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Do you guys really think that the constitutionality of the "ban" would rest on whether we call it a "ban" or whether we call it something else?
On June 05 2017 02:39 Danglars wrote:Show nested quote +On June 05 2017 01:25 LegalLord wrote:
Trump has already killed off his own EO. I don't know if he will try again but it definitely won't pass the courts at this point. It's already been done twice. But the courts definitely need to refine and constrain the 4th circuit's rationale. Highlighted in the dissent: Show nested quote +While the court acknowledged the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to enter the Order and also acknowledged that the national security reasons given on the face of the Order were legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that courts are precluded from “look[ing] behind” “facially legitimate and bona fide” exercises of executive discretion in the immigration context to discern other possible purposes, id. at 770. Relying on statements made by candidate Trump during the presidential campaign, the district court construed the Executive Order to be directed against Muslims because of their religion and held therefore that it likely violated the Establishment Clause of the First Amendment.
I conclude that the district court seriously erred (1) by refusing to apply the Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents. The district court’s approach is not only unprecedented, it is totally unworkable and inappropriate under any standard of analysis. [...]
Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often ambiguous. A court applying the majority’s new rule could thus have free reign to select whichever expression of a candidate’s developing ideas best supports its desired conclusion. I find great cause to fear for the circuit court's effects on campaign speech in the future. Hopefully, the justices of the Supreme Court clarify such a radical departure from Supreme Court precedent in Mandel and others.
where did you get that quotation from? the use of "free reign" rather than "free rein" seems pretty careless
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On June 05 2017 02:43 KwarK wrote:Show nested quote +On June 05 2017 02:39 Danglars wrote:
I find great cause to fear for the circuit court's effects on campaign speech in the future. Hopefully, the justices of the Supreme Court clarify such a radical departure from Supreme Court precedent in Mandel and others. Yeah, if the courts keep using the stated intentions of individuals to draw conclusions about the intentions of those individuals then that could be the death of making wild unconstitutional promises during campaigns. Can you imagine the grim future in which politicians don't pledge to pass unconstitutional laws that discriminate against the people?
Competent politicians I would think are very much aware of the potential legal consequences of what they say, and do take that into account when speaking and preparing to speak. Its pretty silly to suggest trumps campaign promises shouldn't be factored in.
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So trump's tweets on London and its mayor this morning (sent out shortly before he departed for his 23rd round of golf) were shortly after Fox and Friends, and all of his points were made on Fox and Friends.
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On June 05 2017 02:39 Danglars wrote:Show nested quote +On June 05 2017 01:25 LegalLord wrote:
Trump has already killed off his own EO. I don't know if he will try again but it definitely won't pass the courts at this point. It's already been done twice. But the courts definitely need to refine and constrain the 4th circuit's rationale. Highlighted in the dissent: Show nested quote +While the court acknowledged the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to enter the Order and also acknowledged that the national security reasons given on the face of the Order were legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that courts are precluded from “look[ing] behind” “facially legitimate and bona fide” exercises of executive discretion in the immigration context to discern other possible purposes, id. at 770. Relying on statements made by candidate Trump during the presidential campaign, the district court construed the Executive Order to be directed against Muslims because of their religion and held therefore that it likely violated the Establishment Clause of the First Amendment.
I conclude that the district court seriously erred (1) by refusing to apply the Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents. The district court’s approach is not only unprecedented, it is totally unworkable and inappropriate under any standard of analysis. [...]
Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often ambiguous. A court applying the majority’s new rule could thus have free reign to select whichever expression of a candidate’s developing ideas best supports its desired conclusion. I find great cause to fear for the circuit court's effects on campaign speech in the future. Hopefully, the justices of the Supreme Court clarify such a radical departure from Supreme Court precedent in Mandel and others.
What do you mean "in the future"? Its been this way for along time, words matter. Who do you think no politician calls for suppressing black voting rights at rallies but talk about non existent election fraud instead?
Trump gained popularity because he said plainly what he means rather then the politicians who hide their meaning.
Has it accord to you that they do so for good reason? That being judged by the words you speak is normal and not a new development by rebel activist judges?
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I like how Trump announced a Pittsburgh not Paris rally(ies). Then instead of showing up to one he went golfing instead.
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Danglars, do you believe that Trump:
1) believes all muslims should be banned, but for legal reasons is narrowing his scope and targetting these specific countries
or
2) made bombastic statements that he didn't himself believe when he said all muslims should be banned as part of campaign strategy
if 1, do you have a problem with that? I agree with you that campaign rhetoric should ideally not be a factor and that an EO should be taken at face value on its merits alone. I'm also conflicted because in this specific situation, we have such a outlandish and blatant display of intent, that I am interested to see how the SCOTUS will read it.
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Wasn't the ban for 90 so that you could adopt more extreme vetting procedures? The 90s have passed, so even if the ban was suspended by the courts the reasoning for it should have expired too.
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On June 05 2017 03:23 warding wrote:
Wasn't the ban for 90 so that you could adopt more extreme vetting procedures? The 90s have passed, so even if the ban was suspended by the courts the reasoning for it should have expired too.
that was the nominal reasons indeed, yes.
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On June 05 2017 03:23 warding wrote:
Wasn't the ban for 90 so that you could adopt more extreme vetting procedures? The 90s have passed, so even if the ban was suspended by the courts the reasoning for it should have expired too.
Well, originally it was "until we can figure out what's going on." I don't think anyone in this thread believes the White House has figured out what's going on in...pretty much anything, so the reasoning remains.
Incidentally, the whole "it's just campaign speech" basically lets Trump say whatever he wants whenever he wants, since he can ascribe current statements to 2020 campaigning. It is essentially would allow him to spout his brand of dangerous gibberish constantly with no repercussions, which is why some have fastened on to it so strongly.
Even his tweets about Comey or statements to Russian authorities or statements about being wiretapped could be construed as campaign speech, probably the ultimate endgame of this line of reasoning.
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On June 05 2017 03:46 TheTenthDoc wrote:Show nested quote +On June 05 2017 03:23 warding wrote:
Wasn't the ban for 90 so that you could adopt more extreme vetting procedures? The 90s have passed, so even if the ban was suspended by the courts the reasoning for it should have expired too. Well, originally it was "until we can figure out what's going on." I don't think anyone in this thread believes the White House has figured out what's going on in...pretty much anything, so the reasoning remains.
Those people coming into our country... do we know who they are yet?
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On June 05 2017 03:49 LegalLord wrote:Show nested quote +On June 05 2017 03:46 TheTenthDoc wrote:On June 05 2017 03:23 warding wrote:
Wasn't the ban for 90 so that you could adopt more extreme vetting procedures? The 90s have passed, so even if the ban was suspended by the courts the reasoning for it should have expired too. Well, originally it was "until we can figure out what's going on." I don't think anyone in this thread believes the White House has figured out what's going on in...pretty much anything, so the reasoning remains. Those people coming into our country... do we know who they are yet?
It a telling that he hasn't even tried to figure out "what's going on" yet.
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On June 05 2017 03:49 LegalLord wrote:Show nested quote +On June 05 2017 03:46 TheTenthDoc wrote:On June 05 2017 03:23 warding wrote:
Wasn't the ban for 90 so that you could adopt more extreme vetting procedures? The 90s have passed, so even if the ban was suspended by the courts the reasoning for it should have expired too. Well, originally it was "until we can figure out what's going on." I don't think anyone in this thread believes the White House has figured out what's going on in...pretty much anything, so the reasoning remains. Those people coming into our country... do we know who they are yet?
If they are the refugees Trump talked about banning, we have known who they are for a very long time.
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On June 05 2017 03:55 Slaughter wrote:Show nested quote +On June 05 2017 03:49 LegalLord wrote:On June 05 2017 03:46 TheTenthDoc wrote:On June 05 2017 03:23 warding wrote:
Wasn't the ban for 90 so that you could adopt more extreme vetting procedures? The 90s have passed, so even if the ban was suspended by the courts the reasoning for it should have expired too. Well, originally it was "until we can figure out what's going on." I don't think anyone in this thread believes the White House has figured out what's going on in...pretty much anything, so the reasoning remains. Those people coming into our country... do we know who they are yet? It a telling that he hasn't even tried to figure out "what's going on" yet.
I'm not sure Trump's capable of figuring out what's going on, at least what's going on independent of what they say on Fox and Friends.
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also can Dems please find other people to go on the news shows to talk about the climate? Would be much better if Bob Casey was on talking about jobs in renewable energy in regards to Pennsylvania than who the people they're currently sending. (although he's probably at church on Sunday mornings.) I'm even fine with somebody from Maryland, Illonois, or Delaware. Just somebody else please.
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On June 05 2017 04:03 Karis Vas Ryaar wrote:
also can Dems please find other people to go on the news shows to talk about the climate? Would be much better if Bob Casey was on talking about jobs in renewable energy in regards to Pennsylvania than who the people they're currently sending. (although he's probably at church on Sunday mornings.)
Personally I would prefer it if the Democrats continued to talk about Trump's Russia ties. We have to focus on the threat he represents to our nation as an agent of another nation that is hostile to us.
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On June 05 2017 04:03 Karis Vas Ryaar wrote:
also can Dems please find other people to go on the news shows to talk about the climate? Would be much better if Bob Casey was on talking about jobs in renewable energy in regards to Pennsylvania than who the people they're currently sending. (although he's probably at church on Sunday mornings.) I'm even fine with somebody from Maryland, Illonois, or Delaware. Just somebody else please.
I think poor representation of both parties on Sunday shows is kind of the price paid for making at least pretending religiosity mandatory as an attribute of a candidate running for national office.
Until it isn't you're stuck with the politicians desperate enough for attention or power (e.g. Giuliani) that they don't care about that image.
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On June 05 2017 02:43 KwarK wrote:Show nested quote +On June 05 2017 02:39 Danglars wrote:
I find great cause to fear for the circuit court's effects on campaign speech in the future. Hopefully, the justices of the Supreme Court clarify such a radical departure from Supreme Court precedent in Mandel and others. Yeah, if the courts keep using the stated intentions of individuals to draw conclusions about the intentions of those individuals then that could be the death of making wild unconstitutional promises during campaigns. Can you imagine the grim future in which politicians don't pledge to pass unconstitutional laws that discriminate against the people?
I can greatly imagine any number of justices, including from my side of the aisle, cherry picking campaign quotes and interviews with advisors to support their desired result, whether constitutional or unconstitutional. I'm very glad this topic of discarding president was thoroughly and pointedly covered in the dissent from which I quoted.
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On June 05 2017 02:48 IgnE wrote:Do you guys really think that the constitutionality of the "ban" would rest on whether we call it a "ban" or whether we call it something else? Show nested quote +On June 05 2017 02:39 Danglars wrote:On June 05 2017 01:25 LegalLord wrote:
Trump has already killed off his own EO. I don't know if he will try again but it definitely won't pass the courts at this point. It's already been done twice. But the courts definitely need to refine and constrain the 4th circuit's rationale. Highlighted in the dissent: While the court acknowledged the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to enter the Order and also acknowledged that the national security reasons given on the face of the Order were legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that courts are precluded from “look[ing] behind” “facially legitimate and bona fide” exercises of executive discretion in the immigration context to discern other possible purposes, id. at 770. Relying on statements made by candidate Trump during the presidential campaign, the district court construed the Executive Order to be directed against Muslims because of their religion and held therefore that it likely violated the Establishment Clause of the First Amendment.
I conclude that the district court seriously erred (1) by refusing to apply the Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents. The district court’s approach is not only unprecedented, it is totally unworkable and inappropriate under any standard of analysis. [...]
Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often ambiguous. A court applying the majority’s new rule could thus have free reign to select whichever expression of a candidate’s developing ideas best supports its desired conclusion. I find great cause to fear for the circuit court's effects on campaign speech in the future. Hopefully, the justices of the Supreme Court clarify such a radical departure from Supreme Court precedent in Mandel and others. where did you get that quotation from? the use of "free reign" rather than "free rein" seems pretty careless
Google the 4th circuit decision on appeal of the executive order #2.
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On June 05 2017 03:01 Gorsameth wrote:Show nested quote +On June 05 2017 02:39 Danglars wrote:On June 05 2017 01:25 LegalLord wrote:
Trump has already killed off his own EO. I don't know if he will try again but it definitely won't pass the courts at this point. It's already been done twice. But the courts definitely need to refine and constrain the 4th circuit's rationale. Highlighted in the dissent: While the court acknowledged the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to enter the Order and also acknowledged that the national security reasons given on the face of the Order were legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that courts are precluded from “look[ing] behind” “facially legitimate and bona fide” exercises of executive discretion in the immigration context to discern other possible purposes, id. at 770. Relying on statements made by candidate Trump during the presidential campaign, the district court construed the Executive Order to be directed against Muslims because of their religion and held therefore that it likely violated the Establishment Clause of the First Amendment.
I conclude that the district court seriously erred (1) by refusing to apply the Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents. The district court’s approach is not only unprecedented, it is totally unworkable and inappropriate under any standard of analysis. [...]
Because of their nature, campaign statements are unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often ambiguous. A court applying the majority’s new rule could thus have free reign to select whichever expression of a candidate’s developing ideas best supports its desired conclusion. I find great cause to fear for the circuit court's effects on campaign speech in the future. Hopefully, the justices of the Supreme Court clarify such a radical departure from Supreme Court precedent in Mandel and others. What do you mean "in the future"? Its been this way for along time, words matter. Who do you think no politician calls for suppressing black voting rights at rallies but talk about non existent election fraud instead? Trump gained popularity because he said plainly what he means rather then the politicians who hide their meaning. Has it accord to you that they do so for good reason? That being judged by the words you speak is normal and not a new development by rebel activist judges?
In the past, the court expressly rejected arguments that you could read into statements made to the media and others to find discrimination and malice and thus constrain executive power. You will find this upon reading the decision. Three cases are cited by both sides.
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A Fox News host on Sunday clarified his own position on internment camps, denouncing them as “reprehensible,” after two panelists on the network suggested rounding up British Muslims in response to Saturday night’s terror attack in London.
Clayton Morris, a host of “Fox and Friends Weekend,” made the statement on behalf of the network.
“Earlier on the show, we had a couple of guests mention the word ‘internment,’ the idea of internment camps, as a possible solution to this,” he said. “I think I made it well known my feeling on that, which I find reprehensible, but on behalf of the network, I think all of us here find that reprehensible here at Fox News Channel, just to be clear.”
www.yahoo.com
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EPT
