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  1. #1
    Administrator Jean's Avatar
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    Trump's travel ban lands in Seattle appellate court

    By Lee Ross Published May 15, 2017

    The latest legal showdown over President Trump’s revised executive order targeting refugees and nationals from six predominately Muslim countries hits a Seattle appellate courtroom Monday morning.

    The key issue before a three-judge panel is whether the president’s comments before he took office – suggesting he would ban Muslims from entering the country -- provides sufficient legal grounds to rule his order unconstitutional.

    In March, a federal judge in Hawaii enjoined the order from taking effect, not based on the language of the directive, but rather the “religious animus” of comments Trump and his advocates made about the policy.

    “The [lower] court’s reliance on such statements in the face of a religion-neutral order is fundamentally wrong,” acting Solicitor General Jeffrey Wall wrote to the court defending the order.

    Wall argues the president’s policy is not a “Muslim ban,” but rather Mr. Trump’s good faith effort to protect rights while securing the homeland from foreign terrorists. And that the president’s executive authority in protecting the country and enforcing immigration laws in this matter is beyond judicial review.

    The order would temporarily halt refugees from Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the country. It also freezes refugee admissions so intelligence and security officials can review existing admission procedures.

    This will be the second time the Ninth Circuit Court of Appeals has heard a government appeal on this matter. Earlier this year a different panel of judges affirmed a lower court injunction against the president’s similar first travel ban order, which he revoked in issuing his second version.

    Several weeks ago Trump blasted the Ninth Circuit saying his opponents are “judge shopping” in the court that covers the western United States.

    The three judges hearing Monday’s case were randomly chosen from the Ninth Circuit’s members--all three were appointed by President Clinton. While some other Ninth Circuit judges have said the president’s order is on sound legal ground – they were not impaneled on either case.

    “The president seeks to enact a thinly veiled Muslim ban, shorn of procedural protections and premised on the belief that those who practice Islam are a danger to our country,” says plaintiffs’ lawyer Neal Katyal who represents the state of Hawaii and an Imam who lives in the islands.

    They argue the travel ban is unconstitutional because it disfavors Muslims. The ban also, allegedly, harms Hawaii’s economy and university community by cutting off potential tourists and student applicants from overseas. “The order is the embodiment of a policy of religious animus,” Katyal argues. “The government’s only real response is to ask the court to close its eyes to abundant evidence of discrimination.”

    Both sides will get 30 minutes to present their arguments. A live camera feed will also originate from inside the courtroom.

    Last week in Richmond, Virginia, another federal appellate court heard similar arguments over the president’s order. Either case – or both – could end up before the Supreme Court.

    http://www.foxnews.com/politics/2017...ate-court.html
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  2. #2
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    Hawaii Lawyer: Trump Exec Order Violates 1st Amendment Because Honor Killings Are Isl

    Hawaii Lawyer: Trump Exec Order Violates 1st Amendment Because Honor Killings Are Islamic

    by RAHEEM KASSAM
    15 May 2017
    1,137 comments

    The lawyer representing the State of Hawaii in the U.S. Court of Appeals for the Ninth Circuit today has stated the collection of data with regards honor killings should be removed from President Trump’s Executive Order in order to “pass constitutional muster”.

    In his arguments, Neal Katyal stated today that the collection of such data as outlined by the Executive Order 13780 contravenes the Establishment Clause, in the First Amendment of the Constitution of the United States: “Congress shall make no law respecting an establishment of religion…”.

    In doing so, Katyal appears to be making the case that honor killings — murder committed in the name of restoring a family’s dignity following discouraged behaviour within fundamentalist homes — is in itself Islamic.

    It is an argument often made by anti-Islam campaigners, but to hear such arguments made by the political left might surprise some, especially when honor killings are also found — though to a lesser extent — in other religious groups like the Sikh community.

    “What does [the President] have to do to issue an executive order that, in your view, might pass constitutional muster?” asked Judge Paez of the United States Court of Appeals for the Ninth Circuit, this afternoon.

    Katyal responded at length, stating: “I think there’s two paths that the President could take in order to pass constitutional muster.

    “One is the way that our founders thought, Article 1 Section 8 which, as Congress in the driver’s seat with respect to immigration, passes a statute. as Justice Alito said, when Congress passes a statute it’s much less likely to discriminate. It is 535 people versus one, which is why his Mandel point is so problematic. That’s number one.

    “Second thing the president could do, or the kinds of things or some of the kinds, removing some of things that the district court found led an objective observer to say that this this discriminates.

    “One example would be, what Judge Hawkins said, disavowing formally all the stuff said before. But that’s not it. He could do a lot of things. For example, I’m going to throw out some examples. I‘m not trying to micro manage the President. He could say, like President Bush did, right after September 11th, the face of terror is not the true faith of Islam. that’s not what Islam is about. Islam is peace. Instead, we get, quote, Islam hates us. I think Islam hates us.

    “I think he could point to changed circumstances from December 2015, when Congress debated the exact same evidence that the President relies on in his executive order and say, you know, we actually need more than just denying people entry without a visa, which is what Congress required. You need to do more than that.

    “It could eliminate the text, which refers to honor killings. There’s a bunch of different things that could be done. And our fundamental point to you is that presidents don’t run into Establishment Clause problems and the reason for that is this is a very limited, you know, in a really unusual case in which you have these public statements by the President. if you affirm the district court there’s not a thing that any president has done in our lifetime that would be unconstitutional”.

    For Katyal to advance such an argument may also be detrimental to the public understanding of honor killings in the United States.

    Executive Order 13780 mentions honor killings only once, in the section (11) entitled “Transparency and Data Collection”, where it states:

    To be more transparent with the American people and to implement more effectively policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available the following information…

    …(iii) information regarding the number and types of acts of gender-based violence against women, including so-called ‘‘honor killings,’’ in the United States by foreign nationals…


    Katyal’s other argument — that President Trump should go to great lengths to fawn over Islam as one of his predecessors, President George W. Bush did — could even be said, under Hawaii’s apparent broad interpretation of the Establishment Clause, to be a violation in and of itself.

    http://www.breitbart.com/big-governm...om-exec-order/
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    Lawyers Clash Over Trump Rhetoric in Travel Ban Case

    Plaintiff admits immigration order would be legal if issued by different administration

    by Brendan Kirby | 15 May 2017 at 3:29 PM

    Statements made by President Donald Trump on the campaign trail on Monday again dominated a judicial proceeding over his temporary travel ban, this time at the 9th U.S. Circuit Court of Appeals.

    Acting Solicitor General Jeffrey Wall argued judges should not try to get in the head of Trump and other federal officials who drafted a March executive order placing a 90-day freeze on travelers coming from six majority-Muslim nations that either sponsor terrorism or have governments that are too weak to aid U.S. officials in conducting background checks.

    Notwithstanding Trump’s 2015 call for a “total shutdown” of Muslims entering the country, Wall argued, the judges should examine the wording of the order, itself.

    “The order, on its face, doesn’t have anything to do with religion,” he said.

    But Neal Katyal, a lawyer arguing the case for the state of Hawaii, maintained that the March executive order is not substantially different from an earlier version blocked by a different three-judge panel of the appellate court. He said the judges hearing Monday’s case are bound by that ruling in the suit, filed by the states of Washington and Minnesota.

    “The government would like to pretend that this court’s decision in Washington v. Trump never happened,” he said. “But it did, and the government can’t shut its eyes to it.”

    In addition to campaign statements, Katyal argued, Trump tipped his hand in statements he has made since becoming president. He noted that the president, when he signed the first executive order, said, “We all know what that means.”

    Katyal also noted that Trump, until recently, left the Muslim ban proposal on his campaign website

    “You don’t need to be Sigmund Freud to uphold the district court’s decision,” he said.

    It is the second time this month that an appeals court has considered the travel ban. The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals on May 8 heard arguments on a different lawsuit over the order.

    The judges on the 9th Circuit panel, all of whom are Bill Clinton appointees, expressed some skepticism of Hawaii’s position.

    “Why shouldn’t we be deferential to the office of the president of the United States?” asked Judge Michael Hawkins.

    Judge Richard Paez, considered the most liberal of the three, at one point questioned how prominently campaign statements should factor into the court’s deliberations.

    “It is a little bit concerning, though, that those statements take place in the midst of a highly contentious campaign,” he said. “Don’t you need to look at it from that standpoint, as well?”

    Katyal argued that the record contains ample evidence of the president’s true intent.

    “We give you chapter and verse the things the president has said,” he said. “The district court gives them to you as well.”

    Katyal acknowledged that the exact same executive order would be legal if a different president had ordered it.

    “I think it would be different,” he said. “Context matters.”

    Katyal suggested Congress could pass a law achieving the same objectives. Alternatively, he said, Trump could formally disavow his past statements and take other steps to make clear that he was not targeting the Muslim faith.

    Wall argued that Trump already has disavowed them, both during the campaign and since. He said Trump zeroed in on “extreme vetting” and a desire to target Islamic terror groups and countries that shelter them.

    Paez also pressed Wall, suggesting that the government’s interpretation of presidential authority is extremely broad. Wall noted that the administration of Barack Obama made efforts to slow down issuing visas to Iraq over the same terrorism concerns. He said Trump’s order is broader but involves the same principles.

    “I don’t think it’s a difference in kind with what the previous administration did,” he said.

    Judge Ronald Gould at one point asked Wall: “How is the court supposed to know if it is a Muslim ban in the guise of national security justification?”

    Wall responded, “That’s the nub of the case.”

    Wall argued that the plaintiffs have not sufficiently established that they even have the right to pursue the case in court. He noted that Ismail Elshikh, the imam of a Honolulu mosque, sued on behalf of his mother-in-law’s application for a visa from Syria. Wall said it is premature since the woman has not even been denied and because she likely would qualify for a waiver.


    Three Clinton Appointees to Decide Fate of Trump Travel Ban

    “He’s attempting to raise an Establishment Clause claim on behalf of someone else,” he said. “That’s not proper.”

    The lawyers also addressed a legal dispute over two separate immigration-related statutes. The Immigration and Nationality Act of 1952 gives the president broad authority to block entry of foreigners he deemed detrimental to America. But a 1960s law prohibits discrimination based on national original in issuing visas.

    Kayat said finding for the government would “transform the statutes into mere suggestions.”

    But Wall said the 1960s law did not repeal the 1952 statute. He argued that plaintiffs would construe the statute as meaning that a president could not temporarily block Syrians even if he has actionable intelligence that a Syrian terrorist is trying to enter America but he does not know that person’s identity. He said Congress intended to change the immigration system, not take away the president’s ability to confront threats from abroad.

    “Courts have never read the statutes to conflict in that way,” he said.

    http://www.lifezette.com/polizette/l...avel-ban-case/
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