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Discussion in 'Politics, Religion, Social Issues' started by jdillings, Feb 10, 2017.
I mean really, would it turn out any differently? Other than wasting more taxpayer money over it, I don't see what point this action would serve.
It's just a delay tactic. They know the next order is coming that they won't be able to turn down.
My question is why this was in the 9th Circuit to begin with. I know Washington State was a plaintiff, but I thought something like this should be in the DC Circuit.
Also, when Trump rewrites the EO, should he have a friendly lawsuit filed in a Circuit that will be friendlier to him. Say Texas?
When the new EO is written they won't be able to get their hooks in. Trump slipped up by detaining people who were granted due process by being in the US. He simply needs to block entry into the US at all remote airports and revoke any new visas for these countries. If they are never on US soil they shouldn't have due process rights. Entry into the US is discretionary for everyone except citizens.
It's called judge shopping. You file in a district where you know where it will go your way.
I'm not so sure he did it as much as some undermining twitt in State trying to sabotage things, not unlike that half whit temporary AG.
It's because all the bad press they have been getting. It will not change a thing on the current EO but I hope they get the entire panel to consider the revised EO.
I wouldn't refer to a sua sponte call for an en banc review as rare. Sure, considering how many cases circuit courts handle - 50 or 60 thousand a year - it doesn't happen all that often. But it does happen many times a year, and it isn't that rare an occurrence when it comes to controversial cases where there is considerable disagreement on the legal merits.
A sua sponte request isn't as commonplace as a request from one of the parties in the case, that's true. But in either case, most en banc requests get denied.
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The D.C. Circuit does have certain subject-matter jurisdiction rather than just jurisdiction based on geography. But this kind of challenge wouldn't necessarily fall within that jurisdiction, it was properly filed in Washington and then considered by the Ninth Circuit.
Also, a lawsuit being filed in a different circuit wouldn't prevent one from also being filed in, e.g., the western district of Washington as this one was. Often enough there are multiple lawsuits simultaneously working their way through various courts and circuits on more or less the same issues.
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Right, but what if the same case is filed in 2 circuits and they come to completely different conclusions? Normally something like this would go to the SCOTUS, but what happens in the mean time? Do they need to file for a stay or does it work like normal in that any ruling only applies in that circuit.
And looking at that, why does this ruling apply nationwide. Why does it not only apply in the 9th Circuit? ie ban if lifted if you are on a flight to California, but you can't fly in to NY.
Read the court's decision. It's explained there.
EDIT: Link to PDF
If you have rulings from different circuits that reach meaningfully different conclusions, then yes... that would hopefully eventually be resolved by the Supreme Court. For purposes of precedent that's not always the case though. In the U.S. we have nuances of common law that are different between different circuits. The broad strokes are mostly consistent because they've been established by the Supreme Court. But the circuit courts (saving the Federal Circuit and in certain instances the D.C. Circuit) don't get to establish controlling legal precedent for the entire nation, they only get to do so for their respective circuits. Legal precedent from another circuit can be looked at by courts, and in some cases it may be considered persuasive; but it isn't controlling. This is one of the criteria that the Supreme Court looks at when considering whether to take cases - whether there's a conflict on significant points of law between federal circuits or between federal circuits and the highest state courts.
When it comes to a particular situation, e.g. multiple challenges to the same provision of federal law, it can be more complicated. We have this concept called res judicita which tells us that once a matter is settled by a court with proper jurisdiction, it isn't supposed to be re-litigated over and over by other courts - at least not when it comes to the original parties. There are of course various ways of appealing a given decision, but that's a different matter. So if a matter was decided a few years ago, then the same matter shouldn't be decided differently by a different court, e.g. one in a different circuit. Not unless what's really being challenged is different in some way or is being challenged on different grounds. But as I suggested, sometimes matters are being considered by different courts at the same time. So what happens then? It depends on the circumstances. Hopefully the cases are eventually, at least effectively, consolidated at a higher level and one decision is ultimately issued and honored.
As for why this ruling applies nationwide, that gets into another complicated - and frankly, still evolving - aspect of law. A federal judge from a given district can enjoin, e.g., the federal government nationwide. That's happened many times in the past (though it's seemingly happened more recently). One aspect of the consideration (of whether a federal district judge can issue a nationwide injunction) has to do with whom the parties are. Is the party that would be enjoined nationwide the defendant, whom the court has personal jurisdiction over as they are a party to the case in question? That party may act throughout the nation, but is it the same party acting throughout the nation? Is it the federal government, for instance? Or is it a state government, with other state governments not being a party to the case in question? If the latter, then no... the federal district court usually wouldn't have authority to enjoin other state governments in the way that it might have the authority to enjoin the state government that's actually a party to the case it's considering - even if those other state governments were doing meaningfully the same things. Eventually a precedent may be established that effectively bars those other state governments from doing the same thing, but the original district court wouldn't usually have authority to enjoin them itself - not if they weren't a party to the original case.
Also, if a federal district court in Oregon enjoined the federal government nationwide while at substantially the same time a federal district court in Texas denied a different complainant's request for an injunction against substantially the same actions, the injunction (from the court in Oregon) could still apply nationwide. It could of course be appealed and it might swiftly be stayed, but it isn't automatically nullified (even with regard to other parts of the nation) just because a different district court decided not to issue an injunction.
No. Washington State is under the 9th circuit. This is basic stuff.
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I don't think this case is actually legally controversial.
No one likes the courts. I've been a few times. Yet, it's hard to argue that they're not following the law/Constitution. You may not always agree with their choices, but they're generally serious and thorough about their job...
Which is part of the whole judge shopping aspect. You file in the district where you know the lower courts decision and the decision of the circuit courts ruling. The 9th is known to lean heavily left.
I think Trump slipped up by trying his darnedest to penalize people for having the Muslim faith. He couldn't make an EO stating that directly (unconstitutional!), so he did the next best thing, and went after countries that had lots of Muslims.
Problem: the only reason he went after these countries was, of course, because those countries have Muslims. He can't give any other reason, because there is no other reason. Again, unconstitutional!
So, what's his next EO going to be? Come up with some even more subtle way to penalize people for being Muslim? Because, of course, he's trying to profile people of the Muslim faith. That's his one and only rationale for this ban...
Funny. I didn't think the Constitution leaned left...
The countries were not selected by Trump. They were selected and classified by the Obama Administration.
Wrong. Obama never chose to ban people from these countries. Trump was simply trying to wedge an unconstitutional ban on Muslims into an EO, and since he couldn't do that, he (or his cronies) searched around for something as close as possible to that. So yeah, they grabbed some countries mentioned in some rule crafted by the Obama administration for a different purpose some years ago, tacked that into their EO, and sent it out.
And this is why the EO is going nowhere fast in the courts. Why did they ban people from these countries? Not because the countries were doing anything bad themselves. Not for the reason Obama was trying to deal with them. No, the only reason is that there are lots of Muslims in those countries.
So yeah, picking these countries out of a list made for a different purpose years ago is simply a smokescreen. The EO is purely political; Trump can't say why those particular seven countries are any worse than others. Not without admitting that his rationale is unconstitutional.
Correct, but that isn't what I said nor is it what you originally claimed.
What? Here's the thing: Trump wants to ban Muslims. Trump can't ban Muslims. So, Trump does something which has the effect of banning Muslims. But what to do? Solution: come up with a rationale for banning everybody from countries where Muslims are common. First place he found such a list: that Obama restriction from years ago.
Obama didn't choose these countries because they had Muslims. But Trump did.
He should be more like the democrats and just bomb the **** out for f the Muslim countries.....
Why did Obama pick them?
Wow, you just don't stop, do you? It's amazing how you spin things to make it fit around your anti-Muslim story.
Now it's still Trump's fault that the countries were on the list and he chose them because they had Muslims in them… but the Obama Administration actually chose the list pursuant to law after his Homeland Security made security assessments.
The list is not old and made for a different purpose. They were literally classified as countries of concern because of terrorism.
Cool! To quote a certain warmonger during the debates, "I have a feeling I'm going to be blamed for everything that's ever happened".
Sure looks like you're just blaming Trump for the hell of it.
Obama chose the countries he wanted to bomb the crap out of. Funny you are seemingly ok with bombing them but not banning them