Executive Redux: Administration Set To Issue New Order On Immigration

donald_trump_president-elect_portrait_croppedWord on the street is that the Trump Administration is prepared to issue a new executive order on immigration.  While I have maintained that the law favors President Trump on this issue and I have been critical of the decision by the Ninth Circuit, I have also maintained that the original executive order was poorly written, poorly executed, and poorly defended.  A second executive order could reset the litigation and cut away a key (and in my view questionable) component of the Ninth Circuit opinion in expressly exempting green card holders.  The new order reportedly does precisely what many of us have suggested while keeping the majority of the prior order.  By retaining the same countries and imposing the same conditions, the new order would protect the Administration politically from allegations that the President has backtracked.  It would also leave the core basis for challenges on the merits of such travel limitations.  I will be speaking on Capitol Hill on Tuesday about the President’s executive order authority at the US Capitol Visitors Center at noon.

According to unnamed Administration officials, the same seven countries (Iran, Iraq, Syria, Somalia, Yemen, Sudan and Libya) will be listed in his original executive order.  However, green-card holders and dual citizens of the U.S. and any of those countries are exempt. Moreover, the order will remove the singling out of Syrian refugees for a ban on entry.  Critically, as should have been the case in the first executive order, the new order would expressly exempt travelers who already have a visa to travel to the U.S., even if they haven’t used it yet.

The new order would also presumably retain the 50,000-per-year refugee cap, which reduced such entries by half and was not suspended by the earlier court orders.  Given the 35,000 entries thus far this year, that would leave only 15,000 spots left.

 

The Ninth Circuit ruling was light on legal analysis concerning the President’s recognized authority under statutory and constitutional law.  One of the key components was standing and the Court used green card holders as a class with continuing harm from the order despite their exemption a few days later.  White House counsel Donald McGahn issued an order that the travel restrictions would no longer be interpreted to apply to legal permanent residents.  However, the Ninth Circuit ruled that “The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order. Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order.”  The inclusion of the green card holders as injured parties was critical for the Court since aliens outside of the country are not protected by the Constitution to the same extent as citizens or aliens within the country.

 

The executive redux is a smart move that allows the Justice Department to fight on its chosen ground.  It will hopefully improve the drafting, but there will also be a need improve the defense of the order in court.

82 thoughts on “Executive Redux: Administration Set To Issue New Order On Immigration

  1. The Trump Administration should retain a private law firm to defend the Order. And all Executive Orders. They shouldn’t trust the DOJ, which is stocked with liberals and Obama holdovers. The DOJ can be counted on for a tepid response if the new EO is challenged, which it most likely will be.

    • So taxpayers (of which the Steak-Salesman isn’t one) should pay for a private firm and the DOJ? I thought this country has too much debt.

      • Are you serious? Reducing the number of illegals, refugees and terrorists in the country will cost the taxpayers far, far less than the legal fees associated with drafting and defending an Executive Order!

    • The WH will be appointing a new Solicitor General, who will hire staff, and this SG team will have the job of defending the Govt. in Federal Court actions. I would not worry about Obama holdovers.

    • Maybe Trump should hire JT to defend the orders of the new EPA director. The Trumpers appear to find the idea of clean water and clean air abhorrent.

      • Not according to Pres. Trump’s statements. The citizens have a right (in Federal Law) to have Regulations that meet the stated goal with the “least burdensome” approach. Oftentimes, bureaucrats ignore this Law, and impose unnecessary burdens in the way they design regs. You shouldn’t assume that criticism of the EPA == disparaging the goals of clean air & water. It is more likely castigating the heavy-handed, burdensome, micro-managing design of regs.

        • For sure these new regs are less burdensome on the fossil fuel industry. They can pretty much pollute the air and water at will with this new administration.

  2. Bradd Jaffy ‏@BraddJaffy 1h1 hour ago

    AP has a draft of new travel ban: Same 7 countries, visa/green card holders exempt, Syrian refugees not singled out
    http://apne.ws/2lyDzEs Looks better on a first pass. The first one was drafted by a chaotic whitehouse that unleashed their chaos on the rest of the country.

  3. The flaws with this order by the Buffoon in Chief is that it is nothing more than grandstanding and a contest involving urine. He could easily simply ratchet up the restrictions and controls regarding all immigrants from all countries, without dealing with the courts. If he was’t such a hypocrite the thousands of tech workers imported from India to work at Disney, throwing hundreds out of work, would go home. DDT talks out of both sides of that fish mouth. He has illustrated the worst attributes in a politician, those that typically come after attempting to put stuff through the ‘swamp’. DDT is a worse and vastly more toxic swamp. If only ‘The more things change, the more they remain the same.’ In the case of this shame, we have a pathological liar who is next to totally incompetent for the the job.

    • So are you suggesting that the known criminal and pathological liar who was next to incompetent in all her previous posts and who passed out on 9/11 before the entire world, suffered multiple falls and concussions, and propped up a tongue-chewing, drug using, womanizing, philanderer hick of a so-called husband would have been better for the country? You are so wrong that it hurts to read your words.

      • What hurts is that Clinton and all the other politicians start off with a substantial degree of ability and good intentions. When they wade into the swamp the other side, and that’s the problem-one other side, obstruct and harpoon until when enough time goes by failed good intentions are perverted and seen as lies. This is a fact of political life, more so in the US than most countries. With DDT, he skipped all that and started off about 60% lies whether necessary or not, and 40% BS for the dupes that voted for him. Yes, I would take the Clinton variety of sleaze rather than the insecure, megalomaniac, lying, cheating, hypocrite that is so self obsessed he wears a rug and every time he’s caught in a lie he takes again to the campaign trail for ‘attaboys’. DDT is beyond the limit regarding all the negative aspects of leaders. A six time bankrupt/cheating workers out of wages, a shameless panderer to the mega wealthy, semi literate, and worst of all incompetent. We are all going to hurt a lot worse than the effects of my words. The question is who will you blame after the idiot cowboy Bush already established the record for incompetence and then along comes DDT and leaves him in the dust? Obama of course, the guy who righted the ship and plotted the course that DDT will take credit for. It has already begun; among the ridiculous lies DDT spews are the ones that he, and he alone, is responsible for actions by US firms that were decided a year plus ago. Oh yeah, instead of the reality of now being the lowest crime and murder level in the US in 40 years; according to your hero it is 180 degrees the opposite. What is really scary is that when DDT says that black is white, you and yours believe him. Now that goes beyond hurt.

        • Isaac – do you still believe that only one side obstructs, now that the Democrats are openly vowing to obstruct Trump at each and every turn?

          Let’s just judge Trump on all of his actions as they come, rather than his hair or tan.

          So far, I’ve disliked his handling of the EO, and his choice of Energy Secretary. I’m waiting and seeing how it goes down at the EPA. Are they going to get rid of the over-reach, just as the misapplication of wetlands designation, or are they going to jeopardize true environmental protection. We shall see.

          On the other hand, in a mere 3 weeks, he’s tried to reduce the danger of Islamic extremism with an EO he has not reworded properly, negotiated with several large companies to save thousands of jobs, and he’s deported dangerous illegal alien felons such as pedophiles, and made a few key appointments.

          So far, mostly good with a couple of actions with which I did not agree. Hardly the reincarnation of Hitler.

        • Oh Isaac, honey, let’s talk about reality…..

          You actually believe this statement of yours? “Obama of course, the guy who righted the ship and plotted the course…” I’d love to hear some specifics to back that up. Here’s how I see it…..

          Obama told us all how HE saved the world economy. Yes, a pot-smoking community organizer with absolutley no business experience who came out of nowhere saved the economy with his financial savvy. False. So. Very. False.

          Obama told us how HE saved the auto industry. False again.

          Obama’s assured us that his policies were about rebuilding the middle class which in turn strengthens the country. False. But he did double the national debt to unsustainable levels and rammed the unaffordable Obamacare down our throats. He weakened the military. He went around the world apologizing for America and he bowed to other foreign leaders.

          Nobel Peace Prize? Let’s talk about Obama’s drone program, destabilization of Libya, Yemen, Ukraine, Syria, withdrawal of all troops from Iraq against all best military advice, and the rise of ISIS (or ISIL – as only he and his administration calls them).

          Obama’s Russian reset? Failed. It seems we are in a new cold war with Russia. The media are now calling Trump a Russian puppet? Huh. I wonder why the media never made a big deal about the Uranium One deal made under Hillary’s State Department, approved (not vetoed) by Obama, that gave Putin control over much of the world’s uranium supply – after which huge sums of money made its way into the Clinton Foundation coffers. Not much interest by the media in pursuing this story.

          And not much interest in pursuing what Obama meant when he uttered the words, “I’ll have more flexibility after my election….” https://www.youtube.com/watch?v=Py8BF0hHPnc

          I don’t know what “ship” you think Obama “righted” but here’s what I believe Obama DID do. He perfected the art of propaganda and the spinning of false narratives. And of course this was always done with the help of the media that he kept in his back pocket.

          To use your own words, “what is really scary is that when (Obama and the media) says that black is white, you and yours believe him.”

          Bottom line? Given the choice between Clinton and Trump, Trump was the correct choice for the country at this time. No doubt about it.

          • Milo is not racist. In fact, he preferentially dates black men. He’s quite anti-PC, adores ruffling feathers, and has that British dry wit with a good dash of snark thrown in. He’s also passionately against the spread of radical Islamic terrorism, quite rational, really, considering they kill gay men and he’s gay and gay hate crimes are rising among immigrant communities.

            I’ve heard him called a white nationalist. As far as I can see, the only justification for that is that he’s white, and that he is concerned about the spread of Islamic extremism as an existential threat to not only the gay community, but Western values. Obviously, a gay man would prefer Western ideologies to the alternatives. I don’t think that makes him racist; I think he has concerns. And our society would be so much better off if we could discuss concerns without dismissing the person with whatever ad hominem label lies to hand.

            • Milo goes PC to attempt to climb out of a deep hole:

              “Yiannopoulos has so far not commented on his CPAC snub. But he fought back against his critics in a long post Monday on Facebook that he called ‘a note for idiots.’ He denied being in favor of pedophilia, acknowledged he does believe there are relationships between “younger men” and older men that can help a young gay man, and admitted he shouldn’t have used the word ‘boy’ in discussing those relationships.

              “‘That was a mistake,’ he wrote. ‘Gay men often use the word ‘boy’ when they refer to consenting adults. I understand that heterosexual people might not know that, so it was a sloppy choice of words that I regret.'”

              http://www.usatoday.com/story/life/books/2017/02/20/could-milo-yiannopoulos-now-lose-his-lucrative-book-deal/98156040/

              There may be a job opening at Penn State for a linebackers coach if he hurries.

              • Sandusky was a pedophile rapist, enabled by those who ran the Penn State athletic program. Inexplicably, an assistant coach actually walked away from the rape of a young child in the showers.

                After reading his rebuttal, how do you compare Milo, a victim of sexual abuse, with Sandusky? A younger gay man of legal consenting age dating an older gay man of legal consenting age is not a support for that vile crime, pedophilia.

                Pedophilia is such a hideous crime that one should be very careful that the charge is warranted before leveling it. It renders the perpetrator at the very lowest strata of groveling slime. So just be quite sure that it is a true statement before wielding it.

                • It is not my understanding that Milo is a member of NAMBLA, which is a pedophile association. I believe your article had the quote, “If your keynote speaker would be welcome to give an address at either CPAC or NAMBLA, you’re doing something wrong,” Carter added in reference to the pro-pedophila North American Man/Boy Love Association, alongside more tweets condemning CPAC.” I do not know if this is solely because they mistakenly thought Milo was a pedophile, of if Carter is one of those who believes that all gay men are also pedophiles.

                  I absolutely believe that any and all accusations of pedophilia should be thoroughly investigated. So far, I am satisfied with Milo’s defense. It is true that gay men will call a young, adult gay man a “boy” or a “whelp.” They call each other “girl” or “bear” as a descriptive sign of affection sometimes, too. I say this as someone who was taught how to dance the tango by a drag queen dressed as Red Riding Hood in Hollywood.

                  Milo has said that he agrees with the age of consent, which is 16 in the UK, that after that age of consent young gay men will often form relationships with older gay men, and he’s pointed out that he’s helped catch 3 pedophiles. I have nothing against any of that, although I personally think the age of consent should be 17 or 18. But it’s always been a bit younger in UK. If any contrary information comes out that Milo is a pedophile than of course I would reassess. But as it is, it sounds like a misunderstanding, combined with a prejudice that gay men are pedophiles.

                  CPAC might have a bias against Milo because he is gay, and his comments just exploded that.

                  I am a Christian, and I am a Conservative in many areas, but I am not a Christian-Conservative.

                  • “But as it is, it sounds like a misunderstanding, combined with a prejudice that gay men are pedophiles.”

                    No prejudice here, but Milo’s statement smacks of evasion more than explanation. His description of the relationship between a man and a boy (where the boy is actually of legal age) is rife with predator innuendo, which is the essence of NAMBLA.

                • Dave T – I have known a great many Muslims – Afghanis, Pakistanis, Palestinians, Persians, Lebanese, Jordanian, Saudi, Egyptian. That’s all I can think of but I know there are more countries in there. I’ve been to many Arabic clubs, hookah bars, Muslim parties, Muslim events, mosques, taken Egyptian, Turkish, and Persian dance…I know I’m always harping against extremism, and that can give the impression that I’m anti-Muslim. I’m not. I’ve known and adored a great many moderate, Westernized Muslims. And there is a lot about the Old Country generation that I also like – the extreme attachment to family, the fact that parties will have 3 generations out on the floor dancing, the tea, the hospitality…But I’ve known so many Muslims that I’m not blind to the differences between the Old Country values and Western values. Those born here, brought here as kids, or who specifically came here to escape extremism are very, very different than those who came here for other reasons. The Westernized Muslims are a bit nervous about going back to their parents’ home countries to visit, and in fact one girl was arrested in Iran for wearing nail polish and for driving in a car with a man with a different last name (her maternal cousin.) Her father had to deed a property to the judge to get her out of there ASAP. In Iran, bribery is kind of viewed like tipping – you have to bribe the trash guy, the mail guy, law enforcement – all day long.

                  It’s kind of shades of grey among those raised in the ME. You could have a family who tried to help a daughter’s friend escape an arranged marriage as a teenager, but they could also be anti-Semitic and think homosexuality is a capital crime. Or you could have a guy who had no problem with gays, but thought Jews should all die. There was the wife forced to have an abortion here in the states and sleep on the floor. The arranged marriages. The beatings. Those who tried to stone the neighbor’s Dalmation because they believed dogs were unclean and shouldn’t be so close to their own home. A Jordanian I knew sent his daughter back home to escape a crazy stalker ex-boyfriend. He called her relatives in Jordan and told them she’d slept with him in an effort to get her killed. Luckily, the father was a good man and then had to get her out of Jordan ASAP and back home, where he arranged a marriage for her with her blessing. He told me if he were home, he’d just kill the guy and bury him in the desert, but he didn’t want to break the law here. There was good with the bad, but it’s abundantly clear that it’s a whole different world in the Middle East, and that people don’t miraculously lose their values and mores the moment they set foot in the US, any more than the KKK would suddenly embrace African Americans if they traveled to Georgia.

                  It’s not Westernized Islam I have any problem with. Out of all Middle Eastern countries, Egypt was my favorite. Yes, they simultaneously admire and despise belly dancers, but they are also very hospitable and generous. Because of the Arab Spring, that cosmopolitan country has regressed to more extremism, and the touts are absolutely out of control with female tourists. I am sad at the changes I hear about in Egypt, and hope it reverts to the rather tolerant nation it was before. That said, it was no US. There were still differences in how women, Jews, gays, animals and government critics were treated. But out of all of them, the culture had a lot to enjoy.

                  To sum up my rendering post, I believe that all religions go through a reformation. Islam is not exception. It does not get a magic pass and escape the changes that all other faiths had to painfully undergo. It’s treatment of women, gays, Jews, and apostates is atrocious. And as a feminist who wishes for everyone to have human rights around the world, I have a problem with how many people are treated, not only in the ME, but around the globe in other non-Muslim countries. Muslim countries have their own issues specific to Islam as well as cultural norms. Not all Muslim countries are the same, but women and gays do not fare well there. Turkey was one of the most secular. But, although it had laws protecting gays, the abuse of gays was tolerated while the police looked the other way. Now, under Erdogan, Turkey, too, is spiraling down the black hole of extremism. And of course, I comment about that. Islamic extremism is bad for the globe if you value equality and human rights.

                  I don’t care if people want to bundle the women up, pray on the ground 5 times a day, or have a dress code as long as it’s voluntary for adults, and they don’t harm anyone. Extremism is neither.

                • Bush is respectful of women and to my knowledge has never been accused of abuse – sexual or otherwise. Cannot really be compared to the current occupant of the white house in that regard.

              • Milo is a disestablishmentarian. Which means by definition he would be rejected by both the Left and the Right Establishment.

                It’s troublesome how normal it is to call someone a Nazi. The Nazis killed something like 6 million Jews and 6 million non-Jews. They made lampshades out of Jewish skin and stuffed pillows with Jewish hair and killed men, women, and children.

                And many want to apply that term to those with which they disagree politically??? it diminishes the true horror of the Holocaust. If CPAC considers a snarky gay satirist to be a Nazi, then they are making that comparison in error.

  4. Another interesting proposed executive order is coming vis-a-vis rescisson of Obama’s own EO apparently due to take effect in April re fiduciary duties of investment houses owed to their clients.

    Was Obama’s EO constitutional, and if so is the “so-called” President’s proposed rescission reflective of a populist (which Trump claims to be)?

    • You might have noticed that one of the purposes of the EO’s is to elicit a response and an immediate reaction in order to get one of the messy areas of the swamp seen too. Something about using the bully pulpit seems to get stuff done a lot faster using the immigration as a damn good example.

      Imagine the trek from disagree to SCOTUS without the BP EO’s

      I’m waiting to see the attack on Money as Free Speech but in the meantime cattle prodding the courts into actually commenting on the ‘legal’ portions versus the fluff stuff is very useful.

      Sometimes you can lead them to water and theygo Huuuhhh??? OH? Water! How about that?

      The snowflakes will do whatever they are programmed to do and don’t matter anyway and the Democrat/Socialists took a vacation to plot some other form of idiotic excuses for not knowing how to run a campaign.

      Let’s hope they keep going after the Republican myth and never wake up. Stupid is as stupid does.

  5. I’d keep ’em coming every time some numbskull judge pushes his nose under the national security tent. These unelected wannabes have no expertise in the subject matter and want to risk our safety for their version of civil rights. The Ninth Circuit’s order conceivably giving a due process hearing to aliens outside the country is akin to ordering one for every rebel who charged the Copse of Trees at Gettysburg before Hancock could issue the order to fire. It’s a suicide pact and hopefully SCOTUS sees it for what it is.

  6. I’m sure four of them do. By then it will be five. One I’m sure does not and is still fixating on dreams of girl head and 12 years as the age of consent. Too late and too long in the fangs. It does remind me of Pelosillyni though and remember if they get too carried away even Scotus can be impeached and tried. Non Compos mentes for Ginsberg is a good charge. Protect our Children!

  7. A question that I have is the back-door, so to speak, way of enabling Christians and Jews head-of-the-line privileges, if and when entrance is re-established. That primarily is provided in allowing for some sort of exemption to persons of minority religions, in countries that are overwhelmingly (say 90%) Muslim.

    • Hmmmm, so Islamic Middle Eastern countries kill their Christians and Jews, and then seek tolerance as “Muslim majority” countries? The Trump EO, if you had bothered to read it, gave preference to members of persecuted minority religions. In the case of Islamic countries, it is generally Christians and Jews who are being slaughtered and their houses of worship destroyed. Although if other religions, such as Buddhists, Sikhs, etc., are being persecuted in those countries, their adherents would qualify as well.

      • The people who we would, in effect, be discriminating against–albeit Muslims–are similarly caught in the crossfire of war.

        Do we condemn all Christians because Timothy McVeigh bombed Oklahoma City, Adam Lanza killed 27 people, mostly small children in an elementary school in Conn, or a White Supremacist killed 9 people in a church in Charleston?

        Those terrorist are no more Muslim than (assume,idly) you or I, but just terrorists hiding behind a religious shield!

  8. I’m glad they re-wrote it. It was badly written, and it could have separated families if a green card holding parent was traveling during the time of the band. I have friends who lived for many years overseas on a visa, where the husband had a job that required extensive travel. They shuddered to think how this could have affected them if their host county had enacted a similar ban.

    Now that it’s been corrected, it will of course end up back in court, but at least it will be properly written and executed.

    As for the refugees, I have a relative who lived near the area in ID where they accepted refugees. A few Muslim refugee boys sodomized and then urinated on a 5 year old girl, and took video of their crime. Another refugee molested a mentally handicapped woman. The locals said that their politicians accepted money to house the refugees. Housing was tight in town, but he put the refugees in an apartment complex, as well as other places, which made housing almost impossible to find for the locals, and very expensive. The refugee apartment complex immediately got a reputation for crime such as theft. According to my relative, the town did not want the refugees, the town suffered crime when they arrived, and the politicians didn’t care because they had their money. Instead of taking refugees from diverse areas, as had happened for decades, the town started super concentrating refugees from areas of Muslim extremism infamous for human rights abuses. The town went from predominantly Mormon to veils being commonplace, and crime increased. Some employers have been accused of giving jobs preferentially to refugees, which hurts the job market for the locals. The town sentiment has turned rather forcibly against the refugees, and the town is far worse off for having received them.

    It is harder for them to assimilate when refugees are super concentrated. It is especially important when people come from areas infamous for human rights abuses, and they were forced to come here rather than choosing to leave it all behind, that they get spread out among Americans. Perhaps that will give them a chance to incorporate our Western values.

    • The obvious answer is for the voters to throw the corrupt politicians out of office. It’s like what’s happening in Sweden, Norway and Germany. If the citizens don’t care enough about their own country and culture to remove the politicians who allowed that to happen, then I have no sympathy for them.

  9. In reading a bit of history I was surprised to learn that ancient kings really had no source of money for wars until they discovered that the courts could provide all they needed in the way of taxes, fines, fees, and other means of extorting money from the accused.

    The law, it seems, is so ambiguous that even Supreme Court Justices cannot agree on what it says.

  10. It’s very important that the Trump Admin. get the Commission on Radical Islam started as soon as possible.
    That team has a key role in developing policy alternatives, and laying the legal foundation for the ability to go into Federal Court with the argument at Islam is NOT one cohesive region, but rather is on the process of a schism cleaving it into sub-religions, Secular Islam and Political Islam (exact terminology to be developed by the Commission). This will form the basis for arguing that any 1st Amendment test be applied individually to the two sub-religions. This line of argumentation will require meticulous preparation.

  11. Jonathan: your continued support of Trump and use of your education and skills to help this sick person gain credibility and to carry out his xenophobic agenda belies your education and feeds into the reasons why many people believe that lawyers are not worthy of respect–because they help bring about injustice. How sad. “Radical Islam”–why is it that Trumple thinskin isn’t going after other predominately Muslim countries where the 911 terrorists, for example, actually came from, such as Saudi Arabia? Could it be because he has hotels and other business interests in Saudi Arabia? Is this why he won’t release his tax returns–so we can’t vet him and impeach him due to his violations of the emoluments clause? That someone with a quality education could support this pussygrabbing, lying monster is unbelievable. I lost whatever respect I had for you.

    • Natacha – did you read the original EO? The countries are not explicitly named, but are pursuant to a law passed by *Obama* in which the DHS evaluated and designated those countries as areas of concern as per terrorism. The DHS under Obama came up with the 7 last Jan or Feb.

  12. JT: Lets have a topic on the Korematsu decision of the Supreme Court. We can discuss the opinion of Hugo Black.
    We do not have to have a Pearl Harbor event to give Trump the power given to him by the present statute already.
    Review every single person who holds a visa or green card who is now outside the country before letting them back in. Vet any person whether citizen or not who comes in from a terror territory. We can call that TT Vetting.

  13. I’m late to this party but several earlier responders referred to DDT.

    I guess I thought it was DJT who was elected. Now if “DDT” is a Freudian slip, then I’d say I agree but for a different reason. The dust works wonders in getting rid of lice and other parasitical infestations.

    • DDT or Despicable/Deplorable,Disgusting (take your pick), Donald Trump. DDT does work wonders and then hangs around to cause cancers, destroy animals, and basically leave an environmental stain. This is precisely what DDT is, fast action with incompetence and poorly researched, yet easily bought into by that portion of the population that allows others to do their thinking for them, commonly known as dupes.

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