US appeals court upholds suspension of President Donald Trump's travel ban

Have you read the judgment?

Even from the article it says





So it looks like they weighed it up and were not convinced there was a sufficient risk v the chaos immediate implementation brought. It doesnt say he cant ban them. Will update the link to the judgment for you to analyse.

I've found one and I am part way through, I do think that what trump has done is legal and constitutional but it feels like they were wanting to fail in this appeal or the government needs a new lawyer.

Not gonna pass the Supreme Court now. At best he can hope for a 4-4 split in which case they'll uphold the decision once more.

And yet:

'Federal immigration law also includes Section 1182(f), which states: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate”

[…]

Trump’s executive order also expressly relies on an Obama-era provision of the immigration law, Section 1187(a)(12), which governs the Visa Waiver Program. This statute empowers the executive branch to waive the documentation requirements for certain aliens. In it, Congress itself expressly discriminates based on country of origin.

Under this provision, Congress provides that an alien is eligible for the waiver only if he or she has not been present (a) in Iraq or Syria any time after March 1, 2011; (b) in any country whose government is designated by the State Department as “repeatedly provid[ing] support for acts of international terrorism”; or (c) in any country that has been designated by the Department of Homeland Security as a country “of concern.”



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Is that from the judgment?

I said I linked it above. On the basis of what the arguments in the judgment were, then I can see why they lost. Roll on Supreme Court.

He should refrain from attacking the judiciary just because he loses, he isnt above the law or the constitution. If he had spent more time streamlining and focusing the order, then it could have avoided the pitfalls. Wonder how long it will take the SC to reach a decision.

No, thats from exactly where the quote cites them being from. The first one is Immigration and Nationalities Act 1965, the latter I don't know.

The fact of the matter though is that it clearly states a right to deny access. The former allows the president to do it if he believes there is a threat (he does), the latter spells out what congress explicitly allow, which is where the initial lost of 7 is derived from.

Those wishing it struck down need to demonstrate order unconditional or illegal, Trump's team just need to defeat their argument.

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In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.

Our decision is guided by four questions: “ (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4)where the public interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at 434). “The first two factors . . . are the most critical,” Nken, 556 U.S. at 434, and the last two steps are reached “[o]nce an applicant satisfies the first two factors,” id.at 435. We conclude that the Government has failed to clear each of the first two critical steps. We also conclude that the final two factors do not militate in favor of a stay. We emphasize, however, that our analysi s is a preliminary one. We are tasked here with deciding only whether the Government has made a strong showing of its likely success in this appeal and whether the district court’s TRO should be stayed in light of the relative hardships and the public interest. The Government has not shown that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims. We express no view as to any of the States’ other claims.

All he has to do is hold off a little, it shouldn't take more than a few months for Gorsuch to be nominated even with Democratic attempts to frustrate the confirmation, at that point it's as safe as it's going to get (without waiting for Ginsberg to drop dead).

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Imagine a Supreme Court based on law not party politics

All he has to do is hold off a little, it shouldn't take more than a few months for Gorsuch to be nominated even with Democratic attempts to frustrate the confirmation, at that point it's as safe as it's going to get (without waiting for Ginsberg to drop dead).

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At this stage the Court of Appeals decision is a solid one. This isn't going to end up 4-4 in the Supreme Court. Trump doesn't stand a prayer of convincing the Chief Justice or Kennedy. Thomas has always been very alive to laws that appear to be neutral but are in reality discriminatory. Alito is Trump's best bet, but this isn't a subject on which Alito appears particularly engaged. Trump could find this a unanimous loss. Gorsuch when appointed would be with Roberts on this.

It isn't difficult to see what Trump should do next.

First of all, he, not White House counsel, needs to amend the Executive Order to confirm it doesn't apply to permanent residents.

Next he needs to think very carefully whether he wants to include family members of US citizens and permanent residents and also returning temporary residents. He is in danger of being in a worse position than when he started this. Aliens with an existing connection to the USA have due process rights but they have to have a substantive right to protect with their due process rights. The courts have been very reluctant to concede there is a right to a visa. Trump should exclude from the EO any group where there is a real risk the courts may decide they might have substantive rights. If he does that, this renders all of the plaintiffs' fifth amendment argument (the plaintiffs' best argument) moot.

He has got to win the argument that this isn't a Muslim ban and he can't win that merely by appealing to the text of the EO.

He needs to start applying to transfer all the cases to a single court. If the cases are heard the length and breadth of America there will be conflicting decisions on whether or not this is a (or the) Muslim ban.






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If he'd thought about his order in the first place and taken advice, then he wouldnt be in this situation. Its almost as though he cant accept he can do anything wrong and that as POTUS he is above due process. I think he might be too stubborn to change anything because in running his business he expects total obedience.

I read a very interesting article that Trump's supporters regard any statement by him as an "opening bargaining position" rather than a statement of what he intends to do. The Chinese have understood this, hence they did not lose their heads when he threatened to recognise Taiwan and now he has said he isn't. The Israelis have seen the other side of this when he has left them in the lurch over settlements (Theresa take note). This case may well show whether a President can do this. Does a threat to impose a Muslim ban mean that the President intended to introduce a Muslim ban and so he acted for an improper purpose when he introduces something that disproportionately affects Muslims? Or is what Trump says of no probative value as to what Trump intends?

If this is the position, the world has got a lot more dangerous. No-one doubted that Kennedy would have enforced his will over the Cuban missile crisis by starting a shooting war and that is why one didn't happen. No-one doubted that Chamberlain was going to war in September 1939. Do the North Korean leadership really believe that Trump will destroy them and their country? Does South Korea and Japan? Ultimately the Falklands War happened because the British government didn't realise they were sending a signal about lack of resolve by withdrawing an ice patrol ship on purely financial grounds.

Except you need to read the judgment and look at consideration on the issue of reviewability. Just because the POTUS has been given a power, doesnt mean he can exercise it unconstitutionally.

Trump is far too impulsive to allow his precious Muslim ban to sit waiting for Gorsuch to become nominated. And even then, if he does wait months (With Democrats further delaying proceedings), where does it leave his policy? I thought US security was the whole reason behind the ban, so he says, surely he would do everything he could to push it through as fast as possible right?




It's definitely one of the failings, in my opinion, of the US Supreme Court. The Conservative and the Liberal sides shouldn't have a place in the court, but eh, it is what it is.

With it being unconstitutional according to which part of the constitution?



To push it through as fast as possible would require him to accept defeat, rescind the order, and fix it, something he cannot abide