

#22

Post by Mary Quite Contrary » Tue Feb 07, 2017 6:20 pm

Does anyone know who the "somalians" that were convicted in the US, that the government guy is talking about?


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Re: Trump Era Immigration Cases Re: Executive Order

#23

Post by bob » Tue Feb 07, 2017 6:21 pm

Mary Quite Contrary wrote:Does anyone know who the "somalians" that were convicted in the US, that the government guy is talking about?
Al Shabab?


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Re: Trump Era Immigration Cases Re: Executive Order

#24

Post by Mary Quite Contrary » Tue Feb 07, 2017 6:29 pm

bob wrote:
Mary Quite Contrary wrote:Does anyone know who the "somalians" that were convicted in the US, that the government guy is talking about?
Al Shabab?
Might be. I really have no clue. I haven't been able to find anyone being convicted in the Us for terrorism.


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Re: Trump Era Immigration Cases Re: Executive Order

#25

Post by tek » Tue Feb 07, 2017 6:29 pm

ms.tek (JD, but has gone off into business) is upstairs watching this.
this is agony.
the govt attorney can't make the standing argument
he should have anticipated this


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