Sunday, November 19, 2017
Hawai'i Free Press

Current Articles | Archives

Friday, March 10, 2017
Hawaii V. Trump: A Legal Nothing-Burger
By Selected News Articles @ 3:46 AM :: 1545 Views :: National News

Hawaii V. Trump: A Legal Nothing-Burger

by Phillip Holloway, Daily Caller, March 9, 2017

…(President Trump) 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 Circuit which has a staggering 80% reversal rate — the second highest in the nation – the Administration issued a new more narrow order and avoided the confusing implementation of the January order.

Now we are back in court – the 9th Circuit naturally. That’s where the activist judges are. 72% of the judges in the 9th Circuit Court of Appeals were appointed by democrats. Hawaii along with Ismail Elshikh — Imam of the Muslim Association of Hawaii sued to block the revised order. The 38 page lawsuit is assigned to US District Judge Derrick Watson — a 2013 appointee of former President Obama.  It was no accident it was brought in Hawaii where two of the three federal judges are Obama appointees.

Let’s discuss Hawaii’s verbose-yet-meritless lawsuit. There’s 29 pages of “policy” arguments – not legal ones.

It’s a litany of reasons why Hawaii and the Imam think the order is a big scary monster that’s embarrassing and keeps the Imam’s Syrian mother-in-law from visiting even though she hasn’t come to visit since 2005.There’s only 7 pages of legal claims. Let’s look at the 29 pages of irrelevant material first. They lay out some policy reasons why the executive order, they say, isn’t 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 can’t receive visits from or be reunited with people affected by the order. Universities can’t recruit as well. The Imam has to live in a country where people think the government disfavors a religion. The order hurts Hawaii’s economy.

Response: There’s no constitutional right to receive visits from foreigners. Those words aren’t in the Constitution. So what if universities can’t 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 he’s 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 it’s 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 aren’t relevant. He wasn’t President, the order doesn’t mention Muslims and doesn’t apply to any single religion.

Pages 11-15. These describe the January Order.

Response: That’s irrelevant. This is a new order. We aren’t litigating the first.

Pages 16-19. These describe the rollout of the first order, chaos at airports, and confusion in its implementation.

Response: It’s true that the “rollout” could’ve been smoother but this is a new order. We aren’t litigating the first.

Pages 20-25. These quote and describe the new order.

Response: Miller’s comments are irrelevant because the new order didn’t exist then. It doesn’t matter what Miller says. It matters what the order says.

Pages 25-30. These rehash in more detail the initial claims. The Imam’s mother-in-law can’t visit, other residents can’t receive certain visitors, it makes people feel bad, it harms the economy etc. This is a policy debate. If the Imam’s mother-in-law can’t 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 are legally incorrect 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.”

Here’s what the Constitution actually says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” I’ve given you both the “Establishment Clause” AND the “Free Exercise Clause.” Read them together. Executive orders are not acts of Congress. There’s 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 from around the globe enter the US daily and will continue to despite the order. The Establishment Clause claim is laughable.

COUNT 2: Fifth Amendment-Equal Protection

Hawaii and the Imam allege “The Due Process Clause of the Fifth Amendment prohibits the Federal Government from denying equal protection of the laws, including on the basis of religion and/or national origin, nationality, or alienage.”

The Fifth Amendment does not mention the words “Equal Protection.” That’s the Fourteenth Amendment. I agree that all people who have rights under the Constitution are entitled to equal protection. That’s simple. But here’s the big problem for the plaintiffs: Non-citizens outside of the US have no constitutional rights whatsoever. The “people” to who have constitutional rights are the people of the US or those present within the US. We don’t export US Constitutional Rights. Otherwise, the Navy Seals would’ve needed a search warrant to enter Bin Laden’s house. There is no constitutional right that belongs to any alien to enter the US. Permanent residents and visa holders have statutory and other permissions.

COUNT 3: Fifth Amendment Substantive Due Process

Plaintiffs claim “The right to international travel is covered by the Due Process Clause of the Fifth Amendment.”

Really? Let’s look. “No person shall be held to answer for a capital…crime, 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 don’t 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 isn’t possible to deprive someone of something they don’t already possess — due process rights.

COUNT 5: Immigration and Nationality Act

Plaintiff’s claim the order exceeds the President’s 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, and Arbitrary and Capricious Action

That’s the “run everything up the flagpole and see if someone salutes” approach. This fails for the same reason: Non-citizens outside the United States have no US constitutional rights. That’s 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 it’s at the border. We know where it is. That’s where US constitutional rights evaporate. This is common sense stuff that shouldn’t stand a chance in court. But it’s the 9th Circuit. If Hawaii wins it will land in the full US Supreme Court and the 9th Circuit should get reversed — again….

---30---

UPDATE March 13, 2017: Trump Admin Motion Against TRO

NBC: Trump Travel Order Raises Specter of ‘Superior Race’: Hawaii Attorney General

AP: Hawaii Attorney General: Travel Ban is 'Racis” -- "bans people purely based upon their nationality,"  (IQ Test: Are you laughing?)

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

ALEC

Alliance Defending Freedom

Aloha Conservative Alliance

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii

AMVETS-Hawaii

AntiPlanner

Antonio Gramsci Reading List

A'ole Eradication

A Place for Women in Waipio

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

Conservative Forum for Hawaii

CSIS Pacific Forum

DAR Hawaii

DeedySupport.com

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii

FIRE

Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Friends of Lanai

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

GoGoGMO!

Grassroot Institute

Habele.org

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii Open Budget

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Senate Informer

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Hawaii Votes

Heritage Foundation

HI Coalition Against Legalized Gambling

HIEC.Coop

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu TEA Party

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube

HPACC

Hump Day Report

Hunting, Farming and Fishing Assoc.

I Vote Hawaii

If Hawaii News

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes

KeyWiki

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii

NARTH

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

No Hawaii Beverage Tax

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii

OHA Lies

Ohana Policy Group

OpenHawaii.org

OurFutureHawaii.com

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Salvage The Rail

Save the Plastic Bag

School Choice in Hawaii

Senate Minority FB

SenatorFong.com

SIFE Remington

SIFE W. Oahu

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

TEA Party Maui

TFB Micronesia

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

United Veterans Hawaii

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

YAL UH Hilo 

Yes2TMT

 

 

 

Maui TEA Party
Maui TEA Party