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Started By
Message
re: Open Invitation: Explain How the Immigration EO is Unconstitutional
Posted on 1/31/17 at 4:43 pm to SlowFlowPro
Posted on 1/31/17 at 4:43 pm to SlowFlowPro
quote:
IT CAN BE ARGUED that "minoity religion" gives a preference to Christianity
How would that be UnCon in this instance?
0
Posted on 1/31/17 at 4:43 pm to buckeye_vol
quote:
but isn't their constitutional rights, or lack thereof, essentially irrelevant to constitutionality of the law itself?
yes
laws can be unconstitutional on their face. tried to explain that a few pages ago
Posted on 1/31/17 at 4:44 pm to Hugo Stiglitz
Will you feel that they've made the right decision if you disagree with their ruling?
Posted on 1/31/17 at 4:44 pm to buckeye_vol
quote:
This above my limited understanding, but isn't their constitutional rights, or lack thereof, essentially irrelevant to constitutionality of the law itself?
This misses the forest from the trees. You can exclude anyone you want from the country (assuming foreign national not subject to the jurisdiction of the US) on any basis because they don't have constitutional rights. It isn't unconstitutional because it doesn't violate the constitution as these persons are not protected by the constitution. What you are asking about is something called bootstrapping which courts usually do not allow, but it has worked in some specific contexts.
This post was edited on 1/31/17 at 4:49 pm
Posted on 1/31/17 at 4:47 pm to Bjorn Cyborg
quote:
Past performance is not indicative of future results.
Lol. Isnt that what the ban is?
Posted on 1/31/17 at 4:49 pm to Tigerlaff
quote:What? A lot of first amendment cases are brought (and won) against individuals or institutions that are far less related to Congress than the President.
How would that apply to the president, who is neither Congress nor a state?
For example, Tinker v. Des Moines Independent Community School District ( Wikipedia Synopsis) ruled that schools could not punish students who were wearing anti-war black arm bands as the school violates the first amendment right to free speech since it did not interfere with the educational process or others' rights.
Posted on 1/31/17 at 4:54 pm to therick711
quote:How would that not show the government creates a limit that was showing preference by religion, regardless of who it's impacting? Unless I am missing something, I don't see any qualifiers that they can violate that the clause so long as it only impacts non-citizens.
It isn't unconstitutional because it doesn't violate the constitution as these persons are not protected by the constitution.
quote:But our laws and policies, regards of who they impact, are still under the jurisdiction, are they not?
What you are asking about is something called bootstrapping which courts usually do not allow,
Posted on 1/31/17 at 4:57 pm to buckeye_vol
quote:
What? A lot of first amendment cases are brought (and won) against individuals or institutions that are far less related to Congress than the President.
The test is not "how related to Congress" is the actor? Incorporation means that even though the 1st Amendment refers only to Congress, it also applies to the states.
I am asking for a case where incorporation of the 1st amendment was successfully used to challenge a part of the federal government, in this case, the president.
In short, the 1st Amendment applies to Congress and has been incorporated against the states. Show me where it has been incorporated against the federal executive.
Posted on 1/31/17 at 4:57 pm to SlowFlowPro
quote:
laws can be unconstitutional on their face. tried to explain that a few pages ago
How do you get around standing?
Posted on 1/31/17 at 4:59 pm to Tigerlaff
Non-citizen rights are best thought of as baskets of rights. A non-citizen not present in the US has 0 rights. Once inside the US, legally or illegally, you begin to gain more and more rights. SCOTUS has held that illegals even have some procedural due process (an argument for why mass deportations would be hard). A LPR/green-card holder has a ton of rights including, as SFP I think said, a very high level of due process rights, which is where my rub with the EO comes in. I don't mind ending visas from those countries, but to deny LPR's back into the country is highly disturbing and will be the undoing of it if the administration doesn't clear up the confusion.
Posted on 1/31/17 at 5:02 pm to buckeye_vol
quote:
How would that not show the government creates a limit that was showing preference by religion, regardless of who it's impacting? Unless I am missing something, I don't see any qualifiers that they can violate that the clause so long as it only impacts non-citizens.
You are missing the entire thing. Under the Constitution, Congress has nearly full authority to regulate immigration. Immigration has been found to be a matter of national security and foreign policy (both functions delegated to the executive). As such, Supreme Court precedent has long held that immigration law is largely immune from judicial review. Everyone basically understands in this context that Congress can make rules for immigrants that would be unacceptable if applied to citizens.
Posted on 1/31/17 at 5:03 pm to lionward2014
quote:
Non-citizen rights are best thought of as baskets of rights. A non-citizen not present in the US has 0 rights. Once inside the US, legally or illegally, you begin to gain more and more rights. SCOTUS has held that illegals even have some procedural due process (an argument for why mass deportations would be hard). A LPR/green-card holder has a ton of rights including, as SFP I think said, a very high level of due process rights, which is where my rub with the EO comes in. I don't mind ending visas from those countries, but to deny LPR's back into the country is highly disturbing and will be the undoing of it if the administration doesn't clear up the confusion.
I believe they have already fixed the green card holder issue. Assuming that is true, do you contend that any other element of the order (besides the Christian refugee part) is unconstitutional?
Posted on 1/31/17 at 5:04 pm to Tigerlaff
quote:
do you contend that any other element of the order (besides the Christian refugee part) is unconstitutional?
no i've said that's the only one potential issue
*ETA: in terms of constitutionality
there is also the statutory argument that this EO violates the Congressional statute that gave the authority to the President. that's a lot more complex, though, and i am not educated enough to make any arguments
This post was edited on 1/31/17 at 5:05 pm
Posted on 1/31/17 at 5:08 pm to Tigerlaff
quote:And the tinker case was applied to a local district, and the administrative decisions that restricted fee speech.
Incorporation means that even though the 1st Amendment refers only to Congress, it also applies to the states.
But when the executive branch's power is derived from the laws created by Congress, how can their regulations not be subject to constitutionality?
Posted on 1/31/17 at 5:09 pm to SlowFlowPro
quote:
no i've said that's the only one potential issue
My comment was directed at lionward2014, but I hear you. I agree that it's the only part that is potentially assailable.
I was hoping some bored 3L was going to show up in here and blast me with a 5th amendment due process/liberty interest case or a 1st amendment incorporation case against the federal executive. That would have really rustled my jimmies.
This post was edited on 1/31/17 at 5:10 pm
Posted on 1/31/17 at 5:14 pm to buckeye_vol
quote:
And the tinker case was applied to a local district, and the administrative decisions that restricted fee speech.
Right. A subdivision of a state. Got any cases where the 1st was applied to the president's action?
quote:
But when the executive branch's power is derived from the laws created by Congress, how can their regulations not be subject to constitutionality?
The executive branch's power is not purely derived from the laws passed by Congress. It is derived partly from that in some instances and from Article II in other instances.
To answer your question, "that's just the way it is, things'll never be the saaaamee. Aww yeah."
This post was edited on 1/31/17 at 5:15 pm
Posted on 1/31/17 at 5:15 pm to Tigerlaff
1L brah. that's when you take con law and con law 2
Posted on 1/31/17 at 5:18 pm to SlowFlowPro
On the minority religion aspect, I can't remember, but that is for any refugee, correct? So, that doesn't just pertain to middle eastern refugee's, even though that is the hot bed at the moment.
In the future, if there is a refugee crisis in any other country, preference would be given to the minority religion there as well?
If I'm remember right, that wouldn't be giving special treatment to Christians, as it can apply to anyone. If I'm remembering wrong and it was only applied to the ME refugee crisis, then please correct me.
In the future, if there is a refugee crisis in any other country, preference would be given to the minority religion there as well?
If I'm remember right, that wouldn't be giving special treatment to Christians, as it can apply to anyone. If I'm remembering wrong and it was only applied to the ME refugee crisis, then please correct me.
Posted on 1/31/17 at 5:19 pm to GoCrazyAuburn
pretty sure that's in this EO for these 7 countries
Posted on 1/31/17 at 5:23 pm to SlowFlowPro
I couldn't remember if it was in that section or the section with the total refugee cap.
If it is just those 7, then there could definitely be some issues there.
If it is just those 7, then there could definitely be some issues there.
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