7 ms·
If the ban goes to the Supreme Court and is struck down because Trump didn't wait to fill the vacancy with a loyalist first, he'll have essentially failed the m
by gdulli 10y ago
If the ban goes to the Supreme Court and is struck down because Trump didn't wait to fill the vacancy with a loyalist first, he'll have essentially failed the marshmallow test.
https://pbs.twimg.com/media/C2V-XWcVIAAoel4.jpg https://pbs.twimg.com/media/C2V-XWcVIAAoel4.jpg
- JumpCrisscross 10y agoThe only way it goes to SCOTUS is if the government appeals.
- helthanatos 10y agoHe could just play the executive order dance
- ceejayoz 10y agoAn injunction against new EOs would be a rather fascinating Constitutional crisis...
- cderwin 10y agoSuch an injunction would be without any basis in law whatsoever, the constitution instructs the President to "take care that laws be faithfully executed". Individual executive orders need to have their own constitutional reasoning, but since executive orders are really the means by which the president fulfills that clause, a court could not prohibit them altogether.
- ceejayoz 10y agoThe question, then, is what recourse would the courts have against a President who just spams new EOs with the same text and new IDs? Can he be charged with contempt of court?
- JumpCrisscross 10y agoHe and his Cabinet could be held in contempt of court.
- Sunset 10y agoIt would be hard to hold anyone in contempt of court while you're staring them across the barrel of a gun.
- brianwawok 10y agoLegal DOS?
- cderwin 10y agoThose orders would not hold an legal water. Any court that saw them would throw them out on precedent. As an equivalent example of this, if the court rules a particular law unconstitutional and congress passes the same law under a different name, that law would be utterly powerless as well. In general, Changing the name of something doesn't change its legality.
- baddox 10y agoI think ceejayoz meant an injunction against any new executive orders with containing certain provisions.
- cderwin 10y agoIn that case, no injunction would be necessary. The orders would be utterly powerless if they relied upon bits that the court previously found unconstitutional.
- bluejekyll 10y agoGiven that this only effects those in transit (based on a comment in another thread) it probably wouldn't hit the Supreme Court before people finally end their trips and get to the US.
- cderwin 10y agoIt certainly would not get to the Supreme Court unless a lower court ruled against Trump and Trump decided to appeal. However, that's probably the most likely scenario anyway.
- gozur88 10y agoThat's unlikely to happen before the new justice is seated. Getting on the SCOTUS docket normally takes years, and I'll be surprised if we don't have a new justice before the next term starts.
- cderwin 10y agoHonestly I don't think you'd see a partisan ruling on this. There is an originalist argument that Congress has no power to regulate immigration and that it is the sole duty of the executive, but there are myriad ways the justices could get around that if they so desired. I'm no expert on the court, but I would imagine it would break 6-2 or better against the EO.
- NhanH 10y agoContrary to (common?) belief, I'm not convinced that someone like Scalia would have let the ban stay.
- ci5er 10y agoHow could he have let the ban stay -- in its current form? Many people didn't like his decisions for various of their own preferences for particular outcomes, but he generally didn't "make new law" with his decisions.
- chc 10y agoYeah, Scalia was certainly conservative and had some literal-genie interpretations of the Constitution, but he wasn't exactly a lapdog. It seemed like he had a fairly libertarian interpretation of the first amendment and probably wouldn't have approved of thinly veiled religious discrimination.
- rayiner 10y agoAlthough not relevant here, Scalia and Stevens dissented in Hamdi v. Rumsfeld. The majority issued a weak sauce opinion that admitted the possibility of detaining a U.S. citizen with some due process short of a trial under some circumstances. Scalia and Stevens pointed out that the government must try a US citizen in regular court unless it suspends habeus corpus.
- rayiner 10y agoThis wouldn't have five votes even with a Trump nominee. I'm not sure it'd have three.
- village-idiot 10y agoI'd be pretty scared if it has one. It's pretty clearly illegal.
- rayiner 10y agoThomas was the sole dissenter in Hamdi v. Rumsfeld, which struck down the detention of a US citizen held in Guantanamo without trial. He's an intense believer in the power of the executive over the border and national security. (This is not totally clear cut. Controlling entry across the border is an issue uniquely within the President's powers. I think the due process issue overrides that for immigrants who have been granted visas and green cards, but I could see Thomas being "unitary executive" enough to see differently.)
- village-idiot 10y agoThe point is that the executive is constrained within the laws passed by Congress, and there is a law (https://en.wikipedia.org/wiki/Immigration_and_Nationality_Act_of_1965 https://en.wikipedia.org/wiki/Immigration_and_Nationality_Ac...) that clearly makes this not ok to do. If the supreme court starts upholding executive orders over standing law, I'd be terrified.
- zeroer 10y agoWhich law does it violate?
- village-idiot 10y agoAll the complaints rest on the Immigration and Nationalization Bill of 1965 (https://en.wikipedia.org/wiki/Immigration_and_Nationality_Act_of_1965 https://en.wikipedia.org/wiki/Immigration_and_Nationality_Ac...), which from a high level makes it pretty clear that you cannot discriminate by nation of origin/birth.
- ftrflyr 10y agoLoyalist? You mean conservative? You know, the people who protect, uphold, and defend the constitution. That thing that gives you the freedom to spew nonsense like your comment on HN...that of which no other person has to the extent, the right nor freedom that you do.
- zeroer 10y agoThat's funny.