Hawaii V. Trump: A Legal Nothing-Burger – Daily Caller

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This replaced his order from January which was challenged in courts everywhere. The 9th Circuit Court of Appeals ruled the January order should be stayed indefinitely rendering the order unenforceable while in litigation. The court got it wrong completely. Rather than fighting in the liberal 9th Circuitwhich has a staggering 80% reversal rate the second highest in the nation the Administration issued a new more narrow order andavoided the confusing implementation of the January order.

Now we are back in court the 9th Circuit naturally. Thats where the activist judges are. 72% of the judges in the 9th Circuit Court of Appeals were appointed by democrats.Hawaii along withIsmail Elshikh Imam of the Muslim Association of Hawaiisued to block the revised order. The 38 page lawsuit is assigned to US District JudgeDerrick Watson a 2013 appointee of former President Obama. It was no accident it was brought in Hawaiiwhere two of the three federal judges are Obama appointees.

Lets discuss Hawaiis verbose-yet-meritless lawsuit. Theres 29 pages of policy arguments not legal ones.

Its a litany of reasons why Hawaii and the Imam think the order is a big scary monster thats embarrassing and keeps the Imams Syrian mother-in-law from visiting even though she hasnt come to visit since 2005.Theres only 7 pages of legal claims. Lets look at the 29 pages of irrelevant material first. They lay out some policy reasonswhy the executive order, they say, isnt a good idea.

Lead counsel is Neal Katyal former Solicitor General of the US.Professor Katyal is a brilliant lawyer whom I have met several times and is as nice a guy as you could ever meet.Reasonable minds can disagree and we disagree.

Pages 1-2. Hawaiians cant receive visits from or be reunited with people affected by the order. Universities cant recruit as well. The Imam has to live in a country where people think the government disfavors a religion. The order hurts Hawaiis economy.

Response: Theres no constitutional right to receive visits from foreigners. Those words arent in the Constitution. So what if universities cant recruit from 6 nations for a while. National security is more important. What would a terrorist attack do to recruiting? If the Imam thinks the government has established a disfavored religion hes entitled to his opinion but this order affects ANYONE of any religion from a mere six nations. Muslims from every other country remain unaffected by the order. The Hawaiian economy is booming and its speculative at best to think a handful of affected people will change that.

Pages 7-10. These are campaign speeches and other cherry-picked remarks where Trump advocated ideas about immigration and a relationship between terrorism and immigration.

Response: His campaign remarks arent relevant. He wasnt President, the order doesnt mention Muslims and doesnt apply to any single religion.

Pages 11-15. These describe the January Order.

Response: Thats irrelevant. This is a new order. We arent litigating the first.

Pages 16-19. These describe the rollout of the first order, chaos at airports, and confusion in its implementation.

Response: Its true that the rollout couldve been smoother but this is a new order. We arent litigating the first.

Pages 20-25. These quote and describe the new order.

Response: Millers comments are irrelevant because the new order didnt exist then. It doesnt matter what Miller says. It matters what the order says.

Pages 25-30. These rehash in more detail the initial claims. The Imams mother-in-law cant visit, other residents cant receive certain visitors, it makes people feel bad, it harms the economy etc. This is a policydebate. If the Imams mother-in-law cant visit Hawaii for now and her last visit was in 2005 one wonders if this is a real or pretend problem.

Pages 31-37. The legal arguments. They arelegallyincorrect for astonishingly simple reasons:

COUNT 1. First Amendment-Establishment Clause

Hawaii and the Imam allege The Establishment Clause of the First Amendment prohibits the Federal Government from Officially preferring one religion over another. They also allege the order has the effect of disfavoring Islam.

Heres what the Constitution actually says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Ive given you both the Establishment Clause AND the Free Exercise Clause. Read them together.Executive orders are not acts of Congress. Theres no language in the order that mentions Islam. The order does disfavor unfettered entry into the US from the six nations (temporarily) regardless of religion. Muslims fromaround the globe enter the US daily and will continue to despite the order. The Establishment Clause claim islaughable.

COUNT 2: Fifth Amendment-Equal Protection

Hawaii and the Imam allege The Due Process Clause of the Fifth Amendment prohibits the FederalGovernment from denying equal protection of the laws, including on the basis of religion and/or national origin, nationality, or alienage.

The Fifth Amendmentdoes not mention the words Equal Protection. Thats the Fourteenth Amendment. I agree that all peoplewho have rightsunder the Constitution are entitled to equalprotection. Thats simple. But heres the big problem for the plaintiffs: Non-citizens outside of the US have no constitutional rights whatsoever.The peopleto who have constitutional rights are the people of the US or those present within the US. We dont export US Constitutional Rights. Otherwise, the Navy Seals wouldve needed a search warrant to enter Bin Ladens house. There is no constitutional right that belongs to any alien to enter the US. Permanent residents and visa holders have statutory and otherpermissions.

COUNT 3: Fifth AmendmentSubstantive Due Process

Plaintiffs claim The right to international travel is covered by the Due Process Clause of the Fifth Amendment.

Really? Letslook. No person shall be held to answer for a capitalcrime, unless on a presentment or indictment of a Grand Jury, nor shall any person be subject for the same offence to be twice put in jeopardy nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law

I dont see any mention of international travel there. Maybe Hawaii has special reading glasses and can see it.

COUNT 4: Fifth Amendment-Procedural Due Process

Plaintiffs claim citizens may assert liberty interests with respect to noncitizen relatives who are deprived of due process

Wrong. It isnt possible to deprive someone of something they dont already possess due process rights.

COUNT 5: Immigration and Nationality Act

Plaintiffs claim the order exceeds the Presidents authority under 8 U.S.C 1182(f) and 1185(a).

Wrong.Article 1, section 8, clause 4 gives plenary (absolute) power over immigration to Congress. Congress has delegated that authority broadly to the President.Section 1182(f), states: 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

Click here to read 1185(a). It begins with Unless otherwise ordered by the President .

COUNT 6: Religious Freedom Restoration Act

Who knew the left liked RFRA? They claim RFRA grants citizens the right to welcome visitors from anywhere in the world. It does not.

Count 7: Substantive Violation of the Administrative Procedure Act through Violations of the Constitution, Immigration and Nationality Act, andArbitrary and Capricious Action

Thats the run everything up the flagpole and see if someone salutes approach. This fails for the same reason:Non-citizensoutside the United States have no US constitutional rights. Thats why we have borders and why Article 1 specifically grants plenary power to the Federal government over immigration.

The line must be drawn somewhere and its at the border. We know where it is. Thats where US constitutional rights evaporate. This is common sense stuff that shouldnt stand a chance in court. But its the 9th Circuit. If Hawaii wins it will land in the full US Supreme Court and the 9th Circuit should get reversed again.

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Hawaii V. Trump: A Legal Nothing-Burger - Daily Caller