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Legality of the Muslim Countries Visa Ban

  1. Don W profile image81
    Don Wposted 4 months ago

    Call me simplistic, but doesn't the 2017 executive order break the law?

    Executive Order, Protecting the Nation From Foreign Terrorist Entry Into The United States, 2017:

    "Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern . . . I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas)." (1)

    Immigration and Nationality Act 1965, Title II: Immigration Part I, Selection System, Numerical limitations on individual foreign states, Nondiscrimination:

    "Except as specifically provided in paragraph (2) and in section 101(a)(27) [8 U.S.C 1101(a)(27)] , section 201(b)(2)(A)(i) of this Act [8 U.S.C 1151(b)(2)(A)(i)] , and section 203 of this Act [8 U.S.C 1153] , no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence" (2)

    Did I miss something? Doesn't the executive order discriminate on race (the majority of people from the countries affected are arab and black African), nationality, place of birth and place of residence?

    (p.s. apologies to those on the forum who can only seem to process information in meme form, but reading lots of words with no pictures is sometimes necessary and useful)

    (1) http://edition.cnn.com/2017/01/28/polit … index.html
    (2) http://www.lawandsoftware.com/ina/INA-2 … 2.html#a_1

    1. wilderness profile image96
      wildernessposted 4 months ago in reply to this

      No, it doesn't discriminate on the basis of race (shame on you for playing that card when it is so obviously irrelevant).  Nor on place of birth.  Maybe not on nationality (Can an Saudia Arabian living in Syria still immigrate?).

      Had the Act been in effect in the 40's, would the order denying visitation or immigration to Germans have been illegal?  Do we need to revisit that act?  That would seem far more important than complaining about a 90 day suspension of immigration from certain countries with a high degree of terrorism.

      1. Don W profile image81
        Don Wposted 4 months ago in reply to this

        Can I just clarify, are you saying the executive order does seem to break the law?

        I haven't "played" anything. I have asked if an executive order is legal, and if not, then on what grounds. Shame on you and the Trump administration for not asking the same. 

        Whether we need to "revisit" the Immigration and Nationality Act or not is irrelevant. It is current law.

        The length of the ban is irrelevant too. "I only broke the law for 90 days" is not a valid legal defense, as far as I'm aware.

        The Trump administration could have left the current process in place while they implemented the other measures outlined in the executive order (a review by the secretary of state, and new process for background-checking visa applicants). Then the processes could have simply been switched over. As it is, the "suspension" seems to break the law. The implications of that are serious. Should Trump and his administration be above the law?

        1. wilderness profile image96
          wildernessposted 4 months ago in reply to this

          I'm not sure if it breaks the law or not; I was unable to actually find the sections you quoted.  Nor am I truly lawyer enough to know, but I DO believe that nearly every recent president to date has "broken" that same law, which would seem to be some indication that there is a loophole somewhere not being mentioned.

          Does the phrase "would be detrimental to the interests of the United States" make it legal?  What about "Except as specifically provided in paragraph (2) and in section 101(a)(27) [8 U.S.C 1101(a)(27)] , section 201(b)(2)(A)(i) of this Act [8 U.S.C 1151(b)(2)(A)(i)] , and section 203 of this Act [8 U.S.C 1153] "?

          Yes, you most certainly DID play the race card.  "Doesn't the executive order discriminate on race..." can be read as nothing but "I think it's racist - can you prove otherwise?"

          Both of these seem to offer a way to sidestep the law, but those are what I couldn't find, along with "217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)"?  Did you look them up, and if so why don't they have links here?  They certainly seem like they might answer your question.

          1. Don W profile image81
            Don Wposted 3 months ago in reply to this

            For future reference if you ever see me write "I think ABC is the case", it's safe to say I think ABC is the case. If you ever see me write "Did I miss something? Doesn't this mean XYZ?" that means I'm not sure if it's the case and I'm open to further information and discussion about it (which is why it's in the form of a question and not a statement).

            Also, to pre-empt another possible source of confusion, my comments in this thread are about the legality of the executive order only, not whether it is morally acceptable. That's a different discussion.

            I have looked up those sections, and they relate to exceptions for who should be given "preference or priority", not exceptions for who can be discriminated against. I agree though, previous restrictions on entry suggest some other source of authority, which I'm interested in knowing.

            I found Section 212(f) of the Immigration and Naturalization Act [8 U.S. Code 1182] which is about "Inadmissible aliens":

            "(f) Suspension of entry or imposition of restrictions by President

            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
            " (my emphasis)(1).

            I've seen the suggestion that this section of the 1952 Act is superseded by the 1965 amendment prohibiting discrimination on specified grounds, but I believe that would be a relatively weak legal argument. So I think a court reviewing the suspension ordered in the EO would find it difficult not to deem it legal, based on the authorisation given in section 212(F) of the INA.

            The emergency stay is narrow in scope as it's specific to people within the scope of the EO currently detained at US airports. The stay is described by the ACLU (who brought the case) as: "a nationwide temporary injunction that will block the deportation of all people stranded in U.S. airports", but does not consider the constitutionality of the order itself(2)(3). 

            (1) https://www.law.cornell.edu/uscode/text/8/1182
            (2) https://www.aclu.org/blog/speak-freely/ … s-detained
            (3) http://edition.cnn.com/2017/01/28/polit … ravel-ban/

            1. wilderness profile image96
              wildernessposted 3 months ago in reply to this

              "I have looked up those sections, and they relate to exceptions for who should be given "preference or priority", not exceptions for who can be discriminated against."

              But if you give preference to one, you are automatically discriminating against another.  Exactly what is being done, yes?  A loophole, and show a businessman a loophole and he'll jump faster than a cricket on a hot plate.

              "So I think a court reviewing the suspension ordered in the EO would find it difficult not to deem it legal, based on the authorization given in section 212(F) of the INA."

              I agree.  Of course the courts may not, but it does seem that you have found the answer to the original question - it is very likely quite legal.  That loophole thing again.

              All that's left is the question of discrimination by race , nationality, place of birth and place of residence?  The answer is "No" because it applies to all people equally, not just those of any of those categories.  A white, American born, citizen of the US, living in the US, that visits Iraq cannot return.  At least as I read the order.

              1. Don W profile image81
                Don Wposted 3 months ago in reply to this

                Further scrutiny reveals a possible legal argument that certain parts of this executive order are unconstitutional.

                The main reason is that although they have gone to great lengths not to explicitly state this is a ban on Muslims, the effect of the order is exactly that. It also, in effect, disfavors a certain religious group over others. For example, section 5(b) says:

                "[the Secretary of State] is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality"(1).

                So in effect (based on the countries listed) this order prioritizes non-Muslim refugees over Muslim refugees. This is important because a court will not only consider what is stated explicitly, but also the intent and effect of the order.

                To support that interpretation of the order, Trump's remarks during the election would be admissible as evidence, e.g:

                "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on"(2) -- (Election Campaign Press Release, December 2015)

                and

                "In addition to screening out all members or sympathizers of terrorist groups, we must also screen out any who have hostile attitudes toward our country or its principles ― or who believe that Sharia law should supplant American law." (3) -- (Campaign Speech, Ohio, August 2016)

                etc.

                I don't believe it would be difficult to demonstrate that, in effect, this order discriminates against Muslims, while favoring people from other religious groups and that this was the intention. And I strongly suspect that is the basis on which the legality of the order will be challenged.

                Comments from the ACLU certainly suggest that is the case. It believes the order violates the First Amendment’s Establishment Clause which prevents the government "preferring or disfavoring" any one religion over another(4)(5). It also suggests the order violates the Fourteenth Amendment  Equal Protection Clause, but I haven't looked at that.

                So while some of this executive order is within the authority of the President, there are parts of it that, I think, could be unconstitutional, and therefore illegal..

                (1) http://edition.cnn.com/2017/01/28/polit … index.html
                (2) http://edition.cnn.com/2015/12/07/polit … migration/
                (3) http://www.huffingtonpost.com/entry/don … c36e4fc81e
                (4) https://www.aclu.org/blog/speak-freely/ … rimination
                (5) https://www.law.cornell.edu/wex/establishment_clause
                (6) https://www.aclu.org/blog/speak-freely/ … rimination

                1. wilderness profile image96
                  wildernessposted 3 months ago in reply to this

                  Yes, it will apply mostly to Muslims.  That's what happens when a large group is composed of a smaller, irrelevant group attribute. But only a fool would claim to know that was the intent or purpose.

                  "So in effect (based on the countries listed) this order prioritizes non-Muslim refugees over Muslim refugees."

                  IF they make a claim (how we ever know if the claim is true?) that they belong to a minority religion in their country of nationality.  So a Muslim living in Mexico wants to leave Syria for the US and we give him priority.  This is discriminating against Muslims?

                  "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on"

                  Really?  You're equating campaign rhetoric to actual, real actions taken? 

                  "I don't believe it would be difficult to demonstrate that, in effect, this order discriminates against Muslims,"

                  As long as you assume that any profiling type of activity is discrimination against the majority of people in that group, you are correct and it is quite true the liberals in general seem to pop up with that concept quite often.  It is, of course, nonsense in the extreme - discrimination against a religion, race or other attribute happens when that specific attribute is attacked, not when a much larger group that happens to have a majority of the attribute is attacked.

                  "Comments from the ACLU certainly suggest that is the case."

                  While the ACLU has done enormous good in this country, it is known for sometimes being so far off base it is out of the ball field completely.  IMO.  It is much like the oft heard claim that because most of the people arrested in a mostly black neighborhood are also black it is racist - discrimination based on race.

                  It will be interesting to see where this all goes...likely nowhere because it is scheduled to end before any trial could ever take place.  We will be stuck with making even more inferences based on nothing but a judges (likely biased) opinion that it might be illegal and issuing another stay.

                  1. Don W profile image81
                    Don Wposted 3 months ago in reply to this

                    A legal challenger does not need to claim to "know" intent, they only need to provide evidence to convince a judge of intent. It is not difficult to find such evidence. Prior public statements by Trump would be relevant and admissible as evidence. Such as:

                    DAVID BRODY: “Persecuted Christians, we’ve talked about this, the refugees overseas. The refugee program, or the refugee changes you’re looking to make. As it relates to persecuted Christians, do you see them as kind of a priority here?”

                    TRUMP: “Yes.”(1)

                    That stated intention is illegal. If a judge determines that the order, in effect, fulfils that stated intent, then it's very likely the order will be deemed unconstitutional.

                    So these are the legal arguments involved, as far as I am able to tell:

                    1a. the later amendment to the Immigration and Naturalization Act prohibiting discrimination, supersedes the authority in section 212(F) of that act, which essentially authorizes such discrimination.
                    1b. the order, in effect and/or intent, discriminates in the prohibited way.

                    2. the order is unconstitutional in relation to the First Amendment (Establishment Clause) which prohibits government from favoring or disfavoring any religion or religious group.

                    3. the order is unconstitutional in relation to the Fourteenth Amendment (Due Process Clause) in relation to those who were/ are being detained at airports etc (including legal, permanent residents).

                    4. the order is "arbitrary and capricious", i.e. no rational connection between the facts and the choice made.

                    A definitive ruling is unlikely to happen within 90 days, but a judge can issue a temporary injunction to prevent the order being carried out while the case is being settled.

                    That has already happened in relation to visa holders who already entered the country. Judge Ann Donnelly ruled that those people must be released. That injunction does not currently apply to the prohibition of visa holders who are currently in the countries listed though.

                    Judge Donnelly has also given the government two weeks to provide her with a list of all the people affected by the order, and has pressed the government in court on how allowing people who have already been vetted and received visas, would cause "irrevocable harm" to the US.

                    This sets up the legal argument that Trump's order causes harm and is unreasonable. This is the "arbitrary and capricious" legal argument mentioned above. In my opinion that line of argument would be the quickest way to get a temporary injunction against the temporary suspension of entry for visa holders from the listed countries.

                    (1) http://www1.cbn.com/thebrodyfile/archiv … s-refugees

  2. psycheskinner profile image80
    psycheskinnerposted 4 months ago

    So eve suggesting discrimination on race is shameful, but actually discriminating based on religion is fine--so long as it isn't your religion I guess.

    It's all discrimination.  It's taking productive permanent residents with greencards, just like me, and throwing them in the trash because of some part of their identity that has nothing to do with whether they will become a good citizen, or are a worthy refugee.

    Just like we used to do with people who were black, of Jewish refugees, or Japanese, or all those other huddled masses we decide it is okay to exercise bigotry upon.

    1. wilderness profile image96
      wildernessposted 4 months ago in reply to this

      "It's all discrimination."

      It most certainly is...if you hold that there is never a valid reason to treat two people differently. 

      Unless you try to re-enter the US from one of the listed countries you apparently won't have a problem.  Just don't visit Iraq and then try to come directly to the US.  It would seem that coming back, with a green card, via a stay in Britain would be acceptable.  Violating the spirit of the order, but perhaps it would work anyway.

  3. wilderness profile image96
    wildernessposted 4 months ago

    Of some interest:
    "The federal court for the Eastern District of New York issued an emergency stay halting deportations under President Donald Trump’s executive order banning entry to the US from seven majority-Muslim countries tonight, following widespread protests at airports around the country."

    This, however, seems to affect only those caught in transit when the order went into affect and are being held in detention.  The short article also states:

    "People affected by the order with valid greencards and visas who were not in transit at the time are still likely stuck abroad, but there’s now at least a time frame for a further ruling on the ban."

    So the issuing judge says there is a high likelihood that detainees must be release and not deported, it a legal claim is made.  She doesn't appear to even mention those stuck overseas - only those in "similarly situated" circumstances, but the petitioners are all detained, were all in transit at the time of the order and are all under deportation orders. 

    http://www.theverge.com/2017/1/28/14427 … ration-ban  (As usual, the title is a gross exaggeration of what is actually said).

  4. Gemini Fox profile image91
    Gemini Foxposted 3 months ago

    And none of this even addresses the fact that, interestingly enough, these bans do not affect any of the Muslim countries where Trumpie has businesses, even thought some of them have faced terrorist issues:

    https://www.yahoo.com/news/trump-ban-ex … 16273.html

    So apparently he's interested in protecting the country against terrorists unless it affects his business (him personally).  Which means all this disruption is just for show.  Fascinating!  Guy needs to be booted!

    1. wilderness profile image96
      wildernessposted 3 months ago in reply to this

      I keep seeing this, but am a total loss to understand why it is of interest.  There are very valid reasons for the countries chosen, and it has nothing to do with where Trump built a golf course.

      Can you explain, beyond just saying "apparently" and proceeding with an opinion you cannot support?

      1. Gemini Fox profile image91
        Gemini Foxposted 3 months ago in reply to this

        The article explains this - that's why I included the link.  Not to mention the two links I added to the other thread last night (that you are aware of) bringing up the same topic.  If you refuse to read them and get up to speed, that is your loss.  The lawyers working on the lawsuit against Trump breaking Constitutional law in regards to his refusal to put his businesses into a blind trust certainly have a full understanding of what the problem is and it appears since you "keep seeing this" that others are also well aware of it.

        1. wilderness profile image96
          wildernessposted 3 months ago in reply to this

          Oh, I fully understand that he has businesses in those Middle East countries where they can produce a profit.  And that those countries haven't allowed terrorism to run rampant there yet (probably a part of why they still have some money left).

          What I don't get is the relevance to banning immigration from other countries.  The implication, of course, is that he is engaging in a conflict of interest, but I haven't seen a shred of proof; instead I see perfectly valid reasons for what was done. 

          So I have to wonder why it is being repeated all over the web.  Because Trump haters found another irrelevant reason to shout insinuations they cannot support?  One person was upfront about using it as blackmail to get private information she isn't entitled to (his tax returns) - is that the root of it?

          If you read the constitution you will find that the thing about blind trusts is just more garbage; the constitution makes no such requirement of the President.  Now that you know this, will you stop repeating it as if it were true?  Or keep right on with the false claims and allegations?

          1. Gemini Fox profile image91
            Gemini Foxposted 3 months ago in reply to this

            No matter how much you want to ignore this, it is not going away - for the simple reason legal minds far superior to yours disagree with you.

            1. wilderness profile image96
              wildernessposted 3 months ago in reply to this

              Do they?  Or is the intent to use public opinion or political power to bypass the law?  Certainly it wouldn't be the first time it's happened - Hillary showed us one and the greenies at the Dakota pipeline the other!

              Do you find it odd that none of these great legal minds have posted just which part of the constitution requires a blind trust?  I certainly do...

              1. Gemini Fox profile image91
                Gemini Foxposted 3 months ago in reply to this

                The second link I posted in the other thread states VERY CLEARLY which part of the Constitution Trump is violating.  You obviously didn’t watch the video so here it is again:

                https://www.youtube.com/watch?v=AlIuNyc … LOxsFua2Lu

                In fact, I’ll even throw in the second part so you can’t claim you didn’t know there was one:

                https://www.youtube.com/watch?v=CnrQObo … mp;index=9

                Notice the first sentence in the first video (and out of the lawyer’s mouth) is:  “All of the leading experts (which doesn’t include you) agree that what President Trump is doing by receiving foreign payments for his businesses violates the Foreign Emoluments clause of the Constitution.”  And because I’m quite sure you’ll never make it to the part of the video that actually does show the part of the Constitution that applies, here it is:

                Article 1, Section 9, Clause 8:
                No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.


                This will all boil down to whether Congress will actually uphold the Constitution and whether the American people want their politicians to benefit financially from a role that should be about serving them, not the politicians.  I have no doubt that, for Americans, the answer will be a resounding ‘NO’ – Congress is another matter.

                1. wilderness profile image96
                  wildernessposted 3 months ago in reply to this

                  "The lawyers working on the lawsuit against Trump breaking Constitutional law in regards to his refusal to put his businesses into a blind trust certainly have a full understanding..."

                  My apologies: I mistook this sentence (and the bolded part) to indicate we were speaking of putting his businesses into a blind trust.  Apparently it has to do with businesses he has at least some ownership in of taking payments from foreign countries or dignitaries instead, so that now needs addressed instead of blind trusts.

                  "“All of the leading experts..."

                  Whenever I see this claim (and God does it happen a lot!) I figure that an honest reading is "All of the leading experts that agree with me..."  and it simple means that a false sense of expertise is being implied.

                  Yes, I have seen that clause and read it.  Does it include partial ownership, as in owning stock?   Any payments will certainly benefit that stockholder, so it seems that it would.  Which in turn means that ownership of 1 share of stock in any of a great many American businesses means that owner would be in violation.  This has been accepted for a hundred years, which means (to me) that the legal "experts" (as opposed to the one you provided) must have a different interpretation.  That a recent secretary of state was in gross violation of the clause and it was never mentioned does the same. Care to guess what that interpretation is?

      2. psycheskinner profile image80
        psycheskinnerposted 3 months ago in reply to this

        What are these valid reasons, because the places Trump has businesses were exempt and are sources of terrorists (Saudi 9/11), the places he targeted have never had their citizens implicated.

        Somalia, really?

  5. profile image0
    calculus-geometryposted 3 months ago

    Trump is against terrorism? Then it's quite odd that his ban doesn't include Russia.

    http://www.reuters.com/article/us-ukrai … GD20140719
    https://www.theatlantic.com/internation … sm/250433/

    From the Altantic article, "Russia is the birthplace of modern terrorism."

    1. ZipperConstantine profile image80
      ZipperConstantineposted 3 months ago

      He doesn't need to have a blind trust and the law doesn't require it. I thank God everyday he was willing to run for President. He didn't need it,he is already a billionaire.  He won't be getting rich off the government like other politicians including Obama and Clinton.  Poor going in rich coming out.   I don't know what the worry is, Oh maybe you think he wants to make another billion?  Trump and most of his cabinet choices are willing to give up there comfortable lives to fight the vulchers to make this country great again.  That takes a lot of determination to do what is right.  After all they all are American citizens and their families live here and they want to make sure the US has a future that provides jobs, education, and safety for all.

    2. Ewent profile image84
      Ewentposted 3 months ago

      I do hope one of those Pro Trump supporters plans to remind Saudi Arabia, Egypt and Qatar where he does business that they are no longer Muslims. After all, if Trump is only going after 6 Muslim countries based on his statement that these are the ones from whence the 9/11 terrorists came, he needs to revisit that facts of the 9/11 Commission on where the terrorists came from:

      "United Airlines Flight 175. Fayez Banihammad - United Arab Emirates. Ahmed al Ghamdi - Saudi Arabia. ...
      American Airlines Flight 77. Hani Hanjour - Saudi Arabia, pilot. Nawaf al Hazmi - Saudi Arabia. ...
      United Airlines Flight 93. Saeed al Ghamdi - Saudi Arabia. ...
      Saudi Arabia. Ahmed al Ghamdi. ...
      United Arab Emirates. Fayez Banihammad."

      This doesn't count the lone Egyptian. So tell us again...how isn't Trump using this lame brained excuse for these 6 countries to reduce their oil production competition and by association, Russian oil profits?

      Once you uncover the massive election rigging Cover Up by the Republican Party who know they were in on allowing Russian hackers to gather information on Dem voters and any Republicans who left the party, you see why Trump is an illegitimate president.

      Let's all pretend that the Electoral College electors all 270 Republican electors were not chosen specifically by the Republican legislators who knew they could force them to vote not from their consciences but from the RNC's flush campaign profits. Dirty, slimy, scummy and violation of the U.S. Constitution.

     
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