Posted on 06/03/2017 11:16:18 AM PDT by COUNTrecount
It is simple, but you don’t get it. We are not talking about people in the US who have been admitted by law. We are talking about citizens of Pakistan In Pakistan and whether they can sue to be allowed to force the US to admit them. Two very different things.
Well let's see.
We are not talking about people in the US who have been admitted by law.
Right.
We are talking about citizens of Pakistan In Pakistan and whether they can sue to be allowed to force the US to admit them.
Right. Which they can. No guarantee a court will hear them but one can always file a petition. And as I pointed out earlier, Presidents are bound by the Constitution and by US law even when dealing with foreigners.
It's not a simple matter of suing to be admitted. There was already a policy in place that would have admitted these individuals. The suit alleges that Trump's executive order violates the 1st amendment and should be struck down.
BTW, In the case in question wasn't it relatives in the US who brought suit? I think your theory about aliens daring to expect us to follow our own laws is moot as well as wrong.
Two very different things.
Right again.
Where's the part I didn't get?
Can someone who knows law explain something to us non-lawyers?
This seems to be a case about the facts:
A) it does not seem to be about a “muslim ban,” in that 90% of the muslim world is not affected by the travel ban.
B)There is an obvious and clear difference between the security cooperation of, on the one hand, the governments of Egypt, Morocco, Jordan, Indonesia, etc., and on the other, the “governments” of Libya, Somalia, Syria, Sudan, Iran, etc.
So my question is, in the arguments presented before the Courts, is the factual basis (the DIFFERENCE between these two classes of countries) something that can or will be argued? Was it argued at the appellate level?
Or will it be limited to the question of whether the President can ban any class of non-citizen visitors he desires to ban?
Thanks in advance.
Just out of curiosity, what was my proposition, in your view?
In my view, my proposition was, "a Congressional grant [of jurisdiction] or congressional restriction [of jurisdiction] is itself reviewable."
And in my view, SCOTUS examined a congressional limit on jurisdiction, in the Hamdan case.
The Government's motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA S:1005(e)(1) provides that "no court ... shall have jurisdiction to hear or consider ... an application for ... habeas corpus filed by ... an alien detained ... at Guantanamo Bay."
Beyond my proposition, outside of my proposition, I notice that in the Hamdan case, not only did SCOTUS review a jurisdiction stripping clause (DTA S:1005(e)(1)), they also rejected it, and decided the case anyway.
If one took your proposition literally (excluding the barn-door wide exception "have to follow the constitution"), Congress could strip jurisdiction to hear RKBA/2nd amendment cases, and by that act, Congress has the last, unreviewable word. Obviously that's nonsense, and I am not saying that's what you mean. But it is possible following the rule you stated ...
A court can't have jurisdiction taken away by law and decide it still has it ...
B)There is an obvious and clear difference between the security cooperation of, on the one hand, the governments of Egypt, Morocco, Jordan, Indonesia, etc., and on the other, the “governments” of Libya, Somalia, Syria, Sudan, Iran, etc.
Even if the ban covered 100% of the muslim countries it still wouldn't be a ban directed at muslims because they are muslims. It's a ban on travel from countries known to engage in, support, or tolerate terrorism against Americans and American interests.
The reason the plaintiffs are arguing religious discrimination is because the Constitution doesn't allow the President to do that. They wouldn't get anywhere by arguing that the President isn't allowed to exclude people who pose a safety risk.
So my question is, in the arguments presented before the Courts, is the factual basis (the DIFFERENCE between these two classes of countries) something that can or will be argued?
Likely.
Was it argued at the appellate level?
Yes. The majority ruled that the President was using national security as a cover for religious discrimination.
The part you didn’t get has to do with what the laws are, what the Constitution requires and what the court will do. We will see.
You are confusing the ability of someone to file something and them having the right to do so. People file crazy things all the time.
Does anyone remember the immigration act from the early 20s? We created a quota of people from certain countries and decreed that only people from those countries could come in. That was created from the understanding that this was a Christian, European nation, northern European to be precise, and we needed to assimilate all those southern Europeans and Japanese and Chinese who had been admitted over the prior 30 years. It was expressly based on religion, race, ethnicity, and it was entirely in Congress’ power, notwithstanding their motivations. It worked!
The 1965 act opened the floodgates and has damaged this nation in so many ways, but Congress could end it and go back to a system that admitted no one, or only admitted Europeans or admitted Asians or Christians or whatever, and there would be no Constitutional issue. Admission is exclusively the province of Congress, and the Courts have no say in what the law is. They can interpret whatever the law is, and if they are here and being sent back, they can examine those cases if given jurisdiction to do so. Or Congress can assign cases to non-Article 3 courts, like with border crossers. But courts cannot, and are not given jurisdiction to, examine which of the billions of people who are in the world should be admitted to the US under US law. It is unimaginable how such a thing could even exist. “Dear Mr. Judge, a State Dept person in Djibouti didn’t stamp my passport with a Visa to the US, or with an immigration permit, and I think he should have, but he is biased against Muslims and that is unconstitutional”. Give me a break.
Not confusing them, no. They are the same thing.
Does anyone remember the immigration act from the early 20s?
So now, having failed to come up with a valid reason why an immigrant can't sue over immigration policy, you want to change the subject?
That was created from the understanding that this was a Christian, European nation, northern European to be precise
Well that isn't the law now and immigrants who think they are being excluded on religious grounds are free to make that argument in court.
...but Congress could end it and go back to a system that admitted no one, or only admitted Europeans or admitted Asians or Christians or whatever, and there would be no Constitutional issue
But until they do the law we have is the law we have to live with, and the court can review it for Constitutional muster if a cause of action is brought.
BTW, you do know the courts in this case aren't reviewing a law, right? They are reviewing an executive order. If you want to reach back in time and examine how things were meant to be, perhaps you can tell us where Presidents get the authority to issue executive orders at all?
But courts cannot, and are not given jurisdiction to, examine which of the billions of people who are in the world should be admitted to the US under US law. It is unimaginable how such a thing could even exist.
You do know that isn't what's happening in this case Right.
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