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Lawmakers warn judges ruling on travel bans against exceeding power

Mr Person said:
Well, first, you show him the clause that says that nothing explicitly described in detail in the constitution is covered by the constitution.

Then, prove that all the founders that agreed (that's all but TWO) that common law judicial review should apply to Article 3 courts were lying.

Then explain why the founders thought that this ultra-rigid approach wouldn't fall apart the second a new question had to be answered by a court, like whether or not scanning the outside of houses for heat constitutes a "search".

/snort.
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How in the hell is that not a search?
 
apdst said:
The intent is what's written in the text of the executive order.
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I don't think it is something that has been tested with EOs. It will definitely be interesting to see how this plays out in appeal. It will set precedent. My guess is when it is all said and done the courts will agree with your point of view.
 
MaggieD said:
Either the president is within his constitutional rights to do what he did? Or he is not. It is absolutely NOT the judges' responsibility, nor in their wheelhouse to decide if the EO is necessary or what the motives are that are behind it.

Glad to read the OP. About time.
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I've just got to ask: would you really argue with a heart surgeon about what pre-op preparations are his business to tell you to follow and which are not?



I'll readily admit that I don't practice the kind of law that involves assessing EO's, but I can tell you that intent is very much behind the interpretation of laws, executive actions, etc., if they happen to get into court on a point of constitutional interpretation and pass all the other roadblocks (like standing). And when courts assess intent, they do not limit themselves to the wording and only the wording of what they are addressing. Nor should they. That would allow the most pernicious of intents to be hidden behind weasel words.

Trump is finding out that while he can say A to his supporters one day and get away with claiming a month later that he actually said O to them on that day, he cannot do it in a court. The court is going to look at all the relevant things he said before/after the thing in question, including for example the campaign document calling for a muslim shutdown, including him bragging that the second EO was going to pretty much be the same as the first.

The great thing about the independence of the judiciary is that he can shout and stamp all he wants. His supporters can shout and stamp all they want. But the court doesn't have to listen. And, despite what you think about this particular case, you should want it that way. Because what if a Liberal talked about doing something you thought was awful, did it, bragged about doing it, and then people tried to defend it by claiming that the Liberal didn't actually write down the exact same words he used when describing it in the past?





The law is supposed to be blind, but not blind in that sense.
 
Mr Person said:
Trump is finding out that while he can say A to his supporters one day and get away with claiming a month later that he actually said O to them on that day, he cannot do it in a court. The court is going to look at all the relevant things he said before/after the thing in question, including for example the campaign document calling for a muslim shutdown, including him bragging that the second EO was going to pretty much be the same as the first.
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So again, the courts can ignore what is written and just look through all the quotes they can to find something they can use to shoot down a law. That is a valid way to do their job how?
 
Mr Person said:
Show us how they don't.

Case citations and discussions, deep legislative history, etc etc etc. It'll probably take 50-100 pages, so you may want to create a website to put it on, then share a link here.
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The two judges that decided on President Trump's EO ignored the Constitution when they ignored The Constitution, which gives Congress the sole power over immigration and U.S. law that Congress passed, giving the Executive Branch the power to regulate immigration. No where does The Constitution say that immigration is a right.

The law

https://www.law.cornell.edu/uscode/text/8/1182
 
apdst said:
It's definitely time to hand out some walking papers and remind the judiciary that there constitutional limits to their power.
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What constitutional power exists to hand out those "walking papers" to federal district judges and who can do it? The deal was that Trump wanted a "temporary" (90 to 120 days?) EO travel ban to allow time to establish his (mystical and magical?) "extreme vetting" system to control travel to the US - by the time this legal mess gets to the SCOTUS (after it gets its 9th member?) then his "temporary" EO window will likely have closed making the case moot.
 
Mr Person said:
I've just got to ask: would you really argue with a heart surgeon about what pre-op preparations are his business to tell you to follow and which are not?



I'll readily admit that I don't practice the kind of law that involves assessing EO's, but I can tell you that intent is very much behind the interpretation of laws, executive actions, etc., if they happen to get into court on a point of constitutional interpretation and pass all the other roadblocks (like standing). And when courts assess intent, they do not limit themselves to the wording and only the wording of what they are addressing. Nor should they. That would allow the most pernicious of intents to be hidden behind weasel words.

Trump is finding out that while he can say A to his supporters one day and get away with claiming a month later that he actually said O to them on that day, he cannot do it in a court. The court is going to look at all the relevant things he said before/after the thing in question, including for example the campaign document calling for a muslim shutdown, including him bragging that the second EO was going to pretty much be the same as the first.

The great thing about the independence of the judiciary is that he can shout and stamp all he wants. His supporters can shout and stamp all they want. But the court doesn't have to listen. And, despite what you think about this particular case, you should want it that way. Because what if a Liberal talked about doing something you thought was awful, did it, bragged about doing it, and then people tried to defend it by claiming that the Liberal didn't actually write down the exact same words he used when describing it in the past?





The law is supposed to be blind, but not blind in that sense.
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No matter what any judges says, or does, you're going to go along with it? That's not a very good comparison...lol
 
Skeptic Bob said:
I don't think it is something that has been tested with EOs. It will definitely be interesting to see how this plays out in appeal. It will set precedent. My guess is when it is all said and done the courts will agree with your point of view.
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It hasnxt been tested, because up 'til now, judges knew better. These two judges know better, but they're going to push the envelope based on their personal politics.
 
countryboy said:
:bs

Please show me where the bolded is within their Constitutional power to interpret the law.
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Mr Person said:
Well, first, you show him the clause that says that nothing explicitly described in detail in the constitution is covered by the constitution.

Then, prove that all the founders that agreed (that's all but TWO) that common law judicial review should apply to Article 3 courts were lying.

Then explain why the founders thought that this ultra-rigid approach wouldn't fall apart the second a new question had to be answered by a court, like whether or not scanning the outside of houses for heat constitutes a "search".

/snort.
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Henrin said:
How in the hell is that not a search?
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I do appreciate the question. It's one I like to ask because it's one that intelligent people disagreed about. It is a good example of why constitutional interpretation is a can of worms from hell, if you actually intend to reach a decision that is consistent with the constitution.

Now, people believing in the view I responded should say "the constitution doesn't say anything about measuring heat emanating from houses, so it's not a search". That's what they should say if what they said was honest. I mean, it doesn't. Show me where the Fourth Amendment says "Infrared". Seriously. Do it. You can't, you lost.

What I just said in blue is what a number of the declarations in this thread look like to me. It's dimwitted and insane. The founders are on record suppotring importation of judicial review of common law principles to Article 3 courts, but even if they didn't, who on Earth would imagine that they expected courts to shrug their shoulders and do nothing when new facts raised questions they didn't conceive of?



I recommend you read Kyllo v. United States, 533 U.S. 27. Cops, not using a warrant, used thermal imaging to detect a house with an oddly hot outside, around the garage.

I think it's a 2000, maybe 2001, decision. Should be on the SCOTUS site, in probably in a lot of other places. Very intelligent people, some whom I think were wrong and some whom I think were right, argued at length about it. They went to these lengths to try to establish that their interpretation of the history of the 4th Amd pointed to the position that the founders would have considered it a search, while others disagreed.

If memory serves, a minority (dissent) said: thermal imaging of the outside of the home that did not reveal details about the details of private life inside the home was not a search in context, because it was a home with a pot farm in the garage during winter, and - again, IF memory serves - the heat produced would have melted snow on areas of the outside of the house around the garage had it been winter and snowed when scanned.

Meanwhile the majority said that despite the fact that we're talking about heat emanating from the house, the device used and its nature equated to an intrusion of the inside of the home, which requires a warrant.

The minority pointed out that the author of the majority opinion was being inconsistent with other things in other opinions (standardization of technology as impacting reasonable expectations of privacy, etc).

They also said about 30-60 pages of other things not coming to mind at present.



This took a lot more pages than would be expected if constitutional interpretation was reading a few lines and declaring what they clearly must mean. And that gets to yet another reason why internet commenters blabbing about the constitution is usually stupid: it's far more complicated than simply even reading an opinion about the constitution plus the provision. You read an opinion, the decisions it cites, the decisions they cite, and so on and so on and so on, on the point in question. The more legal experience you have, the better you can identify what you do and do not need to read. But it takes a lot of work, a lot of time, and a lot of words. And then, when you go to file the brief, you have to reduce your wordcount by 50% or something. And that's why lawyers go bald early.

Let me put it this way. When I file a brief, I've generally skimmed about 1,000-10,000 pages of caselaw and read 200-1,000+. Trial lawyers spend more time on factual analysis, but I'm appellate.

It's long, hard, difficult work. It takes a long time to do well. It's why we cost lots of money, unless like me you are dumbly idealistic enough to devote your time to representing the poor because you are angry at the government for specifically choosing the poor to **** over most spectacularly.
 
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apdst said:
The two judges that decided on President Trump's EO ignored the Constitution when they ignored The Constitution, which gives Congress the sole power over immigration and U.S. law that Congress passed, giving the Executive Branch the power to regulate immigration. No where does The Constitution say that immigration is a right.

The law

https://www.law.cornell.edu/uscode/text/8/1182
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i have to make a point, in original constitutional law the federal government did not have authority over immigration the state themselves did, however the federal government usurped that power away from the states the federal government was delegated power to create uniformity of naturaliazation

in the time of the founders there are only state Citizens, there is no such things as a united states citizen, and the federal government could not created a state Citizen

the judges they ignored federal law/ statute which gives the president power to use his judgement.

not arguing with you just making a point
 
apdst said:
The two judges that decided on President Trump's EO ignored the Constitution when they ignored The Constitution, which gives Congress the sole power over immigration and U.S. law that Congress passed, giving the Executive Branch the power to regulate immigration. No where does The Constitution say that immigration is a right.

The law

https://www.law.cornell.edu/uscode/text/8/1182
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The constitution gives congress the power to make laws. By your logic, the courts cannot rule on their constitionality.

The judges ruling did not claim immigration is a right.
 
ttwtt78640 said:
What constitutional power exists to hand out those "walking papers" to federal district judges and who can do it? The deal was that Trump wanted a "temporary" (90 to 120 days?) EO travel ban to allow time to establish his (mystical and magical?) "extreme vetting" system to control travel to the US - by the time this legal mess gets to the SCOTUS (after it gets its 9th member?) then his "temporary" EO window will likely have closed making the case moot.
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Impeachment power given to Congress in Section 3, Article 1

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
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Redress said:
The constitution gives congress the power to make laws. By your logic, the courts cannot rule on their constitionality [sic].

The judges ruling did not claim immigration is a right.
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No, my logic, which is an accepted fact can only decide on written law, not personal opinions, nor campaign rhetoric.
 
Master PO said:
i have to make a point, in original constitutional law the federal government did not have authority over immigration the state themselves did, however the federal government usurped that power away from the states the federal government was delegated power to create uniformity of naturaliazation

in the time of the founders there are only state Citizens, there is no such things as a united states citizen, and the federal government could not created a state Citizen

the judges they ignored federal law/ statute which gives the president power to use his judgement.

not arguing with you just making a point
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The Constitution was changed in 1798 (99?).
 
Cardinal said:
Well...yeah. The EO has been blocked to be reviewed for just that reason -- to see if the President is acting within the Constitution.

And you say that because...?
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I say that because the judges' job is NOT to second guess the POTUS. Their job is to determine whether or not he has the power under e Constitution of the United States. They should not be deciding, "Huh! I don't think that's necessary..." it's either allowed or it's not. Period.
 
Redress said:
The constitution gives congress the power to make laws. By your logic, the courts cannot rule on their constitionality.

The judges ruling did not claim immigration is a right.
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thats correct, however the judges ruled on intent of the EO which they are not to do, but instead rule based on the text only , they sought to read into the law.
 
Henrin said:
So again, the courts can ignore what is written and just look through all the quotes they can to find something they can use to shoot down a law. That is a valid way to do their job how?
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That is the way the Judiciary has operated from the very beginning. For example, the Supreme Court has cited the Federalist Papers in hundreds of decisions to support its opinion based on intent in constitutional adjudication of law since the late 18th century. They don't ignore the text - but they do constitutionally adjudicate the application of the law both actual and intended because we have some things called the 5th and 14th Amendments among others.
 
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Henrin said:
So again, the courts can ignore what is written and just look through all the quotes they can to find something they can use to shoot down a law. That is a valid way to do their job how?
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apdst said:
No matter what any judges says, or does, you're going to go along with it? That's not a very good comparison...lol
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Take note: if I put up a lengthy post in response to you, that post is aimed at the general DP public.
 
apdst said:
Impeachment power given to Congress in Section 3, Article 1
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What realistic chance do you think exists for a 2/3 (67 members?) Senate vote to remove a (liberal or conservative) judge?
 
Cardinal said:
Well...yeah. The EO has been blocked to be reviewed for just that reason -- to see if the President is acting within the Constitution.
And you say that because...?
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MaggieD said:
I say that because the judges' job is NOT to second guess the POTUS. Their job is to determine whether or not he has the power under e Constitution of the United States. They should not be deciding, "Huh! I don't think that's necessary..." it's either allowed or it's not. Period.
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Did you even try to read the decision in question?

If so, what prior cases in specific did the decision you are talking about misinterpret, what was the proper interpretation of those decisions, and why?



Seriously. This isn't a "gimmee a link" demand. I'm asking you what your actual legal reasoning is. If you don't have legal reasoning of your own, then please tell me what what you are relying on engages in it and tries to explain it to a layperson. Please do not tell me you are saying this because some Trump-backing right wing source said so.

Thus far, there seem to be at least (but perhaps not only) two posters on this site who have an intricate grasp of legal analysis, and a few more that generally say correct things but not so specifically. I would really like to know if you are saying that because politics or because you actually think this particular district judge got the analysis wrong.

The latter would be fine, if rational. I disagree with plenty of rulings. In fact, I think some of my clients have been screwed by dishonest opinions. But I can explain why if someone is willing to listen and look.

I usually ignore this silly crap, but I am getting rather sick to death of people playing expert on constitutional interpretation BUT ONLY constitutional interpretation, and acting like the problem lies with other people who don't think the constitution means the same thing.



So, again, why does the judge's decision boil down to no more than "Huh! I don't think that's necessary..." and why is it incorrect for courts to take intent into consideration in this circumstance (or ever. Your response doesn't make clear if intent is bad for rulings on EOs, but fine for interpreting laws, contracts, etc.).
 
Cardinal said:
As I understand it, the courts are dealing with a fairly new situation where the motivation for the executive order is on public record even if that motive isn't written directly into the EO itself. If Trump makes an executive order than only targets Muslim countries, and goes onto the public record quite clearly that this is a ban on Muslims, why shouldn't the judges take the totality of that information into account? I don't know if there's a precedent for this because, before Trump, most politicians haven't been so stupid as he has in telegraphing his true intentions.
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What are his true intentions?

Sent from my SM-G920P using Tapatalk
 
MaggieD said:
I say that because the judges' job is NOT to second guess the POTUS. Their job is to determine whether or not he has the power under e Constitution of the United States. They should not be deciding, "Huh! I don't think that's necessary..." it's either allowed or it's not. Period.
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Do you have a basis for any of that?
 
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