Courts, International, Religion

Federal Court Stays Executive Order On Refugees
donald_trump_president-elect_portrait_cropped gavel2Yesterday, I discussed the constitutionality of the executive order halting all refugee entries to the United States.  Late on Saturday, U.S. District Court Judge Ann Donnelly ruled in favor of a habeas corpus petition filed by the American Civil Liberties Union (ACLU).  The petition was brought on behalf of two Iraqi men detained at John F. Kennedy International Airport on Friday.  As I discussed on CNN after the ruling, this is decision to stay not to enjoin. The latter will require a showing by the ACLU that it is substantially likely to prevail on the merits, a tough standard to satisfy.  Judge Donnelly effective froze developments in the case pending a hearing on the case.

Donnelly’s order below is based on the finding that irreparable harm would befall the two men for any ruling on the merits could be issued. Donnelly, an Obama appointee, will now have chance to hear the merits in a likely expedited schedule.

Trump barred Syrian refugees indefinitely. It also stops the resettlement of all refugees for four months as the administration reviews the vetting process.  He also denied entry for 90 days for anyone coming from seven countries: Iraq, Iran, Somalia, Sudan, Syria, Libya and Yemen.

 

As I discussed earlier, Trump has the advantage on the existing precedent though his statements about favoring Christians will complicate the defense of the order.  Before his interview, Trump was maintaining that the law was not religious based.  Indeed, a federal court should not presume that this is a “Muslim rule” given the fact that many Muslim countries are not subject to the order barring entry.  Whatever the suspicions of the Court regarding the motivations behind the law, it is not a blanket bar on Muslims.  Trump’s comments however then inserted an express religious preference into the debate.  That will not be helpful but there remains considerable authority reaffirming executive power over the borders of the nation.
Here is the opinion: ACLU order

273 thoughts on “Federal Court Stays Executive Order On Refugees”

  1. There will always be meddling by activist leftist judges attempting to force their leftist policies on America. That is why the leftists politicians put the activist leftist judges on the bench in the first place. So now the judge’s leftist order will need to be reviewed by a higher court.

    Unfortunately, the American people will only wake up to the dangers of leftist judges when one of the individuals they let in from one of the watch-list nations on the Trump list goes on to kill Americans. Nothing inflames the American public like a phony judicial system that lets criminals out on the streets to commit heinous crimes. When that event happens, the reversals of the leftist judges will be just as fast as Donnelly’s leftist order was put into effect, i.e., within hours.

  2. If I read the notes from the District Court in New York, the Assistant Prosecutors could not give the Judge a straight answer. They fumbled the ball.

    Also, in the state of Virginia a District Couty for the US issued a stay.

    I think that th government is going to have a hard time overcoming any presumption that was granted in favor of the Plaintiff.

    1. ‘ … Assistant Prosecutors could not give the Judge a straight answer. They fumbled the ball.”

      **************

      I’m betting that comment came right out of the hearing transcript and not the yellow journalist who published it.

  5. One more point. I think most would agree that government is waaaaaay too complicated. Having to run everything by the political bureaucratic class that has in its own best interest to preserve its own existence and not actually resolve anything other than the status quo and then moving on to another problem can to kick down the road.
    Change is painful. Trump has decided it’s time to talk not deny what troubles us.
    His crudeness requires clarity.

  6. We wouldn’t even be in this position if the left would’ve taken seriously the link between Islam and terrorism, rather than denigrating everyone one who notices the obvious connection as an Islamophobe.

  7. Damn Obama and his executive overreach! He bypasses congress, the courts and destroys the Constitution in the process! This is an affront to democracy! Who does he think he is a dictator! Oh, that was trump giving his umpteenth executive order in a week? Never mind……

      1. Roscoe,
        You must have forgotten the golden rule. “When my side does it, we are virtuous. When your side does it, you’re moral monsters.”

  8. In twenty four hours Trump and his clown crew have turned the idea that the United States is a hopeful beacon for refugees to ashes. Way to go Breitbart.

    1. I think you have to look at his clown crew may be crude but the arguments are out in the open and each side now has to get off it’s collective asses and show where they stand and provide their arguments to support those positions.
      It’s a little bit messy but I think productive.

    3. Oh no! We put our lives and security interests ahead of being a “hopeful beacon” for refugees !!! Damn poor marketers, I’d say. To make amends, let’s kill ourselves and give the country to the refugees. What nut is with me??

      1. Me! Plus, have you noticed how Christian the Left can be when it suits them? When it comes to killing your baby, or being a vile sodomite, then it’s “Jesus, hit the trail!” But when it is potential Democratic voters, then they pound the Jesus drum so hard, the darn thing busts. Then, we are supposed to be the martyrist of Christian martyrs, and sacrifice ourselves to the terrorists who are sneaking in with the refugee crowd.

        Squeeky Fromm
        Girl Reporter

  9. Christians are being persecuted for religious reasons and not for sect disagreements. Outright executed

  10. It appears that the Border Patrol is enforcing Trump’s EO and ignoring the judge’s stay. That is according to the NY Post this morning.

  11. I think it’s just like his NATO comments.

    There seems to be a legitimate concern about the issues he grabs a hold of. He is shaking things up and forcing some quietly discussed back room arguments out into the open, unfortunately a little too brashly.

    I think it’s good to get people to finally get off their asses and consider that rights are no to be taken for granted until they’re taken.

    1. It’s more demagoguery. It won’t accomplish anything positive except get Trumps box-office ratings up with such an arbitrary and unlawful order. In fact, he’ll piss them off enough that they’ll try to prove they can get around such an order.

      “I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” Art. II, clause 8.

      Less than two weeks in, having violated federal law, it doesn’t sound much like he’s supported the Constitution of the United States nor borne true faith and allegiance to it.

      Impeach his arse, and give Pence a shot at lawfully carrying out his duties.

      1. Civics has now become a combat sport. I like it. Sports, entertainment and social media don’t affect my life. Any form of government does. It’s about time full contact challenges to control happen. the idea that the law is neutral and immune from bias is ready to be flushed. Democracy works by arming people with knowledge and gunpowder. I prefer the former and the latter as a last resort.
        The idea that Trump is some sort of dictator ignores previous administrations from FDR to Obama.
        DC is having a convulsion right now and whomever revives the patient will have the advantage.

        Where in God’s name is DesperatelySeeking Susan to come and clarify this argument for us?

  12. This is what we have been waiting for from
    a legimately elected President.
    He is doing exactly what the people elected him to do.
    Of the 8 terrorists who committed those heinous atrocities in Paris
    5 of them got into the country posing as “Refugees”..
    Thank you Mr.President.

  13. I was unaware that district federal judges had that much power. I am sure they went judge shopping even before the EO was signed. If she has that much power, certainly a district judge in another district can over-rule her. In fact, since it is sooo ripe, I would take it to the circuit court immediately.

    1. PAUL:
      It’s subject to review by the 2nd Circuit where DJT’s sister sits and another judge is up for SCOTUS appt. It’s likely a short-lived order but the Orcs get a good grunt or two out of it. Stay tuned … it oughta look like this:

      1. mespo – we know it is going on appeal regardless. However, the idea of organized Orcs is more than I can imagine. 😉

      2. That was sooo racist! All the guys on horses were white, whereas all the Orcs were darker skinned weirdos (i.e., the typical Democratic Party base).

        Plus, how xenophobic of these people to try to keep the Orcs out of their territory! I would not be one bit surprised to discover that years of extreme vetting is what caused the Orcs to become so violent, twisted, and full of hatred! Oh, if only the Orcs had been allowed to peacefully immigrate this never would have happened!

        Squeeky Fromm
        Girl Reporter

        1. Well the Orcs did seem in need and all were women and children albeit with a little facial hair. So let’s let ’em in the castle walls and get em some pressure cookers, rat poison and ball bearings. Them there Orcs sure do eat funny.

  14. Like I said before, the Left will let its handpicked judge delay the inevitable while the orcs muster. She said in her ruling that the petitioners are likely to prevail on the due process and equal protection claims so her mind is likely already made up before hearing any evidence from the other side. How Leftist!

      1. Roscoe P. Coltrane – I never thought Orcs had the organizational skills to muster. 🙂

    2. Yesterday Mike Pence promises “Constructionist” Supreme Court pick. Neither side of the isle holds the patent on hand picking. What is our remedy? Perhaps a blind lottery appointment process to remove the strategic placement of judicial prefabrications into the system? Of course that would leaving everyone screaming at the dice.

      1. Perhaps a blind lottery appointment process to remove the strategic placement of judicial prefabrications into the system?

        Then it would simply reflect the rancid culture of the Bar. For the most part, the judiciary already does, and they have little integrity.

          1. Not at all. Rank and file lawyers who write wills, defend people in municipal court, handle real estate closings, handle bankruptcies, prepare tax returns, etc. etc. are not a problem. The law itself in these realms may be problematic, but the lawyers are not.

            Plaintiffs personal injury lawyers are a problem, but not a consistent problem. Prosecutors are not a problem if they’re honest. Unfortunately, a critical mass of them are frauds and arrogant frauds. Public defenders and legal aid lawyers are not a problem unless they’re (a) incompetent or (b) social justice warriors. Alas, some of them are one or the other.

            Trial judges are treated far too deferentially in our society and commonly allow absurdly time-consuming and expensive process (see Mark Steyn’s adventures with the DC court system and what he has to say about legal process in the US v. Canada or Britain). I find it grossly amusing that the median quantum of time to process a felony case which goes to trial in New York is 13 months from charge to jury verdict while it took the State of Arizona five years to get such a verdict in the Jodi Arias case (even though it was a fairly straightforward case).

            As for appellate judges, most of them are stupefyingly arrogant. Their arrogance is buttressed by the law professoriate, who provide them with fuel. These types conspire with the public interest bar, who are godawful.

            Then there’s BigLaw. Britain seems to get along without megafirms. It’s time we enacted a federal law which had the following provisions:

            1. No law firm with offices in these United States shall employ as associates or include as partners attorneys admitted to practice abroad.

            2. No law firm with offices in these United States shall employ as associates or include as partners attorneys admitted in any state other than the one where the firm is headquartered, except as follows:

            a. Firms headquartered in (list 10 counties) may include lawyers admitted in Pennsylvania, New Jersey, and Delaware.

            b. Firms headquartered in (list localities) may include lawyers admitted in Maryland, DC, and Virginia

            c. Firms headquartered in (list counties) may include lawyers admitted in Oregon and Washington

            d. Firms headquartered in (list counties) may include lawyers admitted in Missouri and Kansas

            e. Firms headquartered in (list counties) may include lawyers admitted in Missouri and Illinois

            f. Firms headquartered in (list counties) may include lawyers admitted in Iowa and Nebraska

            g. Firms headquartered in (list counties) may include lawyers admitted in Iowa and Illinois

            h. Firms headquartered in (list counties) may include lawyers admitted in North Dakota and Minnesota

            i. Firms headquartered in (list counties) may include lawyers admitted in Minnesota and Wisconsin

            j. Firms headquartered in (list counties) may include lawyers admitted in Indiana and Illinois

            k. Firms headquartered in (list counties) may include lawyers admitted in Indiana and Kentucky

            l. Firms headquartered in (list counties) may include lawyers admitted in Kentucky and Ohio

            m. Firms headquartered in (list counties) may include lawyers admitted in Kentucky, West Virginia, and Ohio

            n. Firms headquartered in (list counties) may include lawyers admitted in New Mexico and Texas

            o. Firms headquartered in (list counties) may include lawyers admitted in Texas and Arkansas

            p. Firms headquartered in (list counties) may include lawyers admitted in New Jersey and Pennsylvania

            q. Firms headquartered in (list counties) may include lawyers admitted in New Jersey and New York

            r. Firms headquartered in (list counties) may include lawyers admitted in Massachusetts and Connecticut

            s. Firms headquartered in (list counties) may include lawyers admitted in Massachusetts and Rhode Island

            t. Firms headquartered in (list counties) may include lawyers admitted in Georgia and Alabama

            u. Firms headquartered in (list counties) may include lawyers admitted in Georgia and South Carolina

            v. Firms headquartered in (list counties) may include lawyers admitted in Tennessee and Mississippi

            3. No person shall be admitted to practice in federal court unless the ambo of the court in question encompasses a state where he is admitted to practice, nor shall he be able to maintain his membership in that federal bar should he depart the state bar in question.

            4. No foreign citizen shall be admitted to practice in federal court in these United States.

            5. American citizens admitted to the bar abroad shall be deemed to have renounced their American citizenship.

            6. Any attorney admitted to practice in a given state must, should he seek admittance in a different state, resign from the bar wherein he was admitted in the first instance antecedent to or coincident with being sworn in to practice in the new state (unless the old and the new form a combination listed above).

          2. While we’re at it,

            1. End ‘Missouri plan’ selection. Any superior court judge elected to office (or retained in a referendum) should be eligible for appointment to a seat on a court of intermediate appellate review if he’s had four years service as a superior court judge. Any appellate judge elected or retained should be eligible for the court of last resort after 4 years service.

            2. Devolve the advise and consent function for federal district judges to state legislatures.

            3. Subject all federal judges and U.S. Attorneys to retention-in-office referenda

            4. Elect (or retain) judges for 12 year terms, bar municipal slots open to laymen, which would have 4 year terms. Elect judges and officers of the court in June, consequent to a petition process, and co-incident with no other elections bar ballot propositions. Mandate retirement (and truncate the term of office in consequence) at age 76. Allow disaffected citizens one try at a recall referendum during a judge’s 12 year term.

            5. Elect all judges and court officers of a given type on a quadrennial cycle (say, family court in year one, municipal court in year two, civil court in year 3, and penal court in year 4).

            6. Grant prosecutors and public defenders equivalent salaries and case loads

            7. Consolidate jurisdictions. A superior court and associated court officers (e.g. the DA) should cover a an urban district with a population of 250,000 at least or a non-metropolitan circuit with a population north of 800,000 at a minimum. Have no more than one coroner’s office per jurisdiction and have adjacent jurisdictions share coroners if necessary. Require all coroners to be board-certified pathologists.

          3. While we’re at it:

            1. Allow walk-ins to take the bar exam

            2. Replace the 3 year JD with a 48 credit working lawyer’s degree.

            3. Replace the BA degree as a pre-requisite for law school with a pair of preparatory certificates: an arts-and-sciences certificate which can be completed in 11 months and a business certificate which would take 6 months.

            4. Have law schools offer certificates in specialized areas of law for law-firm employees – anything from 3 weeks to a calendar year of study.

            5. Institute a 36 credit ‘judges degree’ atop the working lawyer’s degree for aspirants to the bench.

            6. Institute a two-year legal scholar’s degree atop the judge’s degree for aspirants to law faculties.

            7. End public subsidies for legal education.

            8. Close 1/2 the law schools in America. We could get along passably with 25,000 bar admissions per year.

  17. The order says in part:
    ENJOINED AND RESTRAINED from, in any manner or by any means, removing
    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, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.

    Looks like an injunction to me. Thank you Judge Donnelly.

  18. “Mr. Trump appears to want to reinstate a new type of Asiatic Barred Zone by executive order, but there is just one problem: The Immigration and Nationality Act of 1965 banned all discrimination against immigrants on the basis of national origin, replacing the old prejudicial system and giving each country an equal shot at the quotas. In signing the new law, President Lyndon B. Johnson said that “the harsh injustice” of the national-origins quota system had been “abolished.”

    Nonetheless, Mr. Trump asserts that he still has the power to discriminate, pointing to a 1952 law that allows the president the ability to “suspend the entry” of “any class of aliens” that he finds are detrimental to the interest of the United States.

    But the president ignores the fact that Congress then restricted this power in 1965, stating plainly that no person could 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.” The only exceptions are those provided for by Congress (such as the preference for Cuban asylum seekers).”

    https://www.cato.org/publications/commentary/trumps-immigration-ban-illegal

    1. How did the ten immigration oriented acts that followed the one of 1965 change, delete, correct, enforce or throw out any portion fo the law of 1965 or for that matter 1950.

      Without that information the conclusions based solely on the act of 1965 are suspect at best and cannot on their own be used to decide much of anything if anything.l

      You will note one of last passed had to do with a specific country does that excuse examining it in whole? Not at all. Most if not all congressional acts contains all sorts of little add on paragraph which later end up as pork or vote buying or ny number of unexpected surprises, They are called ear marks.

      There fore Every act has to be examined in detail and compared to every act that went before it.

      Cato one of my favorite think tanks is a Libertarian operation and that’s fine but they started out objectivist and ended up all over the place. Just something to keep in mind. Law is usually NOT subjective but very focused and objective. The 65 act could have been over turned in detail and then brought back in a slightly different form. Without examination we do not know.

      However… the one true and certain fact is in the Constitution itself not even in the amendments. The main purpose of government is to protect the citizens from enemies foreign and domestic it is followed by a second truism. Nowhere does the Constitution give rights of entry. It doesn’t exist. At most the acts only allow for application to enter and temporary permission. The only thing permanent is citizenship papers.

      With that information including the existence of the ten or maybe more acts of immigration you have a good start point but not a conclusion.

      By the time it’s settled and taken through it’s various stays, appeals, delays the whole issue will be moot. The system cleaned up and straightened out – exactly what happened to day with the individuals in question.

      It also served to exercise a rusty system called checks and balances and for citizens not non-citizens the application of the law and not the bad habit of ignoring it.

        1. It’s not particularly “white,” lots of green though and if you mean the world built by hard work, brains and family sacrifice, well yep, it’s pretty great. Thanks. We do have to deal with the occasional sentimental fool who seeks to shame us rather than reason with us, but thankfully because of their lack of ambition or just plain sloth, they are few and far between.

      2. if the complainers were interested in the welfare of refugees, they would immediately take them in. This is not a refugee question. This is a Trojan horse, an invading army posing as refugees. Trump simply called their bluff. He expected the blowback or he would never have done it in the first place. The best legal tactic is to drop an order on your opponent, and then let them expose their hand. In less than two days, he knows that Soros is fueling the fire.

        1. Good analysis, Sherry, although I’m not sure that all are invaders. They are undoubtedly cover for the invaders however. We need to come to grips with the manifest fact that there are lots of American citizens who simply hate this country and will do anything to harm their fellow citizens. Of course, there are the stupid too but the response is far too violent and sustained for that to account for all of it.

    3. Anthony: Thanks for sharing this. Should the precedent that Prof. Turley mentions supersede federal law? What about the precedent for torture superseding the federal torture statute?

      This was an arbitrary Executive Order in terms of immigration.

      In terms of securing the country against terrorism, it seems to me that Trump has just incited even more violence. Any red-blooded Sunni involved with ISIS will surely want to prove Trump’s EO won’t stop the threat, and there are plenty of radicals in other countries willing to help with a backpack full of explosives at the local mall on ISIS’s behalf.

      Trump’s a linear thinker, which is insufficient in the most powerful office in the world.

      Got impeachment?

      1. So the President issues an EO to temporarily suspend bringing certain refugees into our country. Why? Your argument proves Trump’s point. As a matter of fact, your “non-linear” thinking implies Trump did not go far enough. Our current vetting process “won’t stop the threat, and there are plenty of radicals in other countries willing to help with a backpack full of explosives at the local mall on ISIS’s behalf.”

        At least you acknowledge the threat is real. For Trump’s EO to meet your concern he would have to ban ALL refugees until a full review of our process is completed. That is unless this administration has data to support his EO over your recommendation. I’m going to go with Trump on that one.

        1. Bill Russell, the Celtic Hall of Famer, once said that he never did anything to aggravate and thereby give incentive/motivation to a competitor. Perhaps Trump should take a lesson from a black guy.

          Trump has violated federal law, and issuance of a temporary stay rather than first requiring the filing and determination of a motion for a preliminary injunction seems to me to be highly unusual were the judge not sending a message to the Executive that the order was unlawful. Don’t protect him.

          1. Steve Groen – since Democratic Presidents have used the same type of EO, I think this will have a hard time passing on appeal. You noticed that it was an Obama appointee to signed the order.

            1. Paul, this is a fascinating issue. Isn’t it? Do you have any evidence that when a Democratic President violated a federal law with an Executive Order that anyone challenged it? If so, was the challenge successful? And if you have no evidence of such a challenge, do you think the reason might be that not everyone is a Prof. Turley, who objects to a usurpation of the president’s authority?

              When Prof. Turley challenged Obama’s usurpation of authority under the ACA, everybody listened, including me. I thought the objection was absolutely appropriate. Why not now?

              Enquiring minds. . . .

      2. Thankfully, a singular non-linear (as in eschewer of quaint old linear logic) thinker like you is around to correct the duly elected POTUS. With that glowing attribute, you must have risen to lofty electoral heights. What was your highest elected office again?

            1. mespo, it’ll be fun to see the House try to rescind that portion of the ’65 Immigration and Naturalization Act, if that was the basis for the stay. It’ll be a short two years to boredom back in their hometown suburbs for them if they do.

              1. Nope, just a bigger Republican majority once the next refugee kills some of your fellow countryman. By the way, never got your highest elected post? School board?

  19. The rule indicates a preference will be given to persecuted minority religions, this could include Muslim sects. It is only a preference.

  20. Doesn’t appear to me that the Judge ruled in favor of the petition for habeas corpus. From my reading of the order, the judge is merely enjoining deportation. Not detention. Am I wrong?

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