Federal Judge In Hawaii Enjoins Second Executive Order

donald_trump_president-elect_portrait_croppedDerrick_Kahala_WatsonLast night, U.S. District Judge Derrick K. Watson issued a
temporary restraining order
that prevents the second immigration order of President Donald Trump from going into effect on Thursday.  The 43-page opinion is scathing and relies not only on the statements of President Trump but the recent statements of his chief aide Stephen Miller.  While I respectfully disagree with Judge Watson and view his decision as contrary to the weight of existing case law, the opinion again shows the perils of presidents and their aides speaking publicly about litigation.  Political facing saving comments can be case legal damaging comments.  Yet, I still believe that Judge Watson relied too much on campaign statements and television interviews to overcome the facial neutrality of the language of the executive order.

Watson found that there was a “strong likelihood of success” for challengers because “a reasonable, objective observer — enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance — would conclude that the Executive Order was issued with a purpose to disfavor a particular religion.”  He strongly dismissed the argument that this is not a religious ban since it did not impact the vast majority of Muslims: “The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”

As predicted, the Court also relied on the series of delays in the rollout of the second order as evidence that undermined the national security rationale: “Other indicia of pretext asserted by Plaintiffs include the delayed timing of the Executive Order, which detracts from the national security urgency claimed by the Administration.”

Watson used  Trump’s own campaign trail comments and observed that “there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’” He also cited the ill-considered and highly damaging public comments of Rudolph Giuliani saying that he was told by Trump to find a legal way of doing a Muslim ban.  He even relied on a press release:
The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” Govt. Opp’n at 40 (citing McCreary, 545 U.S. at 862). The Government need not fear. The remarkable facts at issue here require no such Case 1:17-cv-00050-DKW-KSC Document 219 Filed 03/15/17 Page 34 of 43 PageID #: 4389 35 impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)).
He also cited the comments of Stephen Miller from a much criticized public interview.  In the interview, Miller (who reportedly played a major role in the first order) insisted that the second order did little beyond addressing  “mostly minor technical differences.” Of course, the problem with that statement is that the first order was found presumptively unconstitutional by the Ninth Circuit.  Due to the poor drafting and poor defense of the first order, the Ninth Circuit ruling was not vacated and is still good precedent. Hawaii is in the Ninth Circuit.  So, if the second order is basically the same, the court could conclude that it was on good ground to assume that the same basis for the Ninth Circuit opinion still exists with regard to the second order.
It is certainly true that the Supreme Court has been has said that courts may not “turn a blind eye to the context in which [a] policy arose.” McCreary Cty. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 866 (2005).  However, I do not see how the use of these ill-considered comments can establish that the stated purpose of proper vetting is “secondary to a religious objective.”
As previously discussed, I believe that the odds favor the Administration in prevailing in the long run.  It could face a mix of decisions on the lower courts as it did with the first order. However, this order is a better product and presumably the Justice Department will markedly improve its performance in the defense of the order.  I do not see how a strong likelihood of prevailing could be maintained on existing case law, particularly under the establishment clause.
Notably, the Court (like the Ninth Circuit) does not discuss the President’s sweeping authority under INA Section 1182(f): “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate”  Moreover, since the Court rules on the basis of the First Amendment, it does not address the statutory claim that the President cannot discriminate under the INA based on nationality — an argument that I have been critical of in past discussions.
Notably, the decision to go with the establishment claim over the due process claim reduces the weight of the earlier precedent.  The court also give surprisingly little attention of the record on poor vetting procedures in these countries and discussing the basis for the order — a serious flaw in its analysis.  The decision spends more time on the atmospherics of the campaign than actual case analysis.  It is not a particularly strong case and I believe is highly vulnerable on appeal as the Administration moves toward the Supreme Court.
Here is a copy of the opinion.

120 thoughts on “Federal Judge In Hawaii Enjoins Second Executive Order

  1. The President undercut his Administration’s legal position last night on Nashville, by publicly discussing the 2nd Exec. Order, and by describing it as “a watered-down version of the first exec. order”.

    This Pres. made a promise in the campaign he hasn’t kept to impanel a Commission on Radical Islam to guide the government through policy changes. He badly needs this advisory body. The next crisis is just a month away (the referendum in Turkey, and possible retreat of Turkey from its Western alliances), and misunderstandings are just piling up regarding this alliance.

    I thought the Trump Administration would be able to thread a better policy regarding fundamentalist Islam, but I now see that they lack the subtlety, clarity and nuance required for the task. They have allowed their detractors to oppo-brand the position of the US govt as being anti-Muslim. To me, that was inevitable to some degree in the “infowar” environment we live in. It remains in question whether Trump can establish his Commission composed of Reformist Muslim voices. They may have decided in advance that the Pres. and his top advisors will likely ignore the advice, and that it would damage the Muslim Reform movement to associate with the Trump Presidency.

  2. Perhaps it’s time Trump recognize the Separation of Powers Doctrine and tell the judge, “You’ve made your ruling, now let’s see you enforce it.” Trump could still appeal to the Supreme Court, but in the meantime he could do his job.

    When it comes to aliens entering the country, border security is beyond the reach of the courts, and for good reason.

        • Jack, all Congress has to do is change the immigration law if Trump usurps it. If you think Trump has the political support to call out the 101st Airborne to smother an insurrection by the Judiciary or Congress, I think (and, more aptly, hope) you’re wrong.

          Believe it or not, Trump and his band of merry sycophants are showing how amateurish they are.

          • Sure Steve, every attempt to administer government according to the rule of law will be perceived by those sycophants supporting the administrative state as “amateurish”. Apparently the electorate thinks otherwise and would like to see your “professional political class” stop “helping” them already. 🙂

          • Congress has the recognized authority. The judiciary does not. – Why is it that so many liberal attorneys recognize checks and balances, but fail to recognize a separation of powers? – Simply put, securing the borders from foreign threats is beyond the jurisdiction of the court? The discretion as to who presents a threat is up to the Executive, and is only checked by Congress.

              • The law needs to be examined as written. Campaign rhetoric is not law. It never has been and never will be. If it was, if you liked your doctor, you could have kept your doctor.

                • Exactly! Citizens have a duty to vet their prospective constitutionally-qualified candidates for public office. These candidates go through the election process and then the citizens select the candidate they believe will best serve their interests. IIRC it was Obama that stated “elections have consequences”. This past election cycle reflected the consequences of a party not in tune with the American people.

                  Now that the election is over, it is the duty of the citizens to remain vigilant over those that have been elected (and appointed) to make sure their actions conform with the rule of law and separation of powers. That is how our constitutional republic was designed to work. This obstructionism is beyond sour grapes; it is reckless and it is playing a game of chicken with our national security. solely for partisan politics. I couldn’t care less what all politicians have said on the campaign trail. The time for THAT vetting is over. The DNC will rue the day their obstructionism costs lives and property. That will be on their tombstone.

                  • Correct! It’s dangerous for the country to permit judges to open the borders to anyone other than citizens and lawful permanent residents.

                    Socially liberal attorneys are behind this. They want rule by judicial fiat (or Yugo).

    • Absolutely. The judiciary is claiming powers that do not belong to it so let’s see them enforce their unconstitutional power grab.

  3. Nero Fiddled as Rome burned. I can see the decision behind the decision. Even though the EO may be facially neutral the implications are the same as the original order. I have read numerous articles and occasions the CBP is hassling Muslims, specifically M. Ali’s jr, has been detained 2 times for numerous hours. Sorry he is a US citizen. The Muslim Ban is being broadly applied catching All Muslims.

    • Now that would be profiling and it doesn’t matter if the robber being reported and chased is in an all muslim neighborhood or an all black neighborhod or an all latino neighborhood you Must not say the robber looked caucasian of Scandanavian characteristics.

      So look at the latest Somalia area piracy? How would you characterize that to an arriving rescue unit? Eight people all looking the same.

      1. What was left of the pirate gang since it’s too small a group to crew a ship unless the others were killed.

      2. A typical third world undercrewed maritime vessel bringing some war lords regular cargo of fuel for his personally owned service station chain

      3. Repatriated rejectees from Germany, France, or Australia?

      4. Doesn’t matter. The left wing has decided it’s their problem. They made it, they aren’t giving it up, and they own it. Hands off!!!

  4. Good point!

    “What’s more, the idea that these courts are putting forth that restricting entry to a country with a majority religion suggests bias against that entire religion would make any and all immigration policy unconstitutional. Very few countries don’t have a majority religion, after all.”

    http://thefederalist.com/2017/03/16/5-problems-with-hawaii-judges-halting-trumps-travel-ban/?utm_source=The+Federalist+List&utm_campaign=df89343f7f-RSS_The_Federalist_Daily_Updates_w_Transom&utm_medium=email&utm_term=0_cfcb868ceb-df89343f7f-79248369

  5. Jonathan Turley epitomizes what the law should be about. He’s dispassionate and concise. To many occassions I see courts bring their own biases into the courtroom. My own experience in Washington State, I wond a decision before the State Supreme Court. Judges remanded it down to the trial judge with specific instructions. The judge ignored the order and reinstated his decision. We had to go back to the Sipreme Court again. They were livid, in their own way, and ruled again 9-0 for me. This is a stark example of judges who run amuck from the statutes and laws of this country. Turley’s voice is critically important and I hope he continues to call out these decisions that are so blatantly biased.The failure of judges to follow the laws and separation of powers is a greater threat then any political disagreements people have. The two threats to our consittion are the consolidation of executive power through abuse of regulations and judicial activism not anchored in law.

  6. It seems commonsense that the design and implementation of rigorous vetting is the important element of policy, and the 90 day moratorium is political showboating. The managers of CBP/DHS can be relieved of day-to-day duties to design the new procedures WHILE visa processing continues. Visas are not granted on an instant basis, so I don’t see how the 90-day stoppage does anything that can’t be done without it. In any event, the 90 days will pass before the merits of the case will be heard, so the justification of immediacy for it will also pass. I would hope that DHS is going ahead unimpeded with its design process.

    • The Vetting is done in the countries that do not have open Visa exchange with the US. They must pay 160$ even if the application is denied. They are NOT assured a visa, period.

      • Or the other story is the vetting is done upon arrival in the 50 States which as it happens to be true is much more plausible. Not all show up legally. Question.. how does the affect the start of Catch and Don’t Release?

        Doesn’t matter….Not our problem it now belongs to 9th Circuit the own it.

  7. OK. Fine. Let’s put all of our refugee camps in Hawaii, devoid of the “extreme vetting” to which this judge opposes. Put it in his own back yard, and explain to his residents why he did not feel they needed to check extra carefully that anyone coming from a terrorist hotbed was a terrorist. And he should also defend that they are coming from a region where they kill gays, apostates, harm women, and persecute Christians, but he was refusing to check them extra carefully for any extremist views.

    Put it in his own backyard so he has to deal with the consequences. Perhaps, then, he may see a reason why we need to take extra careful measures. Perhaps he may wonder why his efforts to protect families are greeted with mostly young men refugees.

    When a brand of the religion of a region is the driving force behind terrorism, the murder of gays, persecution of Jews and Christians, then, yes, that religion will be more affected by any attempts to screen out the bad apples. Of course, you can screen out the interpreters, the children on Life Flights, the humanitarian workers, dissenters, women escaping forced arranged marriages, etc. That’s how you sieve out the persecuted from the persecutors. You don’t just take a random cross section and let everyone in, depending on that maniac Assad’s record keeping on terrorists.

  8. In a nutshell, our President has determined, based on the input of the intelligence community who all agreed that they have a very limited ability to vet any refugees at all because their documents are missing or thrown away, and they must depend on the data gathered by Syria itself, that we need to enhance vetting techniques from at least this collection of countries determined under Obama to be high risk. Oh, and the intelligence community has discovered that ISIS is giving transportation, food, and money to teenage boys with the assurance that they will join ISIS and engage in terrorism in the West. And a judge, who has access to exactly zero classified information or the intelligence community, said, “No.”

    How interesting. And will that judge face consequences if a gay man gets murdered, women get raped, or a terrorist blows up a dirty bomb because of his actions, and the current vetting allows the wrong guy in?

  9. “Is the Court going to take the position that the 1st Amendment disallows the United States to defend its citizenry from violent attacks where the motivation of the attackers is a sense of religious duty?” “Does the Separation Clause create a carve out for violent expressions of religious practice?”

    This is the type of elocution we need to mount at hearings in front of the 9th Circuit.

    • I sympathize – but seriously, even if JT himself defended the EO to their faces, the 9th would only double down on the politics. The 9th is a lost cause and needs replacement pronto. But otoh I have no reason to think the Supreme Court would do any better even if JT was defending it to them as well – there’s at least 4 on the SCOTUS who would follow lockstep with the 9th no matter what. Politics rules, not law or elocution.

    • This boy is 25 (or abouts) now and can play 30 instruments! He played at the WH (for Clinton) when he was seven. Incredible at 4 and this video is just superb.

    • This represents a shameful exploitation of children. I would not be surprised if his parents and/or teachers subjected this young boy to hours upon hours of torturous practice to attain these levels of skills that would otherwise be a violation of child labor laws. I would feel differently, however, if this boy and his music were to be used to support a leftist agenda dedicated to service to the State, but his association with Hank Williams Jr. makes this boy and his music anathema as far as I’m concerned, given Williams’ failure to comply with the required leftist agenda.

  10. Muslim jihadists(from the other side of the globe) who hate women, gays, Jews, Christians, etc have a Constitutional right to immigrate to your neighborhood according to liberal judges across the US. Liberals are killing this country just the way liberals have killed Europe.

    • Ivan has a good point. The word “Liberals” gets bandied about. I myself do not call myself a Liberal or Conservative. I am down the middle of the road. But still believe in driving on the right, not the left like those dumb Brits. I am not down the middle of the road like Michael Brown. No. I walk on the sidewalk. Those who have let all the muslim terrorists into Europe have put Europe on the chopping block and the the machete is coming down now. We are in for the same thing if we do not build up a Wall. These judges who enjoin the Executive Orders need to be impeached and removed to Siberia.

  11. I don’t know how involved the DNC is in this effort to restrain Trump’s Muslim ban (except, of course Muslim countries where President Trump has commercial interests), but it’s starting to look like the DNC is going to pay a significant price for their all out attack on Trump by way of Russia.

    Unfortunately, many Democrats and Hillary supporters, like Republicans when it comes to climate change, have been so brainwashed by the last four months of Trump/Russia propaganda, that bringing out the truth that there was no collusion will simply make them believe it’s a conspiracy.

    Key Democratic Officials Now Warning Base Not To Expect Evidence Of Trump/Russia Collusion

    In effect, this is nothing short of an attempted coup against a duly elected President by the DNC and other high ranking Democrats (as well as some Republicans). The sooner we can sweep the DNC and the nasty party it represents into some toxic waste dump, the better. Hopefully, the Republican party will grow a conscience and jump in after it.

  12. It seems to me that the real “foundation” of U.S. District Judge Derrick K. Watson’s opinion consists of verbal statements that Donald Trump and Stephen Miller made. And without those verbal statements, there’s no “foundation” at all to his opinion. Although I’m no expert on Presidential Executive Orders, legal logic indicates that a Constitutional analysis of an EO should at least have to run parallel to the basic concepts governing an ordinary unilateral written contract in which the parol evidence rule would apply. The parol evidence rule is a substantive common law rule in contract cases that prevents a party to a written contract from presenting extrinsic evidence that discloses an ambiguity and clarifies it or adds to the written terms of the contract that appears to be whole. Using verbal statements that Trump or Miller made in the past is akin to “extrinsic evidence” in a written unilateral contract. Consequently, such “extrinsic evidence” should not be given any weight in the Constitutional analysis of the EO, and the Court erred by not only introducing this “extrinsic evidence,” but relying primarily on that irrelevant evidence to draw a legal conclusion.

    • Of course, in the Ninth Circuit, politics will prevail over legal logic and the law, and the politics of the Ninth Circuit are unequivocally leftist. Hence, with the Ninth Circuit, you might as well have Obama made the call on this particular case.

      As for the SCOTUS, where this EO will likely be headed, I would be surprised but not shocked if the SCOTUS also took up the leftist cause. That is, I would expect the obvious leftist political judges, Kagan, Sotomayor, and Ginsberg to eschew the law and write their own dissenting leftist political screed; and I would expect Alito, Roberts, Breyer, Thomas, and Kennedy to feel at least somewhat compelled to actually follow the actual law applicable to this case, which supports the EO. But, like I say, there could always be surprise–though not a shock–here, as judges are known to find a way to twist, distort, manipulate, or evade the law and the facts to suit their desired legal outcome.

  13. Trump should temporarily close the borders to all but U.S. citizens and lawful permanent residents, until such time as SCOTUS can determine if a more specific order would be permissible.

            • Jack, you’ve changed. Three weeks ago, as I recall, you were arguing that people who are not citizens and are outside the United States don’t have constitutional rights because of their extraterritoriality. But I agree with your conclusion that territorial jurisdiction is required if by it you mean the court’s ability to bind parties to a lawsuit as opposed to being within our territorial borders.

              As for third-party standing, state governments, for example, have standing on behalf of its “visiting students, scholars and faculty” furthering their educational goals even if those individuals are outside the United States.

              The argument that the political branches’ exercise of authority in national security determinations is unreviewable per se is not supported by the case law. The “Supreme Court has made clear that the Government’s ‘authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,’ even in times of war. Humanitarian Law Project, 561 U.S. at 34 (quoting id. at 61 (Breyer, J., dissenting)); see also United States v. Robel, 389 U.S. 258, 264 (1967) (‘”[N]ational defense” cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile’); Zemel v. Rusk, 381 U.S. 1, 17 (1965) (‘[S]imply because a statute deals with foreign relations [does not mean that] it can grant the Executive totally unrestricted freedom of choice).” See also Korematsu and Ex Parte Endo. The precedent for judicial review is abundant enough.

              The Fifth Amendment due process right to notice and an opportunity to be heard when depriving a protected interest of the following persons who find themselves other than “under the territorial jurisdiction of the United States”?

              1) Certain aliens (such as lawful permanent residents) attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982);

              2) Non-immigrant visaholders who have been in the United States but temporarily departed or wish to
              temporarily depart, see Landon, 459 U.S. 33-34;

              3) Refugees (Olly, even Trump impliedly admitted this by removing the ban on refugee immigration in the second EO), see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972).

              [All of the above quoted language is taken from State of Washington v. Trump panel per curiam order of 2/9/2017.]

              • “Jack, you’ve changed. Three weeks ago, as I recall, you were arguing that people who are not citizens and are outside the United States don’t have constitutional rights because of their extraterritoriality.”>

                That is still my position. Nothing changed. Except that you left out “Lawful Permanent Residents” also have constitutional protection.

                “As for third-party standing, state governments, for example, have standing on behalf of its “visiting students, scholars and faculty” furthering their educational goals even if those individuals are outside the United States.”

                Negative. Foreigners, not currently residing in the United States, have no right to re-entry. In fact, things like student visas and work visas strictly prohibit change of country of residence.

                I see that you left out part of Robel. Is that because you wanted to have readers interpret Robel as something different than what the Court actually said? Here’s the full quote;

                Yet, this concept of “national defense” cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term “national defense” is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties — the freedom of association — which makes the defense of the Nation worthwhile.

                As can be seen from the full text of the cited case, this quote is meaningless to the instant case. It’s nothing more than a ruse attempting to establish legitimacy.

                2) Non-immigrant visaholders who have been in the United States but temporarily departed or wish to
                temporarily depart, see Landon, 459 U.S. 33-34;

                Really? You’re going to cite the Ninth Circuit’s grant of rights to foreigners? In addition, Landon provides no support for your position. Not even judicial dicta. – It would appear that neither you, nor the Ninth Circuit ever reviewed LANDON v. PLASENCIA.

                applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972).

                Have you ever read the holding in Din or Mandel? Since when are concurring and dissenting opinions law?

              • There was no ban of refugees at all in the first EO – The USRAP was suspended for 120 days until vetting could be worked out – then USRAP would resume with the new protocol in place. The second EO has not changed any of this. The only differences as far as refugees go are the removal of the indefinite suspension of refugees from Syria and the removal of the prioritization of claims based on religious persecution where the religion is minority status. To put it bluntly the differences between Sec 5 of the first EO and sec 6 of the second is the removal of sections b, c, and f from the first and no significant change in the language.

                To say there was a ban on refugees in the first EO is a plain misconstrual. Even the indefinite suspension of Syrian refugees in the first EO was only until the president was satisfied that effective vetting procedures were in place. Temporary suspension is the phrase used in both EOs. Any inference you’ve drawn for Olly based on your misconstrual is thus false.

                • Jacques, I’d say an “indefinite suspension of refugees from Syria” is a ban, so it’s not a “plain misconstrual,” if your language means what I think it means.

                  As our former Orange County Republican congressional representative B-1 Bob Dornan used to say, “You can write it up anyway you want to,” but an indefinite suspension is a ban after peeling off the spin.

                  • I’ll play along:
                    so you’re saying that your inference was only referring to the changing of first EO’s indefinite (yet temporary) ‘ban’ of Syrian refugees to the second EO’s 120 day ‘ban’ of Syrian refugees?
                    You do realize that’s the only way your inference (“Trump removed the ban on refugees”) is true at all.

                    • oh and there is a ban of having firearms at my place of work,

                      not an indefinite suspension of having firearms until such time as the owners have determined that sufficient changes have been made to ensure that having firearms is consistent with the company’s interest.

                      no amount of peeling makes those two ideas one and the same idea.

                    • Jacques and Jack, just to fast forward a bit, do you believe there’s a difference in definition between the reference to the “People” in the 1st, 2nd, 4th, 9th, and 10th Amendments and to “person” in the 5th and 14th Amendments?

                      I haven’t Shepardized this, but the Ninth Circuit did and not long ago: “[T]he Fourth Amendment . . . protects a much narrow class of individuals than does the Fifth Amendment, which extends to ‘all “persons”‘.” US v. Barona (1995) 56 F3d 1087, 1093 (9th Cir. 1995). The Fourth Amendment requires in certain circumstances either voluntary presence in the country, substantial connections to the country, or acceptance of some societal responsibility. (US v. Verdugo-Urquidez 494 US 259, 273 (1990).) In Verdugo-Urquidez, “people” referred to “persons who are part of the national community.” (Id. at 265.)

                      The gist here is why would an applicant for a visa residing outside the country not have some minimal right to due process when the right extends at some level to “all persons”?

                      Jack, I haven’t forgotten about your last post to me which may answer the question above, but I haven’t yet read the case you cited, and I’ll have to come back to it.

  14. This article written today is based on recent opinions written by 5 judges from the 9th Circuit. If true, they most certainly do not agree with the courts previous and current EO decision for a TRO:

    “The five judges wrote that halting the travel ban was “unreasoned,” a “clear misstatement of law” and “ignore[d] the realities of our world” and that they had a duty to set the record straight:

    “Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress. We will yet regret not having taken this case en banc to keep those lines of authority straight.”

    http://ijr.com/2017/03/826494-judges-9th-circuit-just-torched-courts-decision-trump-travel-ban-correct-many-obvious-errors/?utm_source=Facebook&utm_medium=Owned&utm_term=ijamerica&utm_campaign=ods&utm_content=Politics

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