I was looking into the immigrant ban and Trump's lawyers have a scary but valid point.

[Kablooie]

Trump's lawyers have stated that Trump's immigration ban should not be reviewed by the court.
It sounds insane but they may be right.
The president has traditionally been given plenary power over immigration and has been allowed to make non reviewable decisions regarding immigration issues.

Here's an excerpt from a 2015 legal discussion as to why this is the case, long before Trump's plan became an issue.

The Court implicitly remains willing to give the political branches leeway to use immigration authorities in rough-hewn ways, even though deference does mean that some governmental acts deriving from illicit motives rather than genuine foreign affairs considerations may go unremedied in court. The Court adheres to a strong deference doctrine because it is concerned that lower courts, if given wider authority to review, will overvalue individual interests and undervalue governmental interests. In an increasingly dangerous world, the Supreme Court is unlikely to overrule the plenary power doctrine.

This stems from The Chinese Exclusion Act of 1889 and Chae Chan Ping v. United States.

I haven't read the whole thing, it's long and complex, but there does seem to be precedent for allowing the president complete freedom to set immigration policy whether it makes sense or not.

Thank god the court decided, in this case, to take matters into their own hands but their decision could be tenuous.
Let's hope a new precedent is set by the courts since immigration issues are now being made from bigotry and unreasonable paranoia instead of valid security interests.

http://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1013&context=olr

[elehhhhna]

1. Why post this carp? Tell the courts.

[procon]

2. The Constitution still prevails.

Trump can assert that his decisions meet Constitutional muster, but when challenged the court is always the final arbiter of Constitutional questions.

[AngryAmish]

11. Well, so says the common law.

Marbary v Madison. Common law changes, as it will.

[PoindexterOglethorpe]

3. I doubt that he can try to promulgate

an unconstitutional executive order, regardless of the legal authority he may have in certain areas.

[Demit]

4. I think federal judges do this for a living.

They've probably even "read the whole thing."

[NutmegYankee]

5. The legislature could pass any law allowing anything - but the courts can rule that invalid.

The Constitution is the final word.

[The Velveteen Ocelot]

6. The 9th Circuit panel specifically rejected that argument.

The Government contends that the district court lacked
authority to enjoin enforcement of the Executive Order
because the President has “unreviewable authority to
suspend the admission of any class of aliens.” The
Government does not merely argue that courts owe
substantial deference to the immigration and national
security policy determinations of the political branches—an
uncontroversial principle that is well-grounded in our
jurisprudence. See, e.g., Cardenas v. United States, 826 F.3d
1164, 1169 (9th Cir. 2016) (recognizing that “the power to
expel or exclude aliens [is] a fundamental sovereign attribute
exercised by the Government’s political departments largely
immune from judicial control” (quoting Fiallo v. Bell,
430 U.S. 787, 792 (1977))); see also Holder v.
Humanitarian Law Project, 561 U.S. 1, 33-34 (2010)
(explaining that courts should defer to the political branches
with respect to national security and foreign relations).
Instead, the Government has taken the position that the
President’s decisions about immigration policy, particularly
when motivated by national security concerns, are
unreviewable, even if those actions potentially contravene
constitutional rights and protections. The Government
indeed asserts that it violates separation of powers for the
judiciary to entertain a constitutional challenge to executive
actions such as this one.

There is no precedent to support this claimed
unreviewability, which runs contrary to the fundamental
structure of our constitutional democracy. See Boumediene
v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that,
even by congressional statute, Congress and the Executive
could eliminate federal court habeas jurisdiction over enemy
combatants, because the “political branches” lack “the
power to switch the Constitution on or off at will”). Within
our system, it is the role of the judiciary to interpret the law,
a duty that will sometimes require the “[r]esolution of
litigation challenging the constitutional authority of one of
the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton,
566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S.
919, 943 (1983)). We are called upon to perform that duty
in this case.

Although our jurisprudence has long counseled
deference to the political branches on matters of immigration
and national security, neither the Supreme Court nor our
court has ever held that courts lack the authority to review
executive action in those arenas for compliance with the
Constitution. To the contrary, the Supreme Court has
repeatedly and explicitly rejected the notion that the political
branches have unreviewable authority over immigration or
are not subject to the Constitution when policymaking in that
context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001)
(emphasizing that the power of the political branches over
immigration “is subject to important constitutional
limitations”); Chadha, 462 U.S. at 940-41 (rejecting the
argument that Congress has “unreviewable authority over
the regulation of aliens,” and affirming that courts can
review “whether Congress has chosen a constitutionally
permissible means of implementing that power”).6 Our
court has likewise made clear that “[a]lthough alienage
classifications are closely connected to matters of foreign
policy and national security,” courts “can and do review
foreign policy arguments that are offered to justify
legislative or executive action when constitutional rights are
at stake.” American-Arab Anti-Discrimination Comm. v.
Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf at pp. 13-15

[pinboy3niner]

8. +1000. nt

[Kablooie]

13. Good! Glad to see this was addressed.

And it seems it has been only accepted custom up to now, not settled law, so the courts have the discretion to take it on if they feel it's in the country's best interest.

[rug]

7. No, they don't. It's not a separation of powers issue. It's statutory construction.

The executive order is based on a statute in which Congress granted the Executive certain powers.

The Supreme Court is the final arbiter of the constitutionality of both the statute enacted by the Congress and the manner in which it is used.

The courts are doing their job; trump is not doing his.

[CincyDem]

9. Since we're engaging in barstool judicial review...I would offer the following argument.

The president's immigration power is at the root of what's being called the "four corners" argument in this case - read the EO and only the EO. When you do that, they argue, he's acting within the boundaries of his long standing presidential powers.

In this case, however, we're racked with an over zealous religious test repeated daily during his campaign and reinforced by his commitment to make sure that Christians from those seven countries were allowed in. Taken together, that's the state making decisions based on religious affiliation and is, in effect, support of a state sponsored religion. That's why the 9th looked beyond the four corners, as they are allowed and even expected to do.

I think the courts were pretty clear - in my read, they said "you can't do it this way and, given the hole you dug yourself in the campaign, you have to craft these orders much cleaner to pass the constitutional bar".

My prediction is that Sessions will come back with a recommendation to rescind this EO and issue 4-6 tighter and lighter orders that individually will pass muster and combined will deliver 95+% of what he wanted from the original. For his followers, he'll frame is as a show of strength that he's so concerned about making america safe quickly that he's not going to fight, even though he would win, because it will take too long. He's going to take the quick path to safety. And they'll eat it up like it was manna from heaven.

He's such an asshat.

All IMHO of course.

[AngryAmish]

12. Which is the particular religion our state is supporting?

Hinduism? Jainism? Anabaptism (my particular favorite)?

Disallowing a particular religion or political system is not establishing a religion.

[dsc]

16. He directly stated that he would give priority to Christian immigrants from Syria

after the order was issued (he went on CBN with Pat Robertson to do this).

[riderinthestorm]

15. Agreed but the shit gibbon wants a court fight

He may not take recommendations from anyone, preferring to fight for his fatally flawed original EO.

[pnwmom]

10. Well, a Federal appeals court overturned two of Obama's immigration plans,

and that decision was upheld by a divided SC. So they set a precedent that did NOT acknowledge the President's "unreviewable" authority.

Just as Texas argued that Obama's immigration order was causing a burden to Texas, WA argued that DT's order was causing a burden to WA.

https://www.theatlantic.com/politics/archive/2015/11/fifth-circuit-obama-immigration/415077/

Since the Constitution grants exclusive power over immigration law to the federal government, the states’ lawsuit might seem quixotic. To circumvent this, Texas and the other states contend that by granting deferred action to an estimated five million undocumented immigrants, the Obama administration’s executive actions force the states to either provide services to them or change their state laws to avoid doing so. Texas, the only state whose standing was explicitly recognized by the court, specifically argued that the immigrants’ “lawful presence” would require the state to provide them with “state-subsidized driver’s licenses”and unemployment insurance.

[Sanity Claws]

14. If that were true, then Obama's DAPA and expanded DACA

Would not have lost in the courts.

[msanthrope]

17. Um, no. nt