The Dangerous Precedent Set by Judicial Attacks on Trump's Travel Ban
Judge Derrick Watson’s imaginative reasoning asserts a new power to disregard formal law if the president’s words create a basis for mistrusting his motives.
Let’s start with the law.
The president of the United States has power to bar “any class of aliens” both as immigrants and as nonimmigrants and to impose on their ordinary comings and goings “any restrictions he may deem appropriate.”
That’s the language of the U.S. Code, the law of the land as enacted by Congress, under Congress’ own constitutional power over immigration and naturalization.
Presidential power is never absolute, of course. It’s always subject to the Constitution. Many have argued that Trump's ban is unconstitutional because—as the president himself has repeatedly said—it’s intended to ban Muslims, and should be regarded as prohibited religious discrimination.
But here’s the problem for those making the argument: It’s firmly established U.S. law that the rights of the Constitution belong only to Americans. The U.S. Army can strip enemy combatants of weapons without offending the Second Amendment right to carry firearms. It can billet troops in private dwellings overseas without offending the Third Amendment. The NSA can intercept foreign communications without regard to the Fourth Amendment. The U.S. courts do not hear cases from foreign nationals who complain their due process rights under the Fifth Amendment have somehow been infringed. And so through the gamut.
Where do foreign nationals then acquire their supposed First Amendment right to enter the United States without religious discrimination?
The answer offered by Judge Derrick Watson’s opinion is a judicial reach of a kind that might sound clever to the student editors of an academic law review—but that should worry all Americans in real life. By barring foreign Muslims, the opinion argues, the Trump administration has signaled disfavor of domestic Muslims as well, thereby violating their First Amendment rights to religious equality.
Not only that! Watson’s opinion further contends that this argument is so convincing that it is “highly likely” to prevail on the ultimate merits—and for that reason, that he is justified in issuing immediately a temporary restraining order against Trump’s ban.
This double argument is bold, to put it mildly.
This approach is so ambitious and so new that it renders incredible. Judge Derrick Watson’s claimed certitude that the plaintiffs are “highly likely” to prevail. Their chances are at best touch-and-go; at worst, probably doomed.
Frankly, under any other president than Donald Trump, it seems impossible that a federal judge would have expressed such certitude—or granted their requested order. The federal courts have historically granted large deference to presidential power over immigration and naturalization. The Supreme Court ruled as recently as 2015 that the president could deny a visa to an alien for no reason at all! In answer to an alien who contended that the U.S. government had violated her due process rights, the court ruled:
She claims that the Government denied her due process of law when, without adequate explanation of the reason for the visa denial, it deprived her of her constitutional right to live in the United States with her spouse. There is no such constitutional right.
Why then did Watson accept the far-fetched argument that aliens can acquire First Amendment rights at second-hand? Watson candidly confessed that he was swayed by the avowals by the president and his senior aides that their motives were indeed based on irrational religious discrimination. “In this highly unique case,” he wrote, “the record provides strong indications that the national security purpose is not the primary purpose for the travel ban.” He could not overlook "significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.”
To amend an old saying: Bad presidents make bad law. Because President Trump is behaving in an unprecedented way, Watson feels called upon also to behave in an unprecedented way. In order to defend a constitutional value—equal treatment of all American religions—Watson has issued an order that corrodes the constitutional system itself. It’s a lose-lose proposition, because either way a constitutional norm would be weakened before the world.
Watson’s imaginative reasoning in Hawaii v. Trump asserts a new judicial power to disregard formal law if the president’s personal words create a basis for mistrusting his motives. In the age of Trump, many will be sympathetic to this judicial power—but it is crammed with dangers, too. Not the least of those dangers is that this new rule creates incentives for the president to race to cram the courts with his people in the possibly brief window in which his party controls the Senate. If presidential power ebbs and flows according to the opinions the judges of the moment happen to feel about the character of the president of the moment, the day has come when the courts too must become a prize of hyper-partisan politics.
I’ve argued before in this space that Donald Trump is a uniquely dangerous president. Watson has now revealed to us another of those dangers. In response to the danger posed by Trump, other American power holders will be tempted to jettison their historic role too, and use any tool at hand—no matter how doubtfully legitimate—to stop him. Those alternative power holders may even ultimately win. But in winning, they may discover themselves in the same tragic position as that Vietnam-era army officer who supposedly said: “We had to destroy the village in order to save it.”
I wish one of your guys had children if I could kick them in the fucking head or stomp on their testicles so you can feel my pain because thats the pain I have waking up everyday -- Mike Tyson
On March 16 2017 12:43 Spitfiree wrote:
Aaand the second ban has been revoked as well
I'm not a practicing lawyer, but I find it highly unlikely that hold will survive appeal. The Hawaiian judge is trying to claim Trump's campaign (so, pre-President) rhetoric is a demonstration of discriminatory intent with the bill.
Beyond that, it's a bit absurd to begin with. If you're going to say restricting travel from certain places is unconstitutional due to discrimination, you quite literally can't restrict travel from anywhere except maybe Singapore. No matter what country it is, the majority of the people there will fill into some category whether it be racial, ideological or otherwise.
On September 08 2008 10:07 Baal wrote: my head is a gyroscope, your argument is invalid
On March 16 2017 12:43 Spitfiree wrote:
Aaand the second ban has been revoked as well
I'm not a practicing lawyer, but I find it highly unlikely that hold will survive appeal. The Hawaiian judge is trying to claim Trump's campaign (so, pre-President) rhetoric is a demonstration of discriminatory intent with the bill.
Beyond that, it's a bit absurd to begin with. If you're going to say restricting travel from certain places is unconstitutional due to discrimination, you quite literally can't restrict travel from anywhere except maybe Singapore. No matter what country it is, the majority of the people there will fill into some category whether it be racial, ideological or otherwise.
You should probably read piece I posted above. It's not mainly about his rethoric (as he and his advisers/spokespeople have continued with the Muslim ban rethoric post campaign) but mainly about non us citizens not having constitutional rights in the US, this discriminating rethoric backed bill is 'legal' as long as it's vs non-us citizens. First bill included green card holders, which was the main problem from what I understand.
I wish one of your guys had children if I could kick them in the fucking head or stomp on their testicles so you can feel my pain because thats the pain I have waking up everyday -- Mike Tyson
I wish one of your guys had children if I could kick them in the fucking head or stomp on their testicles so you can feel my pain because thats the pain I have waking up everyday -- Mike Tyson
Santafairy Korea (South). Mar 18 2017 14:10. Posts 2232
On March 15 2017 07:12 Spitfiree wrote:
Oh yeah that report from 12 years ago. I don't even care about his tax return, but your argument is only worth a laugh
Its just another topic whose goals is to redirect the discussion about lobbying being basically legal corruption...
I don't see the connection at all - Trump's taxes and lobbying, looks like you just brought that up out of nowhere and ascribed the "argument" to me
I know we are le ebin freethinkers so we never have to take a stand on anything but a huge mass of people on all sides have been whining for a year about Trump's taxes
-he's hiding some bombshell that the federal government somehow didn't notice and IRS rape him about (give me a break)
-he's not even worth $1 billion
-he doesn't pay taxes
-muh democratic norms
now we have his worst year, him organizing a $1 billion loss, and his probably highest tax rate year, and it turns out tax returns don't matter, what's an example of presidential candidate in history who anything came of their tax returns? he's right when he says nobody cares and I believe right when he says it's nobody's business anyway. again I know we don't care but this has been a huge tomato for many people
It seems to be not very profitable in the long run to play those kind of hands. - Gus Hansen
the thing is nobody gives a fuck if he s a billionaire or not(at least in his right mind), he said he will self-fund his campaign, and he didn't which implies he can't, which brings us to the lobbying
if he found a legal way to abuse the taxing system then gratz to him, any sane person should not only do the same, but be obliged morally to do so.
On March 13 2017 22:34 Baalim wrote:
agreed, if the woman has a choice whether to keep or not a baby and the partner has no say then he shouldn't be expected to pay support if he doesn't want to keep it.
Not debating the legislation aspect of it, but just as an aside, wouldn't you say that it's a shitty thing to do (to not help at all financially)? You are still responsible for that child's existence. You didn't take the precautions necessary and now you are fully escaping responsibility and the life of that child is severely affected. In some cases he might be lucky and the mother will find a partner early enough who is financially able to provide for them, but in a lot of cases she ends up alone, makes a lot of sacrifices and the child still gets punished. I think too often in this argument people see this as a form of justice/revenge against the woman and don't realize it's really not about her.
If you take no precautions and just like fuck cum inside not giving a fuck it is indeed shitty and the person who does that is probably a shitty person.
Are you selectively pro-choice at all? Like, should these people be allowed to breed like they did knowing the chances of what they'll impose? How do you feel about the idea of some sort of basic competence test to establish if someone is fit to be a parent?
Well the problem with eugenics is the enforcement, so in an ideal world no, I wouldn't allow these people to breed and bring pain into existence when they could just adopt, but giving the government the power to decide who can or cant breed is something that I would never support.
On March 14 2017 14:49 Spitfiree wrote:
It's impossible to create laws that handle any given scenario in a case, thats why there are commissions to interpret them if needed. People are 100% aware of the risks, so they do take responsibilities when the action is taken. Choosing to fuck her is like ticking the " accept the conditions in the agreement" when singing up in a page basically so you know, if you impregnate her you will have to pay for that. Obviously we're not including rape here.
LOL no, what makes a law just is not whether you implicitly agree to it before hand or not, especially when we are dealing with something you are naturally driven to do (sex).
For example, in sharia people who have premarital sex are killed, so based on your logic that is fine, since they "ticked the accept the conditions in the agreement"... see how this argument is flawed?
And this isnt a Strawman argument, I gave an obvious example of how doing something despise knowing its consequences is does not justify the fairness of said consequences
You use an argument for sex as a natural drive, but ignore the main goal of that natural drive, if you can't control the first part, you sure as hell are responsible for the second part as well.
The given example is changing the subject altogether... there is no violation of basic human rights here, rather identifying the borders of a person's responsibilities. Laws do predefine outcomes of given deeds, that's why they exist. You are trying to paint laws fundamental logic as flawed, which to a certain extent could be true.
Our argument is indeed based on our understanding of whats just , in which case I disagree with you. The conditions for the man and the woman are indeed unequal, as the woman will get custody 90% of the time. There should always be 1 side which raises the kid while the other pays alamony, if there s anything to be fixed in the system its regarding the custody. There is nothing to contemplate about regarding whether the man is responsible for the child even if he doesn't want it to be born. There are plenty of precautions to be taken and both parties are aware of the risks, and in no way are basic human rights violated.
Confirmed above, Russian hacked everyone, only leaked DNC information.
I wish one of your guys had children if I could kick them in the fucking head or stomp on their testicles so you can feel my pain because thats the pain I have waking up everyday -- Mike Tyson
Trump starting to delete his wiretapping tweets, confirmed LIES. (Obviously)
I wish one of your guys had children if I could kick them in the fucking head or stomp on their testicles so you can feel my pain because thats the pain I have waking up everyday -- Mike Tyson
On March 20 2017 14:11 Spitfiree wrote:
You use an argument for sex as a natural drive, but ignore the main goal of that natural drive, if you can't control the first part, you sure as hell are responsible for the second part as well.
The given example is changing the subject altogether... there is no violation of basic human rights here, rather identifying the borders of a person's responsibilities. Laws do predefine outcomes of given deeds, that's why they exist. You are trying to paint laws fundamental logic as flawed, which to a certain extent could be true.
Our argument is indeed based on our understanding of whats just , in which case I disagree with you. The conditions for the man and the woman are indeed unequal, as the woman will get custody 90% of the time. There should always be 1 side which raises the kid while the other pays alamony, if there s anything to be fixed in the system its regarding the custody. There is nothing to contemplate about regarding whether the man is responsible for the child even if he doesn't want it to be born. There are plenty of precautions to be taken and both parties are aware of the risks, and in no way are basic human rights violated.
Again, being aware of the legal risks does not make the law just.
Unwanted pregnancy can be stopped, but the choice falls solely on the woman, therefore the man cannot be held responsible for the choices of another person, if she wants to keep the baby despise the mans wishes fine, but she has to carry the financial burden, if the man agrees to keep the baby and then bails (divorce, abandoning home etc), he has to carry the economical burden.
On March 20 2017 14:11 Spitfiree wrote:
You use an argument for sex as a natural drive, but ignore the main goal of that natural drive, if you can't control the first part, you sure as hell are responsible for the second part as well.
The given example is changing the subject altogether... there is no violation of basic human rights here, rather identifying the borders of a person's responsibilities. Laws do predefine outcomes of given deeds, that's why they exist. You are trying to paint laws fundamental logic as flawed, which to a certain extent could be true.
Our argument is indeed based on our understanding of whats just , in which case I disagree with you. The conditions for the man and the woman are indeed unequal, as the woman will get custody 90% of the time. There should always be 1 side which raises the kid while the other pays alamony, if there s anything to be fixed in the system its regarding the custody. There is nothing to contemplate about regarding whether the man is responsible for the child even if he doesn't want it to be born. There are plenty of precautions to be taken and both parties are aware of the risks, and in no way are basic human rights violated.
Again, being aware of the legal risks does not make the law just.
Unwanted pregnancy can be stopped, but the choice falls solely on the woman, therefore the man cannot be held responsible for the choices of another person, if she wants to keep the baby despise the mans wishes fine, but she has to carry the financial burden, if the man agrees to keep the baby and then bails (divorce, abandoning home etc), he has to carry the economical burden.
Agreed. Sex=Babies Anyone having sex probably knows this, and the risk associated with it. BOTH parties. There are options for both the man and the woman, but unless its rape, don't try and tell me that the man should be held completely accountable if having the kid in the first place is completely left up to the woman. To be honest, I think it should be the womans choice - but I also think fair is fair, and if that's the case, a man shouldn't be held financially responsible for something that SHE can prevent if she decided to.
Infowars is for retards; watching / reading will make you lose 5 iq points per read/watch
Source: VDM behavior and post history
I wish one of your guys had children if I could kick them in the fucking head or stomp on their testicles so you can feel my pain because thats the pain I have waking up everyday -- Mike Tyson
On March 22 2017 13:51 uiCk wrote:
Infowars is for retards; watching / reading will make you lose 5 iq points per read/watch
Source: VDM behavior and post history
Indeed it has 0 credibility, but I dont think he is arguing the credibility of the source but rather a particular subject.
Oh, but they say the spying wasn't aimed directly at Trump, it was incidental and since they weren't officially and directly asked by Obama to do it then Trumps tweets about wiretapping were absolutely ludicrous.
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