|
Read the rules in the OP before posting, please.In order to ensure that this thread continues to meet TL standards and follows the proper guidelines, we will be enforcing the rules in the OP more strictly. Be sure to give them a re-read to refresh your memory! The vast majority of you are contributing in a healthy way, keep it up! NOTE: When providing a source, explain why you feel it is relevant and what purpose it adds to the discussion if it's not obvious. Also take note that unsubstantiated tweets/posts meant only to rekindle old arguments can result in a mod action. |
On May 10 2017 02:24 Gorsameth wrote:Show nested quote +On May 10 2017 02:22 Danglars wrote:Former President Barack Obama, speaking to an audience in Italy on Tuesday, urged citizens to participate in democracy and warned that “you get the politicians you deserve.”
“People have a tendency to blame politicians when things don't work, but as I always tell people, you get the politicians you deserve,” Obama said, to loud applause. “And if you don't vote and you don't pay attention, you'll get policies that don't reflect your interest.”
Obama was speaking in Milan at a summit on food innovation. He has spoken broadly about the democratic process in a handful of public appearances since the end of his tenure, and he devoted his good-bye address in Chicago to democracy and urging Americans to engage in politics.
The former president has largely refrained from commenting on President Donald Trump at his post-White House engagements so far, but it is no secret that Obama’s worldview contrasts with Trump’s sharply, and during the campaign, Obama repeatedly argued that Trump was uniquely unqualified for the presidency. PoliticoI totally agree with Obama here. I assume that would be pretty unanimous. I don't see the relevance of this news...
Obama has been pretty quiet about what is happening in DC, so anything he says gets covered. And I’m seeing that quote as a shot at congress, rather than Trump.
|
I can see the argument that the text of the order as written does not have the same effect as "ban the Muslims". But it does have the effect of "ban some Muslims". The promise of ban the Muslims was just so clear and simple and prominent that there's barely any room for interpretation. He can invent an alternative explanation of "national security and foreign policy" all he wants, but there's also the "ban some Muslims" explanation - and that's where the judicial comes in. At some point a campaign promise is prominent enough and has a direct enough link to the EO that you can't help but interpret it as the purpose of the EO.
|
United States44302 Posts
If we're striking down laws for being unconstitutional by using the stated intent of the authors then there's a good number of anti felon voting laws in the American South which need to be looked at. The President of the constitutional convention in Alabama that disenfranchised felons stated that the objective of the amendment to the state constitution was toestablish white supremacy in this state.
|
On May 10 2017 02:31 Doodsmack wrote:
I can see the argument that the text of the order as written does not have the same effect as "ban the Muslims". But it does have the effect of "ban some Muslims". The promise of ban the Muslims was just so clear and simple and prominent that there's barely any room for interpretation. He can invent an alternative explanation of "national security and foreign policy" all he wants, but there's also the "ban some Muslims" explanation - and that's where the judicial comes in. At some point a campaign promise is prominent enough and has a direct enough link to the EO that you can't help but interpret it as the purpose of the EO.
Hey, I think we have a believer in reading the text to ascertain whether or not it in-effect bans the Muslims based on their religion rather than pausing immigration from terror-prone nations for a specified period of time.
On May 10 2017 02:31 KwarK wrote:If we're striking down laws for being unconstitutional by using the stated intent of the authors then there's a good number of anti felon voting laws in the American South which need to be looked at. The President of the constitutional convention in Alabama that disenfranchised felons stated that the objective of the amendment to the state constitution was to
I wager you've seen the fourteenth amendment, which has been used in these cases in the past:
But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
|
The key aspect of this argument is that Rudy Giuliani said on TV that the law was written to “ban Muslims” legally. If I remember correctly, this was after the EO was being enforced. That and Trump’s other statements and his own funding page cast this shadow of the EO and make it impossible to separate the intent from the language.
On May 10 2017 02:35 Danglars wrote:Show nested quote +On May 10 2017 02:31 Doodsmack wrote:
I can see the argument that the text of the order as written does not have the same effect as "ban the Muslims". But it does have the effect of "ban some Muslims". The promise of ban the Muslims was just so clear and simple and prominent that there's barely any room for interpretation. He can invent an alternative explanation of "national security and foreign policy" all he wants, but there's also the "ban some Muslims" explanation - and that's where the judicial comes in. At some point a campaign promise is prominent enough and has a direct enough link to the EO that you can't help but interpret it as the purpose of the EO. Hey, I think we have a believer in reading the text to ascertain whether or not it in-effect bans the Muslims based on their religion rather than pausing immigration from terror-prone nations for a specified period of time.
This is another problem with the EO because they don’t’ really have a lot of evidence to show those regions were a huge risk over others that were not included. Or that the risk had increased since Trump took office. There needs to be a provable reason for the order to exist.
|
Canada13422 Posts
On May 10 2017 02:35 Danglars wrote:Show nested quote +On May 10 2017 02:31 Doodsmack wrote:
I can see the argument that the text of the order as written does not have the same effect as "ban the Muslims". But it does have the effect of "ban some Muslims". The promise of ban the Muslims was just so clear and simple and prominent that there's barely any room for interpretation. He can invent an alternative explanation of "national security and foreign policy" all he wants, but there's also the "ban some Muslims" explanation - and that's where the judicial comes in. At some point a campaign promise is prominent enough and has a direct enough link to the EO that you can't help but interpret it as the purpose of the EO. Hey, I think we have a believer in reading the text to ascertain whether or not it in-effect bans the Muslims based on their religion rather than pausing immigration from terror-prone nations for a specified period of time.
You should probably read the whole post you are quoting.
There comes a point where religion is the basis of the decision even if you try to frame it differently.
|
United States44302 Posts
On May 10 2017 02:35 Danglars wrote:Show nested quote +On May 10 2017 02:31 Doodsmack wrote:
I can see the argument that the text of the order as written does not have the same effect as "ban the Muslims". But it does have the effect of "ban some Muslims". The promise of ban the Muslims was just so clear and simple and prominent that there's barely any room for interpretation. He can invent an alternative explanation of "national security and foreign policy" all he wants, but there's also the "ban some Muslims" explanation - and that's where the judicial comes in. At some point a campaign promise is prominent enough and has a direct enough link to the EO that you can't help but interpret it as the purpose of the EO. Hey, I think we have a believer in reading the text to ascertain whether or not it in-effect bans the Muslims based on their religion rather than pausing immigration from terror-prone nations for a specified period of time.
How do you feel about the Alabama felon disenfranchisement law? As written it disenfranchises anyone, regardless of race, who is convicted of a crime of moral turpitude but it was written by an all white convention with the stated purpose of stripping the franchise from the black population by exploiting their de facto control of the legal system to purposefully direct their racially neutral law specifically at the black people. And they said that's what they were going to do. And then they did it.
Constitutional?
|
On May 09 2017 23:40 Danglars wrote:Show nested quote +On May 09 2017 23:06 ChristianS wrote:On May 09 2017 22:35 Danglars wrote:On May 09 2017 21:08 ChristianS wrote:On May 09 2017 14:19 Danglars wrote:On May 09 2017 13:09 ChristianS wrote:On May 09 2017 12:41 Danglars wrote:On May 09 2017 11:20 zlefin wrote:On May 09 2017 09:42 Danglars wrote:
ACLU lawyer says a different candidate might have issued Trump's EO and it would be constitutional in that case, vs unconstitutional in Trump's case. This is the fourth circuit court of appeals. I had no idea the identity of the person in the office influences what constitutional actions he or she could take. of course it does; or rather, for the question of intent it does. IIRC this is similar to the legal principle of good faith. e.g. relying in good faith on the advice of your lawyer as to what is legal immunizes you against getting in trouble. the good faith part is so you can't find a lawyer to just tell you murder is fine. for anti-discrimination and some other things, there's a rule that basically says if your intent is to discriminate, it doesn't matter whether the policy is facially neutral. which is again to prevent people from using bs lies to get around the law. the identity and prior actions of the person in the office affect the determination of intent. Well, it's nice to know you don't care about executive orders for what they actually are, just what the person issuing them said on the campaign trail prior to the presidency. Or, in your terms, the murder doesn't actually matter, what matters is if you said stuff about justified killings prior to the act. It sure seems like you're getting self-righteous without understanding what you're talking about, which is a bad look. There are a lot of legal questions for which intent very much matters. In fact, even though you mock it, intent makes a big difference in murder cases – at the one extreme you have accidents, possibly with some negligence such that you could maybe sue for wrongful death in a civil case; in the middle you have something like manslaughter, and at the other extreme you have clear premeditated murder, with possible additional factors that increase the sentence (e.g. hate crime). So yes, it doesn't just matter what the text of the order is, it's also relevant to look at the person who issued it and what their motives were. If they were quite explicit all along about intending to discriminate Muslims, and repeatedly talked about national origin as their proxy for discriminating against Muslims, and the person who came up with the plan goes on national television saying he was tasked with finding a legal workaround to discriminate against Muslims, that's definitely relevant in a discussion of whether the order discriminates against Muslims. I'll be sure to let the next generation of presidential candidates know. It doesn't matter what their executive orders are, it matter what they say on the campaign trail. That will be sure to make for more exciting campaigns! You're still doing this weird ad absurdum thing. Nobody said that the order itself doesn't matter, just that intent can have real bearing on the case. Just like it clearly matters if you killed the guy in a murder case, it just also matters what your intent was. If you honestly thought you were shooting them with an airsoft gun but some insidious individual swapped it with a pistol, you're gonna get off a lot easier than if you've been carrying around a pistol with a single round for five years waiting for your chance. This isn't even really about whether the order is unconstitutional, it's just that getting self-righteous about the idea that intent could matter to the constitutionality of a law is an absurd thing to get self-righteous about. Hell, I think under current free exercise doctrine a law that happens to burden someone's free exercise is constitutional, but one specifically designed to target that religion is not. That means the same law could be constitutional or not based on whether the creators of a law can come up with a permissible rationale and convince the court that was their reason. To fully bear out the analogy, if those same lawmakers had campaigned on creating laws to persecute Jews, they're going to have a much harder time arguing that their law just happens to burden Jews' free exercise. I get that years of experience have given conservatives a sort of persecution complex, and the idea that the only thing making the courts rule against this is the R in front of Trump's name is one you're pretty ready based on prior experience to believe. But it's sending you on this weird crusade against "intent" ever mattering or being discussed in a court room, which I don't think you appreciate is a perfectly normal thing even in completely nonpartisan contexts. Well, I find it absolutely absurd that you can't see all the problems with constitutional executive authority being tied down to what some judge thinks your campaign rhetoric shows. And it has everything to do with the constitutional test. Orders are or aren't. We're not trying Trump for murder where mens rea and the various degrees impact law. It's the constitution and nowhere does it reserve certain powers to the branches only if some judge in a corner of the country thinks your rhetoric wasn't too divisive. And since you want to go there, I get that years of advocating for judges to write law turns you deaf to this kind of talk. I kind of expect you'd be singing a different tune if Obamacare was declared unconstitutional because Obama showed religious animus during the campaign and now he's making nuns pay for abortifascients. It does come down to disabusing ordinary Americans of notions about the peaceful transfer of power and whether we're a nation of laws or of men. I didn't bring up the analogy to murder, you did. No, zlefin brought it up, and you repeated it after I responded to him. So don't play games here, Mr. "Just like it clearly matters if you killed the guy in a murder case." Show nested quote +And there's plenty of constitutional issues where intent matters too. I've already brought up one (free exercise doctrine); discrimination is clearly another. If the question is whether the order illegally discriminates against Muslims, how is it not relevant whether the author intended to use it to target Muslims?
If the analogy held I would be singing the same tune, but it doesn't. If during the campaign Obama had been stoking anti-Catholic fervor, and saying we need to force these papists to stop what they're doing by making it illegal, and when told that would be unconstitutional responding they'll do it by mandating everybody provide contraceptives that Catholics object to, that would certainly strengthen the case for ruling that unconstitutional on free exercise grounds.
I've never advocated for judicial activism and I'm not sure I'm in favor of a lot of recent instances of it. I strongly support gay marriage but I think Obergefell might have been on pretty shaky legal ground. But not that that's relevant anyway, you're just trying to score partisan points. When you said, "I get that years of experience have given conservatives a sort of persecution complex, and the idea that the only thing making the courts rule against this is the R in front of Trump's name is one you're pretty ready based on prior experience to believe," I knew we were already in the cheap partisan points of the argument phase, so restrain yourself if you'd like others to show restraint. It doesn't change the fact that constitutionally delegated powers are not prejudiced by campaign rhetoric: it's merely judges thinking they have scope over national security and foreign policy, when in reality the President has plenary authority in those areas. And yes, it is reductio ad absurdum, any judge can look at prior comments critical of religion from Obama and say that's intent and sorry, the law's unconstitutional. + Show Spoiler +Or, as a lawyer would put it: It is naive to think this stops here. They won't and can't beat forum shopping at the District Court and Circuit level, regardless of competence. A little-known aspect of American history is that we've mistrusted courts more or less since the beginning. The last time judges went nuts on us, we basically stripped common law down to existing precedent and equity. On the beginning of absurdity:
I think you've overinterpreted my criticism. I said that you tend to believe conservatives get tougher scrutiny from courts, and just to make clear I'm not scoring partisan points, I think that's probably somewhat true (maybe less true than you think it is, but let's not get on a debate about the degree of persecution). You're also inclined to believe that the order is constitutional, and that minus this bias against conservatives, it would have been allowed. I might not share that belief, but haven't even disputed it in this discussion.
Where my criticism comes is when you use the fact that statements from Trump and his various subordinates, both before and after the campaign, are being used against him in court. You seem to think that a law either is or isn't constitutional based on the text alone, and any challenge based on anything else is illegitimate. This is supposed to be proof that the court's decision is pure judicial activism and liberal bias.
But that simply doesn't prove what you think it does, because intent is quite frequently relevant to constitutional questions. If we oversimplify the whole dispute to this:
Plaintiff: This order is simply a thinly disguised attempt to discriminate against Muslims, using national origin as a proxy.
Defense: This order is merely an attempt to keep us safe from terrorism by restricting immigration from high-risk countries.
Then suppose the plaintiff has the following pieces of evidence:
1) Trump (during the campaign): we're going to use national origin as a proxy to implement the Muslim ban.
2) a Trump subordinate (after the campaign): Trump asked me to find a legal way to do the Muslim ban, so I came up with this ban based on national origin.
How on Earth do you not think the Court should consider those pieces of evidence as relevant support for the plaintiff's case?
|
On May 10 2017 02:37 ZeromuS wrote:Show nested quote +On May 10 2017 02:35 Danglars wrote:On May 10 2017 02:31 Doodsmack wrote:
I can see the argument that the text of the order as written does not have the same effect as "ban the Muslims". But it does have the effect of "ban some Muslims". The promise of ban the Muslims was just so clear and simple and prominent that there's barely any room for interpretation. He can invent an alternative explanation of "national security and foreign policy" all he wants, but there's also the "ban some Muslims" explanation - and that's where the judicial comes in. At some point a campaign promise is prominent enough and has a direct enough link to the EO that you can't help but interpret it as the purpose of the EO. Hey, I think we have a believer in reading the text to ascertain whether or not it in-effect bans the Muslims based on their religion rather than pausing immigration from terror-prone nations for a specified period of time. You should probably read the whole post you are quoting. There comes a point where religion is the basis of the decision even if you try to frame it differently.
Oh I saw he went back after having undermined the basis of the argument and all. The judicial in inadequately suited to judge which campaign slogans or PR releases bear on intent and which don't. Now Doodsmack, by starting off by stating what effect the law has, he does allude that you can find constitutionality in the executive order itself.
|
On May 10 2017 02:38 KwarK wrote:Show nested quote +On May 10 2017 02:35 Danglars wrote:On May 10 2017 02:31 Doodsmack wrote:
I can see the argument that the text of the order as written does not have the same effect as "ban the Muslims". But it does have the effect of "ban some Muslims". The promise of ban the Muslims was just so clear and simple and prominent that there's barely any room for interpretation. He can invent an alternative explanation of "national security and foreign policy" all he wants, but there's also the "ban some Muslims" explanation - and that's where the judicial comes in. At some point a campaign promise is prominent enough and has a direct enough link to the EO that you can't help but interpret it as the purpose of the EO. Hey, I think we have a believer in reading the text to ascertain whether or not it in-effect bans the Muslims based on their religion rather than pausing immigration from terror-prone nations for a specified period of time. How do you feel about the Alabama felon disenfranchisement law? As written it disenfranchises anyone, regardless of race, who is convicted of a crime of moral turpitude but it was written by an all white convention with the stated purpose of stripping the franchise from the black population by exploiting their de facto control of the legal system to purposefully direct their racially neutral law specifically at the black people. And they said that's what they were going to do. And then they did it. Constitutional?
I for one find the very idea of politicians being able to take away voting rights for anyone very dangerous. There is a very good reason for universal and equal voting and that is that the simplicity of that arrangement leaves very little room for manipulation - oh well, in US, you still managed to do that with voting suppression of all kinds and gerrymandering. but that probably means that you are going to do all that worse without it. And here you have it ...
|
So, if Guliani and others had said "ban Muslim extremists" on TV, as the executive order apparently tried to do (by banning people from the countries that Obama listed as ISIS hotspots), then the only remaining problem would have been the exceptionally poor way in which the executive order was acted upon by Homeland Security and others?
|
On May 10 2017 02:36 Plansix wrote:
The key aspect of this argument is that Rudy Giuliani said on TV that the law was written to “ban Muslims” legally. If I remember correctly, this was after the EO was being enforced. That and Trump’s other statements and his own funding page cast this shadow of the EO and make it impossible to separate the intent from the language.
You mean before Giuliani went on to say he was putting together a commission with lawyers and what came out was about nations and terror. I'm well able to believe Trump needed to be advised on where the threat of terrorism originates and the areas of the world where there's danger and evidence of it.
Show nested quote +On May 10 2017 02:35 Danglars wrote:On May 10 2017 02:31 Doodsmack wrote:
I can see the argument that the text of the order as written does not have the same effect as "ban the Muslims". But it does have the effect of "ban some Muslims". The promise of ban the Muslims was just so clear and simple and prominent that there's barely any room for interpretation. He can invent an alternative explanation of "national security and foreign policy" all he wants, but there's also the "ban some Muslims" explanation - and that's where the judicial comes in. At some point a campaign promise is prominent enough and has a direct enough link to the EO that you can't help but interpret it as the purpose of the EO. Hey, I think we have a believer in reading the text to ascertain whether or not it in-effect bans the Muslims based on their religion rather than pausing immigration from terror-prone nations for a specified period of time. This is another problem with the EO because they don’t’ really have a lot of evidence to show those regions were a huge risk over others that were not included. Or that the risk had increased since Trump took office. There needs to be a provable reason for the order to exist.
No, there doesn't need to be a provable reason for the order to exist, as you outlined here. How do you even prove the evidence to doubters? You might criticize the President on which countries he and Obama thought were the worst offenders. You probably didn't vote for him, you might think the real threat is Chinese in origin etc etc the point is that it's well within Trump's executive power to make selections from a list of terrorist exporters and maybe next year change it to be less or more. The standard isn't prove it's not discrimination or you can't do it.
|
On May 10 2017 02:43 a_flayer wrote:
So, if Guliani and others had said "ban Muslim extremists" on TV, as the executive order apparently tried to do (by banning people from the countries that Obama listed as ISIS hotspots), then the only remaining problem would have been the exceptionally poor way in which the executive order was acted upon by Homeland Security and others?
The initial order had exceptions for Christians from the same regions, which boils down to a religious test. That is not allowed for any reason. There was no exemption for greencards too. It also had no system to allow for due process, which is also required to take away someone’s visa or greencard.
But there is also the problem that the order doesn’t have a reason to exist. No major terrorist attack on the US can be traced back to a recent arrival in the US or refugee. An EO can’t add restrictions to something just because the president promised to do it. There needs to be real, provable reasons why the change is needed.
|
United States44302 Posts
On May 10 2017 02:53 Plansix wrote:
But there is also the problem that the order doesn’t have a reason to exist. No major terrorist attack on the US can be traced back to a recent arrival in the US or refugee.
Have you forgotten the Bowling Green Massacre already?
|
Canada13422 Posts
On May 10 2017 02:53 Plansix wrote:Show nested quote +On May 10 2017 02:43 a_flayer wrote:
So, if Guliani and others had said "ban Muslim extremists" on TV, as the executive order apparently tried to do (by banning people from the countries that Obama listed as ISIS hotspots), then the only remaining problem would have been the exceptionally poor way in which the executive order was acted upon by Homeland Security and others? The initial order had exceptions for Christians from the same regions, which boils down to a religious test. That is not allowed for any reason. There was no exemption for greencards too. It also had no system to allow for due process, which is also required to take away someone’s visa or greencard. But there is also the problem that the order doesn’t have a reason to exist. No major terrorist attack on the US can be traced back to a recent arrival in the US or refugee. An EO can’t add restrictions to something just because the president promised to do it. There needs to be real, provable reasons why the change is needed.
Thats the problem. The fact they messed up the first EO so badly means any follow up EO is basically going to come across as an attempt to make the original intention still work even if a little watered down.
And the fact the first one got struck down means that the legal case against any follow up EO is already stronger to start with.
Not saying I agree with the approach but if they had done it right the first time, then it would have had a chance to stick. Now not so much.
|
On May 10 2017 02:48 Danglars wrote:Show nested quote +On May 10 2017 02:36 Plansix wrote:
The key aspect of this argument is that Rudy Giuliani said on TV that the law was written to “ban Muslims” legally. If I remember correctly, this was after the EO was being enforced. That and Trump’s other statements and his own funding page cast this shadow of the EO and make it impossible to separate the intent from the language. You mean before Giuliani went on to say he was putting together a commission with lawyers and what came out was about nations and terror. I'm well able to believe Trump needed to be advised on where the threat of terrorism originates and the areas of the world where there's danger and evidence of it. Show nested quote +On May 10 2017 02:35 Danglars wrote:On May 10 2017 02:31 Doodsmack wrote:
I can see the argument that the text of the order as written does not have the same effect as "ban the Muslims". But it does have the effect of "ban some Muslims". The promise of ban the Muslims was just so clear and simple and prominent that there's barely any room for interpretation. He can invent an alternative explanation of "national security and foreign policy" all he wants, but there's also the "ban some Muslims" explanation - and that's where the judicial comes in. At some point a campaign promise is prominent enough and has a direct enough link to the EO that you can't help but interpret it as the purpose of the EO. Hey, I think we have a believer in reading the text to ascertain whether or not it in-effect bans the Muslims based on their religion rather than pausing immigration from terror-prone nations for a specified period of time. This is another problem with the EO because they don’t’ really have a lot of evidence to show those regions were a huge risk over others that were not included. Or that the risk had increased since Trump took office. There needs to be a provable reason for the order to exist. No, there doesn't need to be a provable reason for the order to exist, as you outlined here. How do you even prove the evidence to doubters? You might criticize the President on which countries he and Obama thought were the worst offenders. You probably didn't vote for him, you might think the real threat is Chinese in origin etc etc the point is that it's well within Trump's executive power to make selections from a list of terrorist exporters and maybe next year change it to be less or more. The standard isn't prove it's not discrimination or you can't do it.
Except you can’t deny someone the issuance of a Visa or bar them from entering the country based on race, religion or nationality based on a 1965 law. Congress further stated that do deny a specific person a visa based on terrorism, the government must provide evidence.
The order addresses none of these core issues and provide no evidence why it should exist and visas should be denied. The president doesn’t get to override laws passed by congress through executive order, even for a limited period of time.
And just to be clear, someone with a valid Visa cannot be denied entry to the US. Visas do not have an “on hold due to executive order” state. They are either valid or revoked.
|
Listening to the 4th circuit argument for fun at work. I'm not very confident that the SCOTUS will agree with the lower courts (expecting 4th and 9th to strike it down). Basically comes down to Kennedy, again, no? And afaik on non social issues he leans right. I suppose Roberts could surprise again.
|
On May 10 2017 02:39 ChristianS wrote:Show nested quote +On May 09 2017 23:40 Danglars wrote:On May 09 2017 23:06 ChristianS wrote:On May 09 2017 22:35 Danglars wrote:On May 09 2017 21:08 ChristianS wrote:On May 09 2017 14:19 Danglars wrote:On May 09 2017 13:09 ChristianS wrote:On May 09 2017 12:41 Danglars wrote:On May 09 2017 11:20 zlefin wrote:On May 09 2017 09:42 Danglars wrote:
ACLU lawyer says a different candidate might have issued Trump's EO and it would be constitutional in that case, vs unconstitutional in Trump's case. This is the fourth circuit court of appeals. I had no idea the identity of the person in the office influences what constitutional actions he or she could take. of course it does; or rather, for the question of intent it does. IIRC this is similar to the legal principle of good faith. e.g. relying in good faith on the advice of your lawyer as to what is legal immunizes you against getting in trouble. the good faith part is so you can't find a lawyer to just tell you murder is fine. for anti-discrimination and some other things, there's a rule that basically says if your intent is to discriminate, it doesn't matter whether the policy is facially neutral. which is again to prevent people from using bs lies to get around the law. the identity and prior actions of the person in the office affect the determination of intent. Well, it's nice to know you don't care about executive orders for what they actually are, just what the person issuing them said on the campaign trail prior to the presidency. Or, in your terms, the murder doesn't actually matter, what matters is if you said stuff about justified killings prior to the act. It sure seems like you're getting self-righteous without understanding what you're talking about, which is a bad look. There are a lot of legal questions for which intent very much matters. In fact, even though you mock it, intent makes a big difference in murder cases – at the one extreme you have accidents, possibly with some negligence such that you could maybe sue for wrongful death in a civil case; in the middle you have something like manslaughter, and at the other extreme you have clear premeditated murder, with possible additional factors that increase the sentence (e.g. hate crime). So yes, it doesn't just matter what the text of the order is, it's also relevant to look at the person who issued it and what their motives were. If they were quite explicit all along about intending to discriminate Muslims, and repeatedly talked about national origin as their proxy for discriminating against Muslims, and the person who came up with the plan goes on national television saying he was tasked with finding a legal workaround to discriminate against Muslims, that's definitely relevant in a discussion of whether the order discriminates against Muslims. I'll be sure to let the next generation of presidential candidates know. It doesn't matter what their executive orders are, it matter what they say on the campaign trail. That will be sure to make for more exciting campaigns! You're still doing this weird ad absurdum thing. Nobody said that the order itself doesn't matter, just that intent can have real bearing on the case. Just like it clearly matters if you killed the guy in a murder case, it just also matters what your intent was. If you honestly thought you were shooting them with an airsoft gun but some insidious individual swapped it with a pistol, you're gonna get off a lot easier than if you've been carrying around a pistol with a single round for five years waiting for your chance. This isn't even really about whether the order is unconstitutional, it's just that getting self-righteous about the idea that intent could matter to the constitutionality of a law is an absurd thing to get self-righteous about. Hell, I think under current free exercise doctrine a law that happens to burden someone's free exercise is constitutional, but one specifically designed to target that religion is not. That means the same law could be constitutional or not based on whether the creators of a law can come up with a permissible rationale and convince the court that was their reason. To fully bear out the analogy, if those same lawmakers had campaigned on creating laws to persecute Jews, they're going to have a much harder time arguing that their law just happens to burden Jews' free exercise. I get that years of experience have given conservatives a sort of persecution complex, and the idea that the only thing making the courts rule against this is the R in front of Trump's name is one you're pretty ready based on prior experience to believe. But it's sending you on this weird crusade against "intent" ever mattering or being discussed in a court room, which I don't think you appreciate is a perfectly normal thing even in completely nonpartisan contexts. Well, I find it absolutely absurd that you can't see all the problems with constitutional executive authority being tied down to what some judge thinks your campaign rhetoric shows. And it has everything to do with the constitutional test. Orders are or aren't. We're not trying Trump for murder where mens rea and the various degrees impact law. It's the constitution and nowhere does it reserve certain powers to the branches only if some judge in a corner of the country thinks your rhetoric wasn't too divisive. And since you want to go there, I get that years of advocating for judges to write law turns you deaf to this kind of talk. I kind of expect you'd be singing a different tune if Obamacare was declared unconstitutional because Obama showed religious animus during the campaign and now he's making nuns pay for abortifascients. It does come down to disabusing ordinary Americans of notions about the peaceful transfer of power and whether we're a nation of laws or of men. I didn't bring up the analogy to murder, you did. No, zlefin brought it up, and you repeated it after I responded to him. So don't play games here, Mr. "Just like it clearly matters if you killed the guy in a murder case." And there's plenty of constitutional issues where intent matters too. I've already brought up one (free exercise doctrine); discrimination is clearly another. If the question is whether the order illegally discriminates against Muslims, how is it not relevant whether the author intended to use it to target Muslims?
If the analogy held I would be singing the same tune, but it doesn't. If during the campaign Obama had been stoking anti-Catholic fervor, and saying we need to force these papists to stop what they're doing by making it illegal, and when told that would be unconstitutional responding they'll do it by mandating everybody provide contraceptives that Catholics object to, that would certainly strengthen the case for ruling that unconstitutional on free exercise grounds.
I've never advocated for judicial activism and I'm not sure I'm in favor of a lot of recent instances of it. I strongly support gay marriage but I think Obergefell might have been on pretty shaky legal ground. But not that that's relevant anyway, you're just trying to score partisan points. When you said, "I get that years of experience have given conservatives a sort of persecution complex, and the idea that the only thing making the courts rule against this is the R in front of Trump's name is one you're pretty ready based on prior experience to believe," I knew we were already in the cheap partisan points of the argument phase, so restrain yourself if you'd like others to show restraint. It doesn't change the fact that constitutionally delegated powers are not prejudiced by campaign rhetoric: it's merely judges thinking they have scope over national security and foreign policy, when in reality the President has plenary authority in those areas. And yes, it is reductio ad absurdum, any judge can look at prior comments critical of religion from Obama and say that's intent and sorry, the law's unconstitutional. + Show Spoiler + I think you've overinterpreted my criticism. I said that you tend to believe conservatives get tougher scrutiny from courts, and just to make clear I'm not scoring partisan points, I think that's probably somewhat true (maybe less true than you think it is, but let's not get on a debate about the degree of persecution). You're also inclined to believe that the order is constitutional, and that minus this bias against conservatives, it would have been allowed. I might not share that belief, but haven't even disputed it in this discussion.
So, "I get that years of experience have given conservatives a sort of persecution complex" wasn't at all what you're trying to say? I don't know who you are or where you come from, but this style of broad assertion of bias absolutely invites backlash.
Where my criticism comes is when you use the fact that statements from Trump and his various subordinates, both before and after the campaign, are being used against him in court. You seem to think that a law either is or isn't constitutional based on the text alone, and any challenge based on anything else is illegitimate. This is supposed to be proof that the court's decision is pure judicial activism and liberal bias.
But that simply doesn't prove what you think it does, because intent is quite frequently relevant to constitutional questions. If we oversimplify the whole dispute to this:
Plaintiff: This order is simply a thinly disguised attempt to discriminate against Muslims, using national origin as a proxy.
Defense: This order is merely an attempt to keep us safe from terrorism by restricting immigration from high-risk countries.
Then suppose the plaintiff has the following pieces of evidence:
1) Trump (during the campaign): we're going to use national origin as a proxy to implement the Muslim ban.
2) a Trump subordinate (after the campaign): Trump asked me to find a legal way to do the Muslim ban, so I came up with this ban based on national origin.
How on Earth do you not think the Court should consider those pieces of evidence as relevant support for the plaintiff's case?
Judge: Let me snip out this quote here from Giuliani, and not the whole quote that everybody put together a commission including former attorney generals, judges, and how the talk shifted to the actual dangers. Hey guys, I found intent.
Judge: Furthermore, let's use this quote about Christians vs Yazidis vs Muslims, and say it was a false assertion. It doesn't matter that it was actually true, I'm saying it's false.
Judge: I'm taking these statements from the campaign trail to guide my feelings that Trump's got a bad intent on this one, guys.
Now I've been posting a lot this morning and forgive me for getting a little tired. When I read the TRO text, I saw quotes taken months and years before the presidency. It's possible that I'm forgetting statements from Trump regarding the EO and Muslim Ban made at the White House that were mentioned in the judge's ruling. I really think it's because there weren't any, but sure, prove me wrong. I absolutely think executive intent cannot be gleaned from campaign statements not present in the order, and it would indeed prompt different styles of Presidential campaigns (that obviously people in this thread are ok with) to say a judge may declare your campaign pablum restricts your executive authority because I find intent here that's not present in the order. If Trump took it under advisement that terrorist dangers lie in countries not religion, or frankly just said that Muslim shit to provoke the media reaction, he absolutely could have ended up with the same executive order. The intent is lacking. And I can't find statements by Trump in the White House, or his Vice President, or his staff saying how this was an end-run around the laws because he really meant that Muslim thing.
|
On May 09 2017 12:41 Danglars wrote:Show nested quote +On May 09 2017 11:20 zlefin wrote:On May 09 2017 09:42 Danglars wrote:
ACLU lawyer says a different candidate might have issued Trump's EO and it would be constitutional in that case, vs unconstitutional in Trump's case. This is the fourth circuit court of appeals. I had no idea the identity of the person in the office influences what constitutional actions he or she could take. of course it does; or rather, for the question of intent it does. IIRC this is similar to the legal principle of good faith. e.g. relying in good faith on the advice of your lawyer as to what is legal immunizes you against getting in trouble. the good faith part is so you can't find a lawyer to just tell you murder is fine. for anti-discrimination and some other things, there's a rule that basically says if your intent is to discriminate, it doesn't matter whether the policy is facially neutral. which is again to prevent people from using bs lies to get around the law. the identity and prior actions of the person in the office affect the determination of intent. Well, it's nice to know you don't care about executive orders for what they actually are, just what the person issuing them said on the campaign trail prior to the presidency. Or, in your terms, the murder doesn't actually matter, what matters is if you said stuff about justified killings prior to the act.
I was being reasonable and pointing to well grounded principles of law and ethics.
you are not, and are naysaying without an actual sound argument. you are trolling.
please don't troll.
|
On May 10 2017 03:02 Plansix wrote:Show nested quote +On May 10 2017 02:48 Danglars wrote:On May 10 2017 02:36 Plansix wrote:
The key aspect of this argument is that Rudy Giuliani said on TV that the law was written to “ban Muslims” legally. If I remember correctly, this was after the EO was being enforced. That and Trump’s other statements and his own funding page cast this shadow of the EO and make it impossible to separate the intent from the language. You mean before Giuliani went on to say he was putting together a commission with lawyers and what came out was about nations and terror. I'm well able to believe Trump needed to be advised on where the threat of terrorism originates and the areas of the world where there's danger and evidence of it. On May 10 2017 02:35 Danglars wrote:On May 10 2017 02:31 Doodsmack wrote:
I can see the argument that the text of the order as written does not have the same effect as "ban the Muslims". But it does have the effect of "ban some Muslims". The promise of ban the Muslims was just so clear and simple and prominent that there's barely any room for interpretation. He can invent an alternative explanation of "national security and foreign policy" all he wants, but there's also the "ban some Muslims" explanation - and that's where the judicial comes in. At some point a campaign promise is prominent enough and has a direct enough link to the EO that you can't help but interpret it as the purpose of the EO. Hey, I think we have a believer in reading the text to ascertain whether or not it in-effect bans the Muslims based on their religion rather than pausing immigration from terror-prone nations for a specified period of time. This is another problem with the EO because they don’t’ really have a lot of evidence to show those regions were a huge risk over others that were not included. Or that the risk had increased since Trump took office. There needs to be a provable reason for the order to exist. No, there doesn't need to be a provable reason for the order to exist, as you outlined here. How do you even prove the evidence to doubters? You might criticize the President on which countries he and Obama thought were the worst offenders. You probably didn't vote for him, you might think the real threat is Chinese in origin etc etc the point is that it's well within Trump's executive power to make selections from a list of terrorist exporters and maybe next year change it to be less or more. The standard isn't prove it's not discrimination or you can't do it. Except you can’t deny someone the issuance of a Visa or bar them from entering the country based on race, religion or nationality based on a 1965 law. Congress further stated that do deny a specific person a visa based on terrorism, the government must provide evidence. The order addresses none of these core issues and provide no evidence why it should exist and visas should be denied. The president doesn’t get to override laws passed by congress through executive order, even for a limited period of time. And just to be clear, someone with a valid Visa cannot be denied entry to the US. Visas do not have an “on hold due to executive order” state. They are either valid or revoked.
At risk of repeating myself, the standard is not that you must prove it's not race, religion, or nationality based on some standard of explaining that these countries matter to terrorism and these don't. You might not like the inclusion or exclusion of certain nations on Obama's list, but those are nations not religions. It's not a specific person on terrorism, it's persons from specific nations. He absolutely can stop the issuing of visas.
|
|
|
|
|
|
EPT
