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Issue a New Executive Order and Take This One to SCOTUS

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The Ninth Circuit has declined to stay the temporary restraining order issued by Judge Robart in Washington State preventing enforcement of Executive Order 13769, the controversial travel restrictions on nationals of seven countries.

The Ninth is, of course, correct that due process protections apply to legal permanent residents (i.e., "green card" holders).  Yet even though the Administration has said it won't apply the limitations to permanent residents, it held that such application was not moot.
The Government has argued that, even if lawful permanent residents have due process rights, the States' challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued "[a]uthoritative [g]uidance" stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government's contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.
Nor has the Government established that the White House counsel's interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government's shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc., v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added).

Failure to exempt legal permanent residents in the text of the original order was an error, and the error could be remedied by issuing a new order.

Once we get beyond legal permanent residents, the Ninth Circuit opinion becomes much easier to attack and much more difficult to defend.

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972).

Let's take these one-by-one.  Zadvydas v. Davis, 533 U.S. 678 (2001) does hold that persons in the country have due process rights, even if here illegally.  However, on the very page the Ninth Circuit cites, the Supreme Court draws a sharp distinction between those who are here and whom the government is trying to remove and those who are trying to enter the country, even if they are re-entering after a previous stay.  "It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. [Citations.]  But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."  Certainly an alien who was here illegally and left has no due process rights regarding re-entry.

The Ninth cites Landon v. Plasencia, 459 U.S. 21, 33-34 (1982) for the proposition that due process rights extend to non-immigrant visaholders who wish to depart and return.  Not only does Landon not say that at the point cited, it comes pretty close to saying the opposite.

Plasencia entered the country as a permanent resident alien.  That fact was critical to the decision.  The Court reiterated the general rule.  "This Court has long held that an alien seeking initial admission to the United States requests a privilege, and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative."  Then the Court notes the exception.  "As we explained in Johnson v Eisentrager, 339 U. S. 763, 770, (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation [citations]."  Even a permanent resident alien can lose his right to due process for re-entry if he leave for 20 months, the Court notes at 33-34, citing a 1953 precedent, but Plasencia was only gone a few days.

There is nothing here to support the citation for non-immigrant visaholders.

For refugees, we have the curious citation to "8 U.S.C. § 1231 note 8."  It is not clear what "note 8" refers to.  The section as a whole deals with "Detention and removal of aliens ordered removed," which does not seem to have anything to do with refusing entry at the border.  The Supreme Court has made very clear that removal and non-admission are very different things, as noted above.

For the notion that the interests of residents in securing visas for related persons supports judicial review here, the Ninth Circuit cites a couple of individual opinions, which are not precedents, and Kleindienst v. Mandel, 408 U.S. 753 (1972).  But that case actually strongly reaffirmed the executive power to exclude nonresident aliens in its discretion.  In that case, Congress excluded a class of persons and gave the executive discretion to grant waivers.  The plaintiffs wanted to litigate whether the Attorney General had denied a waiver to invited Marxist speakers in violation of the First Amendment rights of the hosts.  No dice, said the Court.

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under § 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that, when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Looking behind the exercise of discretion based on a facially valid reason is exactly what the Ninth Circuit did in this case.

In this case, Congress has delegated essentially unlimited discretion to the President in 8 U.S.C. § 1182(f):

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

If I wanted to write a statute to give the President complete and unreviewable discretion, that is how I would write it.

For permanent resident aliens, yes, the Due Process Clause must be considered.  For all other aliens presently outside the country, the President may suspend admission on the terms he thinks proper.  The Ninth Circuit is wrong to the extent that it indicates that the plaintiffs have a substantial chance of success on the merits other than for permanent residents.

Should the Administration take the present case to SCOTUS in addition to issuing a new order?  I think so.  Even though the Ninth declines to "rewrite" the order, there is ample precedent for simply construing a regulation not to apply to resident aliens where such application would raise constitutional issues.  See Landon, at 33.  That is what the courts should have done in this case.

36 Comments

"For all other aliens presently outside the country, the President may suspend admission on the terms he thinks proper."

If the EO simply stated -- "No alien (from the seven listed countries) may be admitted to the United States because, in my opinion, the vast majority of such persons are Muslims and I believe these Muslims would pose a grave danger to national security" -- would it, in your opinion, be constitutional?

If you have an opinion on the topic of the post, state it. This is not "Jeopardy."

The difficulty with dealing with only the due process part of the Ninth Circuit decision on the merits is that it leaves potential establishment clause objections. Rudy Guiliani stated on CNN, "So when [Trump] first announced it he said "Muslim ban." He called me up and said, "put a commission together, show me the right way to do it legally." Is a Muslim ban what the President is aiming for and if so, does that raise Establishment clause concerns?

The order also banned most refugees from coming to the US for four months (before being put on hold by a federal judge), but allowed and even encouraged the US to bring in persecuted “religious minorities” — and President Trump has explicitly promised to help Christians in the Middle East.

Lawfareblog criticized the Ninth Circuit for not mentioning 8 U.S.C. § 1182(f), but Ben Wittes also noted that an important question, "is the extent to which the repeated and overt invocations of the most invidious motivations on the part of the President himself, his campaign, his adviser, and his Twitter feed will render an otherwise valid exercise of this power invalid." Time will tell on that I guess.

I'll do my best to answer my serious question to you: If the portion of the EO that bans Muslims from those seven countries from entering the US was based on animus against Muslims in general and was not supported by a rational (national security) basis then, yes, I believe it would, in the words of the 9CA, raise serious constitutional issues that a court should resolve.

Given Trump's numerous campaign statements, and Giuliani's statements on Fox about Trump's intent (to "make it (the Muslim Ban) legal"), I believe a court is justified (under these extraordinary circumstances) in looking beyond the face of the EO to determine Trump's true intent -- An intent that IMO raises serious constitutional issues.

This whole unfortunate episode is not surprising and is very likely to be repeated numerous times while Trump is in office given his highly impulsive, I-am-the-smartest-man-in-the-room, personality and character.

Your advise to simply draft another EO is reasonable and proper. And, given his character, certainly going to be rejected by Trump who will never admit that he is/was wrong.

P.S. I wouldn't want to play Legal Jeopardy with you, as I would certainly lose. Needless to say, my question was sincere.

Why are Trump's comments "invidious"? And with respect to Middle East Christians, are we really saying that a special attempt to help them is somehow "invidious"?

"An intent that IMO raises serious constitutional issues." But you leave out the important thing--what right does an alien not within the boundaries of the United States have to enter into the country? The answer to that is: NONE. So, even if there were "animus", in the absence of an enforceable right, what remedy is there?

You don't dispute Kent's reasoning, you simply say "in my opinion, there are issues". That's just virtue-signaling, not analysis.

President Obama was criticized for the relative lack of Christians coming here as refugees from the ME. Did courts have the right to look into that?

Kleindienst v. Mandel, noted in the OP, did address a First Amendment issue. It was speech rather than religion, but I don't see a reason to treat them differently. The block quote from that decision in the OP seems dispositive to me.

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No "right" for sure. But what if you are going to broadly deny the "privilege" of seeking entry into the US simply because a person is a Muslim who lives in one of the seven majority-Muslim nations (something that Trump's EO was, arguably, intended to accomplish, albeit temporarily), aren't there constitutional concerns that a court is entitled to carefully examine? Or is the EO simply unreviewable?

If there was evidence that Obama was denying Christian refugees from the ME the privilege of seeking admission into the US simply because they were Christians, then, yes, his action should be reviewable.

Decencyevolves: The following passage from Justice Kennedy's concurrence in Kerry v. Din, 135 S. Ct. 2128 (2015), gives a sense of why the Ninth Circuit judges were focused on bad faith in oral argument and why the Supreme Court may not simply accept the notion of refusing to look behind the language of the order to determine if the EO is motivated by religious bias:

"Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to 'look behind' the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on §1182(a)(3)(B) encompassed."

I think rescinding the EO and starting over would be the right move for the Administration.

Facially legitimate AND bona fide (i.e., true). There was ample evidence before the 9CA to question whether the legitimate reason for the ban stated on the face of the EO was Trump's true motivation (to implement the Muslin Ban he had repeatedly been promising he would impose.)

Decencyevolves:

While the courts accord substantial deference to the Executive Branch on issue of immigration and national security, I also think Jack Goldsmith (a Bush II attorney in OLC) has it about right in this Lawfare Blog post, when he says this about the President's dismissive, angry, in your face strategy towards everyone who doesn't instinctively and automatically agree with him, including the federal judiciary:

"When arguments for deference to the President are made via threatening public tweets before an actual attack, they will certainly backfire. The tweets will make it very, very hard for courts in the short term to read immigration and constitutional law, as they normally would, with the significant deference to the President’s broad delegated powers from Congress and to the President’s broad discretion in foreign relations. Judges in the short term will be influenced by the reaction to the EO Immigration order, and by doubts about executive process, integrity, truthfulness, and motivation that the manner of its issuance implies. They will also worry a lot about being perceived to cave to executive pressure. The pressure from Trump, and related events, thus make it more likely—much more likely, in my view—that the Ninth Circuit and, if it comes to it, the Supreme Court will invalidate the EO in some fashion."

We live in a democracy, not an autocracy. I'd feel better if I sensed that the Administration genuinely agreed with, and internalized, that point of view,

So if there is no right, there is no remedy. Unless, of course, judges have some roving mandate, which they do not. Once again, you are virtue-signaling instead of engaging in debate.

As for Obama and Christians, the allegation was that Christians in Syria were just not a priority, and the numbers were so disproportionate (See Yick Wo v. Hopkins).

The other problem you have, paul, is that what constitutes invidiousness is not so easy to determine. A president would be justified in making broad judgments about ability to assimilate or even broad judgments about which ethnic/religious groups are more worthy than others.

But, once again, at the end of the day, if there's no right, the courts have nothing to vindicate. Your concession that there is no right really should end the matter.

Aliens have no right to be admitted. But they can't be denied the right to seek the privilege of admission based solely on their religion. The later is vindicated by a court by affording them the right to seek admission without regard to their religious beliefs.

They still have to go through "extreme vetting" before being admitted. But that vetting cannot deny admission solely because they are Muslim -- which was the intent of T's EO if T's "Muslim Ban" statement and Giuliani's "T said make my Muslim Ban legal" statement are to be be believed.

No right to a drivers license. But a right to try and pass the driver's test and get a license. The later right (to seek the privilege of driving) can't be denied solely because of the applicant's religion.

Funny, Decency, you say we live in a democracy, but clear law is not followed because the courts wish to send some sort of message? Doesn't sound like democracy to me. Lincoln and FDR both strongly criticized the judiciary.

Decencyevolves: Likely to get en banc review? Because one out of 29 judges wants a vote? The Ninth Circuit includes some of the most conservative federal judges in the country (O'Scanlainn, Callahan) but they hardly constitute a majority of the court. He or she will only need 14 more votes to review denial of a stay of a TRO. How likely is that? Kent is right on the wisdom of starting over. The Administration isn't even going for Supreme Court review and is signaling their intention to draw up a replacement EO. As for the federal judiciary merely "sending a message", that's not how I see it--the judges genuinely believe that the State of Washington has made the standard for a TRO and they have provided a reasoned basis for that decision that is divorced from mere political advantage. This is a lot more than Can be said for the purported justification for the EO, which Ben Wittes correctly described as a regrettable mixture of malevolence and incompetence.

We don't know what goes on internally, of course, but from my experience watching the Ninth I infer that judges generally don't call for a vote unless they think they have a chance of winning it. I have seen panel opinions with banging-the-table dissents but then no calls for a vote on rehearing en banc.

"Likely" may be going too far, but I think the call for a vote indicates at least "decent shot."

Decencyevolves: It's so hard to know. I've had an banc rehearing votes ordered in the Ninth with nothing but "never mind" denials with nary a dissenting voice on the denial of en banc rehearing and wondered afterwards, "What the heck was that about?" but your mileage may vary.

Decencyevolves: I do imagine though, that in this high profile case we will probably get a dissent from the denial of en banc rehearing if they don't take it up again and then we will know precisely what the split was.

Paul stated: "Given Trump's numerous campaign statements, and Giuliani's statements on Fox about Trump's intent (to "make it (the Muslim Ban) legal"), I believe a court is justified (under these extraordinary circumstances) in looking beyond the face of the EO to determine Trump's true intent -- An intent that IMO raises serious constitutional issues."

Just curious. Was it your position that the Federal courts and SCOTUS should have decided against the legality of the individual mandate based on Obama's many times repeated lie when trying to get passage that the mandate was not a tax?

Paul stated: "There was ample evidence before the 9CA to question whether the legitimate reason for the ban stated on the face of the EO was Trump's true motivation (to implement the Muslin Ban he had repeatedly been promising he would impose.)"

Absurd. The "ban" only covers 1 out of every 9 Muslims in the world.

Hitler didn't try to kill 1 out of 9 Jews.

Decencyevolves: There are motives that are constitutionally impermissible and those that are not. A Muslim ban, which the President campaigned on and which according to Giuliani he wanted to achieve through this ban, is not. You don't have to discriminate against all members of a given faith to be impermissibly discriminatory. For example, to the extent the State Department during WWII turned away German Jewish refugees based on anti-semitism, as they did to relatives of mine who then died in the holocaust, they still had motives that would be impermissible now, even if they had been open to immigration by English Jews.

Decencyevolves: There are motives that are constitutionally impermissible and those that are not. A Muslim ban, which the President campaigned on and which according to Giuliani he wanted to achieve through this ban, is not. You don't have to discriminate against all members of a given faith to be impermissibly discriminatory. For example, to the extent the State Department during WWII turned away German Jewish refugees based on anti-semitism, as they did to relatives of mine who then died in the holocaust, they still had motives that would be impermissible now, even if they had been open to immigration by English Jews.

Decencyevolves: There are motives that are constitutionally impermissible and those that are not. A Muslim ban, which the President campaigned on and which according to Giuliani he wanted to achieve through this ban, is not. You don't have to discriminate against all members of a given faith to be impermissibly discriminatory. For example, to the extent the State Department during WWII turned away German Jewish refugees based on anti-semitism, as they did to relatives of mine who then died in the holocaust, they still had motives that would be impermissible now, even if they had been open to immigration by English Jews.

"Aliens have no right to be admitted. But they can't be denied the right to seek the privilege of admission based solely on their religion. "

Oh, really? And what authority do you have for that proposition? Aliens without the United States (other than those with status--permanent residency) simply have no rights when it comes to entry. They don't have the right to be treated according to some US court's notion of fairness, and they don't have some 5A equal protection right either.

Let's take a hypo, and I think you might want to grapple with this, rather than trying to pass off platitudes as law. Let's say Saudi Arabia started to collapse, and there were millions of refugees to be dealt with, could an American president say, you know what, the culture there is completely at odds with American culture, and we are not going to allow large numbers of people reared in that culture to come here? Immigration changes the character of the country--that is an ineluctable fact.

Complete and utter nonsense.

Again, were you for holding Obama strictly to his word about the individual mandate when he claimed it was not a tax leading up to passage and did a 180 in court? Or when the Gruber tapes came out claiming the same thing leading up to the court case?

Trump's rights as POTUS are clearly written into law. In fact, immigration law explicitly allows discrimination based upon religion. If someone claims refugee status due to religious persecution, the individual needs to be a member of the persecuted religion, effectively discriminating against people of other religions (or atheists) who may want to come here.

You stated: "You don't have to discriminate against all members of a given faith to be impermissibly discriminatory."

A constitutional right to not be discriminated against is limited to those people with feet on our soil. That does not include your relatives or Muslims in the seven countries. There are two factors playing into who is banned, religion AND the status of the countries (failed terrorist states) of origin. If the EO was intended to be a discriminatory "Muslim ban", the country of origin would be irrelevant.

Would it constitute "bad faith" on the part of T if his EO was solely designed to ban Muslims (from any of the seven countries who had never set foot in the US) from seeking admission to the US because (and only because) they were Muslim?

Do you believe that Justice Kennedy's statement in Din about "bad faith" has any relevance to this issue? (A concurrence by Kennedy that the 9CA has held is the controlling opinion of the Court in Din. (See Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016).))

Breckinridge Long, the State Department official in charge of immigration in the 1930s, was an inveterate anti-Semite who thought Jews were untrustworthy and probably Communists. For this reason, tens of thousands of Jews, including my relatives and Anne Frank and her family, were denied visas. Long and the Roosevelt Administration he worked for had great discretion on this issue. These actions were incredibly immoral, motivated by religious animus and arguably taken in bad faith. Were they unconstitutional? Under Din, perhaps they were.

As lawyers, we focus on the legality of the Executive Order and its enforcement. As citizens and human beings, it's also important that we focus on its morality. The Director of the Anne Frank Center for Mutual Respect said this:

THE STATUE OF LIBERTY WEEPS
AS PRESIDENT TRUMP TARGETS
MEXICANS AND MUSLIMS

Statement of Steven Goldstein, Executive Director of the Anne Frank Center for Mutual Respect, the U.S. civil and human rights organization among Anne Frank organizations worldwide:

"President Trump is beyond the wrong side of history. He is driving our nation off a moral cliff.

When President Trump uses national security as a guise for racism, he doesn't strengthen our national security. He compromises our national security by engendering disrespect for America by people around the world.

Make no mistake, suspending visas for citizens of Middle Eastern and African countries is not called national security. It's called prejudice.

President Trump is now exacerbating the largest global refugee crisis in history. His slamming America's doors on the starving, the wounded and the abused is a grotesque blot on our nation's history of freedom. The President's actions are an embarrassment to the timeless vision of America as inscribed by Emma Lazarus to "give us your tired, your poor, your huddled masses yearning to breathe free."

Demonizing refugees and immigrants, and spending billions of taxpayer dollars to keep them out of our nation, will go down in American history as one of the most tragic deviations from our national conscience."

Even if it did constitute "bad faith" (if such a term used in the context of a particular individual with a concrete interest associated, i.e., a spouse), you're talking about courts opening the border to thousands based on some right to be treated fairly. But there is no right, as you originally conceded.

The "bad faith" argument that you are slyly trying to make (by way of a bastardized Socratic Method) is truly a "slender reed." Presidents aren't hamstrung about how they treat aliens with no connection to and without the country when it comes to admissions to this country by what some court divines as his or her faith (good or bad).

You want to stay on the sidelines, bleating on about "bad faith" or some sort of right to be treated fairly. Ok, even assuming there's a right to be treated fairly--a stretch, mind you, how does that translate into an individual Somali with no residency rights/visa gaining the right to be here? And what about the President saying, guys, we're prioritizing Christians with our limited resources? You want to make niggling arguments divorced from what the remedy would be.

I've noticed, paul, that you basically stop posting when someone gets the better of you. You never responded to the Quarles problem i pointed out, and you had no good answer to why McConnell, after being on the receiving end of Dem hardball on judges, should have been so magnanimous.

You appear to me to be a virtue-signaler.

I am not suggestthe the borders should be open because it is fair to do so. What I am suggesting is that an EO that seeks to exclude aliens (who have never set foot on American soil) from seeking entry in to the US solely because they adhere to a particular religion should be unconstitutional. Whether you reach that conclusion by application of the Din "bad faith" test or other judicial doctrines has not yet been decided by any court.

I will add that the plaintiffs should bear the burden of proving that T's EO was principally motivated by religious animus. This may be a very difficult burden to meet. But given T's numerous statements it shouldn't be impossible.

I would also state that I am an advocate of "extreme vetting" of any alien seeking entry for the first time into the US. I just don't believe that an alien can constitutionally be precluded from undergoing such vetting simply because he adheres to a particular religion.

Finally. to the extent that I am a virtue-seeker, as you state. I take that as a badge of honor. (No need to get nasty :))

Even if we take the words of Goldstein and Lazarus's second rate poem at face value, whether or not we SHOULD ban refugees from coming here is a completely different question than whether POTUS has the RIGHT to do so.

He does.

PS Is Obamacare (ie. the individual mandate) unconstitutional based on Obama's statements when trying to get the law passed?

Let's say adherents of a religion were being slaughtered based on their faith in Country A and the President were to say, "I don't want filthy _____ coming into this country. Their gutter religion is unamerican and makes me sick." Would that be unconstitutional? It's an extraordinary question, and I don't think any of us have a definitive answer, just guesses from past cases. The circumstances in this case are fairly extreme too--occasioned by extreme statements made during the campaign, the staffing of the White House and crafting of the EO by people with extraordinary and extreme views (Miller and Bannon), the extraordinary rollout of this policy, the lack of clear national security justifications for it, and the extraordinary statements by the President regarding the judiciary that have followed it. Time will tell where this all ends up, but I think anyone who believes they can say with certainty what the outcome will be is fooling themselves.

"Virtue-signaler" is not a complimentary term. You utterly refuse to grapple with the real problem with your "test" (which really isn't a test, just a statement that "bad faith" wasn't involved in a single person's application where there are time-honored rights associated with marriage)--can a court's divining of the true intent of the one person charged with enforcing the border create some sort of right to be here on the part of someone with no ties to the US?

And I don't believe that I have gotten nasty. You did abandon the field with respect to the Quarles issue and with respect to McConnell.

You stated: "Let's say adherents of a religion were being slaughtered based on their faith in Country A and the President were to say, "I don't want filthy _____ coming into this country. Their gutter religion is unamerican and makes me sick." Would that be unconstitutional? It's an extraordinary question, and I don't think any of us have a definitive answer, just guesses from past cases."

There is a "definitive answer" as to whether it is constitutional. There just is not a definitive answer as to how the judicial activists on the left will vote. Then again, maybe there is. They will vote outcome, not law.

You stated: "The circumstances in this case are fairly extreme too--occasioned by extreme statements made during the campaign, the staffing of the White House and crafting of the EO by people with extraordinary and extreme views (Miller and Bannon), the extraordinary rollout of this policy, the lack of clear national security justifications for it, and the extraordinary statements by the President regarding the judiciary that have followed it."

Your "extraordinary" examples all have one thing in common. They should not matter at all as to how judges vote.

The judges are not there to punish an administration for a poor roll out. That is for the voters to decide.

The judges are not there to determine whether there are clear national security justifications. First of all, they do not get daily national security briefings. Second, bad policy is to be held accountable by the voters, not judges.

The judges are not there to punish a president for intemperate statements about the judiciary. If they do so, that is many times worse than Trump calling a "so-called" judge a "so-called judge."

You stated: "Time will tell where this all ends up, but I think anyone who believes they can say with certainty what the outcome will be is fooling themselves."

I never said that I knew the outcome. I said the EO is constitutional, unfortunately, two different things.

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