HONEST Discussion: How is the ban unconstitutional?

Discussion in 'Politics, Religion, Social Issues' started by BoneDaddy, Feb 4, 2017.

  1. BoneDaddy, Feb 4, 2017
    Last edited: Feb 4, 2017

    BoneDaddy Suspended


    Jan 8, 2015

    I am sincerely trying to understand the supposed unconstitutionality of this whole thing. I'd like to ask people of both political persuasions to join in on this. I do not intend to talk mess or derail this thread as I am baffled at this whole thing. I like to think I am well educated and understand the constitution well, but for this to be such a big issue, I am missing something.

    Anyway, can anybody tell me exactly HOW it's unconstitutional? Seriously, without heresy, "opinions", and interpretations, I can't find any FACTS on how the ban is unconstitutional.


    I looked it up, AGAIN, and I read an article from a sight that I usually don't care to read from, to be fair.


    Instead of facts, I found this...

    "However, a closer look at the executive order’s origins makes clear that it is a direct assault on the fundamental constitutional values of equal protection and religious freedom. How do we know this? Because Trump’s adviser, former New York Mayor Rudy Giuliani, told us so."

    Both sides can see this is absurd, but I'll continue...

    "Giuliani said, “When [Trump] first announced it, he said ‘Muslim ban.’ He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’” “It,” in this case, of course, is a ban on Muslims. Giuliani’s admission is a textbook case of drafting an order in a way that avoids overt declaration of animus against a religious or ethnic group, while retaining the motive and much of the effect."

    "led her to believe the order was legally suspect. On Tuesday, a senior Justice Department official confirmed Giuliani’s comments were part of her decision."

    Ok, so this is assuming intent, which wouldn't hold up in court, as even though he DID say "muslim ban", it can easily be declared that he misspoke.

    But to be more factual about that rebuttal, how can this be declared an outright ban on muslims, if he didn't ban ALL muslim countries?

    Let's continue...

    So I skimmed through this


    Because it pertains to this

    "arguing that the order violated the 14th Amendment Equal Protection Clause and that it also constituted an “establishment” of religion, thus violating one of the two religion clauses of the First Amendment."

    I will read it word for word when I can, but I don't see, so far, how this pertains to NON citizens, outside of the US, ESPECIALLY refugees.

    Section one of the fourteenth amendment states: (Source: https://www.law.cornell.edu/constitution/amendmentxiv)

    "Section 1.
    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."

    So a legal analysis from the same source states:

    "An association, corporation, partnership, proprietorship, trust, or individual that has legalstanding in the eyes of law. A legal entity has legalcapacity to enter into agreements or contracts, assume obligations, incur and pay debts, sue and be sued in its own right, and to be held responsible for its actions."

    Which, as I understand, EVEN IF it WAS a WHOLE muslim ban, and ALL muslim countries were banned, AND our constitution applied to non-citizens, the legal definition for "entity", is this;

    (source: http://www.businessdictionary.com/definition/legal-entity.html)

    "An association, corporation, partnership, proprietorship, trust, or individual that has legalstanding in the eyes of law. A legal entity has legalcapacity to enter into agreements or contracts, assume obligations, incur and pay debts, sue and be sued in its own right, and to be held responsible for its actions."

    Ok, let's move on...

    So I read this;

    "Strict scrutiny
    When a law is subject to strict scrutiny, the government must prove that the law is narrowly tailored to advance a compelling government interest. This means that the classification is no broader than absolutely necessary. The government interest must be compelling enough to warrant the classification. Strict scrutiny applies whenever a law targets a “suspect class” or burdens one’s right to exercise a “fundamental right.” A law discriminates on basis of a “suspect class,” if it classifies people on basis of race, national origin, or, in certain cases, non-U.S. citizenship (i.e. discriminates against documented aliens within the United States). Thus, a law would NOT be subject to strict scrutiny if it discriminates against undocumented aliens or aliens outside of the United States. A law burdens a “fundamental right” if it affects rights such as the freedom of speech, the right to marry, the right to travel, the right to vote, etc."

    So far, it's all coming together VERY clearly, that this ban is absolutely legal.

    So the politco article states "unconstitutional animus" a lot. So I looked it up, and it seems to further backup the legalities behind the ban.

    Source: http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/Vol_81/Pollvogt_November.pdf

    It covers CITIZENS. Here is a portion, of a case, that was argued:

    "The Court began its analysis with the emphatic claim that “[t]he Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation.”182 The Court then proceeded to determine the proper level of scrutiny to apply to the challenged legislation, analyzing whether the targeted group—the children of undocumented immigrants—should be considered a suspect class.183 The Court determined that they should not.184 This was because entry into the class was “the product of voluntary action”—illegally entering into the country.185 Further, it could not be argued that the distinguishing trait of the class was presumptively irrelevant to all conceivable legislative purposes.186 Immigration status is patently relevant to legitimate goals in immigration law and policy."

    The politico article goes on to talk about "classes" using gays as an example, but that are citizens, so we move on...

    Ok, let's break this paragraph down, based on the sources, precedent, cases, and CONSTITUTION.

    Blue text is my interjection.

    "Trump’s administration will tell you that Friday’s executive order is based not in animus towards Muslims—a protected class under the Equal Protection Clause, as all religious groups (citizens) are—but rather in the desire to protect constitutional values. After all, the order declares that “the United States cannot, and should not, admit those who do not support the Constitution.” But the fact remains that this rationale only surfaced after Trump’s original campaign-trail proposal of a “total and complete shutdown” (which this ban is factually NOT as it does not ban ALL muslims, but those from the countries that are listed) of Muslims entering the U.S. was heavily criticized as a violation of constitutional law. The new language is a transparent act of deflection (opinion and assumption that holds no water due to factual evidence IE not all muslims are banned), as proven by Giuliani’s statement (heresy) on Fox News. At its core, the executive order discriminates against members of a particular religious group, however the administration chooses to spin it."

    The next paragraph states:

    "It doesn’t matter, by the way, whether the Muslims in question are citizens or noncitizens, green card holders, visa holders or refugees. The Equal Protection Clause explicitly prohibits “deny[ing] to any person within its jurisdiction the equal protection of the laws.” The Supreme Court made this clear in Plyler v. Doe, when it protected the rights of non-citizen children in Texas, striking down a denial of school funds to the children of undocumented parents. This means that all foreign travelers on U.S. soil—those waiting at U.S. airports, for example—are protected."

    BAM!!! RIGHT THERE! "Within it's jurisdiction"

    So is the travel ban banning muslims from traveling from somewhere in the US, to somewhere in the US? Based on ALL of this, that would be UNCONSTITUTIONAL. From OUTSIDE of the US, to INSIDE, is supported by all of our sources and legal precedent, INCLUDING what past presidents have done.

    Now we just get in to the "opinions" of the author and how the author makes excuses and attempts to twist things in the argument's favor.

    "In addition to violating the Equal Protection Clause of the Constitution, Trump’s order also appears to violate two other sources of religious protection, the Establishment Clause of the First Amendment and a statute passed by Congress called the Religious Freedom Restoration Act (RFRA). The Establishment Clause prohibits policies that favor one religion over another."

    WHAT?! Seriously?! So now, the author is trying to declare that the ban is based on "favoritism". I hate that I have to state this, but CHRISTIANS and JEWS aren't running around bombing, killing, stabbing, shooting up...

    It get's incredibly unreasonable and outright stupid as the comparisons are NOT the same. One is a religion from other countries and the other is a race that is not specified to be from outside of the country.

    "One final thing: There is a popular counterargument to all constitutional challenges to the executive order—one often cited by Trump adviser Kellyanne Conway—that goes like this: Because the new policy does not target all Muslim-majority countries, it cannot be considered an act of discrimination against Muslims. Legally, this is a weak argument. A violation of the Establishment Clause, the Equal Protection Clause and RFRA is still a violation, even if it affects only one person, let alone the large numbers affected by this policy. To see how absurd Conway’s logic is, consider this: If the president signs an executive order that discriminates against some African-Americans, it doesn’t matter that it doesn’t discriminate against all African-Americans—it’s still illegal."

    Sooooo yeaaaa... He could not discriminate agains African-AMERICANSSSSS!


    Well there are the sources and facts all broken down.

    Factually and legally, this ban IS constitutional. Could I be wrong? SURE! So state, FACTS that PROVE that this is illegal.

    PLEASE, let's keep this to a reasonable discussion. I have taken the time to go through all of this and break it down. Please do not comment unless you have a fact based argument that is productive.

    To those of us who are trying to have an honest discussion, please do not respond to irrelevant, or antagonistic comments, as to keep this thread on track and come to an honest conclusion.

    You all have a great weekend.

    Additionally, as to my opinion on the matter. I think non citizens who were going to school or working here, who left for a bit, SHOULD be allowed back in. I support this move but think it needs to be more organized and work out the many gray area variables. What annoys me, is that it's been done in the past, yet it's a HUUUUUUGE deal now.

    My opinion is irrelevant. I just want to clarify, to show that I am not a republican drone, just out to agree with anything Tump does. I am a fair American trying to understand this complex situation.
  2. Snoopy4 macrumors 6502a


    Dec 29, 2014
    It's not. The only real issue, and the only thing these judges continue to allow is people with existing Visas to come and go, and that's not a Constitution question it's procedural. I don't see that as an issue, though there may be a credible threat that cannot be disclosed we are unaware of that waranted a Visa hault. If that is the case, all of these judges are wrong and they've just thrown us under the bus over a bunch of protestors.
  3. yaxomoxay, Feb 4, 2017
    Last edited: Feb 4, 2017

    yaxomoxay macrumors 68040


    Mar 3, 2010
  4. skunk macrumors G4


    Jun 29, 2002
    Republic of Ukistan
    Shortlisted for Ambiguity Award 2017
  5. Snoopy4 macrumors 6502a


    Dec 29, 2014
    What wrong with someone not wanting to be redundant?
  6. yaxomoxay macrumors 68040


    Mar 3, 2010
    Ahahhaha yeah missing a comma!
    --- Post Merged, Feb 4, 2017 ---
    --- Post Merged, Feb 4, 2017 ---
    He's right, my post could be read both ways because of a missing comma. Added.
  7. nrvna76 macrumors 6502a

    Aug 4, 2010
    I think some folks are trying to tie it to a religious test to enter the country. That's about all I can see them trying to make an issue.
  8. R.Perez macrumors 6502


    Feb 16, 2010
    Philadelphia, PA
    How many people commenting have a law degree? How many have a speciality in immigration law or constitutional law?
  9. nrvna76 macrumors 6502a

    Aug 4, 2010
    Now you need a law degree to post your opinion in PRSI? :rolleyes:

    If that's true then a lot of these discussions just got derailed.
  10. Plutonius macrumors 604


    Feb 22, 2003
    New Hampshire, USA
    Any answer you get here will be based on people's viewpoints / political leanings (not law).
  11. Meister Suspended


    Oct 10, 2013
    The moratorium is not even remotely unconstitutional.
  12. HEK macrumors 68040


    Sep 24, 2013
    US Eastern time zone
    Considering that a well placed comma can make all the difference. So anylizing a constitutional set of questions could become a rather complex endeavor. Meanwhile i hope we keep vetting any Saudies going for a visa.
    --- Post Merged, Feb 4, 2017 ---
    Does a degree in jurist prudince from Trump University qualify?
  13. citizenzen macrumors 65816

    Mar 22, 2010
    I have no idea if it's constitutional or not. I'm a graphic designer, not an expert on the law nor a high court judge.

    Anybody claiming it is or isn't constitutional is working well above their paygrade and should be ignored for having too much hubris and not enough humility. And unless someone is willing to share proof of their expertise on the matter, any guesses are just amateurish speculation, and not worth much.
  14. jerwin macrumors 68020

    Jun 13, 2015
    Since I don't have the expertise to definitively comment, I'll just go with the standard "constitutional law is defined by what works in court" theory. It may be philosophically less comforting, but it does have the benefit of actually working.
    So. Shut up and calculate.

    A temporary restraining order that enjoins Donald Trump and various codefendents, and their agents from enforcing the Federal Order titled "Protecting the Nation from Foreign Terrorist Entry into the United States" on a nationwide basis has been entered by the Western District of Washington.


    That order states:

    So... the court finds that there's a reasonable basis for relief and that the States have suffered immediate irreparable injury. What is this reasonable basis for relief?

    Turning now to the plaintiff's complaint,

    Equal Protection
    Establishment Clause

    Due Process Clause

    So there you have it. An expert in constitutional law(Judge Robart), finding that the state of Washington's experts in constitutional law have identified three reasons why Donald Trump's order violates the constitution. No pesky, politicized opinions of laymen here.
  15. A.Goldberg macrumors 68020


    Jan 31, 2015
    I've heard politicians call the order illegal and unconstitutional. I've heard legal experts call it legal and constitutional. It's possible it's both at the same time.

    For example... Is it a religious ban? IMO no as we're still technically letting in people from ~50 other Muslim nations. That said, the part about favoring Christian refugees doesn't exactly sound like meeting the expectations Establishment Clause, so maybe that part is not.

    I think there is also a lot of convolution of legality between the Visa holders and non-visa holders. My thought is this stuff cannot be arbitrarily applied to Visa holders, but it seems like that issue has already been addressed. So again, I'm sure there are both legal and illegal parts that will be sorted out. I doubt the end product will make either side happy.

    It will certainly be interesting how this plays out and how the Donald reacts to his orders being shredded.
  16. jerwin macrumors 68020

    Jun 13, 2015
    Screen Shot 23.png

    Not well. what does it mean for a Article III judge to be "so-called?"

    Also, I'm very suspicious of his plans for "law-enforcement."
  17. HEK macrumors 68040


    Sep 24, 2013
    US Eastern time zone
    Bannon had some suggestions. Heard something about designer all black uniforms with some sort of orange insignia. Should look sharp. A loyalty oath as well to the administration, or they out of law enforcement. Swear oath with hand on golden dagger with black onyx handle. Heard it somewhere.
  18. thekev macrumors 604


    Aug 5, 2010
    No. The level of confidence in each opinion is somewhat disturbing though. I don't think I would even make a weak claim like that without reviewing the judge's reasoning in his own words.
  19. ibookg409 Suspended


    Apr 20, 2016
    Portsmouth, NH
    You don't need a law degree to read and understand data. Obama had a law degree and he wrote an executive order telling border agents not to deport people, which is against the law. So having a law degree doesn't seem all that valuable, it seems.
  20. A.Goldberg macrumors 68020


    Jan 31, 2015
    I guess that means Trump can be a "so called" President. :D
  21. MadeTheSwitch macrumors 6502a


    Apr 20, 2009
    This so-called President should have thought his EO through better. Here's where I think the problems lie..first he said that he will give preference to Christians. I think that's a non-starter right there. But then to implement it in such a way that you cause harm to travelers already in the air was just ridiculous. There was no need for that. I think that if he had gone about things in a more thoughtful, reasoned rational way, and made his case to the American people (all of them, not just his base) then he would not have experienced this backlash.

    He is used to pitching and selling things, so I don't know why he didn't attempt to actually sell this. If you think there is a problem with these particular countries, make your case. If you think it's to stop terrorist from coming here, than also make your case why there is no ban on the countries that actually have had terrorist come here from. He did not do that. There is more to being President than sitting behind a desk signing things with a pen.

    Also what about people who have paid money to schools but now cannot get to them? That has harmed both student and universities. Trump says we need a temp ban to sort things out, but he should have banned himself from action until he himself sorted things out and planned things better. Again in a reasoned rational way.

    But Trump doesn't do reason or rational.
    --- Post Merged, Feb 4, 2017 ---
    I've been calling him that since his tweet. Thanks for the idea Mr. so-called president. But let's not stop there. We can also now refer to his past and future ventures that way too.

    Donald Trump: A so-called businessman. Selling so-called steaks and running a so-called university who bankrupted a so-called casino and made himself into a so-called billionaire. Also a so-called reality show star with so-called "big league" ratings. A so-called success. :D
  22. VulchR macrumors 68020


    Jun 8, 2009
    Do we get to call Trump the 'so-called President'?

    EDIT: OK somebody beat me to it. :oops:
  23. Naimfan Suspended


    Jan 15, 2003
    If you really want to know, read all the briefs in all the cases that have been filed. They're public record.
  24. HEK macrumors 68040


    Sep 24, 2013
    US Eastern time zone
    Excellent idea their, Donny our so called President.
  25. citizenzen macrumors 65816

    Mar 22, 2010
    It's a level of confidence that can only come from cleaving to a partisan agenda. It reminds me of people who claim that fixing the economy is easy, if we'd only do, "X, Y and Z." Any time I hear that kind of simplistic confidence I know that it comes from a fervent believer's dogma, and not an open, rational mind that appreciates complexity.

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