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Supreme court rules travel ban OK


20 replies to this topic

#1
Carrie Mathison

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Or, to put it in a more nuanced fashion- the court ruled to lift (or 'stay') the preliminary injunction (for the non-attorneys out there, a temporary halt ordered by the court) on the travel ban.
 
So, theoretically there could be a different result when the court makes the final ruling this fall, but I suspect it will be largely in line with the ruling today, otherwise the injunction wouldn't have been lifted (I can get further into that if anyone wants).
 
Earlier this spring I wrote:
 

The sections that ban entry probably should've included a caveat for people that have already been admitted (current visa holders etc), and grandfathered them in. I would expect that maybe we'll get clarification on that from the White House Counsel or maybe Trump himself. Without the clarification, there is a potential issue- I haven't researched it thoroughly yet, but the legality of restricting people who are already green card holders is questionable. There is a section in the order that allows Homeland Security to admit people on a case-by-case basis, so that section could be used as a loophole to admit the current green card holders.

People that haven't been granted entry yet, though (i.e. new immigrants), the order can restrict legally.


And lo and behold, that's pretty much exactly what the Supreme Court said today.  The original did have a problem, since it arguably applied to green card holders, and it's undeniable that they have certain due process rights.  But the revised travel ban addressed that issue and provided for explicit exceptions to green card holders, people who already had a visa, etc. In light of that, many expected the new order to ultimately be upheld as constitutional.

 

Of course, some of the more loony liberal circuits found it to be unconstitutional anyway, even though the new order had fixed the very real issues with the first order.  The rationale for such basically came down to, "well, so what if it's fixed, Trump is a big ol meanie and racist!"  Most of us more thoughtful lawyers across the country rolled our eyes at this, although quietly wondering if the Supreme Court was actually gonna buy that bullsh-t.

 

The Court's order is here.  The travel ban was upheld, with no dissents from the liberal judges (somewhat of a surprise there).  The rationale was as I always said- if you had something that actually entitled you to a right to be here (like a visa, or what the court calls a 'bona fide relationship' to the US), then you can't be denied entry, but everyone else can.  To rule otherwise would've been to say that everyone and anyone across the world, no matter whether they had a visa or not, has a constitutional right to entry into the US.  That would've been akin to ordering open borders and effectively granting US citizenship to the world population... to think that the liberal circuits were OK with this is both alarming and disturbing (but ultimately revealing in what the liberals' eventual gameplan is with immigration).

 

Thankfully the Supreme Court didn't see it that way and declined to overturn decades of precedent and apply the Constitution as intended.  Even the liberal judges didn't go for it, which I'm surprised to see- pleasantly surprised, but surprised nonetheless.  This opinion gives some insight into what the final order may look like.  I suspect the conservatives will uphold the ban in full, the liberals will probably file a concurrence (or dissent in part) upholding part of the ban, but loosening it some and giving visa rights to people who demonstrate sufficient ties to the US (such as familial ties, etc).


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#2
Metropolis

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One of the things that has had me shaking my head since the second plan was over turned, has been the numerous articles from non political sites I've read that have blamed Trump's executive order for certain people not being allowed into the country. Not only did these stories fail to realize the order never took affect, they were often about people from countries not affected by the order.

#3
Guest_El Chalupacabra_*

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Well, specific to the original travel ban, this goes to show you that sometimes it's all about the presentation, right?

 

Now, on it's face, the travel ban, as I understand it, was intended to curb terrorism, more specifically vetting out backgrounds of possible terrorists, and preventing them from entering the US.  It was also recognizing certain countries were more likely than others to have terrorists departing from their locations, than others, and until a mechanism was developed in those countries, as well as the US, a temporary travel ban was to be enacted. Oh, and by the way, the countries listed in this policy were based on Obama Administration recommendations.  

 

On its face, this policy was not wholly unreasonable, IMHO.  And this could have been handled quietly and without publicity.  It also could have been handled in such a way as to form a cooperative partnership with the governments of each country (or at least ones where it could be done).  If the goal is to help prevent what is currently happening in Europe and the UK right now, the steady drip-drip of terrorist attacks,  that is a very reasonable goal.  Safety of US citizens really is one of the primary missions of the federal government.

 

But was that how it was sold? Absolutely not.  Combined with Trump being unavoidable for comment,  it was sold as banning Muslims "until we sort them out."  From day one, it was about a dog and pony show if sticking it to the Muslim countries, most notably Saudi Arabia.  Trump's constant demagoguery in this case came back to bite him in the ass.   

 

Now the revised policy was more or less the rephrasing the original Trump policy than anything else.  But when you get down to it, not really all that different.  However, the damage was done. How many $ have been wasted in the courts, at this point?  Probably in the $ millions. It's this stuff that bothers me about Trump.  It's not necessarily about the end goal, it's the presentation, and the fact that we have someone in the White House who wants to make a freak show of everything.  

 

I say that not as a non-republican (I am a non-democrat, too!), but as someone who already has lived through something like this on the state and local level in AZ.  Gov Jan Brewer was a joke of a governor, that did much of the same thing: from finger wagging President Obama on the tarmac (then wondered why AZ had federal funding cut in a number of areas), to championing of SB1070 that was passed by an equally pig-headed state legislature, which was a law that really just mirrored federal law, but that wasn't the real point anyway.  The real point was to make a big show of "sticking it to the Mexicans."  

 

Furthermore, we had former Sherri ff Joe Arpaio, a show-boater of the highest order, who wasn't so much interested in fighting actual crime, but making a big deal about his immigration sweeps, which ultimately was found unconstitutional, got him thrown out of office, and is something he is still dealing with in the courts to this day at county taxpayer expense ( currently fighting a federal court contempt charge, for continuing to enforce his policies after a court ruling mandated he stop).  

 

That, for me, is the issue with Trump on this travel ban.  Common sense policies are what we need, sure.  But how they are presented, and sometimes how they aren't presented (...one doesn't need to run to the nearest camera and brag about what policy you enacted at every turn), are just as important, if not more so.  For example, Obama actually DID increase border enforcement and funding,  and illegal border crossings were down during his administration, but that wasn't something he advertised often (in fact, he was a hell of a lot tougher than Bush ever was).  When it was, it was in response to republicans  and Fox news claims he was an open borders guy.  Indeed, the countries named in the travel ban were ones named by the Obama Administration in the first place!  Had Trump followed this example of remaining low key, and had not made such a big deal about the travel ban in the first place, it wouldn't have caused all this unnecessary chaos.   

 

But that's what you get with America's first reality TV president who isn't interested in conducting himself like an elder statesman.  What a president says, and how it is said really does matter.  Serves him right for having to go to the Supreme Court in the first place, but really, who lost?  The American people, with this one of many freak shows.  


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#4
Carrie Mathison

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Well, it's not just presentation.  The revised order wasn't a simple rephrasing... besides being better written generally (the first order was an obvious rush job), it was quite a bit longer, more detailed, and most importantly, fixed the major constitutional issue with the first one (which arguably applied to those who had a legal right to be here, and those folks can't just be kicked out without due process- i.e., permanent residents with green cards, etc.).

 

The new order fixed that and added the necessary exceptions.

 

Other than that, generally agree with your post.



#5
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Well, it's not just presentation.  The revised order wasn't a simple rephrasing... besides being better written generally (the first order was an obvious rush job), it was quite a bit longer, more detailed, and most importantly, fixed the major constitutional issue with the first one (which arguably applied to those who had a legal right to be here, and those folks can't just be kicked out without due process- i.e., permanent residents with green cards, etc.).

 

The new order fixed that and added the necessary exceptions.

 

Other than that, generally agree with your post.

Thanks for clearing up that difference between the first and current versions, CM . 

 

I think it is very important to combat terrorist attacks, as well as close loopholes that can be exploited by terrorists.  I think that is a no-brainer, and most people would agree.  I just have a problem with violating the constitution or other laws to do it.  So, I can understand people who opposed this ban, if that was where they were coming from. 

 

Now let me ask you this: had Trump stated from the beginning that this was about preventing terrorist attacks, and stated that his policy was based, in part on Obama Administration recommendations,  and maybe even consulted legal experts who were both conservative and liberal (not necessarily democrat politicians, but included "liberal" legal experts, lawyers, constitutional scholars, etc) do you think that could have headed off some of this controversy before it began?  If so, why do you think Trump did not do so?  

 

I think it is a mistake for any president not to incorporate some advisers who are of an opposite political world view as themselves, if for no other reason than to have someone point out something that advisers that agree with that president might miss.  That doesn't necessarily need to mean that advice is always followed, but at least it is considered.  



#6
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How do we measure the efficacy of this travel ban? What is the KPI here? Meaning, how is it being measured for success? 



#7
Brando

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If they're able to complete the vetting review in the 90 days.

#8
Carrie Mathison

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Now let me ask you this: had Trump stated from the beginning that this was about preventing terrorist attacks, and stated that his policy was based, in part on Obama Administration recommendations,  and maybe even consulted legal experts who were both conservative and liberal (not necessarily democrat politicians, but included "liberal" legal experts, lawyers, constitutional scholars, etc) do you think that could have headed off some of this controversy before it began?  If so, why do you think Trump did not do so?


In the hyper-political and polarized era we live in- no, I don't think it would've mattered.

Of course, that is not to say that the way this was rolled out was smooth by any means.  It was complete amateur hour- departments that needed to know what was going on had no advance warning, customs officers had it sprung upon them with no training, and the order itself was missing critical exceptions it needed in order to be constitutional (and was just poorly drafted besides).

 

But it wouldn't have mattered.  The controversy would've still been there.  And that's because from day 1, liberals have been unable to accept the fact that they lost the election and, in their opinion, Trump is an illegitimate president.  This is why we've seen 6+ months of these loony conspiracy theories and witch hunts (i.e., the Russia bullsh-t), even though nothing has ever come out of it, and nothing probably ever will.  Because it's easier to just create a fiction in your mind, that Clinton was prevented from winning by some external force, than taking that hard look in the mirror and asking why states that voted for Obama twice (and in some cases, for Democrats since the 80s), flipped to Trump.  In the liberal mind, there is no possible way anyone could ever vote for Trump, especially someone that might be an Obama voting Democrat, so obviously Russia must've hacked the election.  Even though the voting machines aren't connected to the internet, but you know... whatever.

 

So this thing could've been presented in the most professional way possible, and liberals would still be claiming it was the second coming of Hitler.  Don't believe me?  After the order was revised and the issues fixed, the left still went forward with the legal challenges and even got some of the liberal circuits to buy into it.  That is, until the Supreme Court voted 9-0 to put a stop to the nonsense.

 

In regards to your question as to why Trump didn't wait to get this thing on more solid ground before putting it out.... not sure.  From what I understand, Bannon was the primary architect of the order, and he's known to be pretty savvy in manipulating the media and what not.  I suspect they figured they were gonna get blowback anyway, so might as well drop a bomb out of nowhere ASAP, even if it's not ready to go yet, and maximize the media coverage.  The Trump team was probably hoping for maximum protests, distrubances at airports and what not, and they certainly got it.  Bannon is a smart guy- he knows this is the sorta thing the networks can't help but to cover round-the-clock, breaking news 24/7, and people in blue states thinks it looks bad for the administration, but in reality, most of middle America rolls their eyes at these types of protests, and the more they see them, the more it tends to actually increase GOP support.  So I assume that was probably the point of rushing it, the theatrics of it all.



#9
Carrie Mathison

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How do we measure the efficacy of this travel ban? What is the KPI here? Meaning, how is it being measured for success? 

 

No idea.  If an actual terrorist or would-be terrorist was prevented from entering due to the ban, we'd never know.

 

I guess one way it could be considered a success would be as Brando suggested- if the review by Homeland Security does actually reveal some gaps in the vetting process that can be identified and fixed.

 

But other than that, no real way to measure the efficacy. 

 

I don't take a strong position on the ban itself and am mostly indifferent.  I think conservatives overestimate the effect to which it will actually do anything (i.e., the likelihood it prevents a terrorist attack is pretty damn low), and liberals tend to be overly hysterical and melodramatic as to its consequences (i.e., this ban is not going to lead to Hitler, no matter how much they wish that was the case).  My focus has always been more on the legality of it- many on the left seem to think such a ban isn't in the president's power, even though the law on this is pretty damn clear.  Good idea or no, he's got the power to do it.  Non US citizens that have never entered the US do not have constitutional rights.  This seems to be a very difficult concept for liberals to understand.



#10
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How do we measure the efficacy of this travel ban? What is the KPI here? Meaning, how is it being measured for success?

 
No idea.  If an actual terrorist or would-be terrorist was prevented from entering due to the ban, we'd never know.
 
I guess one way it could be considered a success would be as Brando suggested- if the review by Homeland Security does actually reveal some gaps in the vetting process that can be identified and fixed.
 
But other than that, no real way to measure the efficacy.


It's kind of like the Airborn pill. People take it, don't get sick on a flight, and assume therefor it worked!

Edited by Driver, 27 June 2017 - 10:15 PM.

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#11
Carrie Mathison

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LOL, yeah pretty much.



#12
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How do we measure the efficacy of this travel ban? What is the KPI here? Meaning, how is it being measured for success? 

 

No idea.  If an actual terrorist or would-be terrorist was prevented from entering due to the ban, we'd never know.

 

I guess one way it could be considered a success would be as Brando suggested- if the review by Homeland Security does actually reveal some gaps in the vetting process that can be identified and fixed.

 

But other than that, no real way to measure the efficacy. 

 

I don't take a strong position on the ban itself and am mostly indifferent.  I think conservatives overestimate the effect to which it will actually do anything (i.e., the likelihood it prevents a terrorist attack is pretty damn low), and liberals tend to be overly hysterical and melodramatic as to its consequences (i.e., this ban is not going to lead to Hitler, no matter how much they wish that was the case).  My focus has always been more on the legality of it- many on the left seem to think such a ban isn't in the president's power, even though the law on this is pretty damn clear.  Good idea or no, he's got the power to do it.  Non US citizens that have never entered the US do not have constitutional rights.  This seems to be a very difficult concept for liberals to understand.

 

That would be the business equivalent of "cost avoidance" or "blue dollar savings" and it can absolutely be measured. But this won't be measured in that way, will it? Because it's not really about safety, is it?



#13
Carrie Mathison

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If there is something that can be measured, then it will be.  Homeland Security was tasked with doing the comprehensive review.  There will undoubtedly be plenty of data collected, and the order actually specifies some types that are directed to be collected (see Section 11 of the EO).

 

As to whether it's "really" about safety, well yes and no.

 

As I've already discussed, this is mainly a Bannon creation, so his worldview is of particular importance here.  In that sense, yes it's about safety, since we know that one thing Bannon strongly believes is that Islamic Civilization itself is a threat to the West, perhaps even an existential one.  So any measures that decrease its influence in the West would be desirable from that perspective.

 

But in another sense, no it's not about safety.  Like I said, Bannon is a smart guy, and he likely understands that the number of actual terrorist attacks prevented by this may be minimal.  In this sense, the ban's purpose is more about bringing attention to an issue and trying to shift the overton window in the national discourse.  With the added benefit that the base likes the theatrics of it as well.

 

I'm not as apocalyptic in my worldview as Bannon, but I'm certainly sympathetic.  Islamic Civilization, at least in its current state, is rather antithetical to Western values.  It was not always this way, such as when the Ottoman Empire held power in the area over 100 years ago.  But it certainly is now.  How we got here from there is a whole different topic without a quick and easy answer.


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#14
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Honestly I think the Supreme Court final ruling just helped write it and present the actual executive order so it is correct in its intent. The final impact though is that it's too late and kind of a wasted effort. It just helps prop a weak executive branch up. This was about fulfilling a campaign promise. Home grown terrorists will still be here already and now their views are reinforced by how they feel rejected by us but at least we have the perceived impression something is happening and we are protected. So uh, agree with CM for me.



#15
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I find it so funny when people these days refer to Trump trying to keep campaign promises as it's a bad thing.

#16
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Because they're bad promises

#17
Metropolis

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It's all individual perspective. But how many people blast politicians for not keeping campaign promises?

#18
pavonis

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Are you looking for numbers, Met? Apparently politicians have historically been pretty good about keeping their campaign promises. The voters just don't realize it. The perception is the opposite of reality. That might prompt more complaining than is warranted.

 

Will Trump manage to reach the average fraction of promises kept? He has his travel ban, so that's at least one kept. He withdrew the US from the Paris Accords. That's two promises kept off the top of my head. That border wall was pretty popular with his base. What's the latest on its construction? 



#19
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No. I was talking about public perception. It's like Bush senior and his no new taxes pledge. He didn't want to raise taxes, but had to compromise with Congress to get a budget done. Pat Buchanan went after him hard for "breaking his promises".

#20
Carrie Mathison

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pav

 

Withdrew from TPP, so that's 3.  Nominated Gorsuch, off a list of potential judges he said he'd use, so that's 4.  Reversed Obama's policy on Cuba, that's 5.  Passed an order that for every new federal regulation, two must be eliminated, that's 6.  Instituted the lifetime ban on White House officials lobbying for foreign governments, that's 7.  Approved the Keystone XL pipeline, that's 8.  Increased defense spending (or at least proposed it in the budget, it still has to pass).  We'll call that 8 1/2.

 

I'm sure there are some others I'm forgetting.

 

Really there are only two outright broken promises I can think of.  First is him saying he'd appoint a special prosecutor to investigate Clinton.  As soon as he got elected, he was like LOL, nah not doing that.

 

Second, you could add DACA to the list, which he said he'd repeal, but it turns out it will remain in effect.



#21
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For what it's worth, Politifact also counts 8 promises kept, and 3 broken, the Clinton special prosecutor being labeled as stalled rather than broken. Can campaign promises really be counted as "broken" before he is out of office? 





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