Leiter Reports: A Philosophy Blog

News and views about philosophy, the academic profession, academic freedom, intellectual culture, and other topics. The world’s most popular philosophy blog, since 2003.

  1. Justin Fisher's avatar

    To be worth using, a detector needs not only (A) not get very many false positives, but also (B) get…

  2. Mark's avatar

    Everything you say is true, but what is the alternative? I don’t think people are advocating a return to in-class…

  3. Deirdre Anne's avatar
  4. Keith Douglas's avatar

    Cyber security professional here -reliably determining when a computational artifact (file, etc.) was created is *hard*. This is sorta why…

  5. sahpa's avatar

    Agreed with the other commentator. It is extremely unlikely that Pangram’s success is due to its cheating by reading metadata.

  6. Deirdre Anne's avatar
  7. Mark's avatar

Federal judge in Seattle temporarily blocks the immigration ban nationwide

Brian Leiter

MOVING TO FRONT FROM FEBRUARY 4–SOME INTERESTING COMMENTS (AND LINKS)

This is a happy development, and even happier is that the government is complying with the order.   (Meanwhile, President [sic] Trump had another one of his twitter outbursts about the decision, which will only hurt him with all judges, not just this one, as he's going to find out.)   Reader James Osborn called my attention to a video of the argument before Judge Robart in the federal district court in Seattle, in particular the exchange starting about 39:00 between the lawyer for the Department of Justice and Judge Robart.  (The DOJ lawyer isn't very good, and seems ill-prepared.  Judge Robart is clearly a very nice judge.) 

The Judge's position is that this executive order on immigration must be subjected to "rational basis review," which is generally a very undemanding standard, but as the Judge notes it is not clear this order is based on "fact" as opposed to "fiction."  (That the order is not rationally related to any security objective is, in essence, the conclusion of the damning analysis by Benjamin Wittes we've linked to previously.) 

By contrast, DOJ's position appears to be that this order falls within the President's power over foreign affairs, and so is not to be subject even to rational basis review.  I'd be interested to hear from some of my lawyer/law professor readers what they make of that argument; Judge Robart isn't impressed.  (I would have assumed that immigration law is not within the executive's foreign affairs power, but I really do not know much at all about this.)

Leave a Reply

Your email address will not be published. Required fields are marked *

6 responses to “Federal judge in Seattle temporarily blocks the immigration ban nationwide”

  1. Matt

    I haven't watched the video, but here are a few (somewhat hasty) legal point: The executive order invokes a power given the the president in section 212(f) of the Immigration and Nationality Act, ("INA"). In relevant part, it says, "Whenever the President finds that the entry of 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,…as he may deem to be appropriate." (Some more less relevant parts follow.) Now, this doesn't settle all the issues here, because other sections of the INA (such as section 202(a)(1)(A) prohibit discrimination in the issuing of visas on the basis of "nationality" or "place of residence". The EO seems to fall afoul of this, as written. But, it is explicitly allowed to use different procedures in different places while issuing visas, so this might give the EO some more validity. Additionally, a person holding a valid green card (a lawful permanent resident) is, under law held not to be seeking an "entry" (a technical term) when returning to the US from abroad, so, it's not clear that the power under 212(f) above should apply to them. This is perhaps why the administration was quick to cave in on the banning of people holding valid greencards, though of course there may have been other reasons, too.

    It is actually a long-standing doctrine that the power to regulate immigration is tied up with the "power to conduct foreign affairs". See,Chae Chan Ping v. United States 130 U.S. 581 (1889). Similarly, the long-standing (though much criticized) "Plenary power doctrine" seems to suggest extreme latitude to the government, including to the executive branch, when so delegated, on these matters. Take the notorious, but still good, case of U.S. Ex Rel Knauff v. Shaughnessy, where it was held that, as far as constitutional limits are concerned, "Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned." (338 U.S. 537, 544 (1950). See also Shaughnessy v. U.S. Ex Rel. Mezei, 345 U.S. 206 (1953). In the first case, it was held that Knauff, the wife of a U.S. citizen, could be kept out on the basis of "secret evidence" that could be withheld even from a federal judge in camera. (It turns out that it was important to keep this evidence secret because it didn't actually exist. So, we ought not be encouraged at all by this.)

    These are old decisions, made at times of xenophobia and scares. They have been questioned, and I think that they are wrongly decided. But, they have not been ever officially over-turned, and give great latitude to the executive in making rules here. How far these executive orders will be seen as being constrained by other statutory language isn't clear to me, but that's perhaps the best approach. I'd be thrilled if some of the cases least friendly to aliens were eventually explicitly over-turned or limited here, but I do not think it will be a mere academic matter.

    Reply
  2. Matt

    I should add that there is no textual support for the "foreign affairs power" or the "plenary power" ability to regulate immigration in the constitution, but that hasn't stopped courts from finding it to be "inherent" in the power of the Federal government and/or the executive branch.

    Reply
  3. Eric Rasmusen

    Is 212f what Obama used when he suspended visas from Iraq for six months? Was his order ever tested in court?

    Reply
  4. Matt

    Despite it being repeated quite a lot, Eric Rasmusen's comparison of the actions of the Obama administration's action on certain types of visas from Iraq (not all of them) and the Trump executive order, is highly misleading at best. For a helpful comparison, see: http://www.snopes.com/president-obama-ban-muslims-2011/ The truth of this matter is perhaps one more casualty of the massacre at Bowling Green! And, people interested in refugees were unhappy with the Obama action and did challenge it. I hope that people will become educated on this point, and stop repeating the false claim.

    Reply
  5. Jamie Dreier

    Obama didn't suspend visas for six months. He required extra processing — "re-vetting", they called it. The process slowed down and a backlog resulted, but there was no suspension.

    This is important (whatever you think of what Obama did) because the Trump White House is trying to make it look like their order is in line with what past presidents have done, and or course it isn't.

    Reply
  6. Matt

    There is an interesting and learned discussion of the constitutional law issues in the case by Rick Hills (of NYU Law) here. The comment from Marty Lederman (Georgetown Law) in replay is very good as well, especially as Lederman is one of the most able and careful doctrinal con law scholars around today. (He also knows more immigration law than do most con law scholars, though I am not quite as optimistic as he is that the old decisions granting near-unlimited discretion to the executive to regulate immigration will be over-turned or ignored, despite the fact that they were based on bad reasoning and had no firm textual basis.)

    BL COMMENT: I believe this is the post to which Matt refers: http://prawfsblawg.blogs.com/prawfsblawg/2017/02/focusing-on-temporary-visas-as-protected-liberty-interests-in-challenges-to-trumps-immigration-eo.html

    —–
    KEYWORDS:
    Primary Blog

    Reply

Designed with WordPress