Discussion: 5 Points On The 3-0 Order That Kept Trump's Travel Ban Blocked


Watch the Ninth Circuit. I can tell you that the West Coast will be a constant source of defiance against Trump and the Republicans trying to dismantle our democracy. There will be other cases filed in Washington, Oregon, and California that will be the source of much grief for the Trump/Sessions power grabs.


Apparently, Trump and his lackeys are unfamiliar with the provisions of the 14th Amendment. I hope they get a real good lesson in it soon. I quote partially below:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]

See, right there, it says “person.” Are non-citizens not “persons” in their eyes? Please, I think we all know the answer to that one. I am pretty sure the courts will have a different view.


The Administration is likely to lose on the merits at SCOTUS, even if Gorusch is seated by then. I suspect Trump is being advised to let this die quietly in the lower courts and allow the order to expire, rather than face a negative SCOTUS precedent.

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I’m not sure he has the political instinct to let this go, especially so long as it’s such a public story. If it were a minor thing no one cared about, his attention span would wander to something else… But as long as this is all over the news and Twitter, he can’t let it go. His ego won’t allow it.


First, someone needs to explain to him the court system works in America.


Breathlessly inept MF.

C U in court!


Pres Trump ought to see the writing on the wall, abandon proposal, roll
up his sleeves & come up w/ a real, bipartisan plan to keep us safe.

Sorry, Schumer, but I just don’t think he has it in him.

  1. cannot see the obvious no matter how writ large or close-up
  2. cannot ever admit a mistake
  3. doesn’t ever “roll up sleeves,” i.e. do actual work
  4. doesn’t do bipartisan, ever
  5. keeping us safe isn’t actually a priority, just a buzz phrase

Senator Dan Sullivan of Alaska is already making noises about setting up a new court to cover Alaska’s more conservative bloc. Don’t know any details and when you contact him nothing but vaguely worded talking points about government over reach(trumps are okay) come back to you. He is totally a hand puppet of the brothers Koch no less than Walker of Wis…

Not only the West Coast, those of us on the East Coast will be just as defiant.

Yes, the key is “any person”.

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We’ll see.

While I’m a lawyer, I don’t claim any special expertise in immigration or Constitutional law so my opinions are worth what you’re paying for them.

While the First Amendment arguments get the most attention, I don’t think that is the best case for overturning the order. Apparently, some thought was given to how to avoid an obvious Muslim ban (plenty of Muslims still get in, etc). The apparent preference to non-Muslims doesn’t help the constitutionality of the EO. My guess is this is 50/50 at best.

Much more interesting, and I think problematic to sustain the EO, is the express discrimination based upon nationality. The Immigration and Nationality Act of 1965, that defines modern immigration law, expressly forbids discriminating on the basis of nationality. So, this EO is in clear violation. The admin will argue that the President’s plenary powers in matters of national security and immigration would trump (pun intended) this prohibition. But no matter how broadly a court might be inclined to interpret the POTUS plenary powers, those powers can’t be exercised in an arbitrary and capricious manner. So the POTUS must show some actual danger to our national security. And as the 9th Circuit just pointed out, the POTUS cannot point to a single incident – not ONE – of an immigrant or visa holder from any of the countries banned committing any act of terror or American soil.

Is it enough for the POTUS to say that these countries are on the terrorist watch list? The EO bans not just Green Card holders, but immigrants who have already been vetted under US law (the evidence will show this vetting taking place over a period of years!) and hold visas issued pursuant to US immigration laws passed by Congress. So, where’s the emergency that the EO claims to be saving us from? Today isn’t September 12, 2001. This, I think, is where the EO dies.

As a practical matter the sticking of the EO on nationality discrimination in violation of an Act of Congress is just easier and doesn’t require the courts to reach the First Amendment/Due Process issues.

We’ll see.


The tweet was widely mocked because the Trump administration had, in fact, just been seen in court, and it didn’t go well.

haha! I love it when a little bit snark makes its way into the article.

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I am far from a lawyer, and the “person” definitions of the 14th appear to apply to this immigration/visa argument, but then why was the 14th not mentioned in these 9th court arguments?

  1. 2001 SCOTUS ruling defining rights of aliens supersedes in a way?
  2. Definition that “no State shall”… enforce/abridge is non-applicable to a Federal order. But then the State is required by the Constitution (14th) to protect the rights of “persons”?
  3. Strict Constitutionalists like Scalia and Gorsuch will interpret this as applying only to slaves, not aliens, as was the original intent of the 14th?

BTW, Tierney Sneed/TPM, decent summary. More like this?

Appreciate the analysis. Good points explained that I still was not entirely clear on how the 9th court decided this.

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Remember, the EO itself has not been adjudicated yet. I am no lawyer, either, but note the distinction between “citizen” and “person” (in the first sentence of the Amendment.) If “corporations are people, too, my friend,” I think it highly unlikely that a human being holding a non-U.S. passport would not come under the same definition.

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You see, the President is like a coach and his staff and cabinet are like a football team. But with Trump, the coach doesn’t know the rules and isn’t even sure what game is being played. He just knows he wants to “win.”

OT- speaking of Alaska, the Trumps slashed EPA presence at an Anchorage environmental conference by half, citing excessive travel costs, yet some of the eliminated EPA attendees lived down the freakin’ street from the conference.

“Some EPA staff whose plans to attend the conference were revoked would have come from Seattle or Washington, D.C. — but Eilo said others are based just blocks away from the downtown Anchorage site.” http://www.npr.org/sections/thetwo-way/2017/02/10/514479451/epa-halves-staff-attending-alaska-environmental-conference

“Per Curiam”. That’s a 9th circuit tradition of putting the shiv to the phony Bush v. Gore “decision”.