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Federal courts flout precedent in blocking Trump's travel ban. By Nolan Rappaport

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President Trump’s revised travel ban hit another roadblock last week as the federal district court for Hawaii ordered a stop to implementing the travel ban. The decision was made on the ground that the plaintiffs are likely to succeed in court on the merits of their claim that the executive order violates the Establishment Clause of the First Amendment by discriminating against Muslims on the basis of their religion.

But the court’s objection to the travel ban, which would impose a 90-day suspension on the entry into the United States of nationals from six countries which were designated by Congress and the Obama administration as posing national security risks, is that President Trump wrote it. The court even acknowledges this in its decision:

“It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion.

“There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.”

The court writes that “any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, ‘secondary to a religious objective’ of temporarily suspending the entry of Muslims.” This “assessment rests on the specific historical record,” which “focuses on the president’s statements about a ‘Muslim ban,’” including on the campaign trail and the fact that he asked Rudolph Giuliani how to do it legally.

According to Eric Posner, a professor at the University of Chicago Law School, the courts are creating a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason, which with respect to the order, is the national security interest in stricter vetting.

Read more at
http://thehill.com/blogs/pundits-blo...-trumps-travel

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. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.



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Comments

  1. ImmigrationLawBlogs's Avatar
    Update, March 22:

    What did Nolan expect Trump's order to say?


    "I am the president.

    I hate Muslims and do not want any of them in this country"?

    A distinguished legal expert with Nolan's vast legislative and opinion writing experience knows better than anyone else that the real purpose of a law or administrate order is very often the last thing that would ever appear in its text.

    This is why, in a democracy, we have courts and other tribunals to look into the real intent and effect of legislation and executive actions.

    My original comment is as follows:

    The federal courts have the strongest precedents of all for blocking Trump's Muslim ban orders - the 1st and 14th Amendment guarantees of religious freedom and equal protection of the law to U.S, citizens, who are also impacted in many ways by Trump's program of hatred and discrimination against Muslim, Mexican and other minority immigrants, as both the federal district court for Hawaii and the 9th circuit 3-judge panel explained in their decisions.

    This is not to dispute that Congress and the executive branch have wide powers over immigration.

    But never before have these powers been used in such a broad and sweeping way, to ban more than a 100 million people from America who have little or nothing in common other than their religion, and whom Trumps presumes to be a threat to America only because of their religion, with no other evidence.

    In this sense, there are no precedents for the issue that the federal courts are facing now because of the enormous expansion of presidential power which Trump is claiming.

    But, to be sure, there are precedents for Trump's actions against minorities.

    To look at just one of these, see Anis Shivani's column in Salon.com:

    Trump and Mussolini: 11 Key Lessons from Historical Fascism

    http://www.alternet.org/visions/trum...orical-fascism

    Yes, there are precedents for Trump's executive orders banning Muslim immigrants and carrying out mass expulsion of Mexican and other brown-skinned immigrants.
    But they are not the precedents that Trump and his supporters are claiming to rely on.

    Roger Algase
    Attorney at Law
    Updated 03-22-2017 at 09:15 AM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    Roger says, "But never before have these powers been used in such a broad and sweeping way, to ban more than a 100 million people from America who have little or nothing in common other than their religion, and whom Trumps presumes to be a threat to America only because of their religion, with no other evidence."

    Apparently, he did not read the Executive Order he is talking about.

    Section 1(b)(i).

    Among other actions, Executive Order 13769 suspended for 90 days the entry of certain aliens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. These are countries that had already been identified as presenting heightened concerns about terrorism and travel to the United States. Specifically, the suspension applied to countries referred to in, or designated under, section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), in which Congress restricted use of the Visa Waiver Program for nationals of, and aliens recently present in, (A) Iraq or Syria, (B) any country designated by the Secretary of State as a state sponsor of terrorism (currently Iran, Syria, and Sudan), and (C) any other country designated as a country of concern by the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence. In 2016, the Secretary of Homeland Security designated Libya, Somalia, and Yemen as additional countries of concern for travel purposes, based on consideration of three statutory factors related to terrorism and national security: "(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States; (II) whether a foreign terrorist organization has a significant presence in the country or area; and (III) whether the country or area is a safe haven for terrorists." 8 U.S.C. 1187(a)(12)(D)(ii).

    Section 2(e).

    (e) The following are brief descriptions, taken in part from the Department of State's Country Reports on Terrorism 2015 (June 2016), of some of the conditions in six of the previously designated countries that demonstrate why their nationals continue to present heightened risks to the security of the United States:

    (i) Iran. Iran has been designated as a state sponsor of terrorism since 1984 and continues to support various terrorist groups, including Hizballah, Hamas, and terrorist groups in Iraq. Iran has also been linked to support for al-Qa'ida and has permitted al-Qa'ida to transport funds and fighters through Iran to Syria and South Asia. Iran does not cooperate with the United States in counterterrorism efforts.

    (ii) Libya. Libya is an active combat zone, with hostilities between the internationally recognized government and its rivals. In many parts of the country, security and law enforcement functions are provided by armed militias rather than state institutions. Violent extremist groups, including the Islamic State of Iraq and Syria (ISIS), have exploited these conditions to expand their presence in the country. The Libyan government provides some cooperation with the United States' counterterrorism efforts, but it is unable to secure thousands of miles of its land and maritime borders, enabling the illicit flow of weapons, migrants, and foreign terrorist fighters. The United States Embassy in Libya suspended its operations in 2014.

    (iii) Somalia. Portions of Somalia have been terrorist safe havens. Al-Shabaab, an al-Qa'ida-affiliated terrorist group, has operated in the country for years and continues to plan and mount operations within Somalia and in neighboring countries. Somalia has porous borders, and most countries do not recognize Somali identity documents. The Somali government cooperates with the United States in some counterterrorism operations but does not have the capacity to sustain military pressure on or to investigate suspected terrorists.

    (iv) Sudan. Sudan has been designated as a state sponsor of terrorism since 1993 because of its support for international terrorist groups, including Hizballah and Hamas. Historically, Sudan provided safe havens for al-Qa'ida and other terrorist groups to meet and train. Although Sudan's support to al-Qa'ida has ceased and it provides some cooperation with the United States' counterterrorism efforts, elements of core al-Qa'ida and ISIS-linked terrorist groups remain active in the country.

    (v) Syria. Syria has been designated as a state sponsor of terrorism since 1979. The Syrian government is engaged in an ongoing military conflict against ISIS and others for control of portions of the country. At the same time, Syria continues to support other terrorist groups. It has allowed or encouraged extremists to pass through its territory to enter Iraq. ISIS continues to attract foreign fighters to Syria and to use its base in Syria to plot or encourage attacks around the globe, including in the United States. The United States Embassy in Syria suspended its operations in 2012. Syria does not cooperate with the United States' counterterrorism efforts.

    (vi) Yemen. Yemen is the site of an ongoing conflict between the incumbent government and the Houthi-led opposition. Both ISIS and a second group, al-Qa'ida in the Arabian Peninsula (AQAP), have exploited this conflict to expand their presence in Yemen and to carry out hundreds of attacks. Weapons and other materials smuggled across Yemen's porous borders are used to finance AQAP and other terrorist activities. In 2015, the United States Embassy in Yemen suspended its operations, and embassy staff were relocated out of the country. Yemen has been supportive of, but has not been able to cooperate fully with, the United States in counterterrorism efforts.

    Nolan Rappaport
    Updated 03-21-2017 at 05:07 PM by ImmigrationLawBlogs
  3. ImmigrationLawBlogs's Avatar
    Nolan is very good at repeating the official line of pretexts which were put forward by Trump's strategists as a basis for the Muslim ban orders in order to try to give them the appearance of legality.

    But one of these top advisers, Stephen Miller, let the cat out of the bag when he announced that the second Muslim ban order had the same policy objective as the first one.

    And what was that first policy objective? All the evidence, which both the District of Hawaii and the 9th Circuit panel judges reviewed in detail, showed that the basic policy objective has not changed since Trump first called for a world wide ban on Muslim citizens of every county in the world, including the US, from entering the United States in December 2015.

    No wonder that Trump went into a rage and issued vicious and senseless attacks on the judges who refused to go along with his deceptions, something which drew the strongest possible condemnation even from the five 9th Circuit judges who agreed with his view of the law.

    However, when the federal courts looked behind the facade to determine the real motivation for the ban, Nolan argues that they have no right to try to get at the truth.

    Blindly following whatever those in power put out as the excuses for taking any given action is the way the court system works in countries such as Russia and North Korea.

    That is not the role of the courts in the United States of America.

    Roger Algase
    Attorney at Law
    Updated 03-21-2017 at 02:04 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    I was responding to Roger's claim," a 100 million people"... "whom Trump presumes to be a threat to America only because of their religion, with no other evidence." In fact, I quoted the claim in my previous comment.

    The information i provide from the Executive Order may not be Trump's "real reason" for the travel ban, but its presence in the order contradicts Roger's claim.

    But Roger doesn't want to talk about what the Executive Order says, only about Trump's hidden agenda. The District Court for Hawaii had the same problem. They couldn't find anything wrong with what the Executive Order says either.

    i address the "but he has Muslim hatred in his heart" argument in the article. No reason to repeat myself here.

    Nolan Rappaport
    Updated 03-22-2017 at 10:20 AM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    I wonder how far Roger would go with his reasoning. If Russia launches a nuclear attack on the US, would Roger complain if Trump launched a nuclear response before clearing it with the 9th circuit? Who knows, he might have a hidden agenda.

    Nolan Rappaport
    Updated 03-21-2017 at 07:03 PM by ImmigrationLawBlogs
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