“REDEMPTION”: EO3 AND THE TRAVEL BAN 3.0 SEQUEL

images-1donald_trump_president-elect_portrait_croppedBelow is my column in the Hill Newspaper on third round of litigation over the immigration orders issued by President Donald Trump.  On Friday, in Honolulu, U.S. District Judge Derrick Watson converted the earlier temporary restraining order into a preliminary injunction.  With the two decisions in Hawaii and Maryland, the appeals should move on an expedited basis back to the Supreme Court (which is expected to dismiss the second immigration case from the second round of litigation this week).  Like T3, EO3 could be named “Redemption” as the Administration gears up for what is likely (and hopefully) the final round in this series.

Here is the column:

The new round of court opinions this week blocked parts of President Trump’s latest immigration executive order, known as travel ban 3.0. This litigation confirms everything that most of us hate about sequels that replay earlier plots and repeat material. Each new sequel tends to get more implausible with time with the appearance of previously killed villains (think “Terminator”), new “celestial” fathers (think “Guardians”), or previously destroyed evil organizations (think “Avengers”).

The travel ban 3.0 litigation is, to quote the much sequeled Dr. Evil, “all of that and a bag of chips.” Judges in Maryland and Hawaii have enjoined a Trump travel order for the third time, replaying the same arguments as the earlier opinions, despite a new set of facts and language. Worst yet, we never actually got to a final battle royale in these cases in travel ban 1.0 and travel ban 2.0. Like the “Avenger” movies, we got to the long-awaited climax before the Supreme Court, only to have the court dismiss the case as moot. We were left with one of those teasers after the credits of a new threat looming in the future.

 

Welcome to travel ban 3.0, much like T3 but without the aging cyborg. Both injunctions will trigger another nail biting, cliff hanging series of appellate decisions. However, in reading these opinions, you will likely feel like you have seen this one before. This series began on Jan. 27 with the first executive order. The poor drafting of that order was only matched by the even worse execution and defense of the order. Various judges found the order as motivated by an anti-Muslim “animus” and replayed Trump’s most incendiary comments from the campaign about a “Muslim ban.” Travel ban 1.0 was soon replaced by travel ban 2.0 on March 6, which was itself enjoined pending a final decision before the Supreme Court.

 

The Supreme Court then reversed the lower courts on their injunctions except for protections for immigrants with “bona fide relationships” in the United States. However, shortly before oral argument, the court mooted one of the two cases after travel ban 2.0 died of natural causes with the expiration of its proscribed 90-day period. (The remaining case is likely to be dismissed when the rest of the second order expires.)

The new order issued Sept. 24 contains a new list of countries that dropped some of the original countries while adding new non-Muslim countries. For the record, I have long criticized the earlier orders against the travel orders as relying too heavily on campaign statements and too little on existence case law. I believe that the administration would have largely prevailed on the second order if the litigation were not mooted.

The new opinions in Hawaii and Maryland offer basically the same narrative while ignoring the new factual foundation. While both judges are respected jurists and reached good-faith conclusions, the opinions work too hard to ignore material changes that undermine the earlier holdings on religious and nationality discrimination.

Derrick_Kahala_WatsonIn Hawaii, District Court Judge Derrick Watson begins with a curious sports analogy that “professional athletes mirror the federal government in this respect: They operate within a set of rules, and when one among them forsakes those rules in favor of his own, problems ensue. And so it goes with [the third executive order].” From the perspective of the White House, of course, Watson himself could be viewed as violating those rules in acting like an active player rather than a referee in the game.

Watson sees the executive order as still discriminating on the basis of nationality. Yet, it is impossible to specify inadequate entry procedures without designating the responsible and high risk countries. If that is discrimination based on nationality, most procedural rules addressing the failures of individual countries would seem to fail under the test, including orders from past presidents.

downloadIn Maryland, District Court Judge Theodore Chuang notably only enjoined the order as to the Muslim countries and only as to individuals without “a bona fide relationship with an individual or entity in the United States.” As such, the court actually allowed much of the order to be executed. Yet, Chuang held that travel ban 3.0 failed to “cure” the “religious animus” behind the earlier travel ban.

Chuang seems to place a heavy burden on the administration to “prove the negative,” or, in this case “prove you are not anti-Muslim.” Chuang admits that Trump has made “positive” statements about Muslims, but he simply rejects those statements in favor of Trump’s more inflammatory statements. He noted, for example, Trump’s tweet where he praised a discredited story about shooting Muslims with bullets dipped in pig’s blood as a deterrent to Islamic extremism.

There is no question that President Trump continues to make the defense of these orders more difficult with his controversial tweets. However, the materiality of these statements has become more and more forced with each new generation of agency findings. Agencies studied the vetting procedures for months and reached a consensus on the changes that they deemed necessary for border protection. Such factual findings are normally accorded deference by courts, which are bound not to substitute their judgment for policy or political choices.

Chuang notably found that the administration may have met the “low bar” of establishing that entry from these countries would be “detrimental to the interests of the United States.” However, he insisted that the administration did not “explain why the broad travel ban is necessary in a way…unrelated to religious animus.” It is not clear how the administration is supposed to prove that, particularly after shouldering the burden on the detrimental impact to the nation’s security. The administration cited “inadequate identity management protocols, information sharing practices, and risk factors,” including need technological improvements.

While the plot and development may seem painfully familiar, viewers can only hope that cases will actually reach a final culmination. It is a moment reminiscent of John Connor’s frustration in T3 when he told the terminator, “No, you shouldn’t exist…We stopped judgment day.” The response of T3 could easily have come from travel ban 3.0: “You only postponed it. Judgment day is inevitable.” So stay tuned.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

46 thoughts on ““REDEMPTION”: EO3 AND THE TRAVEL BAN 3.0 SEQUEL

  1. Can anyone find for me the actual language where Trump’s EO – any of the three – assert or even imply that the reason for addition/removal from the country list has to do with the Muslim religion?

    Can anyone find for me the actual language where the Terrorist Travel Prevention Act of 2015 signed into law by Obama assert or even imply that the reason for addition/removal from the resultant country list has to do with the Muslim religion?

    if not, then please realize that continued opposition to something that is simply not there only reveals hypocritical political biases. Like this hack:

    Biases which do not have National Security at heart – just political chicanery to further a political agenda – thus the rulings of these ‘judges’ who in ‘good faith’ have engaged in such chicanery. These judges don’t care about Muslims or Nat’l Security or you [to be honest] – all they care about is hampering a duly elected republican President. Go back and listen to that hack again if you forget this simple fact.

    Cheers!

  2. I just do not see the logic here. Trump decides to limit immigration from several Muslim majority countries for security reasons, but his order does not pertain to NUMEROUS Muslim majority countries. For the life of me, I do not understand how this could be perceived as “anti-Muslim”!

    We are now at a dangerous point with judges( who do not have pertinent facts) determining the foreign policy and security of our country. Let us hope this does not end badly with a major terrorist attack!!

  3. In a “normal” situation, it would be difficult to overturn an executive order dealing with which “non-US persons” (i.e., no US passport, no US green card, no existing US visa) can and cannot be admitted into the USA. The current situation is not “normal.” The first “travel ban” was intentionally bolloxed up by the administration. It was not a good faith effort to accomplish the stated goal of protecting the United States. It was primarily a political act by an admitted anarchist, Mr. Bannon, designed to “shake things up” and throw red meat to Trump’s base. The first executive order may have done something to make the USA safer, but making the USA safer was not the primary goal of issuing the first “travel ban.” In fact, one of the primary purposes of issuing this order may have been to provoke the extreme reaction on the other side of the political spectrum, as it was bound to do. (Does this type of behavior by the administration make the US “less safe”? A question worth asking – I won’t debate that right now.)

    When an administration engages this type of behavior, it makes it more difficult for anyone, including judges, to accept the administration’s arguments at face value when later executive orders on the same subject are issued and then challenged in court.

    But that does not mean that all subsequent executive orders lack merit, even if they come with their own cock ups (such as including Chad on the list) . That is the difficulty faced by judges. A “bad” motive (and many of Trump’s motives deserve criticism) does not, by itself invalidate an executive order. Those who oppose Trump need to wake up and understand that “asymetrical political warfare” by Trump deserves an asymetrical political response. Don’t hang your hat on winning a court battle the third time around or by talking about how bad Trump is.

    If you oppose Trump, talk up your OWN plan that is better than Trump’s plan, one that demonstrates that you do things better than Trump can do. After all, the goal is to keep the USA safe, not just to demonstrate that Trump is a craven egomaniac who has absolutely no regard for anyone or anything other than himself, his family/close friend and his money. Trump does a good job of demonstrating that all by himself.

    Many on the left side of the political spectrum need some lessons in this regard, which is why the Democratic Party is moribund.

    • Oliver Clozoff said, “If you oppose Trump, talk up your OWN plan that is better than Trump’s plan, one that demonstrates that you do things better than Trump can do.”

      Oliver, in order to figure out who the terrorists are and who the terrorists are not, we need to earn and keep the trust of informants recruited from the very civilian populations whom the terrorists seek to control and whose trust we might lose with poorly crafted travel bans.

      As such, a travel ban on entire civilian populations from multiple nations would be, not just poorly crafted for the purpose of national security, but an admission of our failure to earn and keep the trust of the informants we need to help us distinguish the terrorists from the innocent civilians without whose cooperation we cannot ever defeat the terrorists.

      That is the worst problem with Trump’s several, successive executive orders on the subject of travel bans: They systematically undermine our efforts in the war on terror. That they do so in the name of keeping America safe will not keep America safe any more so than a game of musical chairs would identify terrorist infiltrators amongst the population of refugees fleeing, say, The Islamic State, for instance.

      The alternative plan you requested is not a travel ban at all; it is an all-out effort to recruit informants from amongst the people whom the terrorists seek to control. That is the best way to keep terrorists from being granted visas to enter the United States. It is also the best way to defeat the terrorists on their own turf. Finally, it is also the most difficult goal to achieve. And it is the difficulty of achieving that goal that drives our abject desire for far simpler solutions that are easier to “achieve,” but guaranteed to fail.

  4. There’s a simple solution to this problem which Congress will never have the cojones to use: on the next appropriations bill for the federal judiciary, the line item funding the federal districts in question disappears.

    • TSFS, could you please clarify your view as to whether Congressional cojones would keep America safe from terrorists or federal judges?

  5. Arbitrary, subjective and political acts by courts, judges and justices constitute crimes of high office and are actionable. Much of the branch is fully engaged in “judicial overreach.” A vacuum exists at the apex of Congress.

    The People control Congress and the Presidency with their votes. The People control the judicial branch through executive branch appointments and the legislative branch impeachment process. Congress must impeach all judges and justices who do not declare acts contrary to the manifest tenor of the Constitution void. As egregious acts increase, the impeachment process must be commensurately enhanced and accelerated.

    The judicial branch has no authority to legislate or modify legislation. The sole authority of the judicial branch is to assure that actions comport with the Constitution and law.

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    Alexander Hamilton –

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    Article 2, Section 4

    “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

    • SIDEBAR

      RE: Uranium One

      All roads lead to Hillary, Obama, Holder and MUELLER!

      Newsweek –

      “Before the deal was brokered in 2009, the FBI under Robert Mueller—who is now special counsel in the Russia investigation into potential collusion with the Trump campaign—had begun an investigation into corruption and extortion by senior managers of a company owned by the Russian government’s nuclear company, Rosatom.”

    • George, you seem to be arguing that a federal court injunction against an executive order banning travel to America from certain countries constitutes an overt act of aiding and abetting the enemies of the United States. If so, then wouldn’t The Congress of the United States have to resolve or declare the countries listed in the President’s travel ban to be enemies of the United States before that same Congress could impeach, convict and remove from office the supposedly treasonous federal judges at issue?

      Incidentally, George, how do propose to win the war on terror once our Congress resolves or declares the listed countries at issue to be enemies of the United States?

  6. “Judges in Maryland and Hawaii have enjoined a Trump travel order for the third time, replaying the same arguments as the earlier opinions, despite a new set of facts and language.”

    Will these judges and politicians be held liable if the next 9/11 occurs from someone they let in?

    • Well, if the next 911 is like the first, the terrorists will come from Saudi Arabia, against which there is no travel ban because Chump wants to do business with them. Anyway, that’s not how cases are decided.

  7. (music- to tune of….)
    We don’t want no muslims runnin round here.
    We dont want no muslims running round here.
    I don’t care what the law courts say, I just know what people pray..
    We dont want no muslims runnin round here.

  8. That’s because immigration is more than just another issue. It touches upon fundamental questions of citizenship, community, and identity. For too long, a bipartisan, cosmopolitan elite has dismissed the people’s legitimate concerns about these things and put its own interests above the national interest.

    No one captured this sensibility better than President Obama, when he famously called himself “a citizen of the world.” With that phrase, he revealed a deep misunderstanding of citizenship. After all, “citizen” and “city” share the same Greek root word: citizenship by definition means that you belong to a particular political community. Yet many of our elites share Mr. Obama’s sensibility. They believe that American citizenship—real, actual citizenship—is meaningless, ought not be foreclosed to anyone, and ought not be the basis for distinctions between citizens and foreigners. You might say they think American exceptionalism lies in not making exceptions when it comes to citizenship.

    https://imprimis.hillsdale.edu/immigration-national-interest/?appeal_code=MK1017EM6&utm_campaign=imprimis&utm_source=housefile&utm_medium=email&utm_content=oct_2017_immigration&_hsenc=p2ANqtz-_LoB5xrCx3duLc8TdsKmnU0y1H-NfewzFLFhGKfV83_pZpm1tmckwKbjHMhRGDYTMetEzaC7DBA2btp-jgnoWg86SIkg&_hsmi=57602260

    • Olly – first I am a citizen of my state, then the United States. I am a citizen of nothing else. I am told where to vote only because of pre-determined districts laid out by the county I live in.

    • The Queen of liberal progressive Damnocraps herself, Her Highness Dianne Feinstein, said no change in law would have stopped the Vegas gun man. You apparently know better than her.

  9. Would they have enjoined it had Obama declared them? All three orders are based on Obama recommendations, yet we get these stupid (yes stupid) decisions. I do not think they are “respected jurists,” I think they are hacks appointed by Obama to fill up the Ninth Circus and other courts with even more incompetents.

    The SC should reach down and take this immediately.

      • goodbeavis – Turley may have to appear before them some day, and they will do a Lexis-Nexis search which will bring up this thread in which he says they are respected jurists. They feel good about themselves, they feel good about Turley, they feel good about Turley’s client. You don’t bite the hand that might feed you.

  10. It is wrong and defies the rule of law to decide the legality of actions by prying into the minds of actors for their motives.

    These jurists confuse motive – which is a reason to beleive that the accused is the person who committed the actual crime, with an illegal act in and of itself.

    I can hate muslims, or blacks or gays, without ever committing a crime.

    Nor can an act that would be legal for someone else, become illegal purely because the court beleives it has found in my past statements proof that the otherwise legal act was driven by bad motives.

    • dhlii, the political motives of people seeking visas legally to enter the United States are routinely scrutinized for possible criminal intentions before the visas are granted and the person legally enters the United States. Such scrutiny of the motives and intentions of travelers to the US are an inherent feature of each of Trump’s three executive orders on the issue as well as past EOs and existing laws on the subject.

      As such, the act of entering the US with a visa is legal if, and only if, the person to whom the visa was granted has convinced the US government that he or she harbors no ill will nor criminal intent toward the United States. Given any person who has failed to convince the US government that his or her political motives and intentions toward America are at least benign, if not also favorable, the act of entering the US without a visa would be illegal.

      Of course, the visa applicants at issue could be really good at lying to, concealing from and deceiving the US government about their true motives and intentions. In which case, the US government employees interviewing the visa applicants will, of a necessity, have to pry into the minds of actors for their motives.

      • Diane – the people who interview visa applicants are actually trained to look for certain clues to tip them off to suspected bad behavior. They can be fooled, as can anyone, but at least they try.

        • Yes, Paul. I’m glad our government employees are trained to detect subterfuge.

          BTW, I’m twitting dhlii for his over-generalizations on the principles of legal theory.

    • An executive order, issued by an irrational narcissist just to pander to his base isn’t “the rule of law”. How can a court decide whether there is a rational basis for the order without considering what the fat narcissist said he was going to do, which is ban all Muslims (except, of course, those with money he wants to do business with)? The 911 terrorists were from Saudi Arabia. Why isn’t chubby going after them? Because they have money and he wants to do business with them, that’s why.

      • Those convicted in the first attempt to bring down the WTC in 1993 were Egyptian, Kuwaiti, Palestinian, and Jordanian.
        Using Natacha’s logic and rear view mirror approach, we should have focused primarily on those nationalities to prevent 9-11.

        • Since both events were false flags, “we” should be focused on spreading the truth about what really happened.

        • Tom Nash, actually the concept of nationality has relatively little acceptance amongst the peoples of The Arabian Peninsula, who tend to regard nationality as a Western, if not also a Colonial, imposition.

          For instance, and technically speaking, 15 of the 19 September Eleventh hijackers were members of the subgroup of the Al-Ghamdi tribe that Ibn Saud purportedly had The Ikhwan drive out of Asir and into exile in Yemen circa 1923.

          Mind you, The Saudis would dispute that claim. So I wouldn’t insist on it.

          The point is that we would be more accurate describing those 15 hijackers as Al-Ghamdi than either Saudi or Yemeni. And we are likely to encounter similar difficulties attempting to ban travelers from other countries the residents of which do not see themselves as members of a nationality.

          • Late4D,.
            Thanks for the information.
            I understand what you’re saying…..the point I would make is that these people, despite transnational ethnic and/ or tribal similarities, do live in different countries, under different governments.
            Some of these nations are essentially failed states, without the ability and/ or willingness to gather and share intelligence.
            In addition to and in tandem with their “failed state” status, many face significant jihadist insurgencies.
            Some are in all out, protracted civil wars.
            There is considerable overlap between the nations labeled “countries of concern” in the Obama administration, and the countries named in the 1.0, 2.0, or 3.0 versions of the Trump “travel ban”.
            And they seem to “stand out” because of the characteristics I’ve mentioned.

            • That’s all true, Tom Nash. Since we and our Western allies recognize nation-states, we are constrained to organize and administer our national-security efforts through the prism of nationality. Even so, a travel ban based on tribal affiliation would arguably produce better results for our vital national-security interests than a travel ban based on national origin. But even then what we really need to know is exactly who the terrorists are and who the terrorist are not. When ban travel to broadly, we lose vital sources of human intelligence from the very informants who can tell us what we really need to know.

              • I have a concern about finding out who the terrorists are ( or are not) by loosening the travel restrictions on “countries of concern”.
                If there are severe difficulties in sorting out “who’s who” for lack of good intelligence from a foreign country, I don’t want to being them to America and sort it out here.☺

                  • Tom Nash, you are quite correct to worry about finding out the hard way after the fact. However, we also need informants to win the war on terror over there.

                    • I have no way of knowing if it’s enough….but we do have intelligence assets and informants in a lot of foreign countries.
                      The Jordanian informant/ suicide bomber who blew up 6-7 of the CIA contacts demonstrates how tough it is to determine the motives of the “informant”, or the reliability of the information.

                    • OH HELLOW FELLOW AMERICAN we all should be honest OURSELVES especially entire leadership of both Major Political Parties because it’s not only SLEEPING IN FOOL’S PARADISE but on other hands not seen other side of MIRROR as such absolutely knows nothing WHAT’S GOING ON OWN COUNTRY’S SOIL. I openly CHALLENGING he said Judges if desires to see other side of MIRROR than I am 101% ready to favour them AMAZINNG & FANTASTIC NEWS WHAT AMERICA suffered and suffrrings. It’s worst SUFFERINGS because lack of no good common sense in governing COUNTRY’S AFFAIRS on path of TRUTH & RIGHTEOUS. I got lots of bitter experiences MYSELF as I not received events a acknowledgements of my email messages WHEREAS these so-called true leaders of country very very smarts in asking chip $3 or more so they can do best for great nation AMERICA. In the let me say I am not only layman but also VICTIMIZED by the court at Houston. Texas. GOD BLESS AMERICA.

    • It really does nto matter. The original banned countries had actually been selected by the Obama administration. The subsequent changes have been driven to circumvent the courts erroneous inquiry into motives.

      An act is legal or illegal, without regard for why you did it.

      There are very few instances where an otherwise illegal act such as murder may be legal – because it was justified self defense. There are or should be no instances where a legal act is illegal because of the guesses of the court as to why the actor acted.

      • dhlii said, “There are or should be no instances where a legal act is illegal because of the guesses of the court as to why the actor acted.”

        dhlii, for the reasons stated above, the quoted statement of yours would blow up the immigration laws of The United States of America, if our government and our courts adopted it as a principle of legal theory.

    • I don’t know the asinine reason why Chad is on the current list. I assume it is on the list because the State Department or Homeland Security or NSA or some agency like that has non-asinine reasons to believe it should be on the list. Probably related to Islamic terrorism or a breakdown of order.

      You seem to suggest you are aware of an asinine reason why it is on the list. What is it?

    • Yeah, Chad’s on the list because they ran out of special paper for passports and couldn’t comply with some deadline or another.

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