President Trump is getting a crash course on the U.S. Constitution’s separation of powers as federal courts knock down his temporary immigration ban aimed at seven mostly Muslim countries, reports Marjorie Cohn at The Jurist.
By Marjorie Cohn
On Jan. 27, President Trump made good on his campaign promise to institute a ban on Muslims entering the U.S. Trump’s executive order (“EO”) is titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”
Donald Trump speaking with the media at a hangar at Mesa Gateway Airport in Mesa, Arizona. December 16, 2015. (Flickr Gage Skidmore)
The EO bars nationals from seven Muslim-majority countries from the U.S. for at least 90 days. They include Iraq, Iran, Libya, Syria, Somalia, Yemen and Sudan. The EO also indefinitely prevents Syrian refugees, even those granted visas, from entering the U.S. And it suspends the resettlement of all refugees for 120 days.
None of the 9/11 hijackers came from the seven countries covered by the EO; 15 of the 19 men hailed from Saudi Arabia, which is not on the list. No one from the seven listed countries has mounted a fatal terrorist attack in the United States.
Countries exempted from the EO include Saudi Arabia, Pakistan, Egypt, Turkey, Lebanon and the United Arab Emirates — countries where Trump apparently has business ties.
Trump’s EO violates the Establishment Clause, the Due Process Clause, the Equal Protection Clause, and the Take Care Clause of the Constitution. It also violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), as well as the International Covenant on Civil and Political Rights (ICCPR); both are treaties the United States has ratified, making them part of U.S. law under the Constitution’s Supremacy Clause. The EO violates the Immigration and Nationality Act as well.
Six Federal Courts Stay Trump’s EO
In the face of legal challenges, five federal courts have temporarily stayed implementation of parts of the EO, indicating that petitioners have a strong likelihood of prevailing on the merits.
Statues of Lady Justice can be found around the world, this one atop London’s Old Bailey courthouse.
On Jan. 28, U.S. District Judge Ann Donnelly of the Eastern District of New York concluded that the petitioners “have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates Due Process and Equal Protection.” She also found “imminent danger . . . [of] substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the [EO].”
Donnelly thus enjoined respondents Trump, U.S. Customs and Border Protection (CBP), Department of Homeland Security (DHS), et al from removing anyone with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program. Holders of valid immigrant and non-immigrant visas, and other individuals from the seven listed countries who are legally authorized to enter the U.S., are also protected from removal by Donnelly’s order.
In spite of Donnelly’s order, CBP agents continued to detain immigrants at airports across the country and send them back, even though some could face persecution in their countries of origin.
On Jan. 28, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia forbade respondents Trump et al from removing the three Yemeni petitioners, who were lawful permanent residents being held at Dulles International Airport, for seven days from the issuance of her order. Brinkema further ordered CBP agents to permit attorneys access to all lawful permanent residents (green card holders) detained pursuant to the EO at Dulles International Airport pursuant.
Nevertheless, CBP agents refused to allow detained lawful permanent residents to consult with lawyers. On Feb. 1, the Commonwealth of Virginia asked a federal judge to force Trump, CBP and other high government officials to show cause why they should not be held in contempt for refusing to obey a lawful court order.
On Jan. 28, U.S. District Judge Thomas Zilly of the Western District of Washington granted a stay of removal and enjoined respondents Trump et al from removing the plaintiffs from the U.S. pending a hearing on Feb. 3.
On Jan. 29, U.S. District Judge Allison Burroughs and U.S. Magistrate Judge Judith Gail Dein of the District of Massachusetts found that Iranian petitioners, a married couple, both of whom are engineering professors at University of Massachusetts-Dartmouth, had a strong likelihood of success in establishing the detention/and or removal of them and others similarly situated would violate Due Process and Equal Protection.
The two judges also concluded petitioners were likely to suffer irreparable harm. They issued a temporary restraining order, preventing respondents Trump et al from detaining or removing for seven days individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program. Holders of valid immigrant and non-immigrant visas, lawful permanent residents,] and others from the seven listed countries who, absent the EO, would be legally authorized to enter the U.S., were also protected from exclusion.
On Jan. 31, U.S. District Judge Andre Birotte in Los Angeles ruled that the government must permit immigrants from the seven listed nations who have initial preclearance for legal residency to enter the U.S. Birotte ordered U.S. officials to refrain from “removing, detaining or blocking the entry of [anyone] . . . with a valid immigrant visa” arriving from one of the seven countries.
Attorney Julie Ann Goldberg had filed the Los Angeles case on behalf of more than 24 plaintiffs of Yemeni descent, including U.S. citizens. Over 200 people holding immigrant visas who had left Yemen, and are either related to U.S. citizens or lawful permanent residents, were stranded in Djibouti and prevented from flying to the U.S.
Meanwhile, on Feb. 1, a counsel to the president informed government agencies that the EO does not apply to some categories of immigrants. They include lawful permanent residents, Iraqis who worked for the US government in jobs such as interpreters and people with dual nationality when entering the U.S. with a passport from a country other than one of the forbidden seven.
On Feb. 3, U.S. District Judge James Robart in Seattle issued a temporary nationwide restraining order halting the EO’s ban on citizens of the seven countries from entering the US. Judge Robart ruled the EO would be stopped nationwide, effective immediately. (The New York Times called Robart’s ruling “a humbling defeat” for the Trump administration.)
First Amendment’s Establishment Clause
The strongest constitutional argument for overturning the EO is that it violates the Establishment Clause of the First Amendment. The Supreme Court has held “the clearest command of the Establishment Clause is that one religious domination cannot be officially preferred over another.”
The EO “imposes a selective ban on immigration from seven Muslim-majority countries as well as establishes preferential treatment for refugees seeking asylum who are identified with ‘minority religions’ in their country of origin,” ACLU National Legal Director David Cole wrote in Just Security. Cole cited Trump’s statement on Christian Broadcast News that the intent of his EO was to prioritize “Christians” seeking asylum over “Muslims.”
Erwin Chemerinsky, dean of UC Irvine School of Law, observed in the Los Angeles Times, “Although Trump’s order does not expressly exclude Muslims, that is its purpose and effect as it bars entry to individuals from predominantly Muslim countries.”
When Trump signed the EO, Cole noted, he “pledged to ‘keep radical Islamic terrorists out of the U.S.’ Not ‘terrorists’; not ‘radical terrorists.’ But only ‘radical Islamic terrorists.'” Cole concluded that Trump “has violated the Establishments Clause’s ‘clearest command'” as “[T]here is no legitimate reason to favor Christians over all others who are persecuted for their beliefs.”
Fifth Amendment’s Due Process Clause
Procedural due process forbids the government from depriving an individual of life, liberty or property without due process of law. The U.S. government is obligated to hear the asylum claims of noncitizens who arrive at U.S. borders and ports of entry.
The Immigration and Nationality Act provides, “Any alien who is physically present in the US or who arrives in the US . . . irrespective of such alien’s status, may apply for asylum . . .” They must be afforded an opportunity to apply for asylum or other forms of humanitarian protection and be promptly received and processed by U.S. authorities. The Trump administration’s denial of an opportunity to apply for asylum violates procedural due process.
Fourteenth Amendment’s Equal Protection Clause
The Equal Protection Clause prohibits the government from “deny[ing] to any person within its jurisdiction the equal protection of laws.” An executive order that has the “purpose and effect of disapproval of a class recognized and protected by state law” violates the Equal Protection Clause, the Supreme Court held in US v. Windsor.
Muslim immigrants and non-Muslim immigrants from the seven listed countries are two separate classes of people for Equal Protection purposes. Unequal treatment of different groups based on religion, which is a suspect class, are subjected to strict scrutiny and thus there must be a compelling state interest to justify the disparate treatment. None of the 9/11 hijackers came from any of the seven countries. There have been no fatal terrorist attacks on U.S. soil by anyone from those countries. Therefore, there is no compelling state interest for treating the two classes differently. This is particularly true in light of Trump’s statements that his order would prioritize “Christians” seeking asylum over “Muslims.”
As Corey Brettschneider wrote for Politico, the Court drew a clear connection between the protection of religious liberty and the Equal Protection Clause’s prohibition of invidious discrimination in Church of Lukumi Babalu Aye v. City of Hialeah.
The Take Care Clause, Art. II, Sec. 3
Trump’s EO violates the Take Care Clause of the Constitution, according to Jeanne Mirer, president of the International Association of Democratic Lawyers.
“This provision requires the President to ‘take care’ that the laws of the country are faithfully executed,” Mirer wrote on Facebook. “The EO on immigration violates this clause because it requires government officials to violate various laws as well as human rights treaties we have ratified. He is also violating it by appointing people who openly oppose the laws they are being asked to enforce. Impeachable offense,” she added.
Convention Against Torture
Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) establishes the principle of nonrefoulement. It forbids states parties from expelling, returning or extraditing a person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Refugees often flee repressive regimes to escape persecution. Sending people back to a country where they may well suffer torture violates the CAT.
Syrian women and children refugees at Budapest railway station. (Photo from Wikipedia)
International Covenant on Civil and Political Rights
Article 2 of the International Covenant on Civil and Political Rights (ICCPR) forbids states parties from making distinctions in the provision of civil and political rights based on “race, colour [sic], sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” By giving fewer rights to Muslims than non-Muslims, Trump is violating the ICCPR.
Immigration and Nationality Act
According to the Immigration and Nationality Act of 1965, no person can be “discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence.” By singling out people from majority-Muslim countries, Trump has violated the Immigration and Nationality Act.
Legal and Political Fallout
Attorneys general from 15 states and the District of Columbia issued a joint statement condemning the EO. One thousand State Department employees likewise opposed the EO.
After federal courts stayed the ban, acting Attorney General Sally Yates ordered the Justice Department not to defend the EO, saying she wasn’t convinced it was lawful. Trump responded by firing Yates, stating she had “betrayed the Department of Justice.”
Ironically, Sen. Jeff Sessions, who will become Attorney General once the Senate confirms his nomination, asked Yates at her confirmation hearing whether she thought the Attorney General had “the responsibility to say no the President if he asks for something that’s improper.”
Sessions’s fingerprints are all over the Muslim ban. The Daily Beast reported that Sessions, White House strategist Steve Bannon and senior policy advisor Steven Miller (a Sessions confidant) drafted the EO.
Hundreds of people were kept in limbo after Trump issued his order. A five-year-old boy was separated from his mother for four hours. Erez Reuveni, an attorney with the Justice Department’s Office of Immigration Litigation, said more than 100,000 visas have been revoked. He could not say, however, how many people who had visas were sent back to their home countries. But, William Cocks from the State Department Bureau of Consular Affairs wrote in an email to NBC News, “Fewer than 60,000 individuals’ visas were provisionally revoked to comply with the Executive Order.”
Although thousands protested the Muslim ban at airports around the country, White House chief of staff Reince Priebus told CBS News that the ban could be extended.
After Judge Robart issued the nationwide stay on Feb. 3, the White House vowed to appeal the ruling. Trump tweeted, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” In another tweet, Trump wrote, “When a country is no longer able to say who can, and who cannot , come in & out, especially for reasons of safety &.security – big trouble!”
But the Department of Homeland Security announced it would comply with Robart’s order. “In accordance with the judge’s ruling,” DHS acting press secretary Gillian Christensen said, “DHS has suspended any and all actions implementing the affected sections of the Executive Order entitled, ‘Protecting the Nation from Foreign Terrorist Entry into the United States.’ This includes actions to suspend passenger system rules that flag travelers for operational action subject to the Executive Order.”
The US State Department also reversed the cancellation of the 60,000 – 100,000 visas revoked after the EO was issued.
The rubber will meet the road when federal appellate judges and probably the Supreme Court rule on the merits of these petitions. If the petitioners ultimately prevail, we will see whether the Trump administration fulfills its legal duty to act in accordance with those judicial decisions.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Visit her website at http://marjoriecohn.com/ and follow her on Twitter @MarjorieCohn. [This article first appeared at The Jurist, JURIST http://www.jurist.org/forum/2017/02/Marjorie-Cohn-trump-unconstitutional-muslim-ban.php]
Watching what is going on, you get the sense there is a growing excitement among those who see themselves as part of something really big, the bringing down of someone in power. It has the feeling of a mob, tied together by the social media, that is growing in size and anger. It is the feeling that appears to have been engendered in the color revolutions, where people become part of something momentous, where people have power. The media, who treat this as entertainment, seem to sense it, too. The mob enables the media, the media enables the mob.
The consequence if this happens? Neither the mob or the media have given it much thought. The mob cannot, the media chooses not to.
***
Instead of going to protest marches, pay yourself $10 an hour to put together a database of who in the Trump administration owns what, who is invested where and who is depending upon whom to provide employment after the Trump era.
Then use it, let the targets know you’re using it, distribute it and encourage others to mount boycotts of their own.
***
FREE AMERICA
DIRECT ACTION
***
All types of people will make meaningful contributions in a variety of ways and the massive protests will continue to grow. The protests will include a broad spectrum of groups – even “former” Trump supporters.
The “so-called” president is clearly entrenched in his beliefs and is not interested in following the “so-called” ethical standards of the Office, the “so-called” US Constitution and the “so-called” laws of our country. His reckless behavior and failure to comply will eventually lead to his downfall. Complicit Republican “leaders” and supportive institutions will also be held accountable. We the People, on many levels, will ultimately bear the costs.
The same holds true for Bush and the Obama…. Not like they were held accountable as they should have been. Not to mention those supportive democrat or republican leaders were either. Sounds like sour grapes and I won’t hold my breath. DJT is a single actor in this horror story stop pretending its all his fault otherwise you are part of the problem and incapable of being part of the solution. #Passthepopcorn
His specific behavioral characteristics and ill-informed “manner of speaking” and making decisions based on complex issues in this environment will be factors, regardless of the policies and actions of his predecessors; even if you and I disagreed with some of their decisions. My focus is on the Republicans because Trump is the “current” party leader and the GOP is “currently” in charge; there is no need to deflect; they will continue to OWN this.
My grapes are not sour, I’m am using Donald John Trump’s language to illustrate my point. Because he disagrees with a temporary “legal” outcome during a “process,” he attempts to diminish the status of the individual who administered the ruling by referring to him as a “so-called judge.” Who does this and why would “anyone” agree with the POTUS behaving/speaking/tweeting in that manner? This is reckless and dangerous.
If you read my comment carefully, I included “supportive institutions.” That means an established organization or corporation which helps to promote or advance the aforementioned.
Your focus appears to be narrow, therefore, you may be misjudging the landscape. BE safe…
No offense to you with my sour grapes comment, my apologies if I offended, I was just making an observation. Right/or wrong. The rest stands as NO administration, complicit ‘leader’s or supportive institutions have been held accountable since before Reagan. American policy is/has been the same since Reagan. Both parties are responsible and do not OWN it.
A focus on a bellicose privileged white male’s particular lexicon of division is, or rather seems to me quite narrow. I think we may be reading the same book and just happen to be on different pages atm. The landscape for both will be bumpy. Me personally I could care less what the smuck says in public and will be vindicated eventually by the fact that his garbage will stink the same as the rest of them regardless as to if he speaks like a bully or one who is accustomed to speaking with special snowflakes who are easily triggered and need safe spaces to feel comfortable in their own skins.
May you also BE safe. #Passthepopcorn
Be mindful of using the not-so-subtle language of abusers, regardless of how “catchy” and common their Orwellian terms and concepts have become. It’s used to groom the most vulnerable, while fooling the individual into delightfully believing the “perceived opponent” is the cornered prey.
Republicans and their communications networks have been at this for a very long time. The levels of obstruction and willingness to play fast and loose with the “rules” are not equal. The GOP helped to create this situation. The party has normalized some of the extreme characteristics being displayed by the individual who is occupying the oval office.
To many, this is a serious matter which compounds the effects of poor decisions that have been made by corporate “leaders” and their political lackeys. Serious people who are paying attention aren’t taking this lightly, despite some attempts by corporate media to treat this as though it’s business-as-usual.
The whole world is watching as this “man” continues to diminish the Office, his party and himself.
Chloe,
Many objected to Obama’s drone war on the grounds that it was an illegal expansion, and continuation, of Bush’s war.
Now Trump has started down a different, but new, illegal path.
See the the difference?
All this political posturing about the issue is simply nauseating. I’m not a lawyer and usually respect Prof. Chermerinsky, but the point of the directive is not to disadvantage Muslims at the expense of anyone else. It is to minimize the possibility that undetected terrorists might enter the country from these war-torn nations filled with radical jihadis who know that America has stirred the pot in those countries and might wish to deliver some blow back by increasing the rigor of the immigration vetting process.
To complain of favoritism being given to Christians is also a red herring as the targets of persecution have long been made exceptions to immigration procedure in this country. It’s why Cubans have always been given carte blanche whilst any other Latinos from the Western hemisphere, even those from war-torn countries like El Salvador, Nicaraqua and Honduras, have had cruel obstacles thrown in their paths.
There is never any logic or unbiased equal treatment given to the issue. Not in this country. It is always what can be negotiated by the powerful, won in the courts, or campaigned for in the Congress. So, it’s always a political football. Nothing has changed.
If the matter were up to me rather than Donald Trump, I’d exclude the individuals who already have longstanding ties to the United States from the new vetting standards, e.g., students in degree programs, individuals holding green cards, those on H1B visas, those who have already been thoroughly vetted for refugee status, and the like. But, I’d also extend the sweep of escalated vetting to other countries (or republics) which have a history of terrorism or supplying volunteers to the international terrorist pool, such as Saudi Arabia, Qatar, Pakistan, Afghanistan, Egypt, Turkey, Algeria, Chechnya, Dagestan and probably several other places.
That most of these have a majority Muslim population is not OUR reason for targeting them, though it may be THEIR reason for posing a threat. The potential threat, not their identity, is key. It is an empirical fact that most of the countries with which America has chosen to wage war, either directly, by proxy or through drone attacks, have majority Islamic populations. That even includes the black African countries of Somalia and Sudan. I’ve not heard the complaint that Trump’s policy is racist against black Africans. I’ve not heard Obama called racist or bigoted for denying entry to America by numerous specified Russians and Ukrainians subsequent to the de facto proxy war he started in that region of the world. Moreover, it’s not like Obama ever had a liberal program of receiving immigrants from the war-torn Middle East, not even from countries that America has decimated like Iraq, Afghanistan, Libya and Syria.
People should realise that Trump’s list of seven nations was simply Obama’s own list of specified sources of world-wide terrorism, which had all the inequities I mentioned above… and he probably simply passed on what he had received from Dubya, proving once again that American foreign policy never changes from one administration to the next because it is not decided in the White House. This is not a plea to embrace every policy that the Trump administration floats (personally, I will probably be against a great many of them, based on my political philosophy), it is a request to stop being hysterical, strictly partisan and hyper-confrontational in judging his actions. The street marches every day and sniping by the media on every show (even by entertainers) are getting a bit over the top.
Wish that Consortium News had kept the edit function. The second sentence should say …”to the benefit of anyone else” not “at the expense of anyone else.”
Realist – I agree. I am reading comments like yours more and more every day. All of this crap eventually ends up backfiring on them because people can see that their cries of protest as not a product of logic, but politics.
Anyway, I think you can still edit. As soon as you finish typing and hitting the “Post Comment” button, go to the top left-hand side of the page and hit the “refresh” button, the “c” with an arrow at the top. That should give you the regular 4 minutes (or whatever it is) for editing. Then hit “save”, as usual. I hope this works. It did for me.
Agreed. I’m no fan of the Donald either. I’ve often wondered how good people could go so bad so quickly at different times in history. Then I get to witness it first hand. The big thing that gets me is the double standards imposed. Riots because Donald wants to deport criminals, meanwhile back at the ranch Obama deports more people than any other president ….not a peep. Donald wants to seal the border with a wall, riots and protest. Meanwhile back at the ranch America is paying for construction of the second largest wall on earth…. not a peep. Donald produces a list of seven countries whose citizens will not be allowed to travel for 90 days to the united states….. The world loses it’s frigging noodle…. Meanwhile back at the ranch when the Obama administration produces the same list and does the same to visitors from Iraq……. it’s just national security. Obama received a Nobel PEACE prize people and nine months later gleefully announced the worlds record arms deal……. it goes on and on…… insanity. #Passthepopcorn.
On Youtube there is a short 3-minute video entitled “Contractor in Iraq Gives Opinion on Banned Countries Order”. Just in case my post above (which has a link to Youtube) doesn’t get allowed, I’ll post again what I said. Just go to Youtube, and then type in the description I have in the quotes above.
Interesting video from a U.S. contractor who is working in Iraq at the present moment. When Trump’s executive order came out banning Iraqi citizens, the people this U.S. contractor worked with were angry. He listened to them, and then asked them what would happen if he left the area he was in and went out of town. Quickly, and without hesitation, they all said that the locals would get him and kill him. He said these are not members of ISIS or Al-Qaeda, just locals. Give it a listen – 3 minutes.
Interesting video from a U.S. contractor who is working in Iraq at the present moment. When Trump’s executive order came out banning Iraqi citizens, the people this U.S. contractor worked with were angry. He then asked them what would happen if he left the area he was in and went out of town. Quickly, and without hesitation, they all said that the locals would get him and kill him. He said these are not members of ISIS or Al-Qaeda, just locals. Give it a listen – 3 minutes.
https://www.youtube.com/watch?v=j5AYkbNklf4
From Paul Craig Roberts:
“At a time when the Western world desperately needs alternative voices to the neoliberals, the neoconservatives, the presstitutes and the Trump de-regulationists, there are none. The Western leftwing has gone insane.
The voices being raised against Trump, who does need voices raised against him, are so hypocritical as to reflect less on Trump than on those with raised voices.
Sharon Kelly McBride, speaking for Human Rights First, sent me an email saying that Trump stands on the wrong side of “America’s ideals” by his prohibition of Muslim immigrants into the US.
My question to McBride is: Where were you and Human Rights First when the Bush/Cheney/Obama regime was murdering, maiming, orphaning, widowing, and displacing millions of Muslims in seven countries over the course of 4 presidential terms?
Why is it OK to slaughter millions of peoples, destroy their homes and villages, wreck their cities as long as it is not Donald Trump who is doing it?
Where does Human Rights First get off. Just another fake website, or is McBride seizing the opportunity to prostitute Human Rights First in hopes of donations from the DNC, the Soros’ NGOs, the Israel Lobby, and the ruling One Percent?
Money speaks, and alternative voices need money in order to speak. As so many Americans are indifferent to the quality of information that they get, many alternative voices are thrown back to relying on whatever money is available. Generally, it is the money of disinformation, of information that controls the explanations in ways that favor and enhance the ruling oligarchy.”
http://www.paulcraigroberts.org/2017/02/03/leftwing-placed-trash-can-history-paul-craig-roberts/
This is unfortunately what is happening everywhere. Voices stifled, and people who ought to know better, silent. Sad.
The voices of the left who are not “New Democrats” were there. There were also demonstrations. In typical fashion, those voices and protests were marginalized and/or co-opted by the establishment. Paul Craig Roberts is aware of this. Because his former right wing party is insane, like some of his former colleagues, he turned to the alternate media to express his views.
Management perception won’t work. Revising history to shame the current protesters won’t work. Cries of “hypocrisy” will fail! Attempts to undermine the will of the majority will land some establishment types in jail.
Thanks to the Con and his “associates,” the alternate existence movement will temporarily run its course, only to return in a new-and-improved form with a “polished” leader from central casting. In the meantime, more innocent people will suffer the consequences.
More people are beginning to realize that the “leadership” in both parties agree on some of the major issues, while the general public, regardless of political affiliations, disagrees with their positions. The old divide-and-rule tactics are deployed to distract, in an attempt to move their corrupt agendas forward.
“But only about 491,000 of the Syrian refugees are in camps, while nearly 4.4 million are in rural or urban areas. UNHCR says services may be provided to registered refugees regardless of whether they live in camps, urban areas, or non-camp settlements. And it claims to make extra effort to help minorities — like Syrian Christians — register for claims of asylum, by offering mobile registration and help desks. […]
The U.S. accepted 12,587 Syrian refugees in fiscal year 2016, and the overwhelming majority of them were Sunni Muslims, according to data from the Refugee Processing Center. (Sunnis tend to support the rebels and oppose President Bashar al-Assad in the Syrian civil war.) Just 64 Syrian refugees admitted to the U.S., or about 0.5 percent, were Christians in fiscal year 2016. So far this fiscal year, about 1.8 percent of the Syrian refugees accepted into the U.S. were Christians.
According to the Pew Research Center, roughly 5.2 percent of the population of Syria is Christian; the CIA World Factbook puts the percentage at 10 percent.”
So 12,587 Sunnis and 64 Christians. They probably are underrepresented.
The West is fighting Assad, and they are training, arming and funding the rebels (ISIS and Al-Qaeda). The Sunni refugees are against Assad and sympathize with the rebels (ISIS and Al-Qaeda). So I guess it makes sense that we would want our friends, the Sunnis, to come in more than the Christians, who happen to like Assad. In this case, you could even say that the Christians were our enemy (sarc).
Considering that the Syrian Army (the legitimate one that is fighting both Daesh and Al Nusra or whatever they call themselves today) is majority Sunni, you lose credibility when you say that Sunnis favor the US backed terrorists.
Yes, Sunnis are more likely than Shia or Sufis to support the headchoppers, but most Sunnis who are actually Syrian support Assad, and not the headchoppers.
Of course, Saudis and Emiratis are likely to be supporters of the headchoppers, but they are not on the list.
“As the Trump administration prepared to challenge a ruling against its executive order on refugees and travel from seven Muslim-majority countries, experts said the US had been brought to the brink of a full-blown constitutional crisis.
““This is an epic confrontation between the presidency and the constitution,” says Marci Hamilton, a constitutional lawyer and scholar of religion at the University of Pennsylvania.
““The moment Donald Trump suggests anyone disobey the federal court order then we will be in a constitutional crisis.””
https://www.theguardian.com/us-news/2017/feb/04/donald-trump-travel-ban-constitutional-crisis
Bill – yet Obama shredded the Constitution for eight years, and crickets. Very interesting how many people are just chomping at the bit to get Trump impeached. I wonder if they realize what will happen then.
The Guardian is an Establishment Liberal (and much neoliberal and neocon) rag.
We do not face a constitutional crisis, because Trump’s Order is absolutely, and patently, constitutional. See my comments posted earlier.
Tell it to the judge. The courts will decide. The law says what a judge says it says.
Partisanship, or rather like vs dislike, is the rule of the day, not clear thinking. Those who dislike and hate Trump will continue to oppose everything he does. Many of us who do not necessarily like nor dislike him see it altogether differently, which is where you are, I would guess, JR L.
If Trump tries to pull an “Andrew Jackson” and defies the courts, I say impeach him. Yesterday I was musing to a friend about my belief he didn’t want the job in the first place, and must be in pure misery right now. If Trump can figure out a face-saving way to depart, I think he’ll take it, especially if he can lay claim to being a “victim”.
Have any of you stopped to consider what is really going on while the world draws a line in the sand and protests a list made by a ‘peace’ president simply because their ‘guy’ didn’t win this time? I would like to see a story following up on this angle. To call what the EO did racist or a Muslim ban is pathetic intellectual dishonesty. America already paid for Israel’s wall that’s why Trump wants Mexico to pay for theirs. Where is/was the worlds disgust and indignation when this was/is going on. America has become a full blown double standard forked tongue JOKE. DJT is just the latest episode not the whole show. #Passthepopcorn. Blessed to be a witness.
I would like to thank Marjorie Cohn for this informative essay. It explained and clarified many of the issues for me.
Convention Against Torture
That US courts are suddenly taking an interest in Presidents and Torture represents a ‘better late than never’ situation for me. All the reports I heard had Obama doing what he pleased with that one, and everybody looking the other way.
Trump really does need to end this Clown Show. Whoever penned the executive order or orders on this subject needs to be demoted or fired.
Do it right or don’t do it at all.
Trujmp’s Order is not unconstitutional.
Trump’s Order does not violate the 1st amendment.
The 1st amendment applies only to government actions that affect (a) citizens or (b) non-citizens WHO ARE PRESENT IN the U.S. or one of its territories. It does NOT apply to non-citizens who are NOT located the U.S. or one of its territories.
The 1st amendment does NOT apply to government actions that do NOT prefer one religion over another & do NOT discriminate against a certain religion & do NOT “establish” an official religion. Trump’s order bars entry of non-U.S.-citizen individuals coming from the seven nations his Order lists (the same nations Obama listed as terrorist threats), EVEN IF THE INDIVIDUALS ARE NOT MUSLIM; and Trump’s Order does NOT apply to Muslims coming from any other nation, even Indonesia, which has the world’s largest Muslim population.
Trump’s Order does NOT deny Muslims the equal protection of the laws guaranteed implicitly by the due process clause of the 5th amendment.
Trump’s Order does not bar Muslims. It bars individuals — Muslim OR NOT — coming from seven certain nations. The 5th amendment’s due process clause applies only to federal government action that affects (a) citizens or (b) non-citizens who are present in the U.S. or one of its territories. It does not apply to non-citizens who are NOT located in the U.S. or one of its territories.
In the Boston Massachusetts case that sought to block enforcement of Trump’s Order, the ACLU tried to argue that the Order intends Muslim-focused immigration-blocking plans Trump suggested before he was elected (during his election campaign). The argument asserted that Trump’s government is according entry-preference to non-Muslim residents of the 7 nations to which Trump’s Order applies.
U.S. District Judge Nathaniel Gorton responded as any proper judge would: The Order’s actual terms govern the matter of its legality (not assertions candidate Trump may have uttered before he was elected).
These lawsuits are legally frivolous. They can be explained only by an illegitimate objective of creating or worsening political tumult directed at Trump, not his Order. The lawsuit costs the treasury — taxpayers’ money. Were I the judge in any of these cases, I would entertain a motion that the plaintiffs’ lawyer(s) be sanctioned for filing an obviously frivolous claim.
In the case filed in Seattle, Seattle federal District Judge James Robart ruled that Washington State had standing because Trump’s Order affects adversely Washington’s residents “in areas of employment, education, business, family relations, and freedom to travel.”
That ruling is bogus: If such adverse effects occur, the cause must be the barring of entry of foreigners who have no right of entry, since Trump’s Order was fully within the prerogative of the President of the United States. Accordingly, if any Washington resident is affected adversely, that adverse effect is an injury for which the law cannot provide remedy vis-a-vis Trump’s Order, because Washington residents have NO right of having the barred foreigners admitted into the U.S. or any of its territories.
Judge Robart ruled also that the plaintiff (Washington state) likely would prevail in obtaining a permanent injunction against Trump’s Order because likely the plaintiff could show that the Order is unconstitutional. That ruling was bogus for the same reasons.
Were I a judge of the 9th Circuit federal Court of Appeals, I would vote to order that Seattle federal District Judge James Robart dissolve the temporary restraining order he issued against enforcement of Trump’s Order, because Judge Robart’s order was beyond the scope of his authority and lacks utterly any basis in law, and I would render an opinion that chastised Judge Robart.
Judge Robart’s order clashes with many years of federal judicial precedent holding that the U.S. Constitution does not grant foreign nationals a right of entering the U.S. and that the Constitution’s due process, civil rights, and civil liberties guarantees do not extend to foreign nationals who are not present in the U.S. or its territories. See, e.g., Shaughnessy v. U. S. ex Rel. Mezei, 345 U.S. 206 (1953).
In some cases in which a permanent resident alien leaves the U.S. temporarily in special circumstances, the alien may not be denied re-entry without a due process hearing — as when an permanent resident alien seaman signs, while in the U.S., articles of maritime employment on a U.S. home port vessel of U.S. registry and the Coast Guard clears him for his voyage and the alien seeks re-entry on the same vessel. Again see Shaughnessy v. U. S. ex Rel. Mezei, 345 U.S. 206 (1953). But Trump’s Order does not deny any such alien re-entry.
Were I a member of the U.S. House of Representatives, I would propose a resolution initiating investigation of whether Judge Robart ought to be impeached.
I ought to have added that in the Boston federal case, U.S. District Judge Nathaniel Gorton refused to extend his temporary restraining order against enforcement of Trump’s Order; and the restraining order will terminate tomorrow, Sunday, 5 February 2017.
Correction of second line of my main comment’s next-to-last paragraph:
NOT “as when an permanent resident alien seaman signs”
BUT “as when a permanent resident alien seaman signs”
Sorry.
I neglected to observe that Prof. Cohn’s 14th amendment argument is absurd. The 14th amendment treats only state action, not federal action.
Likewise her argument asserting international law interdicting torture. Trump’s Order does not torture anyone or order anyone’s torture.
Likewise her assertion of the International Covenant on Civil and Political Rights. Trump’s Order does not grant Muslims fewer rights. The Order applies equally to all residents of the 7 nations it addresses.
Likewise her Immigration and Nationality Act argument. Trump’s Order does not discriminate according to national origin (or religion of any other basis the Act’s anti-discrimination provision lists). It bars certain foreign nationals because their nations were listed (even by the Obama administration) as major sources of much terrorism. And the Act does not purport to impair the President’s Article II power of defending U.S. security against foreign threats.
Likewise her The Take Care Clause, Art. II, Sec. 3 argument. No law bars Trump’s Order. So, his issuing the Order was not a failure to take care to execute U.S. laws faithfully.
Prof. Cohn’s arguments are political, not legal.
Thanks for all of your points, they certainly sound legitimate to me. Professor Cohn seems to be running in partisan mode, probably a very natural slant for those trained to argue one side or another.
To: Patrick Lucius
Good litigation-lawyers do not pretend that absurd propaganda is legal argument. They present legitimate evidence and respectable logical analyses of the pertinent bearings of legislation, regulations, and judicial precedent.
So you believe Trump was misquoted?
The matter is not Trump’s “hint” or anyone else’s. The matter is solely the language of the order and the language of any regulations or procedural memos or instructions issued under the Order.
Your position is political, not legal.
Even in the political context, your position is not tenable. Concerning the minority Christians, Trump said: “So we are going to help them.” That language cannot imply the proposition “So, we will grant them entry priority over Muslims.
David Brody’s question does not alter the case. Brody asked whether Trump will give the Christians “some kind of priority here”? We cannot infer logically that Trump’s statement’s final sentence relates to Brody’s “priority” question.
Even if we assume it does relate to that question, still the necessary further QUESTION is what “priority” means in Trump’s contemplation.
In Trump’s contemplation, “priority” may concern any of various prospects of a sizeable set of help-possibilities OTHER THAN permitting the Christians entry before or more readily than Muslims are permitted entry. One such possibility might be helping the Christians find some kind of sanctuary from being persecuted by Muslims within their current foreign nations of residence — while the U.S. proceeds to design and apply a stronger method or process of vetting all entry-claimants residing in the 7 nations Trump’s Order treats.
The federal judge who blocked Trump’s order thought otherwise, and his conclusion does seem a reasonable one given the way Trump has been running his mouth while a videocam was recording it all.
On Friday evening, after a hearing, Judge Robart issued a temporary restraining order, saying it was required to maintain the status quo as the case moved forward. He found that the states and their citizens had been injured by Mr. Trump’s order.
“The executive order adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel,” Judge Robart wrote. He said the states had been hurt because the order affected their public universities and their tax base.
The judge also barred the administration from enforcing its limits on accepting refugees, including “any action that prioritizes the refugee claims of certain religious minorities.” The State Department said on Saturday that refugees, including Syrians, might begin arriving as early as Monday. Syrians had faced an indefinite ban under the executive order.
Against my better judgement I’m including a link.
http://www.post-gazette.com/news/nation/2017/02/05/Trump-to-appeal-blocking-of-order-criticizes-judge/stories/201702050146
Two additional points: the federal judge was appointed by Bush the Dumber, and presumably he is a conservative Republican.
Finally, none of this is my “position”. I knew very little about this entire matter before reading Marjorie Cohn’s essay, though it was my conclusion Trump was behaving like an undisciplined dunce for not giving the matter proper consideration and rushing out an incoherent pile of crap which left him wide open to the attacks he has been getting.
Professor.Cohn’s “essay” is risible propaganda, not legal analysis. Were she my law student, I would award an F grade to her “essay.”
Judge Robart acted well beyond the scope of federal judicial power. His order will be reversed. He ought to be impeached.
The correct process and decisions were those of U.S. District Judge Nathaniel Gorton (federal District Court set in Boston, Mass)..
Judge Gorton issued a temporary restraining order to stay enforcement of Trump’s Order while he (Judge Gorton) considered motions, evidence, arguments, judicial precedents, and the various laws and constitutional provisions that could pertain. He limited the duration of the restraining order, which he set to expire today, 5 February 2017, unless he determined that the plaintiffs’ pleadings, the evidence, the arguments, and all pertinent law supported issuing a permanent injunction against enforcement of Trump’s Order.
Yesterday, Judge Gorton ruled that the plaintiffs’ claims had no merit, and he refused to extend the restraining order or issue permanent injunction and ruled that the temporary restraining order shall expire (today).
From Law Newz, an article entitled “On Trial: Why Trump’s Immigration Ban Will Win Over Seattle Judge’s Nationwide Order” dated February 3, 2017:
“Just a quick review of the two written orders can tell you which one is likely to win. The Boston judge cited a wide range of precedents for his decision in his detailed written order. The Seattle judge issued a short order devoid of almost any reference to any precedent, which is the “evidence” for lawyers on the law. Add in comments made by the Seattle judge verbally, and if any aspect of that is correct, the Seattle judge’s opinion will lose, and Trump’s position will win.
The Evidence
Both judges appeared to reject the position of many critics: both appeared to reject the position the First Amendment prohibits the order; both appeared to reject the position the Fifth Amendment prohibits the order; both appeared to reject the position that Congressional statutes prohibit the order. Both appeared to reject claims the order discriminated on the basis of speech or religion in any way that immigration law precludes or forbids. Instead, both agreed all that mattered is whether the laws had a “rational basis.”
Here is where the Boston judge and the Seattle judge appeared to disagree. According to reports of what was said at oral argument in Seattle, the Seattle judge believes rational basis review requires the law-making branches of government “prove” with “facts” presented in court that their position is the correct one. As the Boston judge noted, this interpretation of the law — inviting the judicial branch to replace the elected branches of government — is directly contrary to precedent. This is why the Seattle judge’s opinion is likely to lose out ultimately, and Trump’s will prevail.”
So unconstitutional bombing for the past eight years (and more), and not a peep out of anyone. Lose an election, and all of a sudden the Constitution is important?
When you start out with a bald-faced lie — “On Jan. 27, President Trump made good on his campaign promise to institute a ban on Muslims entering the U.S.” — I’d expect you to improve from that point forward. Alas, the jumbled mess that follows attempts only to persuade rather than to inform, ultimately failing at both.
The order is not unconstitutional, and it is not a “Muslim ban.” Excluding Iran, which is included for noxious reasons, the six countries that were included share an important characteristic: they are all failed states.
The issue is vetting, a process that is effectively made impossible by the absence of a functioning government that can verify information provided by nationals of the respective countries.
The five largest Muslim populations are in Indonesia, Pakistan, India, Bangladesh and Nigeria. In a crazy oversight by the Trump Administration, none of those countries are on the list!
I don’t agree with the ban, but vomiting up hackneyed legal analysis to prop up a false premise isn’t helping anyone.
I don’t think he’s learned his lessons yet. He just tweeted this:
Donald J. Trump ?@realDonaldTrump 2 hours ago
What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?
Answer: A constitutional democracy.
Joe Lauria – but you don’t have a “constitutional democracy”. The U.S. is a Constitutional Republic. There’s a big difference.
“America is not a Democracy. It is a Constitutional Republic. This is very important; in a democracy 50%+1 can render the 50%-1 slaves by mere vote. Those who are in the minority in a democracy have no rights at all. Democracy is best represented by two wolves and a sheep voting on what’s for dinner.
We are all minorities in some form or fashion. If you’re gay, black, yellow, male, female, whatever — all it takes is some other set of groups to get together and decide to oppress you, and in a democracy you’re ****ed. […]
There’s a very good reason our founding fathers designed a Constitutional Republic instead of a Democracy. They understand the problem with democracy: It doesn’t work. Democracy always ends up leading to riots and civil war, because exactly what the blue folks are doing now escalates until everyone starts shooting everyone.
A Constitutional Republic avoids this outcome because even a very large majority cannot infringe the rights of everyone else — even when the majority lives in big, concentrated places like cities.
That was the magic sauce of the original design in our legislature and Presidency. It’s why we have an Electoral College — to provide a bit of “overweighting” to those places that are utterly crucial to the cohesiveness and survival of the nation as a functional republic — that is, a bit more balance against tyranny of the majority of 50%+1.”
Your “story” sounds like one of the chapters in a “neatly packaged” paperback novel. We are living in a plutocratic-oligarchy. The wealthy and their political lackeys have temporarily commandeered the federal government, most state governments and many local municipalities. I see more auctions in our future. Are you ready to bid?
The greedy “tyrannical minority” needs to be reined in. These people have been allowed to “acquire” too much money, wealth and power. They have shown they are not equipped to handle the extraordinary mess they have created.
Democracy is not going to cause social upheaval; the ravages of greed, power and privilege will. Blaming the victim will no longer be an option. Ask yourself why the “real minority” within this group appears to act with such urgency and impunity.
“President Trump is getting a crash course on the U.S. Constitution’s separation of powers.”
No, President Trump is getting a crash course on the politics involved in the U.S. judicial system.
I’m aghast at trumpitys’ ignorance or is it his brilliant criminal mind?
…ignorance and criminality – minus the brilliance…
Much appreciation for this analysis. Trump and team now seem well in over their heads as it’s difficult to understand how ignorant bluster can be effective policy. Trump’s tweet here looks like the stuff of his campaigns, as with his tweet on UC Berkeley, threatening to stop federal funds, when it was the antifa mob doing the damage, not the university itself. All this and throw in an ignorant Samantha Power-like comment on Ukraine from his UN Envoy, and the ugly aggression against Iran from Flynn, and my fuse in being patient with Trump has quivered and shrunk even further.
The question is whether this bunch of amateurs can prevail against neocon insiders, with all their experience in slime and trickery over the last 20 years or so.
This look at Trump’s “court” is interesting (although I’m not usually a fan of The Guardian):
https://www.theguardian.com/us-news/2017/feb/04/trump-inner-circle-white-house-court
We must have enough Good analysis since we dont know the laws in-depth!
In spite of Donnelly’s order, CBP agents continued to detain immigrants at airports across the country and send them back, even though some could face persecution in their countries of origin.
In this instance, I’m reminded of the attitude of Hitler’s brown-shirted thugs towards Jews in Germany in the 1930s.
“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed, to me:
I lift my lamp beside the golden door.”
Liberty’s lamp is now flickering and at risk of being extinguished.
Statues of Lady Justice can be found around the world, this one atop London’s Old Bailey courthouse.
The photograph of Lady Justice above this note reminds me of another version of Lady Justice I saw on a British television show about 50 years ago. This statue was of a bedraggled and battered woman, visibly bruised with her blindfold more like a bandage on her head and her scales dangling at her side very much out of balance. The sculptor explained his title of “Justice Raped” to represent the then-state of affairs when Justice was being raped every day. Despite Obama’s repeated bullsh*t about no one being above the law, Justice is raped in America every day.
So many above the law, and 45 had many of them in his office yesterday: Vulture capitalists, banksters, rogues w/o portfolio, rent seekers, and, hat tip to Max Keiser, tapeworms in the citizens’ bellies.
Yes, US justice is blind to the facts and argument of every case, because it is more profitable
It’s okay to kill Muslims in illegal wars, but it’s not okay to ban them. I appreciate the ghoulish humor of it, even it Democrats don’t.
I was a Democrat until the Clinton cabal stole the primary from Bernie Sanders, and now I’m an independent, and I appreciate the ghoulisness of it. I have been very cynical about the protests, because I couldn’t help but wonder where all of these people were when Obama was drone and cluster bombing 7 Muslim countries. It would seem that Americans don’t concern themselves much with American induced massive casualties in other countries, or maybe it’s because the corporate media blacks out the truth and shills for the deep state, so people are ignorant because of propaganda. Either way, it’s appalling.
The Saker has some interesting views of these protests, supported by Paul Craig Roberts apparently, on the new “color revolution” that has developed as a fit tool for neocon interests. He has a look into the upcoming year in a piece dated Jan 12. I won’t give the URL because I fear the contents in this piece will not pass muster with consortium news moderators.
D5-5 – the article you are referring to is entitled “Risks and Opportunities for 2017” by The Saker.
“…people have clearly become the hostages and the serfs of a small elite, actually less than 1%, which is in full control of the real centers of power. The corrupt parasites (literally) who run this money-making machine will do everything in their power to prevent a return to power of the American people and they will never allow “one man – one vote” to replace the current “one dollar – one vote”.”
Democrats and even some Republican politicians (McCain and Graham) are against Trump. The media are aligned against him, taking delight in both agitating the public and keeping them ignorant of what is truly going on. People like George Soros are paying protesters to get in the crowd and start stirring them up. Most of the protestors don’t really understand that they are fighting against themselves, that they are aiding and abetting the 1% who are sending their jobs offshore, keeping wages down, etc. Absolutely oblivious to the fact that they are being used. The Saker writes:
“Michael Moore has just called for “100 days of resistance” following the Trump inauguration. While Moore himself is more of a (very talented) clown, that kind of initiative can end up becoming trendy, especially amongst the thoroughly zombified US Millennials and the butt hurt pseudo “liberals” who simply cannot and will not accept that Hillary has lost. We should never underestimate the capabilities of the Soros agents to start a color revolution inside the USA.
The US ‘deep state’ is also a powerful and immensely dangerous enemy whose options to oppose a “Trump Heavy” outcome include not only murdering Trump himself, but also to create another 9/11 false flag inside the USA, possibly one involving nuclear materials, and use it as a pretext to impose some kind of state of emergency.”
People are being paid to go on sites like this as well, to play with people’s heartstrings, to voice the humanitarian side of things in order to steer public opinion. This is a fight against the 1% who are ruining the country, and yet people are being fooled – again. The Saker article also says:
“It is ironic, of course, that Trump himself, and his entire entourage, come from these financial elites. But it would be a mistake to simply assume that if a person comes from one specific milieu he will always like and support it. Che Guevara was a medical doctor from a fairly well-off family of Argentinian bourgeois. Oh, I am not comparing Trump to the Che! I am just saying that the theory of class consciousness sometimes has interesting exceptions. At the very least, Trump knows these people very well and he might be the ideal man to break their current monopoly on power.”
Only if people start helping him, stop getting sucked in by the 1% propaganda. Open your eyes!
I am right there with you Chloe, I left the Democrats as well. The hypocrisy of these protests is overwhelming.
What do you recommend, giving Trump and the fascist cabal he’s assembling free rein? Ron Unz….we know about him out here in CA. If you’re thinking he has the absolute truth, you better check again.
This isn’t a party. I talk to the Millenials you disparage. Out here, they are bright and engaged. Sometimes I recommend they read consortium…though these days it comes with caviat.
Food for thought and grounds for further research. Certainly don’t take posts on sake as absolute truth.