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Lawyer here. Almost everything in this post is incorrect. > Depends on the President currently in power. The judiciary has no real authority to enforce anythin

Lawyer here. Almost everything in this post is incorrect. > Depends on the President currently in power. The judiciary has no real authority to enforce anything. The Obama administration and the Bush administration before basically made up the law as it went along in some cases. Nope. Both had executive orders blocked by the judiciary. > I don't actually think the ACLU has any real standing here, to be honest. ACLU is not the plaintiff. They are merely representing the plaintiff. > You can't sue in US federal court on behalf of non-citizens. Yes you can. Happens all the time. [Edit: I suppose, technically, you can't sue 'on behalf of' non-citizens. But that's a total red herring. The non-citizens can sue on their own behalf, as happened here.] > They have no standing. This is inaccurate, and misunderstands concept of legal standing. 'Standing,' as the term is used in U.S. law, essentially refers to whether the plaintiff is actually suffering an injury, caused by the challenged conduct, that the court can address through a lawsuit. Under the proper use of the term, of course someone has standing to challenge their own detention. (There are complexities about the scope of the substantive rights of citizens and non citizens, but this has little to do with standing.) Edit: I forgot one! > In the US you can find a federal judge to block anything. You just shop around for a circuit with a politically friendly judge and file your suit there. Again. No. You don't get to choose your circuit--you have to sue in a circuit (district, actually) that has jurisdiction. In this case, there really was only one choice: the Eastern District of New York. And when you sue, you don't get to pick your judge. They're assigned at random.

rdtsc 10y ago
What is the relationship here with the idea of Sovereign Immunity. Which I (quite possibly wrongly) understand that you can't sue the US government ... unless it allows itself to be sued. Does this mean in his matter the US government has allowed itself to be sued. And then how would it go about disallowing itself to be sued. Can it decide tomorrow to say "no, can't sue us anymore regarding immigration". I didn't find immigration here for example. Maybe I missed it: https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...
- pdabbadabba 10y ago
  This area of law is complicated, but the answer is: a little of each. The usual strategy is to circumvent sovereign immunity through a nifty legal trick: sue agents of the government in their individual capacity. https://www.law.cornell.edu/wex/bivens_actions https://www.law.cornell.edu/wex/bivens_actions That appears to be what they did here. Note that the first defendant is Donald Trump, not the United States. (This presents its own set of challenges, that I'm glossing over here. But this is the general approach.) There are also statutes waiving sovereign immunity in a number of cases. The Federal Torts Claims Act is the big one. https://www.law.cornell.edu/uscode/text/28/2674 https://www.law.cornell.edu/uscode/text/28/2674
  - rdtsc 10y ago
    Thank you for answering.
shawn-butler 10y ago
> Nope. Both had executive orders blocked by the judiciary. Yes, and? Would you like a list of decrees ignored by previous Presidents? The balance of power between the judiciary and the executive really only finds resolution in the legislative. I find executive orders, presidential findings, and the like extremely undemocratic. But the extent to which Presidents are adversarial and seek "workarounds" is clearly dependent on the administration in power and the context. You might find the survey of executive orders and their interaction with judiciary helpful to review[0]. Most reviews are about how the executive order is implemented, not the sub stance of the order itself. The same will most likely be in this case (e.g, how to properly resolve the status of those affected and detained right now but not the denying entry to others) > Under the proper use of the term, of course someone has standing to challenge their own detention. Yes, there are two classes of people here. A relative handful who have a legal visa and are being denied entry who may have standing and millions outside the US who have none. I believe the order as written (and copy-pasted from a previous Obama administration executive order denying entry to a similar class in 2011) allows for a case-by-case exemption by DepHomeSec. [0]: http://www.yalelawjournal.org/note/executive-orders-in-court http://www.yalelawjournal.org/note/executive-orders-in-court
- pdabbadabba 10y ago
  > Yes, and? Yes, and therefore it is not the case that "[It] depends on the President currently in power. The judiciary has no real authority to enforce anything." See GP. > Would you like a list of decrees ignored by previous Presidents? I would. But as you try to assemble it, bear in mind that the relevant task is to find cases where court orders have been ignored, not "legally circumvented." You will find some of the latter, of course. But I doubt you'll find too many of the former. I with you agree that executive orders are especially difficult to challenge in court. I also agree with you that, for this and other reasons, executive orders generally have become pretty troubling from both a political and legal standpoint. But neither of these are the claims I was addressing in my comment.
- village-idiot 10y ago
  Considering that federal Marshalls were called in to uphold the Judge's orders, it doesn't seem to me like the courts are toothless.
nikdaheratik 10y ago
Thanks for this. And for once again proving that the quickest way to get the correct answer for something is to post something wrong and wait for users to respond.

rdtsc 10y ago

What is the relationship here with the idea of Sovereign Immunity. Which I (quite possibly wrongly) understand that you can't sue the US government ... unless it allows itself to be sued. Does this mean in his matter the US government has allowed itself to be sued. And then how would it go about disallowing itself to be sued. Can it decide tomorrow to say "no, can't sue us anymore regarding immigration". I didn't find immigration here for example. Maybe I missed it: https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_United_States https://en.wikipedia.org/wiki/Sovereign_immunity_in_the_Unit...

pdabbadabba 10y ago
This area of law is complicated, but the answer is: a little of each. The usual strategy is to circumvent sovereign immunity through a nifty legal trick: sue agents of the government in their individual capacity. https://www.law.cornell.edu/wex/bivens_actions https://www.law.cornell.edu/wex/bivens_actions That appears to be what they did here. Note that the first defendant is Donald Trump, not the United States. (This presents its own set of challenges, that I'm glossing over here. But this is the general approach.) There are also statutes waiving sovereign immunity in a number of cases. The Federal Torts Claims Act is the big one. https://www.law.cornell.edu/uscode/text/28/2674 https://www.law.cornell.edu/uscode/text/28/2674
- rdtsc 10y ago
  Thank you for answering.

shawn-butler 10y ago

> Nope. Both had executive orders blocked by the judiciary. Yes, and? Would you like a list of decrees ignored by previous Presidents? The balance of power between the judiciary and the executive really only finds resolution in the legislative. I find executive orders, presidential findings, and the like extremely undemocratic. But the extent to which Presidents are adversarial and seek "workarounds" is clearly dependent on the administration in power and the context. You might find the survey of executive orders and their interaction with judiciary helpful to review[0]. Most reviews are about how the executive order is implemented, not the sub stance of the order itself. The same will most likely be in this case (e.g, how to properly resolve the status of those affected and detained right now but not the denying entry to others) > Under the proper use of the term, of course someone has standing to challenge their own detention. Yes, there are two classes of people here. A relative handful who have a legal visa and are being denied entry who may have standing and millions outside the US who have none. I believe the order as written (and copy-pasted from a previous Obama administration executive order denying entry to a similar class in 2011) allows for a case-by-case exemption by DepHomeSec. [0]: http://www.yalelawjournal.org/note/executive-orders-in-court http://www.yalelawjournal.org/note/executive-orders-in-court

pdabbadabba 10y ago
> Yes, and? Yes, and therefore it is not the case that "[It] depends on the President currently in power. The judiciary has no real authority to enforce anything." See GP. > Would you like a list of decrees ignored by previous Presidents? I would. But as you try to assemble it, bear in mind that the relevant task is to find cases where court orders have been ignored, not "legally circumvented." You will find some of the latter, of course. But I doubt you'll find too many of the former. I with you agree that executive orders are especially difficult to challenge in court. I also agree with you that, for this and other reasons, executive orders generally have become pretty troubling from both a political and legal standpoint. But neither of these are the claims I was addressing in my comment.
village-idiot 10y ago
Considering that federal Marshalls were called in to uphold the Judge's orders, it doesn't seem to me like the courts are toothless.

nikdaheratik 10y ago

Thanks for this. And for once again proving that the quickest way to get the correct answer for something is to post something wrong and wait for users to respond.