Monday, February 20, 2017

Same song, second verse....

It's hard to find any reports on the "new" travel ban (a/k/a Muslim ban) that Trump is supposed to issue to replace the one that blew up in the 9th Circuit (and in almost every trial court where it was challenged).  The broad outlines seem to be that it will be the same as the first travel ban, only without a restriction on green card holders (something Bannon was reportedly adamant be a part of the interpretation of the original ban).  Update:  those outlines can now be found here, where the new order seems to be the old order, only without an immediate application to those in transit.  As if that was the problem with the old order....

Which means:

“I think there will be a huge legal push-back on the presumably looming executive order,” said Alén Takhsh, an Iranian American attorney based in Chicago. “The constitutional arguments against the executive order are likely to once again pass judicial muster, and on top of that, you tack on the argument that the law does not pass the ‘rational basis’ test. Yes, the President does have wide discretion in protecting us, but what he does has to be rationally based. You can’t just say I’m going to ban people from Tajikistan, [for example], you have to point to how nationals of Tajikistan traveling to the U.S. have harmed Americans. And, obviously, facts are important in that calculus.”

To revisit two key portions of what the 9th Circuit panel said:

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above.

As the lawyer said, "you have to point to how nationals of Tajikistan traveling to the U.S. have harmed Americans."  Go back to the list the White House released earlier; all the U.S. based terror attacks they could list were perpetrated by "U.S. Person."  What new evidence do they have to support this new order?  The Bowling Green Massacre?  The terrorist attack in Orlando?  What happened in Sweden?

And of course, there's the other problem, the matter of due process under law:

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause. 

Which doesn't even get close to the First Amendment issues and Trump's many statements about Muslims as the source of evil in the world (as Charlie Pierce says, Stephen Bannon drinks a glass of water while Trump speaks).  But we never have to get to the First Amendment issues, if the order can't get past the due process problems and the rational basis questions.

And nothing in the news reports indicates it's going to do that.  Because the President can't simply ban whole countries from traveling here without having a rational basis for the ban, and taking into account due process "prior to restricting an individual's ability to travel."  Which is why we do these things by legislative process, not by Presidential edicts.

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