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The Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with succession to the Presidency and establishes procedures both for filling a vacancy in the office of the Vice President, as well as responding to Presidential disabilities. It supersedes the ambiguous wording of Article II, Section 1, Clause 6 of the Constitution, which does not expressly state whether the Vice President becomes the President or Acting President if the President dies, resigns, is removed from office or is otherwise unable to discharge the powers of the presidency.[1] The Twenty-fifth Amendment was adopted on February 10, 1967.[2]

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.[3]

Article II, Section 1, Clause 6 of the Constitution states:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

That clause was unclear regarding Presidential succession and inability; it did not state who had the power to declare a President incapacitated.[1] Also, it did not provide a mechanism for filling a Vice Presidential vacancy prior to the next Presidential election. The vagueness of this clause caused difficulties many times before the Twenty-fifth Amendment's adoption:

President Dwight D. Eisenhower attempted to clarify procedures through a signed agreement with Vice President Richard Nixon, drafted by Attorney General Herbert Brownell Jr.. However, this agreement did not have the authority of a constitutional amendment.[9]

All of these incidents made it evident that clearer guidelines were needed.[1] There were two proposals for providing those guidelines.

In 1963, Senator Kenneth Keating of New York proposed a Constitutional amendment which would have enabled Congress to enact legislation providing for how to determine when a President is "unable to discharge the powers and duties of his office", rather than, as the Twenty-fifth Amendment does, having the Constitution so provide.[10] This proposal was based upon a recommendation of the American Bar Association in 1960.[11]

The text of the proposal read:[12]

In case of the removal of the President from office or of his death or resignation, the said office shall devolve on the Vice President. In case of the inability of the President to discharge the powers and duties of the said office, the said powers and duties shall devolve on the Vice President, until the inability be removed. The Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then be President, or, in case of inability, act as President, and such officer shall be or act as President accordingly, until a President shall be elected or, in case of inability, until the inability shall be earlier removed. The commencement and termination of any inability shall be determined by such method as Congress shall by law provide.

Senators raised concerns that the Congress could either abuse such authority[13] or neglect to enact any such legislation after the adoption of this proposal.[14]Tennessee Senator Estes Kefauver, the Chairman of the Senate Judiciary Committee's Subcommittee on Constitutional Amendments, a long-time advocate for addressing the disability question, spearheaded the effort until he died of a heart attack on August 10, 1963.[15][16] Senator Keating was defeated in the 1964 election, but Senator Roman Hruska of Nebraska took up Keating's cause as a new member of the Subcommittee on Constitutional Amendments.[9]

The assassination of John F. Kennedy showed the need for a clear way for determining presidential disability in the context of the Cold War.[17] The new President, Lyndon B. Johnson, had once suffered a heart attack,[18] and the next two people in line for the presidency were the 71-year-old Speaker of the House John McCormack,[17][19] and the 86-year-old Senate President pro tempore Carl Hayden.[17][19] Senator Birch Bayh succeeded Kefauver as Chairman of the Subcommittee on Constitutional Amendments and set about advocating for a detailed amendment dealing with presidential disability.[17]

On January 6, 1965, Senator Birch Bayh proposed S. J. Res. 1 in the Senate and Representative Emanuel Celler (Chairman of the House Judiciary Committee) proposed H. J. Res. 1 in the House of Representatives. Their proposal specified the process by which a President could be declared "unable to discharge the powers and duties of his office", thereby making the Vice President an Acting President, and how the President could regain the powers of his office. Also, their proposal provided a way to fill a vacancy in the office of Vice President before the next presidential election. This was as opposed to the KeatingKefauver proposal, which neither provided for filling a vacancy in the office of Vice President prior to the next presidential election nor provided a process for determining presidential disability. In 1964, the American Bar Association endorsed the type of proposal which Bayh and Celler advocated.[20] On January 28, 1965, President Johnson endorsed S. J. Res. 1 in a statement to Congress.[9] Their proposal received bipartisan support.[21]

On February 19, the Senate passed the amendment, but the House passed a different version of the amendment on April 13. On April 22, it was returned to the Senate with revisions.[9] There were four areas of disagreement between the House and Senate versions:

On July 6, after a conference committee ironed out differences between the versions,[22] the final version of the amendment was passed by both Houses of the Congress and presented to the states for ratification.[23]

The Congress proposed the Twenty-fifth Amendment on July 6, 1965, and the amendment was ratified by the following states:[2]

The following states have not ratified the amendment:

Just six days after its submission, Nebraska and Wisconsin were the first states to ratify the amendment. On February 10, 1967, Minnesota and Nevada were the 37th and 38th states to ratify, respectively. On February 23, 1967, in a ceremony in the East Room of the White House, General Services Administrator Lawson Knott certified the amendment's adoption.

Section 1 codified the "Tyler Precedent" regarding when a President is removed from office, dies, or resigns. In any of these situations, the Vice President immediately becomes President.

Prior to the Twenty-fifth Amendment's adoption, a Vice Presidential vacancy remained until the start of the next presidential term. The Vice Presidency has been vacant several times due to death, resignation, or succession to the Presidency. Often these vacancies lasted for several years.

Under Section 2, whenever there is a vacancy in the office of Vice President, the President nominates a successor who becomes Vice President if confirmed by a majority vote of both Houses of the Congress.

Section 3 provides that when the President transmits a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives, stating that he is unable to discharge the powers and duties of the Presidency, and until the President sends another written declaration to the aforementioned officers declaring himself able to resume discharging those powers and duties, the Vice President discharges those powers and duties as Acting President.

Section 4 is the only part of the amendment that has never been invoked.[25] It allows the Vice President, together with a "majority of either the principal officers of the executive departments or of such other body as Congress may by law provide", to declare the President "unable to discharge the powers and duties of his office" by submitting a written declaration to the President pro tempore of the Senate and the Speaker of the House of Representatives. As with Section 3, the Vice President would become Acting President.

Section 4 is meant to be invoked should the President's incapacitation prevent him from discharging his duties, but he is unable or unwilling to provide the written declaration called for by Section 3. The President may resume exercising the Presidential duties by sending a written declaration to the President pro tempore and the Speaker of the House.

Should the Vice President and Cabinet believe the President is still "unable to discharge the powers and duties of his office", they may within four days of the President's declaration submit another declaration that the President is incapacitated. If not already in session, the Congress must then assemble within 48 hours. The Congress has 21 days to decide the issue. If within the 21 days two-thirds of each house of Congress vote that the President is incapacitated, the Vice President would "continue" to be Acting President. Should the Congress resolve the issue in favor of the President, or make no decision within the 21 days allotted, then the President would "resume" discharging the powers and duties of his office. The use of the words "continue" and "resume" imply that the Vice President remains Acting President while Congress deliberates.

However, the President may again submit a written declaration of recovery to the President pro tempore and the Speaker of the House. That declaration could be responded to by the Acting President and the Cabinet in the same way as stated earlier. The specified 21-day Congressional procedure would start again.

The Twenty-fifth Amendment has been invoked six times since its ratification. The first three times were applications of Sections 1 and 2 in the context of scandals surrounding the Nixon Administration. The latter three were applications of Section 3 in connection to the President's undergoing a medical procedure requiring general anesthesia.

On October 12, 1973, following Vice President Spiro Agnew's resignation two days earlier, President Richard Nixon nominated Representative Gerald Ford of Michigan to succeed Agnew as Vice President.

The United States Senate voted 923 to confirm Ford on November 27 and, on December 6, the House of Representatives did the same by a vote of 38735. Ford was sworn in later that day before a joint session of the United States Congress.[26]

President Richard Nixon resigned on August 9, 1974, resulting in Vice President Gerald Ford succeeding to the office of President.[27] Gerald Ford is the only person ever to be Vice President, and later President, without being elected to either office.[28]

When Gerald Ford became President, the office of Vice President became vacant. On August 20, 1974, after considering Melvin Laird and George H. W. Bush, President Ford nominated former New York Governor Nelson Rockefeller to be the new vice president.

On December 10, 1974, Rockefeller was confirmed 907 by the Senate. On December 19, 1974, Rockefeller was confirmed 287128 by the House and sworn into office later that day in the Senate chamber.[26]

On July 12, 1985, President Ronald Reagan underwent a colonoscopy, during which a pre-cancerous lesion called a villous adenoma was discovered. Upon being told by his physician (Dr. Edward Cattow) that he could undergo surgery immediately or in two to three weeks, Reagan elected to have it removed immediately.

That afternoon, Reagan consulted with White House counsel Fred Fielding by telephone, debating whether to invoke the amendment and, if so, whether such a transfer would set an undesirable precedent. Fielding and White House Chief of Staff Donald Regan recommended that Reagan transfer power and two letters doing so were drafted: the first letter specifically invoked Section 3 of the Twenty-fifth Amendment; the second only mentioned that Reagan was mindful of this provision. At 10:32a.m. on July 13, Reagan signed the second letter and ordered its delivery to the appropriate officers as required under the amendment.[29]

Books such as The President Has Been Shot: Confusion, Disability and the 25th Amendment, by Herbert Abrams, and Reagan's autobiography, An American Life, argue President Reagan's intent to transfer power to Vice President Bush was clear. Fielding himself adds:

I personally know he did intend to invoke the amendment, and he conveyed that to all of his staff and it was conveyed to the VP as well as the President of the Senate. He was also very firm in his wish not to create a precedent binding his successor.

On June 29, 2002, President George W. Bush underwent a colonoscopy and chose to invoke Section 3 of the amendment, temporarily transferring his powers to Vice President Dick Cheney. The medical procedure began at 7:09a.m. EDT and ended at 7:29a.m. EDT. Bush woke up twenty minutes later, but did not resume his presidential powers and duties until 9:24a.m. EDT after the president's doctor, Richard Tubb, conducted an overall examination. Tubb said he recommended the additional time to make sure the sedative had no aftereffects. Unlike Reagan's 1985 letter, Bush's 2002 letter specifically cited Section 3 as the authority for the transfer of power.[29]

On July 21, 2007, President Bush again invoked Section 3 in response to having to undergo a colonoscopy, temporarily transferring his powers to Vice President Cheney. President Bush invoked Section 3 at 7:16a.m. EDT. He reclaimed his powers at 9:21a.m. EDT. As happened in 2002, Bush specifically cited Section 3 when he transferred the Presidential powers to the Vice President and when he reclaimed those powers.[29]

There are two documented instances in which invocation of Section 4 of the Twenty-fifth Amendment was considered, both of which involved the 40th President of the United States, Ronald Reagan.

Following the attempted assassination of Ronald Reagan on March 30, 1981, Vice President George H. W. Bush did not assume the presidential powers and duties as Acting President. Reagan was unable to invoke Section 3, because he was in surgery. Bush did not invoke Section 4, because he was on a plane returning from Texas. Reagan was out of surgery by the time Bush arrived in Washington.[30] In 1995, Birch Bayh, the primary sponsor of the amendment in the Senate, wrote that Section 4 should have been invoked.[31]

Upon becoming the White House Chief of Staff in 1987, Howard Baker was advised by his predecessor's staff to be prepared for a possible invocation of the Twenty-fifth Amendment[32] due to Reagan's perceived laziness and ineptitude.[33][34]

According to the PBS program American Experience,

What Baker's transition team was told by Donald Regan's staff that weekend shocked them. Reagan was "inattentive, inept", and "lazy", and Baker should be prepared to invoke the 25th Amendment to relieve him of his duties.

Reagan biographer Edmund Morris stated in an interview aired on the program,

The incoming Baker people all decided to have a meeting with him on Monday, their first official meeting with the President, and to cluster around the table in the Cabinet room and watch him very, very closely to see how he behaved, to see if he was indeed losing his mental grip.

Morris went on to explain,

Reagan who was, of course, completely unaware that they were launching a death watch on him, came in stimulated by the press of all these new people and performed splendidly. At the end of the meeting, they figuratively threw up their hands realizing he was in perfect command of himself.[33][34]

Read more:
Twenty-fifth Amendment to the United States Constitution - Wikipedia

LAS VEGAS NASCAR and moonshine have long had an intertwined relationship, so it should come as no great surprise that Brendan Gaughan, who is sort of a throwback driver, has found a profitable way to keep the tradition going.

And this time, its legal.

Gaughan, full-time driver of the No. 62 Chevrolet for Richard Childress Racing in the XFINITY Series, has started up a new side business called City Lights Shine. And the Las Vegas native isvery excited about it.

City Lights Shine is the new whiskey moonshine that were making here in Las Vegas, Gaughan said Friday in the Las Vegas Motor Speedway media center. We are the first and only legal distillery in Las Vegas. Ive got to stress the legal part.

Gaughans partner in the business venture is former NASCAR official Mike Dolan.

The back story is there is a certain individual who may have been a NASCAR official for quite a few years, who may have made a product every once in a while that we would, uh, taste, Gaughan said. We may or may not have done that. I will invoke my right to the Fifth Amendment.

Brian Lawdermilk | Getty Images

Gaughan said he eventually introduced the product to his parents, owners of South Point Casino in Las Vegas. His mother, Paula Gaughan, actually liked it so much that she encouraged her son to pursue making it and distributing it all legally, of course as a business enterprise.

My mother and my father really enjoyed the product. They actually liked it, Brendan Gaughan said. So a couple years ago, my mom said, Hey, I like this stuff. Look into it.

So I did. And Ive always been about the numbers, plus I like to do what I know. Thats kind of been a Gaughan family motto for about 50 years The numbers added up. My partner moved out from North Carolina to Las Vegas.

Now it seems to really be taking off, in part thanks to Gaughans SouthPoint and NASCAR connections.

Its now available at the SouthPoint and Las Vegas Motor Speedway. Thanks to (Speedway Motorsports Incorporated president) Marcus Smith and SMI, it now looks like were going to have it all the SMI tracks.

That includes the tracks not only Vegas, but also the ones at Atlanta, Bristol, Charlotte, Kentucky, New Hampshire, Sonoma and Texas, where Gaughan says City Lights Shine will soon be available in strawberry, blueberry, raspberry and the original all-clear flavors.

Jerome Miron-USA TODAY Sports | Jerome Miron

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Link:
Brendan Gaughan takes NASCAR back to its roots, and this time it's legal - FOXSports.com

Yet Another Assault On Freedom Of Contract And Property Rights Forbes Washington Supreme Court precedents have established that this language, similar to that of the Fifth Amendment of the U.S. Constitution, includes the right to sell or lease your property on a nondiscriminatory basis to an individual of your choosing.

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Yet Another Assault On Freedom Of Contract And Property Rights - Forbes

A lot of attention in the next few weeks will be focused on the Senate Judiciary committee as it considers Neil Gorsuchs Supreme Court nomination. But the Judiciary committee also performs other important functions, including one subcommittee that can wield great power in rare cases.

Birch Bayh and Lyndon Johnson

The United States Senate Judiciary Subcommittee on the Constitution and Civil Justice is one of six committees within the Judiciary committee. The Subcommittee on the Constitution and Civil Justice shall have jurisdiction over the following subject matters: constitutional amendments, constitutional rights, Federal civil rights, claims against the United States, non-immigration private claims bills, ethics in government, tort liability, including medical malpractice and product liability, legal reform generally, other appropriate matters as referred by the Chairman, and relevant oversight, the Judiciary Committee says on its official website.

The job of originating and crafting amendments in many ways is the ultimate constitutional power. There is also a parallel committee in the House, but in several past cases, the Senate committees leadership made several constitutional amendments a reality.

Senator Birch Bayh served as the subcommittees chair for nearly two decades and he drove the process that resulted in the 25th Amendment and the 26th Amendment to the Constitution. A third effort championed by Senator Bayh, the Equal Rights Amendment, was approved by the House and Senate, but it fell three states short of full ratification.

The most recent amendment, the 27th Amendment, was ratified in 1992 but it was part of the original Bill of Rights introduced by James Madison and sent to the states for approval in 1789. (There wasnt a Senate subcommittee in place to review it.) It wasnt ratified in 1791 with the original Bill of Rights, but no deadline was attached to the ratification process. In 1984, more states began to ratify the amendment, which defines how and when Congress can control its own compensation.

In Bayhs case, the subcommittee had considerable work to do on the 25th Amendment, a version of which had been under consideration before President John F. Kennedys death in 1963. Since 1841, when Vice President John Tyler boldly claimed the title of President after William Henry Harrisons death, the Tyler Precedent allowed Vice Presidents to assume the full powers of the presidency after that office became vacant despite the lack of a direct constitutional power to do so in the Constitution and its amendments.

The 25th Amendment also dealt with other potential constitutional crises: the inability of a President to perform his duties in office due to illness or other reasons, and the replacement of a Vice President no longer in office.

As a young attorney, current Fordham Law professor and former dean John Feerick worked with Bayhs subcommitee to draft the language that eventually became the 25th Amendment. He recounted the arduous process in a 1995 law journal article, The Twenty-Fifth Amendment: An Explanation And Defense.

Bayh introduced Senate Joint Resolution 139 in December 1963, just months after replacing the late Estes Kefauver as subcommittee chair. (There was reported talk that the subcommittee would be phased out until Bayh, a freshman Senator, asked for the assignment.) Kefauver also had championed an amendment dealing with presidential disability.

Feerick recounted that initial committee hearings in 1964 called leading historians and experts to testify about different scenarios about the inability of a President to perform duties and the process of filling an in-term Vice Presidential vacancy. The Senate approved the subcommittees recommendations in September 1964, but the House didnt act during the election year and out of respect to Speaker John McCormick, who was next in line to the presidency with no sitting Vice President in office.

In January 1965, Bayh reintroduced the bill in the Senate, with support from the newly elected President Lyndon Johnson. After a debate between Bayh and Everett Dirksen, the bill was modified and approved again by a unanimous Senate. In the House, Feerick said more than 30 possible versions of the amendment were before its Subcommitee on the Constitution. Bayh and future Supreme Court Justice Lewis Powell (as president of the American Bar Association) testified in the House. The House version passed by a 386-29 vote.

The bills were sent to a conference committee that worked out drafting differences. According to author James N. Ronan, Bayh turned to Powell to intercede with the conference committee to work out disputes about the drafting language. The revised amendment was passed by a House voice vote and a 68-5 margin in the Senate and sent to the states for ratification on July 6, 1965. Nevada became the 38th state to approve the amendment on February 10, 1967, completing the process.

The Twenty-fifth Amendment is the product of extensive debate and discussion, in which full account was taken of the history of presidential succession and the many worthy suggestions offered for improvements in the succession framework. The amendment provides an approach to presidential succession which allows for an effective transfer of power in all cases of presidential inability, Feerick concluded.

Bayh also advocated for a lower voting age for Americans while he was a state legislator. The 26th Amendment came about quickly and through a much-different process. Congress decided in 1970 to lower the national voting age from 21 to 18 during the Vietnam War through an act of legislation. However, the Supreme Court in December 1970 decided on a challenge to the law, in Oregon v. Mitchell, Congress only had thepower to change the voting age in federal elections. With a presidential election on the horizon and election officials facing the costs of accounting for two sets of voting ages, Congress acted in record time getting the 26th Amendment in the hands of the state to ratify.

Bayhs subcommittee worked on drafting language after the Court decision and by February 1971 it had issued an 81-page report recommending the amendment. There is no basis in logic, in policy or in practice for denying 18-year-olds the right to vote in state and local elections when they may vote in federal elections, the subcommitee concluded. Within six weeks, the House and Senate approved the amendments language and send it to the 50 states for consideration. The 26th Amendment was ratified about three months later the quickest ratification process ever when North Carolina approved it.

Since then, two other proposed amendments have made it out of the subcommittee to be approved by the full House and Senate, only to fall short in the ratification process. Bayh proposed a Senate version of the Equal Rights Amendment and held subcommittee hearings in May 1970. (The first version of the ERA had been proposed in Congress in 1923.) In March 1972, the Senate approved the ERA after it had passed in the House. At the time, Bayh thought the ERA would be ratified within two years, but it failed to get enough support over the next decade.

And in 1978, the House and Senate approved an amendment to grant congressional voting rights to the District of Columbia after hearing were held in Bayhs subcommittee. The proposed amendment repealed the 23rd Amendment and gave the federal District two United States Senators and a representative in the House. However, only 16 states ratified the amendment before its approval period expired in 1985.

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A little-known Senate subcommittee that holds great constitutional power - Constitution Daily (blog)

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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.

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