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Supreme Court Partially Revives Travel Ban, Will Hear Appeal (bloomberg.com) 572

From a report: The U.S. Supreme Court partially revived President Donald Trump's travel ban and said the justices will hear arguments in the fall. The justices said the ban can apply for now only to people who don't have a "credible claim of a bona fide relationship with a person or entity in the United States." From a NYT report: Mr. Trump's revised executive order, issued in March, limited travel from six mostly Muslim countries for 90 days and suspended the nation's refugee program for 120 days. The time was needed, the order said, to address gaps in the government's screening and vetting procedures. [...] The United States Court of Appeals for the Ninth Circuit, in San Francisco, recently blocked both the limits on travel and the suspension of the refugee program. It ruled on statutory rather than constitutional grounds, saying Mr. Trump had exceeded the authority granted him by Congress. The court agreed to review both cases, and said it would hear arguments in October, noting that the government had not asked it to act faster.
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Supreme Court Partially Revives Travel Ban, Will Hear Appeal

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  • Given that SCOTUS partially revived the ban, does that mean that they are predisposed to a more lenient view of the ban than lower courts? How much can we read into this.
    • by Anonymous Coward on Monday June 26, 2017 @09:47AM (#54691217)

      Want an idea what the ruling will be? Look at any previous SCOTUS ruling on the Executive power to control the boarders. Hint, they have always sided with the Executive.

      • by sycodon ( 149926 ) on Monday June 26, 2017 @10:25AM (#54691489)

        In a way it is surprising because there has been little dissent among the lower courts.

        I suspect this is because the lower courts have placed themselves in the ridiculous position of declaring that a order enacted under one President would be Constitutional while that very same order enacted under another President would be Unconstitutional.

        Further, That an order enacted by a President would be Constitutional until it is discovered that the President made that order with a pejorative mindset.

        Either the executive can make this kind of order or they cannot. The legality cannot be dependent on the motivation.

        • Re: (Score:3, Insightful)

          by es330td ( 964170 )

          In a way it is surprising because there has been little dissent among the lower courts.

          I think this is because the appeals were made to judges/courts of a similar mindset.

        • by guises ( 2423402 ) on Monday June 26, 2017 @11:35AM (#54692119)

          The legality cannot be dependent on the motivation.

          You're confusing motive and intent, intent factors heavily into our legal system. Intent is: "What was this order trying to accomplish?" Motive is: "Why was this order made in the first place?"

          • by Anonymous Coward on Monday June 26, 2017 @12:03PM (#54692403)

            Intent is SOMETIMES a factor but it is not a core pillar. In other words, intent often changes the "degree" or "tone" of a ruling but doesn't change the actual ruling. In the case of "killing someone" intent can result in a reduced (or no) sentence but that doesn't mean "not guilty". Sometimes intent doesn't matter at all. If I steal $1,000,000 to cure cancer it doesn't matter. I stole $1,000,000. Intent only matters if the intent is directly relevant to the issue at hand, which is a very complicated analysis.

            I think it is a stretch to think that intent matters in this context. The Government grants people the right to enter the US that have no right to. Withholding that permission should not require a basis/intent in the same way that not donating money to charity doesn't require a proactive defense/intent. If anything LETTING PEOPLE IN should require an adequate basis (which there are many).

            Additionally, when intent is a factor BOTH SIDES of the "INTENT" situation must be explored. Trump, correctly, states that this travel ban is intended to stop potential terrorists until a proper screening system can be developed. Just because "people" disagree that this is Trumps intent doesn't make it so. Imagine if an executive wanted to do a travel ban to protect the county in the future for the exact same purpose but now can't because of a bad judgement aimed not at the actual order but the person's "suspected intent".

            Plus I think you are confusing motivations and intent. It is very clear what Trump's intent is: block people from certain countries and backgrounds from entering the USA. The question is if that the *motivation* for that intent is "to protect the country" or "to spite certain cultures" and the Supreme Court should care less about the motivation and maybe think about if the intent matters.

            • by guises ( 2423402 )

              It is very clear what Trump's intent is: block people from certain countries and backgrounds from entering the USA.

              This is what the order states. The intent is what that order is trying to accomplish: "to protect the country" or "to spite certain cultures." The motivation is why this order was made - there's an assumption that the motivation is a fear/hatred of Muslims, but while motivation can act as evidence it doesn't make a crime.

          • by mysidia ( 191772 ) on Monday June 26, 2017 @12:46PM (#54692769)

            You're confusing motive and intent, intent factors heavily into our legal system. Intent is: "What was this order trying to accomplish?"

            The legality depends on what specific actions are being taken, not on intended or anticipated future consequences.
            For example: Passing what turns out to be a ban on guns is still a 2nd amendment violation, if it prevents or impedes a single citizen acquiring a firearm, even if the intended affect of the bill is to save lives and reduce violence by making guns harder to obtain, and complete ban was not in the mind of the authors.

            Intent is used only to help disambiguate what specific actions are being taken when interpreting the meaning of the bill. When possible the courts Must pick the interpretation of the intent of all laws or orders in a manner that the result is constitutional and/or legal, if it is possible for there to be a constitutional and legal intent of the law or order.

            That is.... the courts are there to interpret the laws and orders. The Courts are NOT there to second-guess decisions of the executive or elected officials.

            The only time they can strike down an order is by showing there's no possible legal basis, and there's no possible lawful/constitutional interpretation of the rule, law, or order. And even then, the Judiciary is just one branch of government with very limited power over other branches other than some specific limited checks and balances --- E.G. There can't "really" be a dispute between the president and the courts, since the Executive technically has the authority to proceed against their orders.

            • by guises ( 2423402 )

              The legality depends on what specific actions are being taken, not on intended or anticipated future consequences.

              This is not true in general, mens rea is a well established factor in establishing guilt, but I understand that you're talking specifically about bills / laws / executive orders here. I'm no expert on this, but... intent certainly does matter for bills / laws / executive orders too. This is easy to see in any discussion of a law old enough that the original authors can't be consulted - endless arguments over what the law says vs. what the law intended. There are many instances where language has changed ove

            • by sycodon ( 149926 )

              I forget which president it was who said something along the lines of, "They've made their decision, now let them enforce it".

            • The legality depends on what specific actions are being taken

              No that would be the constitutionality of the action. The action can be Constitutional but within the domain of the Legislative versus the Executive, as an example. If you speak solely to the actionable items, you are asking, "Is this allowed in our land?" Legality looks at a broader range and depends on the context. Good example using what you said:

              Passing what turns out to be a ban on guns is still a 2nd amendment violation, if it prevents or impedes a single citizen acquiring a firearm

              Not exactly, citizens cannot purchase a mortar shell and it's launcher and one could argue the technicalities to how it's uses gun powder just like guns. T

    • Given that SCOTUS partially revived the ban, does that mean that they are predisposed to a more lenient view of the ban than lower courts? How much can we read into this.

      No. It means that it sees that there is a significant constitutional issue that needs to be resolved. In the end, it could very well reject the ban.

    • by Anonymous Coward

      The Supreme Court has already ruled on this exact issue. The president absolutely has the authority to limit or stop any immigration, from any class of people, for literally any reason. Even if his stated reason was to explicitly block Muslims.

      The lower courts know this. It's political grandstanding. It will be ruled Constitutional, once again.

      • by Anonymous Coward on Monday June 26, 2017 @10:22AM (#54691461)

        The Supreme Court has already ruled on this exact issue.\

        Except no, the Supreme Court has not already ruled on this exact issue. That's why they're taking the case, because they haven't ruled on it.

        Haven't you read the lower court opinions, which go into great detail summarizing what the Supreme Court has ruled in the past?

        The president absolutely has the authority to limit or stop any immigration, from any class of people, for literally any reason. Even if his stated reason was to explicitly block Muslims.

        And that is what the President explicitly does not have the authority to do.

        And that is the question before the court: is this travel ban in fact actually designed to block Muslims per se?

    • The partial ruling is really about standing. If you don't have standing to sue, the courts won't hear your case. This means that they've already decided anyone whose visa application isn't affecting someone already in the United Stated doesn't have standing. Many of the Democrat States involved tried to make this a general injunction by claiming they had standing related to anyone who was visiting their State and thus might pay a tax or visit a conference they sponsored or whatever.

      This tosses much of that and already makes it much more difficult to sustain the injunction in general, but rather just for specific individuals who can demonstrate they have a connection already to the United States. It signals a little how they'll deal with the unprecedented idea that the lower court judges have issued national injunctions rather than for specific individuals who sued. i.e. It ain't gonna fly and neither are the vast majority of people trying to avoid the ban. For the rest, we'll apparently have to wait for the next term.

      • I've been wondering about whether the nationwide injunctions would come up. It's not something I had seen before, and I had the impression that federal courts other than SCOTUS generally didn't have nationwide jurisdiction, but I am also not a lawyer.
    • No. Since they are not hearing argument until the fall, they left the ban in place. But, "Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have let the entire ban take effect immediately" tells you how those justices will likely rule.
      • The three dissenting justices clearly support the ban in it's entirety, while apparently the rest favor the bulk of the Executive Order with some minor exceptions brought up by the lower court's previous orders.

        The Court is obviously going to reinstate Trump's Second order, nearly in full force, if not in it's entirety. Unless something comes up that swings the majority of justices away from their current positions between now and oral arguments. I don't think it looks likely. We will, at a minimum, have

  • That's going to bring down the tourism rates even lower...
  • by daveschroeder ( 516195 ) * on Monday June 26, 2017 @09:55AM (#54691269)

    You'll rarely see a clearer statute anywhere:

    https://www.law.cornell.edu/us... [cornell.edu]

    8 USC Sec 1182(f) Suspension of entry or imposition of restrictions by President

    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.

    • Re: (Score:3, Insightful)

      by imrahilj ( 3553503 )
      That statute is clear, but there is the later statute of 1965 that seems to prohibit using national origin as a determinant for immigration. Does the 1965 statute supersede that clause of the 1952 statute? Also, I've noticed that older laws seem to be written more clearly. Probably just a coincidence.
    • by Topwiz ( 1470979 ) on Monday June 26, 2017 @10:06AM (#54691331)

      The statute was signed by President Truman - a democrat. Obama signed a similar order to Trump except it was for a longer period of time and gave more advanced warning. The vetting process was actually improved during that time. The President clearly has the authority although in this case it was likely not really needed. The bigger issue is people entering on temporary visa and never leaving.

    • Isn't the issue whether or not he's establishing a national religion by targeting the ban at Muslims? Wouldn't the establishment clause be held higher than that law?

      "It's not a religion ban" blah blah blah, not amusing or convincing, everyone knows what this is.
      • And it doesn't matter what you and the peanut gallery thinks. It matters what the law says. The travel ban does not excluded just muslims, it excludes all people from certain countries. The United States has done that before.

        I find the term "mostly muslim" countries to be not amusing or convincing.
    • by AmiMoJo ( 196126 )

      The irony is that Trump could simply have used that statute to do it if he hadn't screwed himself earlier by calling it a Muslim ban. It only became unconstitutional when it started targeting people by religion, and although he claimed it wasn't specific to Muslims his earlier statements made it clear what his intent was.

      The really mind boggling thing is that after being rejected the first time, his administration made the same mistake again by openly talking about how they would re-word it slightly but don

  • If the reason for the ban was supposedly put in place to "address gaps in the government's screening and vetting procedures" and was only supposed to be in effect for 120 days shouldn't there be no need for the ban any longer?

    If they (the Trump administration) figured that they only needed 120 days to fix the "gaps in the government's screening and vetting procedures" and they have been in office for 155+ days then they should already have fixed the problems and the ban should no longer be needed.

    • Re: (Score:3, Insightful)

      They've claimed that because the bans weren't allowed to take affect, that they couldn't take action to address those gaps.

      This is of course unmitigated bullsh*t, because any paralysis in the government bureaucracy has nothing to do with whether or not a given individual is admitted to the country. They could certainly argue that the suspension of the ban might have allowed some people in that shouldn't have been admitted, but any failure to act in the 120 days is entirely on them.
      • by Calydor ( 739835 )

        To play devil's advocate for a moment, the future is the hardest thing to predict.

        It is entirely possible that the 120 days was a 'first wave' kind of deal, to see around day 100 how far they'd gotten, if they needed more time with another decree etc. Perhaps some of the measures they wanted to put in place during those 120 days would be in response to how the affected countries responded, if they found other means of getting to America and so on. Obviously those measures are REALLY hard to get done if you

    • Doesn't matter, This still needs to be fought, as the law clearly gives the President this authority but lower courts have decided to take his irrelevant campaign speeches as somehow redefining the very specific and limited text of his Executive Orders, and then implemented Nationwide bans on implementation. Normally when one of the Circuit courts acts that ruling stands for that Circuit, not for the nation as a whole. This was seen in the gay marriage battle where it wasn't until one of the cases reached
    • by Kohath ( 38547 ) on Monday June 26, 2017 @10:44AM (#54691641)

      If they can't make rules that last for 90 or 120 days, then "government screening and vetting procedures" are irrelevant because they can't make rules to screen anyone out after that either. The courts (some of them anyway) were effectively saying the State Department no longer had the authority to decide who gets a travel visa and who doesn't.

    • by Solandri ( 704621 ) on Monday June 26, 2017 @10:56AM (#54691757)
      An increase in workload in one area cannot be made without a decrease in workload in another. Without the freeze, the government staff are tied up doing their regular job of interviewing, reviewing, and granting/denying visa applications (if they weren't busy with this stuff, then their job is unnecessary and they should be let go). Presumably the freeze was needed to pause the workload and free up the personnel, so the procedures and processes could be audited, revised, and new systems implemented.

      What you say could be possible if new workers were hired to do the auditing, revising, and implementing. But since they'd be new, they'd have to interview current INS staff first to get a clear picture of how the current procedures are (or aren't) working and find potential gaps in security. So you'd still need to lessen the workload of the current staff - either by freezing immigration for a period of time, or delaying visa application reviews thus stretching out wait times. It's likely better to just skip the interviews and let the people who've been working with the system all this time work on revising it.

      Trump's contention that the current system is full of holes and is letting dangerous people into the country would mean he would favor the freeze over the slowdown as the more security-conscientious choice. I disagree with his contention. But I agree the President has the legal authority to make temporary changes to immigration like this. Obama implemented a similar freeze (or ban, to use your terminology) on Iraqi refugee immigration for 6 months, although that ban was based on specific intel.
  • Comment removed (Score:5, Insightful)

    by account_deleted ( 4530225 ) on Monday June 26, 2017 @10:00AM (#54691297)
    Comment removed based on user account deletion
    • by swb ( 14022 )

      Probably some, or at least it makes sense that if they have access to US courts they should have them under the umbrella of constitutional rules.

      I get your larger point, though, and I don't completely understand where these rights become all-encompassing. Possibly once on US soil, as there would seem to be reasonable arguments for a risk to US citizens if the government can treat a random person in the US unconstitutionally under the guise that their citizenship status is unknown.

    • Not really. It only applies to people trying to come into the US. They're not trying to claim there's a ban on Muslims traveling from other parts of the world to other parts of the world.
  • by DeplorableCodeMonkey ( 4828467 ) on Monday June 26, 2017 @10:19AM (#54691423)

    Whether you like it or not, the ability to wholesale black entire regions from traveling to the US is actually the least cruel, least invasive and least destructive way of preemptively handling potential problems from foreign sources. If they don't arrive here...

    1. We don't have to surveil them.
    2. We don't have to even have a debate about indefinite detention or torture.
    3. We have less of a reason to worry about who is talking to who.

    Japan effectively blocks immigration and most travel from Islamic countries. Maybe you think that's wrong, but at the same time, Japan has never had to have some of the post-9/11 debates we've had that have warped our national morals and values.

    (As a side note, "you might be a neocon if..." you think it's deplorable to screen like this, but think shipping a man off to Syria to be "evaluated" is sound, moral foreign policy)

    • Re: (Score:2, Insightful)

      Japan effectively blocks immigration and most travel from Islamic countries.

      Japan does not have a first amendment protecting freedom of religion.

      • Japan does not have a first amendment protecting freedom of religion.

        No, but they do have a article in their constitution about religious freedom which appears to be fairly equivalent to the protections of freedom of religion in our First Amendment.

      • Which only applies to to U.S. citizens. Swing and a miss.
    • by interkin3tic ( 1469267 ) on Monday June 26, 2017 @11:04AM (#54691833)

      1. We don't have to surveil them.

      You're insane if you think terrorist organizations in one country can only affect us if we allow travel directly. Plus, zero of the 9/11 attackers came from countries that are the subject of the ban.

      2. We don't have to even have a debate about indefinite detention or torture.

      ... what?

      3. We have less of a reason to worry about who is talking to who.

      I... what?

      Japan effectively blocks immigration and most travel from Islamic countries. Maybe you think that's wrong, but at the same time, Japan has never had to have some of the post-9/11 debates we've had that have warped our national morals and values.

      Japan is also very comfortable with openly discriminating against foreigners, unlike the US. To their credit, they're fairly universal about it, they don't care if you're from a Muslim country, the US, Europe, Africa, or the next Asian island over, they still don't want you there.

      Additionally, last time I checked, Japan has zero military bases in Muslim countries. Which, if you recall, was a major reason the US was attacked on 9/11. Japan evidently sent a token force to Iraq after 9/11 of 600 soldiers to Iraq for two years or so. I'm sure after toppling the US, Europe, Russia, and China, the islamic extremist leaders plan on punishing Japan, but it's obviously not a high priority. Japan doesn't care much about the middle east and the feeling is mutual. That's not something the US could emulate.

  • I'm at a loss to understand why a 90 day travel ban, with the stated purpose of creating time to get a "proper set of rules and procedures into place" is what we're fighting about several months later.

    Shouldn't the full fledged version be ready for review/vetting by now, making this whole thing a travesty of taxpayer money and the SCs time?

  • by pablo_max ( 626328 ) on Monday June 26, 2017 @10:44AM (#54691645)

    Despite the noise that the vocal minority is making over this, I think you will find that most folks, if asked (assuming no one could find out the answer) would support a completed ban on Muslims in the country.
    Naturally, most folks are simply afraid of being a racist or other "ist" word.

    Honestly, I do not know understand why it is an issue to dislike someone because they are Muslim. It's not like disliking a person because they are brown, or black or whatever color.
    Islam is a religion and an ideology. It is reasonable to not like a person based on what they choose to believe?

    Everyone keeps repeating this notion that Islam is the religion of peace, but that it total bullshit. The backbone of Islam is based on submission. The word Islam means submit!
    I work with several guys from Morocco. Naturally, they are all Muslim. They are seem like "normal" guys to me. I once asked one of my colleagues, hey... man, I heard that the Quran says that it is OK to hit your wife if she is disobedient or disrespectful.
    His answer... Of course! How else shall she learn? He went on to explain that of course, you could not cause damage or marks, but only enough that she gets the point and never more.

    For all those people who say how great and peaceful Muslim people are... go to the middle east. Take your wife, or go alone if you are a woman. See how "peaceful" they are. I have lived in the middle east and I will not support or "tolerate" and religion that puts so little value on a human because of their sex. If I am "Racist" because I won't tolerate their hatred of women, then.. fine, I'm a racist.
    And no... I will not be hiding behind AC.

    • Comment removed (Score:5, Insightful)

      by account_deleted ( 4530225 ) on Monday June 26, 2017 @11:29AM (#54692055)
      Comment removed based on user account deletion
    • Despite the noise that the vocal minority is making over this, I think you will find that most folks, if asked (assuming no one could find out the answer) would support a completed ban on Muslims in the country. Naturally, most folks are simply afraid of being a racist or other "ist" word.

      Honestly, I do not know understand why it is an issue to dislike someone because they are Muslim. It's not like disliking a person because they are brown, or black or whatever color. Islam is a religion and an ideology. It is reasonable to not like a person based on what they choose to believe?

      Sure, it's reasonable to not like them. Your feelings are your own, and you're welcome to them. Where it becomes a problem is where the government steps in and starts enforcing someone's feelings by banning people having a particular religious belief from entering the country. I understand you dislike them, and I'm not particularly fond of them either, but that doesn't mean we should throw out the Constitution. What does it say about us, as a nation, if we're willing to sacrifice our founding principles at the drop of a hat?

      Want to ban muslims? Then go pass a Constitutional amendment repealing or amending the first amendment to remove the free exercise clause. If you can convince the majority of the population of 2/3rds of the states, then you can have your ban. Until then, you'll have to just have your hate.

  • Banned vs. Bombed (Score:5, Insightful)

    by moeinvt ( 851793 ) on Monday June 26, 2017 @11:41AM (#54692173)

    Countries affected by the travel ban:
    Iraq, Libya, Syria, Somalia, Yemen, Iran

    Countries being bombed by the previous administration:
    Iraq, Libya, Syria, Somalia, Yemen, Afghanistan, Sudan

    People are claiming that the current president does not have the legal authority to ban people from these countries from entering the U.S., but nobody questioned the previous president's legal authority to kill them?

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