Trump administration files notice it will appeal ruling against second version of travel ban

[DonViejo]

Source: The Washington Post



By Devlin Barrett March 17 at 3:47 PM

The Trump administration filed court papers Friday hoping to salvage its second version of a travel ban, after two judges in separate cases this week found it likely violated the Constitution.

The Justice Department filed legal papers in federal court in Maryland, setting up a new appeals court showdown in Richmond, Virginia.

Earlier this week, federal judges in Hawaii and Maryland issued orders against the travel ban, finding it violated the First Amendment by disfavoring a particular religion. If the Justice Department had appealed the Hawaii order , the case would have gone to the same San Francisco-based appeals court that rejected an earlier version of the travel ban.

The First Amendment prohibits any “law respecting an establishment of religion,’’ meaning the government must remain neutral between religions – or between religions and non-religion – and not favor or disfavor a particular faith.

Read more: https://www.washingtonpost.com/world/national-security/trump-administration-files-notice-it-will-appeal-ruling-against-second-version-of-travel-ban/2017/03/17/6fe4b33a-0b1f-11e7-b77c-0047d15a24e0_story.html?utm_term=.7e210aaff37b&wpisrc=al_alert-COMBO-politics%252Bnation&wpmk=1

[The_Casual_Observer]

1. They probably will reject the appeal.

This Bannon kind of Am radio banter turned to policy never actually works in the real world.

[jberryhill]

2. So?

Yes, that's the normal course when the government loses a case.

What's interesting is that they can't unring the bell on the rejection of the first order, since by going and changing the order they implicitly admitted that the grounds for striking down the first one were sound (and which are basically the same in this instance).

But, yeah, "we lost and are going to appeal" is not all that much of a blockbuster announcement in the normal course of litigation.

[Igel]

7. That can be explained away. n/t

[yallerdawg]

3. Pursuing the ban just for giggles now.

Do your "extreme vetting" - we know what's going on, jackass!

[cstanleytech]

4. Its going to be difficult for them to claim its not a ban based around the peoples religion though

as all the attorneys have to do is present Trumps statements he made about wanting to ban muslims as well as the last ban into evidence and there goes the governments claim of it not being because of their religion.

[Freethinker65]

5. Is there anyone qualified in the Justice Department left to argue it?

[ProudLib72]

6. The idea that

intelligent, hardworking federal judges have to waste their time on this crap is obscene.

[Igel]

8. It depends on the basis on which they'll decide it.

Is it the law, sensu stricto, or do they weight pre-inauguration utterances and consider them part of the text of the EO?

Opponents argue that intent matters, more than the text of the EO. The administration seems to be arguing that intent can change and to focus on the text of the EO.

[Igel]

9. I think I'd add that some of the argumentation is specious.

Religious persecution is one of the bases for accepting refugees, and if anybody is disproportionately persecuted in the countries under consideration it's Xians. Progressives back a few years argued that Yazidis should be given special preference because of their abuse at the hands of ISIS, being singled out for persecution.

Then there was the reporting last fall saying that if 10% of Syrians are Xians, why are 0.5% of refugees Xian? The answer came down to discrimination by Muslims who were interviewing and processing or to fear on the part of Xians that Muslims would discriminate. (Something we invoke often in the US.) In the US, this disproportionate impact would be prima facie evidence of discrimination, but oddly when affirmative action is invoked against a perceived privileged class it's deemed offensive. (Seriously. If 1 million people were affected by something horrible, 10% of them were black, but only 0.5% of those receiving assistance were black there'd be hell to pay in the American political system. If 10% were Muslims, and only 0.5% of those getting help were Muslim, there'd be hell to pay. But if 10% are Christian and only 0.5% are getting help, well, just "meh." Local politics often influence morals and values more than we'd like to admit. And, yes, I think the Yazidi should have gotten special consideration back in 2014 or so, just like Jews got special consideration back in the late '70s and early '80s for emigration from the USSR.)

[Honeycombe8]

10. That was a given. Who knows what happens next? nt

[suffragette]

11. The 4th Circuit Court has traditionally been much more conservative than the 9th.

That's why they are choosing to appeal there.

Thankfully Obama has shifted that somewhat through thoughtful appointments - a clear result of elections having impact.

http://www.richmond.com/news/virginia/government-politics/th-circuit-shedding-conservative-reputation/article_bc5d4a00-3208-11e2-a877-0019bb30f31a.html

Tobias said the judges appointed by Obama were well-qualified and had high ratings from the American Bar Association. "They are diverse in terms of gender and ethnicity, and most (five of the six) were sitting judges," he said.

"I think we're beginning to see some opinions that probably look different than they would have before those judges came on the court," said Tobias.

Still, a three person panel there has a higher chance of having a Conservative majority than it would at the Ninth. The full panel has been known to overturn the decisions of its three person panel.

Hopefully, Maryland follows Washington State's plan with the 1st lawsuit of launching discovery and seeking depositions from the Administration to learn the process of creating the travel ban and who was actually involved in creating it. That clearly rattled them since they know it is based on unconstitutional and prejudiced views.