|
FlamingLiberal posted:I mean this was a guy who thought that a death penalty was still valid even after DNA exoneration because the 'case was decided correctly at the time'. Hopefully he's burning in hell. That is not correct. He suggested in Callins v. Collins that the death penalty was not cruel or unusual when applied to a man convicted of asphyxiating an 11 year old girl by stuffing her panties down her throat after participating in her gang rape. I think you'll find his views are not terribly far outside the mainstream on this point. The man he was referring to (Henry Lee McCollum) had his conviction overturned due to DNA evidence 16 years later, but Scalia was not (nor was anyone else) aware of his innocence at the time. He also argued that exhaustion of appeals in Death Penalty cases was fine, and that the courts should not be required to entertain sudden last minute claims of newly discovered exculpatory evidence as grounds for a new trial or delay of sentence. His argument was that not having a limit on appeals would place an undue burden on lower courts, and that the power of state Governors to grand clemency or commutations already offered a sufficient vehicle for appeal in these extreme situations. He was correct about this, as much as it rubs some people the wrong way. Dead Reckoning fucked around with this message at 07:18 on Feb 5, 2017 |
#
?
Feb 5, 2017 07:14
|
|
|
|
| # ? May 23, 2024 23:06 |
|
|
Nitrousoxide posted:Looks like the Government is arguing that a "Facially Legitmate" standard of review is appropritate Where's that video from?
|
|
#
?
Feb 5, 2017 16:19
|
|
|
KernelSlanders posted:Where's that video from? https://twitter.com/RobPulseNews/status/828032705380098050 http://www.politico.com/f/?id=0000015a-060c-d96b-a7fe-1efd89b00000 Also here is the whole thing. http://www.uscourts.gov/cameras-courts/state-washington-vs-donald-j-trump-et-al Nitrousoxide fucked around with this message at 18:56 on Feb 5, 2017 |
|
#
?
Feb 5, 2017 16:33
|
|
|
Trump's emergency stay motion for the TRO was denied by the 9th circuit.
|
|
#
?
Feb 5, 2017 17:54
|
|
|
Mr. Nice! posted:Trump's emergency stay motion for the TRO was denied by the 9th circuit. Dear SCOTUS please do the same.  e: I love seeing the GOP argue that immigration is the sole authority of the executive, while having in the last year successfully* sued Obama over immigration EOs. *by suing in the place they knew they'd win because its full of right wing judges. Evil Fluffy fucked around with this message at 19:32 on Feb 5, 2017 |
|
#
?
Feb 5, 2017 19:28
|
|
|
At this point are there people still being held pursuant to the EO? I can't find anything up to date on the Dulles situation one way or the other.
|
|
#
?
Feb 5, 2017 22:36
|
|
|
KernelSlanders posted:At this point are there people still being held pursuant to the EO? I can't find anything up to date on the Dulles situation one way or the other. From everything I've read there should not be at this point. However there are quite likely a lot of people who were sent back to their home countries who have not been able to return.
|
|
#
?
Feb 5, 2017 22:56
|
|
|
Where can I read the filing that attempted to end the injunction? I really want to see the reasoning, based on news coverage- it sounds like a hoot/terrifying beyond belief.
|
|
#
?
Feb 5, 2017 23:17
|
|
|
Evil Fluffy posted:Dear SCOTUS please do the same. We're going to see the GOP walking back an absolute poo poo load of things but other people in the system fighting them on it tooth and nail. What I think is funniest is the fact that some people are just so shocked (shocked!!!!!) that so much of America isn't just rolling over and letting
|
|
#
?
Feb 5, 2017 23:19
|
|
|
Discendo Vox posted:Where can I read the filing that attempted to end the injunction? I really want to see the reasoning, based on news coverage- it sounds like a hoot/terrifying beyond belief. not sure but the argument before Robart is here: http://www.seattletimes.com/seattle-news/politics/federal-judge-in-seattle-halts-trumps-immigration-order/
|
|
#
?
Feb 5, 2017 23:22
|
|
|
Hieronymous Alloy posted:not sure but the argument before Robart is here: http://www.seattletimes.com/seattle-news/politics/federal-judge-in-seattle-halts-trumps-immigration-order/ I'll keep poking around. WaPo quotes the filing from the white house as asserting, and I quote the quote, "unreviewable authority".
|
|
#
?
Feb 5, 2017 23:42
|
|
|
Discendo Vox posted:I'll keep poking around. WaPo quotes the filing from the white house as asserting, and I quote the quote, "unreviewable authority". Haha, post it if you find it. Asserting a judge cannot do something is often the quickest way to get them to do it.
|
|
#
?
Feb 5, 2017 23:45
|
|
|
Discendo Vox posted:Where can I read the filing that attempted to end the injunction? I really want to see the reasoning, based on news coverage- it sounds like a hoot/terrifying beyond belief. Here's the motion in opposition of the original stay: https://www.clearinghouse.net/chDocs/public/IM-WA-0029-0013.pdf And the emergency motion to continue the stay. https://www.clearinghouse.net/chDocs/public/IM-WA-0029-0015.pdf You can get all the pleadings and motions here: https://www.clearinghouse.net/detail.php?id=15606&search=source%7Cgeneral%3BspecialCollection%7C44%3Borderby%7CfilingYear%3B
|
|
#
?
Feb 5, 2017 23:50
|
|
|
Hieronymous Alloy posted:Haha, post it if you find it. Got it!- and I see Nitrousoxide has it too. Thanks! I need to keep that site in mind. http://cdn.ca9.uscourts.gov/datastore/general/2017/02/04/17-35105%20motion.pdf quote:The district court’s sweeping injunction should be stayed pending appeal. It conflicts with the basic principle 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.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). It also contravenes the considered judgment of Congress that the President should have the unreviewable authority to suspend the admission of any class of aliens. The district court did not confront those authorities; indeed, it gave no explanation why the State of Washington has a high likelihood of success on the merits of its claims. And it entered the injunction at the behest of a party that is not itself subject to the Executive Order; lacks Article III standing or any right to challenge the denial of entry or visas to third-party aliens; and brings a disfavored facial challenge. Emphasis mine. ?!? I don't think Congress has the ability to give the President unreviewable authority. I'm...not actually aware of the idea of unreviewable authority under US law. Are they trying to assert political question without calling it that? Discendo Vox fucked around with this message at 23:56 on Feb 5, 2017 |
|
#
?
Feb 5, 2017 23:53
|
|
|
Man it'd be pretty sick if Congress could just say "and the courts can't review this" in their legislation and have iron clad laws huh?
|
|
#
?
Feb 6, 2017 00:05
|
|
|
Nitrousoxide posted:Man it'd be pretty sick if Congress could just say "and the courts can't review this" in their legislation and have iron clad laws huh? That's what North Carolina has been doing: Slate.com posted:Completely change the appeals process in order to limit the state Supreme Court’s authority. When Republicans took power, they provided citizens with the right to appeal constitutional challenges from superior court directly to the state Supreme Court. The new measure would remove this right, requiring constitutional challenges to be heard by all 15 judges of the court of appeals—which is dominated by Republicans—before reaching the state Supreme Court. https://www.google.com/amp/amp.slate.com/blogs/outward/2016/12/15/north_carolina_legislative_coup_an_attack_on_democracy.html?client=safari
|
|
#
?
Feb 6, 2017 00:19
|
|
|
Nitrousoxide posted:Man it'd be pretty sick if Congress could just say "and the courts can't review this" in their legislation and have iron clad laws huh? "May it please the court, Marbury vs. Madison was bullshit and I shouldn't even have to be here."
|
|
#
?
Feb 6, 2017 00:22
|
|
|
Nitrousoxide posted:Man it'd be pretty sick if Congress could just say "and the courts can't review this" in their legislation and have iron clad laws huh? I thought they could at least arguably do this via their power to limit the jurisdiction of federal courts. They've never actually done it, though. Edit: It's even more complicated than I remembered, and Congress actually did it with regard to the Reconstruction Acts: https://en.wikipedia.org/wiki/Jurisdiction_stripping It appears that the Supreme Court's original jurisdiction over cases between a state and the federal government, among other things, limits the use of jurisdiction-stripping to evade judicial review somewhat. Silver2195 fucked around with this message at 00:44 on Feb 6, 2017 |
|
#
?
Feb 6, 2017 00:28
|
|
|
Still Article III courts have constitutionally granted common law powers. Habeas explicitly, for example, but many others implicitly. Where there is a right there is a remedy, is a doctrine I doubt congress can strip.
|
|
#
?
Feb 6, 2017 05:08
|
|
|
Dead Reckoning posted:"May it please the court, Marbury vs. Madison was bullshit and I shouldn't even have to be here." Clarence Thomas' eyes light up.
|
|
#
?
Feb 6, 2017 05:10
|
|
|
So how's this mostly likely going to end? These are all temporary injunctions, not final rulings. My understanding was that if the executive clicked their heels and said "national security!" three times they could pretty much do whatever they want to the ability of non-citizens to emigrate. I just assume these hold-ups are because Trump was so unbelievably incompetent that he tried to dragnet green card holders and other exceptions along with everyone else and never bothered to ask a lawyer to review it.
DeusExMachinima fucked around with this message at 07:31 on Feb 6, 2017 |
|
#
?
Feb 6, 2017 07:29
|
|
This poster loves police brutality, but only when its against minorities!
|
DeusExMachinima posted:So how's this mostly likely going to end? These are all temporary injunctions, not final rulings. My understanding was that if the executive clicked their heels and said "national security!" three times they could pretty much do whatever they want to the ability of non-citizens to emigrate. I just assume these hold-ups are because Trump was so unbelievably incompetent that he tried to dragnet green card holders and other exceptions along with everyone else and never bothered to ask a lawyer to review it. From listening to the Judge Robart hearing yeah that's a lot of it -- not just green card holders but also people with valid long term visas etc. Students on student visas seem to be a big part of the standing argument for allowing the States to come in as plaintiffs (since it's state universities, etc.) The other big problem is they couldn't keep their mouth shut: Trump and Guiliani kept crowing constantly about how it was a "muslim ban" on national television. Couple that with the fact that the order itself is incoherent and doesn't seem to have any rational basis, and there's just not much left to justify this without falling back on just arguing that the President is a dictator when it comes to national security. My guess: I think the federal courts will near-uniformly affirm the stay and overturn the EO until it reaches the Supreme Court. At that point who the gently caress knows. Hieronymous Alloy fucked around with this message at 07:46 on Feb 6, 2017 |
|
#
?
Feb 6, 2017 07:43
|
|
|
Well then, it'll be incredibly hilarious if Trump self-owns what should be a slam-dunk even after the green card/visa kerfuffle because he just couldn't keep his yuuuge piehole shut. If it does get shot down permanently what's to keep him from tweaking it into a totally new not the same order and trying again down the road?
|
|
#
?
Feb 6, 2017 07:55
|
|
|
Trump will petition the Court to submit arguments via Twitter.
|
|
#
?
Feb 6, 2017 07:56
|
|
|
DeusExMachinima posted:Well then, it'll be incredibly hilarious if Trump self-owns what should be a slam-dunk even after the green card/visa kerfuffle because he just couldn't keep his yuuuge piehole shut. Yup. He's kindof *already* done that by his various public statements, but Guiliani's "Trump asked me to ban muslims legally, so I wrote this EO for him, totally legit now" speech on Fox is the hole below the waterline. The real question is whether the Trump administration keeps fighting this same exact EO, or backs down and re-drafts something more facially legitimate (perhaps by adding Saudi Arabia to the list of impacted nations, for example). I don't think Trump is capable of backing down or refining his position, though. I'm also a little surprised more DoJ attorneys haven't quit over this. If I were working in the Department of Justice and someone asked me to defend such a blatantly unconstitutional order, I'd have a really hard time stepping up.That's not why you go to work at the DoJ, especially given the higher ethical duty of government attorneys.
|
|
#
?
Feb 6, 2017 07:58
|
|
|
DeusExMachinima posted:So how's this mostly likely going to end? These are all temporary injunctions, not final rulings. My understanding was that if the executive clicked their heels and said "national security!" three times they could pretty much do whatever they want to the ability of non-citizens to emigrate. I just assume these hold-ups are because Trump was so unbelievably incompetent that he tried to dragnet green card holders and other exceptions along with everyone else and never bothered to ask a lawyer to review it. Most, if not all of these injunctions are based on cases being brought by people who currently have visas or green cards. Most of the analysis I've seen seems to indicate that the equal protection clause applies to people in US jurisdictions regardless of citizenship status, and the likely result being that while Trump may block new visas or green cards from being issued to people from those countries, blocking people who already have them at the border is too obviously a Muslim ban.
|
|
#
?
Feb 6, 2017 08:26
|
|
|
The EO also has exceptions for the minority religions from the the effected countries, is that going to be relevant going forward? It plays into the Absolutely A Muslim Ban argument, I'd imagine.
|
|
#
?
Feb 6, 2017 14:21
|
|
|
Rygar201 posted:The EO also has exceptions for the minority religions from the the effected countries, is that going to be relevant going forward? It plays into the Absolutely A Muslim Ban argument, I'd imagine. I would be very surprised. Of course the government can discriminate on the basis of religion when accepting immigrants and refugees! It'd be nonsensical if they didn't have that power. If a religious minority is being persecuted (I. E. The Yazidis), then you can absolutely take their religion into account when deciding whether or not to accept their presence in the country. That applies if it's Christians being discriminated against and there's certainly no problem codifying that into law or explicit policy. The problem as before applies to the green card and visa holders. I'm not sure the government needs rational basis to simply ban immigration from various countries, but it sure does to gently caress over visa and green card holders.
|
|
#
?
Feb 6, 2017 14:29
|
|
Cat Army 
|
The Iron Rose posted:I would be very surprised. Of course the government can discriminate on the basis of religion when accepting immigrants and refugees! It'd be nonsensical if they didn't have that power. If a religious minority is being persecuted (I. E. The Yazidis), then you can absolutely take their religion into account when deciding whether or not to accept their presence in the country. That applies if it's Christians being discriminated against and there's certainly no problem codifying that into law or explicit policy. The main thing about the religious exclusions is that they provide support for the "Muslim ban by another name" argument rooted in administration statements, but you're right that on its face religious considerations are acceptable. One big thing to consider is whether the administration takes into account persecuted minority Muslim sects (lol), which it ought to if the rationale is indeed to prioritize those facing religious persecution.
|
|
#
?
Feb 6, 2017 14:41
|
|
|
Quorum posted:The main thing about the religious exclusions is that they provide support for the "Muslim ban by another name" argument rooted in administration statements, but you're right that on its face religious considerations are acceptable. One big thing to consider is whether the administration takes into account persecuted minority Muslim sects (lol), which it ought to if the rationale is indeed to prioritize those facing religious persecution. I'd bet real money that Trump has never heard of "Shia", "Sunni", or "Druze"
|
|
#
?
Feb 6, 2017 14:58
|
|
|
The Iron Rose posted:I would be very surprised. Of course the government can discriminate on the basis of religion when accepting immigrants and refugees! It'd be nonsensical if they didn't have that power. If a religious minority is being persecuted (I. E. The Yazidis), then you can absolutely take their religion into account when deciding whether or not to accept their presence in the country. That applies if it's Christians being discriminated against and there's certainly no problem codifying that into law or explicit policy. Do they need a rational basis to discriminate on the basis of religion for accepting immigrants and refugees, though? Accepting immigrants from a persecuted religion, ok, you've got a rational basis; excluding immigrants solely because of their religious preference, though, with no evidence of anything else other than that? Is that something the first amendment allows? More specifically, what about excluding immigrants for a clearly pretextual reason (national origin) when there are multiple clear statements that the intent was to enact a ban against members of a specific religion? If the basis for the action is clearly animus and non-rational, does that matter? Technically yeah green card and visa holders have a much stronger argument for standing & for constitutional protection for their rights. I wonder if it's different for visa holders who are outside the borders vs. visa holders inside the country who want to leave and return (say, for a funeral overseas). I expect you're right though, and that the ultimate determining factor here will be whether the administration sticks to its guns regarding revoking current visas vs. abandoning that argument and just attempting to enforce the ban going forward by not issuing new visas. Quorum posted:. One big thing to consider is whether the administration takes into account persecuted minority Muslim sects (lol), which it ought to if the rationale is indeed to prioritize those facing religious persecution. Hahahah, yeah. There are also numerous reports of Yazidis getting excluded due to the ban, so they could argue it's nondiscriminatory because it isn't anti-muslim, see, it prohibits Yazidis also. Hieronymous Alloy fucked around with this message at 15:10 on Feb 6, 2017 |
|
#
?
Feb 6, 2017 15:05
|
|
|
I think you misunderstand what rational basis means in a legal context. Rational basis review is basically full deference to the decision maker currently under litigation. The court does not need to look at the proffered bases for a rule, but rather they look to whether there is any potential rational reason for justification imaginable. If so, defer. RBR review is very hard to defeat. There are very few times where rational basis is the standard of review and a rule will get overturned.
|
|
#
?
Feb 6, 2017 16:08
|
|
|
Mr. Nice! posted:I think you misunderstand what rational basis means in a legal context. Rational basis review is basically full deference to the decision maker currently under litigation. The court does not need to look at the proffered bases for a rule, but rather they look to whether there is any potential rational reason for justification imaginable. If so, defer. RBR review is very hard to defeat. If you listen to the oral argument I linked above, the attorney actually argues that the Muslim Ban fails that rational basis standard -- essentially, that it is wholly illogical and purposeless and that the only possible justification was racial animus. (He's not wrong). It kinda struck me as weird that he would make that argument since we are talking about a first amendment right and I would have thought a stricter standard would apply, but maybe there's something in the caselaw about immigration powers and rational basis. Alternatively, maybe he was shooting for the moon and figuring that if he had a decent case to beat even RBR he had a good case to beat any other level of scrutiny also (he does). Hieronymous Alloy fucked around with this message at 16:47 on Feb 6, 2017 |
|
#
?
Feb 6, 2017 16:30
|
|
|
Hieronymous Alloy posted:If you listen to the oral argument I linked above, the attorney actually argues that the Muslim Ban fails that rational basis standard -- essentially, that it is wholly illogical and purposeless and that the only possible justification was racial animus. (He's not wrong). It has nothing to do with case law, but how RBR works. The religious animus argument is an attempt to paint any conceivable justification of the ban as unconstitutional. You edited while I had my post open, so I've requoted you here with the edit in place. I don't think he's pushing for a higher level of scrutiny. I think it's just a broad stroke to cover any justification that might be imagined. I think he's correct. I also think there are a lot of ways this could have been put in place that would have survived scrutiny even with the obvious religious animus. Namely if they hadn't hosed with all the existing visa holders. Mr. Nice! fucked around with this message at 16:50 on Feb 6, 2017 |
|
#
?
Feb 6, 2017 16:47
|
|
|
If he hadn't hosed with existing visa holders, who if anyone would have had standing to challenge the ban? Real question, not argumentative.
|
|
#
?
Feb 6, 2017 16:56
|
|
|
Hieronymous Alloy posted:If he hadn't hosed with existing visa holders, who if anyone would have had standing to challenge the ban? Real question, not argumentative. Maybe the handful of citizens from the countries getting poo poo when trying to travel. Honestly I don't know for sure.
|
|
#
?
Feb 6, 2017 16:59
|
|
|
Hieronymous Alloy posted:If he hadn't hosed with existing visa holders, who if anyone would have had standing to challenge the ban? Real question, not argumentative. Potentially people in the middle of applying, employers looking to bring someone over, and family members.
|
|
#
?
Feb 6, 2017 17:00
|
|
|
Universities who incurred expenses in bringing an international student in either for research or classes might also have standing since they were out that money with no good reason, and it'd be too late in this case to simply fill the slot with another student on such short notice without further costs, too, maybe?
|
|
#
?
Feb 6, 2017 17:26
|
|
|
They would know:quote:We, Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, and Susan E. Rice declare as follows: . . . In our professional opinion, this Order cannot be justified on national security or foreign policy grounds.
|
|
#
?
Feb 6, 2017 18:07
|
|
|
|
| # ? May 23, 2024 23:06 |
|
|
I was left with the impression after that episode of Opening Arguments that the EO would have been within the President's power if it had applied only to the process of granting visas, the later 1965 law being designed to prevent consulates/embassies loving with application reviews along discriminatory grounds. This EO ran into trouble because it was written to apply to people who have had visas/green cards issued already and the President doesn't have the power to revoke legal permission to remain. I guess it will see the court striking the whole thing down and telling them to try again with a legal EO? Or they fight it to SCoTUS and hope Goresuch is in place and that's enough for them to win. I'm also curious what, if anything, is happening regarding the Nepotism laws. Like, Trump is specifically barred from appointing his daughter or son-in-law from any official or paid position and he's done just that with Jared Kushner. Is anything going to happen with that ever?
|
|
#
?
Feb 6, 2017 18:16
|
|
