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  1. With travel ban, SCOTUS can correct for lower courts' anti-Trump bias. By Nolan Rappaport


    © Getty

    According to Eric Posner, a professor at the University of Chicago Law School, the lower U.S. courts have created a “Trump exception” to settled law on presidential powers with their travel ban decisions. They have ignored the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason for an executive order, which in these cases was a national security interest in stricter vetting.

    Trump appealed to the Supreme Court, but his case became moot when he replaced the temporary travel ban with a permanent program with the Presidential Proclamation he issued on September 24, 2017, “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.”

    When fourth and ninth circuit courts enjoined implementation of his proclamation, he went back to the Supreme Court. On December 4, 2017, the Court ordered stays of the fourth circuit and the ninth circuitinjunctions.

    The Court did not state its basis for granting Trump’s stay request in either decision, but stays are not granted for meritless cases. I expect Trump to prevail on the merits of his case.

    According to Trump’s memorandum in support of a stay, the proclamation is the culmination of an extensive, worldwide review process, which was conducted by multiple government agencies to determine what information is needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the Immigration and Nationality Act.

    The baseline incorporates three categories of criteria:


    1. Identity-management information. The United States expects foreign governments to provide information needed to determine whether individuals seeking benefits under our immigration laws are who they claim to be. The criteria in this category include whether a country issues electronic passports embedded with identity data, and whether it reports lost and stolen passports to appropriate entities.
    2. National security and public-safety information. The United States expects foreign governments to provide information about whether nationals of their countries who seek entry into United States pose national security or public-safety risks. This includes such things as whether the country releases suspected terrorist and criminal-history information when it is requested.
    3. National security and public-safety risk assessment. This includes an evaluation of national security risk indicators, such as whether the country provides a safe haven for terrorists, and whether it regularly fails to accept back its nationals who are subject to final orders of removal from the United States.


    Read more at http://thehill.com/opinion/immigrati...nti-trump-bias

    Published originally on The Hill.

    About the author. Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.






  2. With travel ban, SCOTUS can correct for lower courts' anti-Trump bias. By Nolan Rappaport

    Accidental post. Please delete.

    Nolan Rappaport

    Updated 12-06-2017 at 04:35 PM by ImmigrationLawBlogs

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