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On February 9th the political drama of President Trumps executive order took an old turn when his opponents translated a political fight into a constitutional question and thus dragged the courts into the ring of battle. This is nothing new. But I will leave discussion of that political truth for another day.

President Trump issued an executive order stopping immigration from seven specific countries. He did so under a federal statute - 8 USC 1182(f) which 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 non-immigrants.

A limitation on that power is noted in 8 U.S.C. 1152(a)(1)(A) which states, regarding the granting of visas,

no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth, or place of residence.

The case was before the Ninth Circuit on appeal by the government asking for an emergency stay on the Temporary Restraining Order (TRO) that was granted by the District Court Washington. To prevail, the government had to establish that it was likely to prevail on the merits. The merits should have been based on sections 1182 and 1152.

It is a legal maxim that if a government action can be held lawful or unlawful based on statutory interpretation, the constitution is not to be invoked. In its brief the Trump Administration asserted that the executive order was lawful under section 1182, and the states of Washington and Michigan, in part, argued that the executive order violated section 1152. The stated goal of the executive order was, to prevent infiltration by foreign terrorists or criminals and pursuant to that goal, I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from [Iraq, Syria, Libya, Somalia, Sudan, Yemen, and Iran] would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days. The state response was that the suspension was a vainly disguised ban on all Muslims; which is prohibited under section 1152.

The problem is that the Ninth Circuit opinion bypassed this argument entirely. There was no mention of either statute or the legal arguments that they provide either side.

The court bypassed the true legal dispute and engaged in the Fifth Amendment arguments that Washington and Michigan asserted, in part, because they had a weak argument standing on section 1152 alone. The Fifth Amendment Due Process Clause protects a persons right to life, liberty and property and prevents the government from taking it without a hearing.

The opinion asserted that under the Fifth Amendment Due Process clause, the executive order violated the rights of legal residents, citizens and aliens who wish to return to the United States and travel from the United States. The Government, in its papers and at oral argument, asserted that the application of the order to the first two groups was an error in application and would no longer apply to them. That should have made the entire issue regarding the order and its application to legal aliens and citizens moot! But the court held that since the order was applied to citizens and legal aliens in the first two days of the order and there was no official proclamation from the President himself preventing such application, the court could not take the word of a legal memo from the White House Legal Counsel that similar application would not occur in the future. As such, the executive order violated the Fifth Amendment.

To make a long story short, there is no Fifth Amendment right for people who are not citizens or legal residents to assert in the first place, and in the second, aliens who are not in the United States have no right to a visa. The Fifth Amendment applies to those who have property rights in the United States. That property right exists by being physically present, having legal status or being a citizen. It is true that illegal aliens have a right to a hearing once in the United States, but that is only to determine if they are illegal and should be removed. It does not create a right for travel, and the right to a hearing does not translate into a right to come to the United States from another country. To get around this the court held that aliens who have contracted with the state universities to come into the United States as students or teachers have created a Fifth Amendment Due Process property right to travel, that the state governments can defend on the aliens behalf.

Since the government could not prove, to the Ninths satisfaction, that it would prevail on the due process claim because it could not prove people from the seven countries were a threat, they were not entitled to an emergency stay of the TRO.

The Government lost because it was held to a due process test, not to whether its executive order could be supported under section 1182. The court chose the wrong test.

View post:
Trump's Order and the Ninth Got it Wrong - WFMZ Allentown

Joel K. Goldstein VIncent C. Immel Professor of Law, Saint Louis University School of Law This post is hosted on the Huffington Post's Contributor platform. Contributors control their own work and post freely to our site. If you need to flag this entry as abusive, send us an email.

Fifty years ago today, Minnesota and Nevada ratified the proposed Twenty-fifth Amendment to the Constitution, providing the final support needed to make it part of our highest law. That Amendment was a significant accomplishment which created procedures to address some vexing problems regarding presidential continuity. And its enactment demonstrated how able and dedicated leadership can solve difficult problems, even those that had long resisted fixes.

Until 1967, the Constitution provided no means to fill a vice-presidential vacancy or to transfer power from a disabled president. Questions that Delawares John Dickinson asked at the Constitutional Convention (What is the extent of the term disability and who is to be the judge of it?) went unanswered for 175+ years. The problem was compounded after President William Henry Harrison died in April, 1841 and Vice President John Tyler claimed that he was president, not simply vice president acting as president as the founders intended. Tylers position was repeated seven times from 1841 to 1963 whenever a deceased president was replaced by his vice president. The Constitutions text treated the vice presidents status following a presidential inability the same as after a presidential death, removal or resignation. The Tyler Precedent inhibited vice presidents from exercising presidential responsibilities during presidential inabilities for fear of displacing the chief executive. So did the ideological, personal and constitutional distance between presidents and vice presidents for most of our history. No move was made to transfer power to Vice President Chester A. Arthur after President James Garfield was shot in 1881, even though the President was incapacitated during the last 80 days of his life. Similarly, Woodrow Wilson clung to power though incapacitated during much of the last 17 months of his presidency. First Lady Edith Bolling Wilson, not Vice President Thomas Marshall, essentially made executive decisions during this period. And presidential power remained with President Dwight D. Eisenhower during his three incapacities in the mid-1950s.

The Eisenhower disabilities amidst the Cold War and nuclear age prompted interest in addressing the problem of presidential inability. Eisenhower took important steps by entering into a letter agreement with Vice President Richard M. Nixon allowing either to initiate the temporary transfer of presidential powers and duties from Eisenhower to Nixon with Eisenhower retaining the right to reclaim them. Congress began considering constitutional amendments addressing presidential inability without reaching any consensus.

Following the assassination of President John F. Kennedy in November, 1963, Senator Birch Bayh, the newly-appointed chair of the Senate Subcommittee on Constitutional Amendments, proposed a constitutional amendment in December, 1963 which anticipated the eventual Amendment. So did principles suggested by a blue-ribbon American Bar Association group that included former Attorney General Herbert Brownell, future Supreme Court Justice Lewis Powell, iconic Harvard law professor Paul A. Freund, and John D. Feerick, a young New York lawyer, who had begun writing scholarly articles regarding presidential inability before the assassination.

The Amendment contains four sections. Section One adopted the Tyler Precedent following a presidential death, resignation or removal, but not after a presidential inability in which case the vice president simply acts as president. Section Two of the Amendment allowed the president to nominate a new vice president to fill a vice-presidential vacancy upon confirmation by each house of Congress. Section Three permitted the president to transfer presidential powers and duties to the vice president during a period of presidential inability and to reclaim them when the disability ends. Section four allowed the vice president and the majority of the Cabinet (or an alternative body should Congress create one) to transfer presidential powers and duties from the president during a presidential inability. The president can reclaim those powers upon a written declaration of his fitness to resume them unless the vice president and Cabinet contest his declaration in which case Congress decides the issue within a designated time.

Presidential succession and inability were not the sort of hot-button issues that attracted the engaged attention of many politicians. That was partly why longstanding problems persisted. Bayh was different. He pushed relentlessly and effectively for passage of the proposed amendment, involving colleagues on both sides of the aisle. Representatives Emanuel Celler and Richard Poff also played important roles. And Feericks scholarship informed legislative deliberations even while he worked with the ABA to achieve passage and ratification, the latter coming on February 10, 1967.

Three of the four sections of the Amendment have been utilized six times since its ratification. In October, 1973, Gerald R. Ford was nominated to fill a vice-presidential vacancy produced by the resignation of Spiro T. Agnew and confirmed less than two months later. In August, 1974, Ford succeeded to the presidency following Richard M. Nixons resignation. The following month, Ford nominated Nelson A. Rockefeller as vice president and Rockefeller was confirmed in December.

Two presidents have transferred presidential powers and duties to the vice president while they underwent surgery under general anesthesia on three occasions. In July, 1985, President Ronald Reagan transferred presidential powers to Vice President George H.W. Bush for eight hours while Reagan had a cancerous polyp removed. President George W. Bush briefly transferred powers to Vice President Dick Cheney in 2002 and 2007 while he underwent colonoscopies.

The early uses of the Amendment confirm its contributions to Americas system of assuring presidential continuity. The impeachment proceedings that forced Nixons resignation would have been complicated without the ability to install Republican Ford as vice president when Democratic Speaker of the House Carl Albert was otherwise next-in-line. Whereas the vice presidency was vacant for 21% of American history before the Twenty-fifth Amendment was ratified, since then it has been unoccupied for only 6 months or less than .1%, thereby diminishing the importance of the remainder of the line of succession where the solutions are less attractive. Section Three and Four encourage a transfer of power when a president is physically or mentally unable to perform by providing procedures, identifying decision-makers, and allowing the president to resume office upon the end of the incapacity.

The framers of the Twenty-fifth Amendment recognized other problems in Americas system for providing presidential continuity but deferred them to later legislatures after concluding that broadening their effort would prevent any progress. These problems include the following: the line of succession after the vice presidency currently runs through legislative leaders who might not belong to the presidents party; no provisions exist to declare a vice president disabled; the electoral system presents various vulnerable spots. Congress should address these and other gaps in the very near future.

That would be a fitting tribute to the great contributions of Bayh, Feerick and others that culminated fifty years ago with the ratification of the Twenty-fifth Amendment, and would continue their great work of improving our system of government.

See the original post here:
Celebrating the 50th of the 25th Amendment! - Huffington Post

Wow hope that folks at Apple, Samsung, Motorola, etc. see this.

In response to an incident that lacked any relation to the last fingerprint-related news, a Minnesota court ruled against a recent Fifth Amendment appeal regarding device passwords. The Minnesota Court of Appeals ruled that ordering an individual to unlock a device with a fingerprint is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.

The case in question involved Matthew Vaughn Diamond, a man Carver County District Court found guilty in 2015 of burglary and theft, among other crimes. Other news outlets cite arrest records from far before 2015, but the records showed no relevance to the January 2017 ruling. The Carver County District Court fought Diamond over his phones contentshe locked the phone with a fingerprint and refused to unlock the phone for the court. He argued, initially, that forcing his fingerprint violated both his Fourth and Fifth Amendment rights. However, the Minnesota Court of Appeals heard only the Fifth Amendment appeal.

According to the Fifth Amendment, compelled self-incrimination is a violation of human rights. The Supreme Court has held that a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. Additionally, the right to remain silent from the Miranda Rights, read to an arrestee at the time of arrest, granted a suspect the ability to refuse questions. Additionally, at the minimum, gave suspects the right to avoid answering questions legally and without fear of immediate repercussions.

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The Presidents Executive Order is only eight days old, and already there are many cases challenging it in federal court. The cases have been brought by many different categories of aliens, as well as some States and other U.S. plaintiffs, challenging several different provisions of the E.O.but mostly section 3(c), the temporary ban on entry of immigrants and nonimmigrants from seven Muslim-majority nations (which has colloquially been referred to as the travel ban provision).

Plaintiffs have asserted an array of grounds for relief from implementation of section 3(c), the most prominent of which include:

(i) an absence of statutory authority (i.e., questioning whether section 3(c) falls within the scope of Congresss delegation to the President under 8 U.S.C. 1182(f)heres a useful CRS Report on the historical use of that presidential authority);

(ii) a violation of 8 U.S.C. 1152(a)(1)(A), which prohibits discrimination in the issuance of immigrant visas on the basis of, inter alia, nationality or place of residence;

(iii) denials of due process in violation of the Fifth Amendment;

(iv) the absence of a rational basis for singling out aliens from the seven specified nations, in violation of the equal protection component of the Fifth Amendment (heres a really interesting post from Peter Spiro suggesting that this might finally be the case that tests whether theres any limits to judicial deference on that question in the immigration context); and

(v)de factoreligious discrimination in violation of the equal protection component of the Fifth Amendment and/or the Establishment Clause of the First Amendment.

It isverydifficult to keep track, in anything approaching real time, of the various arguments by all the parties and the government, and the actions of all the courts. Fortunately,the Civil Rights Litigation Clearing House has established a website with links to many of the filings and orders in most or all of the cases19 to date. A site well worth bookmarking.

As most Just Securityreaders know, last evening Judge James Robart of the Western District of Washington issued a temporary restraining order in State of Washington v. Trump, the case brought by the States of Washington and Minnesota. In addition to the merits questions, this particular suit raises very interesting questions of the States Article III standing to sue. The States primary (but not exclusive) asserted injury is that the excluded aliens include students who will be prevented from attending, paying tuition to, and contributing to the mission of, the States public universities.

The primary effect of Judge Robarts order is to temporarily enjoin enforcement of section 3(c)not only as applied to aliens who would certainly visit or live in Washington and Minnesota, but with respect to all affected aliensuntil he can hear the case on the merits. He also enjoined enforcement of certain provisions of section 5 of the Order, which indefinitely suspends the entry of Syrian refugees, andwhich also suspends the U.S.Admissions Program for allrefugeesfor 120 days and then imposes procedures on, and priorities respecting, refugee admissions after those six months are up.

Tonight the United States filed a notice of appeal of the order to the U.S. Court of Appeals for the Ninth Circuit. The court of appeals has already create a webpage that will include links to the pleadings and proceedings in that court. [UPDATE: DOJ has now filed a motion for a stay pending appeal.]

To get a sense of the arguments being pressed by the parties in that case, here are Washingtons motion for the TROand the governments opposition. Better still, heres a video of the oral argument held yesterday. In my humble opinion, both of the attorneysWashington SG Noah Purcell and Michelle Bennett of DOJs Federal Programs Sectionand Judge Robart did a remarkably fine job under very difficult circumstances and with very little time to prepare. The judges questions, in particular, went right to the heart of many of the most important and difficult issues in the case, both prompting very helpful responses from the advocates and revealing a great deal of the judges own thinking, especially on the question of whether the seven-nation limitation is supported by any rational basis(I have to find that it is grounded in facts as opposed to fiction.). I highly recommend watching.

Read more:
Getting a handle on the litigation challenging the seven-nation travel ban - Just Security

I watched with mixed emotions as my elected representatives rushed to the aid of immigrants and refugees whose rights had been violated by the Trump administration.

They were right to speak out. President Trumps temporary ban on people from seven majority-Muslim countries was unconstitutional. Thats why it was no surprise when thousands of ordinary citizens joined with city, state and federal officials to protest at airports where immigrants were being detained.

But even as an African-American who supports the rights of those who legally come to this country, it was hard for me to watch the same politicians who are silent on the shootings of unarmed blacks run breathlessly to the aid of foreigners.

Ive heard from many African-Americans who share that same frustration. Not only because our politicians stand up for immigrants and fail to do so for us, but also because weve all encountered immigrants who look down on the black community while at the same time seeking our help.

Those dynamics create tensions that are real, and Id be lying if I failed to acknowledge them. But I need black people to hear me when I say this: Joining this fight is not only about protecting immigrants. It is about protecting the Constitution, because the same Fifth Amendment that grants due process and equal protection to immigrants grants those same rights to us.

And in the age of Donald Trump, were going to need those rights.

If the feds instituted a national stop-and-frisk policy, that would be a Fifth Amendment claim, Mary Catherine Roper of the American Civil Liberties Union told me. Can they single out people they dont like and exclude them from due process? What if they said a cop on site can take your drivers license? Thats the equivalent of this. He starts with the most vulnerable group, but not to put too fine a point on it you arent too far behind.

I agree with Ropers assessment. Trumps strategy seems to involve casting vulnerable groups as the enemy. After he targets immigrants and religious minorities, blacks and other people of color likely will be next.

If those groups can be turned against one another, we are all weakened, and that makes us easier targets.

Thats why its dangerous for African-Americans to say the immigration battle is not our fight. Especially since some of those immigrants are black.

A lot of people affected by the order are people who would be coming from Africa, Ajmel Quereshi, of the NAACP Legal Defense Fund, told me in an interview. And a lot of those people would say they are African-American. The executive order applies to Sudan and Somalia. There are large communities in the U.S. from those countries, and they consider themselves part of the African American community.

Second, in a more metaphorical sense, the executive order discriminates against people based on national origin. The 14th Amendments equal protection clause protects against that, and the 14th Amendment has been an essential protection for African-Americans throughout the 20th century. If we were to cut away from that, whos to say we wouldnt see a cutting away (of rights) in the African-American community in the United States?

For me, thats the key question facing the black community. Are we willing to sacrifice our own rights by refusing to stand up for the rights of others?

I hope not, because blacks fought in every American war to secure those rights. And if we rest on the fact that the 14th Amendment granted full citizenship to formerly enslaved people following the Civil War, if we think the battle is over because that amendment granted due process and equal treatment to all persons, then our fight has been for nothing. Complacency has won the day.

The battle over immigration is a fight for the Constitution a document thats been paid for with the blood of many Americans. We honor their sacrifice when we stand for the rights of others. And when we stand for the rights of others, we stand up for ourselves.

If there are tensions between blacks and immigrants, we should resolve them while fighting side by side for the Constitution that protects us all; we should quell them while remembering that prejudice is our enemy; we should face them with the knowledge that were stronger when were unified.

Because after this battle is over, there will be others.

Trumps false claim that millions voted illegally is most likely a precursor to voting-rights restrictions. His attacks on federal employees will expand to other workers. His rants against Black Lives Matter are the first steps to curtailing protests.

So, yes, fighting Donald Trumps travel ban is absolutely a black issue.

We arent fighting only for immigrants. Were fighting for our very lives.

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Solomon Jones is a columnist for the Philadelphia Inquirer. Readers may email him at sj@solomonjones.com.

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