The Muslim Ban Has Begun!

Discussion in 'Politics' started by ElectricFetus, Jan 26, 2017.

  1. Truck Captain Stumpy Registered Senior Member

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    no - but unfortunately for you i can read

    i'm not partial to any political party so i don't have a vested interest in finding some biased interpretation of the findings in the ruling

    apparently you do

    to each their own

    there isn't a need when the ruling is linked - it speaks for itself
     
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  3. joepistole Deacon Blues Valued Senior Member

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    That's a fucking lame excuse. The whole point of the travel ban was to allow Trump time to review vetting procedures. There is nothing in any of the court orders preventing Trump from reviewing current vetting processes.
     
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  5. joepistole Deacon Blues Valued Senior Member

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    Except that's simply not true. Unfortunately for you and folks like you some people can read and reason.
     
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  7. Tiassa Let us not launch the boat ... Staff Member

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    It is striking to watch the discussion waste ten posts on an argument so lacking merit: It is, quite simply, stupidly irrational to assert that no one seems capable of making a constitutional argument aside from the ones Syne refuses to recognize.

    You could if you wanted and thought yourself capable, try explaining your argument in some relevant and useful terms, but for the moment it is enough that in deciding what to do about the executive order and the complaints against it, the courts must figure out what the words mean. What you're asking, essentially, is to consider what the order means in a vacuum without reference to anything having to do with reality. And here's the thing: With immigration issues, the president has demonstrated the words coming out of his White House simply cannot be trusted. He has repeatedly made public appeals to assuage concerns about his immigration policies only that his administration should behave differently.

    Most armchair pundits, even those with only a couple years experience, are generally aware of a weirdly amorphous feeling about things most definitely happening around them; conservative political argumentation relies more and more on contextual and circumstantial vacuums, and there are days when it's bloody damn obvious:

    The first sentence is one you can make some substantial argument about: Where in the Constitution itself are such rights suspended explicitly for foreigners? The Fourteenth Amendment↱ to the U.S. Constitution obliges the states to afford equal protection of the laws to all persons within its jurisdiction; Amendment V↱, which similarly but not identically obliges the federal government, repeatedly attends the term person, and is not explicitly limited to U.S. citizens.

    As it stands, your argument that "it immediately starts by misconstruing the Constitution as somehow protecting the rights of foreigners" requires some manner of support sufficient to overcome Amendments V and XIV. You are unlikely to find it, Syne, and it's not exactly easy to invent ex nihilo.

    The second statement, noting Ex parte Milligan, asserts a straw man; you have yet to establish that the case being "specifically about a US citizen" is relevant to the question. What the Fourth Circuit considers in Ex parte Milligan is explicitly listed.

    The question for this court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. 9 (4 Wall.) 120 (1866), remains "a law for rulers and people, equally in war and peace." And if so, whether it protects Plaintiffs' right to challenge an Executive Order that in text speaks with vague words of natinal security, but in context drips with religious intolerance, animus, and discrimination.

    Notice how, at the beginning of page thirteen, there is a roman numeral one, and the capital letter A: That's where the court begins explaining its decision. The preceding paragraph, on page twelve is, functionally speaking, the executive summary that recounts the framework of the question and then speaks to the court's answer.

    The portion of Ex parte Milligan cited in the opening paragraph of the opinion does not change according to your erroneous focus on excluding non-citizens.

    When it comes to explicit obligations to due process and equal protection under the law, and the explicit constitutional constraint against religious favoritism by the government, your argument about "misconstruing the Constitution as somehow protecting the rights of foreigners" was wrong even before you wrote it.

    Generally speaking, conservative insistence on contextual manipulation is nothing new. To the other, come on, Syne, yours was pretty damn lazy even by conservative standards.

    You might wish to thank your neighbors for their generally calm address of your extraordinarily ignorant, eye-rolling failure.
    ____________________

    Notes:

    Constitution of the United States of America. 1992. Law.Cornell.edu. 27 May 2017. http://bit.ly/2r9FFNM

    Gregory, C. J. International Refugee Assistance Project et al. v. Trump et al. U.S. Court of Appeals for the Fourth Circuit. 25 May 2017. coop.ca4.uscourts.gov. 27 May 2017. http://bit.ly/2s7Z532
     
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  8. Syne Sine qua non Valued Senior Member

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    Hey, if you blindly trust the authority of lower court judges, that's on you. Rulings from lower courts with a record of partisan bias often aren't the final say.

    Yadda, yadda...Tiassa's usual ad hominem preamble.

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    Support your claim that the WH sought to implement the order other than as written.
    Show court precedent that campaign rhetoric can be used to determine the legality of an order...even counter to its actual wording.

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    - Fourteenth Amendment, Section 1​
    Immigrants, refugees, visa-applicants, etc. seeking to enter the country (you know, people the travel ban primarily applied to) are not "within its jurisdiction". So yes, the Constitution does specify US citizens AND excludes foreigners outside of its jurisdiction.
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; 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; nor shall private property be taken for public use, without just compensation.
    - Fifth Amendment​
    Where in the travel ban is any mention of criminal prosecution?
    Immigration is administrative law, not criminal law.
    But immigration proceedings are matters of administrative law, not criminal law. (As a result, the consequence of violating your immigration status is not jail but deportation.) And Congress has nearly full authority to regulate immigration without interference from the courts. Because immigration is considered a matter of national security and foreign policy, the Supreme Court has long held that immigration law is largely immune from judicial review. Congress can make rules for immigrants that would be unacceptable if applied to citizens.

    In 1952's Harisiades v. Shaughnessy, the Supreme Court upheld the right of Congress to expel noncitizens who were former Communists. "In recognizing this power and this responsibility of Congress, one does not in the remotest degree align oneself with fears unworthy of the American spirit or with hostility to the bracing air of the free spirit," Justice Felix Frankfurter wrote in his concurrence. "One merely recognizes that the place to resist unwise or cruel legislation touching aliens is the Congress, not this Court."
    - http://www.slate.com/articles/news_...o_noncitizens_have_constitutional_rights.html
    Care to try again with your dubious grasp of constitutionality?

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    Already apparent in any rational reading of the Fifth and Fourteenth Amendments.

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    Court precedent to boot.

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    Since Ex parte Milligan doesn't speak to Executive orders, "vague words", or even "context" beyond the actual text, it can only be interpreted to apply as a misconstrual of either citizen with non-citizen protections or war/peacetime criminal law with immigration administrative law.
    Justice David Davis, who delivered the majority opinion, stated that "martial rule can never exist when the courts are open" and confined martial law to areas of "military operations, where war really prevails," and when it was a necessity to provide a substitute for a civil authority that had been overthrown.
    - https://en.wikipedia.org/wiki/Ex_parte_Milligan
    Again, this makes it obvious that Ex parte Milligan deals with criminal, not administrative, law.
    Otherwise, please, go right ahead and explain how it specifically applies.

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    Seems the quote was pulled out of context (ironically to rule based on context) simply to justify a ruling not supported by precedent.
    So, it's clearly a complete non-sequitur?

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    Nope, as shown above....with the actual Constitutional text. Immigration law allows wide discretion for the President to exclude entry to any group (with no precedent of judicial review), and as they are not "within the jurisdiction" of the US Constitution, and immigration is a matter of administrative law, criminal due process and the establishment clause are merely red herrings and completely moot (partisan judges grasping at straws).
    Yadda, yadda....Tiassa's usual ad hominem postamble.

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  9. Tiassa Let us not launch the boat ... Staff Member

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    Click for incongruity not quite akin to a breakfast burrito, which, of course, makes more sense.

    Well, let us see:

    So, you respond to the Equal Protection Clause by examining the Privileges or Immunities Clause while repeatedly ignoring the word "person" where it is applicable in the very context you are trying so hard to pretend doesn't exist.

    In other words, sure, I'll give it another go, later, after I stop laughing.
     
  10. iceaura Valued Senior Member

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    The question was: what was the order as written?

    The claim of the plaintiffs is that it was implemented as written, and written to be implemented just as it was.
     
  11. Syne Sine qua non Valued Senior Member

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    LOL! That IS the Equal Protection Clause, as given here: https://en.wikipedia.org/wiki/Equal_Protection_Clause
    And US citizens are not mentioned solely in the Privileges or Immunity Clause, which is only this part:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
    - https://en.wikipedia.org/wiki/Privileges_or_Immunities_Clause
    Facepalm for Tiassa.

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    I'm sorry, when were you going to demonstrate you grasp of the Constitution again?

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    "All persons born or naturalized in the United States" literally means US citizens. Again, persons "within it jurisdiction" do have equal protection, but not equal privileges to citizens. It's all spelled out for you right in the Constitution. But then, we don't expect people, who cherry-pick the "document written by racism white men" to suit their pet policies, to comprehend it.
    Yadda, yadda...Tiassa's usual ad hominem rebuttal after failing to make any point whatsoever.

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  12. Capracus Registered Senior Member

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    Equal protection is elemental in all jurisdictional application of federal law, and as you have noted above it isn’t solely reserved for citizens. So when unconstitutional animus is found to be suspect in the application of any law, it must be reasonably justified in ordered to remain in force. By unreasonably singling out groups based on speculative regional or cultural characteristics, the Trump crew has run their restrictive policy ship on the rocks.

    Like I mentioned earlier, why is team Trump still beating this dead horse? Their stated intent was to put a temporary hold on immigration in order to refine the vetting process, but the duration of the existing challenge has allowed them the time requested to accomplish their stated goal. So where's the new improved model? Or could it be they never intended to vet the selected groups, but instead are attempting to establish the authority to maintain a perpetual and arguably arbitrary ban.
     
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  13. Truck Captain Stumpy Registered Senior Member

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    Syne
    uhm... whut?


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    your reply to me makes no sense at all, whatsoever.

    are you illiterate? perhaps you were kicked in the head by a mule as a child? or is this your attempt to build a strawman argument and definitively destroy a delusional point that you think you see?
    EDIT: this is inquiring about your status to insure i'm not dealing with a mentally challenged person, to which i will refuse to interact further. this is an attempt to clarify your status only. -cap

    not only is this absolutely not the point being made by me or by any post i made above, it is in no way, shape, or form relevant to the topic as the point was the existence of a constitutional argument and the fact that the evidence speaks for itself

    re-read what was posted and see for yourself
    you said:
    this is what is normally referred to as a false claim (see: http://www.auburn.edu/academic/education/reading_genie/Fact-opinion.html ) because as you can see, there is not only a constitutional argument but there is also evidence presented demonstrating the point.

    this is demonstrated here:
    this also included a link to the ruling explaining their finding (which was explained by Tiassa)

    this immediately caused you to lose all sense of reality (demonstrated by your next post, which isn't the point being made, but you drove it home in true crank style)
    not only is there a strong constitutional argument presented, but as i noted:
    again, why should anyone present to you their interpretation of a strong constitutional argument when the judicial ruling presents what they consider a strong constitutional argument?

    more to the point: constitutional arguments are subjective to the times and interpretations of the people and SCOTUS, so what is legal and constitutional today isn't the same perspective as what was legal and constitutional in 1800 (demonstrable: see any ruling on slavery and or rights for indigenous tribal natives)


    so what delusional O2 deprived world would prompt a reply of:
    it will be interesting to see what point you tangentially offer from here... maybe you can just start calling folk poopy-heads?

    EDIT:
    pot-kettle
     
    Last edited: May 28, 2017
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  14. joepistole Deacon Blues Valued Senior Member

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    Trump needs enemies. That's why he hasn't dropped it. That's why he will not drop it. When his people stop hating, they begin thinking, and Trump cannot have that.
     
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  15. Tiassa Let us not launch the boat ... Staff Member

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    Let us see, what did you boldface?

    Naturalization. Privileges or Immunities.

    What did you skip?


    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.​
    - Fourteenth Amendment, Section 1Immigrants, refugees, visa-applicants, etc. seeking to enter the country (you know, people the travel ban primarily applied to) are not "within its jurisdiction". So yes, the Constitution does specify US citizens AND excludes foreigners outside of its jurisdiction.

    Well, hey, you see that part where you quote the whole first section of the Fourteenth Amendment, italicize the Equal Protection Clause, and then skip the word "person" within it?

    Nobody is surprised that you would prefer to change the subject.

    You do recognize that if the courts can rule on these people's rights, they are within the jurisdiction of the Constitution?

    Would you please explain why a court's authority to hear and decide a case is irrelevant to the question of a court hearing and deciding a case.

    Or, alternately, you're just not smart enough to deal with the subject you have undertaken.

    To wit:

    Okay, let's try this as simply as possible:

    "'All persons born or naturalized in the United States' literally means US citizens."

    Which means what? You have literally taken the phrase—

    All persons born or naturalized in the United States ....

    —from the sentence—

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

    —and argued that this "literally means US citizens", which, in turn, is absolute nonsense: The clause describes who is a United States citizen.

    This part is really quite simple:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Equal protection of people is not restricted exclusively to citizens.

    And the same with the due process according to the Fifth.

    And that makes precisely no sense; if you said that in a courtroom, the only circumstance under which that wouldn't utterly fail to make sense is if you are asked to recite what you had written or just said. If you put that forward as a legal argument, the judge will have no idea what you mean. All persons within a state are afforded equal protection of the laws; that is, if the state government asserts any effect or relationship to a person, that person has equal protection under its laws—all persons within the jurisdiction of a state have this equal protection.

    Part of what is difficult to address about your argument is its arbitrary nature and disconnection from constitutional law and juristic history. You're not using the words quite right, like your earlier bit↑ about, "as they are not 'within the jurisdiction' of the US Constitution". That is not what the words mean. You are not using the words correctly. It's not even proper to call your argument novel or innovative. It's almost like you're making it up as you go, with no real grasp of constitutional and juristic history, and therefore don't know what these phrases actually mean. Understand this: If we assert American law applies to a person, we inherently assert they are within the jurisdiction of the United States Constitution. This is one of those ipso facto things, Syne. If the law touches a person, then so does the Constitution empowering that law.

    Or, really, let's settle that part about Milligan: How many posts need we spend discussing back and forth the question of whether the Constitution is "a law for rulers and people, equally in war and peace" in one case, but not another? Do you understand? Do you actually object to the proposition that the Constitution is "a law for rulers and people, equally in war and peace"?
     
  16. Syne Sine qua non Valued Senior Member

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    Hence my reply that so confuses you:
    Lower courts make what they consider constitutional rulings pretty regularly that are overturned by higher courts...which find their reasoning specious. That you seem so eager to accept their ruling, without debate, as de facto constitutional, alludes to a priority of their authority, seemingly ignoring the predominant authority of higher court and even case precedent.

    If that still confuses you, you're beyond any help I can offer.

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  17. Syne Sine qua non Valued Senior Member

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    Do you have a point, or just a lot of arm waving?

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    Again, learn the difference between administrative and criminal law.
    Non-sequitur?

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    Yes, describing who is a US citizen "literally means US citizens". Is that really that hard for you to grasp?

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    Again, immigration law determines whether people are allowed to enter the jurisdiction of the US, which is why its administrative law only has deportation as a consequence. Exactly what life, liberty, or property do you think is being deprived without due process here?

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    Go read it again. The privileges and immunities of citizens are not the same granted "any person".

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    One of those privileges is the right to remain in this country.
    Cite a source for your bare assertions. I've already given precedent for mine.
    Again, learn what administrative law is and its relation to immigration. Your dearth of ignorance seems to be the only thing you're opposing here.
    Complete straw man. I never refuted that pulled quote, only it's cherry-picked and non-sequitur relation to the ruling offered. Try to keep up.

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  18. Truck Captain Stumpy Registered Senior Member

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    i wasn't going to reply because it's becoming obvious that you're either illiterate or intent on trolling... but considering the topic, i thought i would make a few things clear with regard to our discourse as you seem to be highly confused as well as more than a little irrational

    it's not confusing.

    it's irrelevant and not applicable

    or didn't you get that?
    it's not rocket surgery...

    that is really, truly the reason i stated: "not only is this absolutely not the point being made by me or by any post i made above, it is in no way, shape, or form relevant to the topic as the point was the existence of a constitutional argument and the fact that the evidence speaks for itself"

    i really did mean that it was absolutely not the point ... it can't be clearer to anyone with at least a US 9th grade reading level

    still wasn't the point of the post i made, nor the evidence i produced
    in fact, this is called, technically, a strawman: let me show you
    your point was: no one seems to be capable of making a constitutional argument against the travel ban

    this is directly refuted by the evidence, to which you then make your argument about the following
    there is no debate
    the evidence still speaks for itself
    and it's still a judicial finding with constitutional argument that argues against the ban, regardless of your personal interpretation of it

    and as also already stated: constitutional arguments are subjective to the times and interpretations of the people and SCOTUS, so what is legal and constitutional today isn't the same perspective as what was legal and constitutional in 1800 (demonstrable: see any ruling on slavery and or rights for indigenous tribal natives)


    sigh...
    1- read this: https://en.wikipedia.org/wiki/Rule_of_law
    2- my opinion is exactly that - opinion
    3- your opinion is also opinion (need i remind you the old adage about opinions?)
    4- none of it matters with regard to the application of law or constitutionality unless or until you (or i) or anyone else is appointed or hired to a position of authority

    to spell that out for you using as many monosyllabic words as i can, since you have demonstrable reading and comprehension problems: that means that a judge does have authority that is not typical of the average citizen

    so yes, i do accept the authority of judges over me in this particular case but this also applies to you

    you are not a judge nor are you in any way affiliated with the judicial system (RULE 37) and you have yet to provide a compelling argument as to the non-constitutionality of the judicial finding linked

    so i will definitely, absolutely accept the judicial findings from the above linked courts findings as relevant constitutional argument until and only unless this is in any way overtunred by a higher court or there is a ruling by SCOTUS relegating your own posts to simple opinion and or the mad rantings of a delusional illiterate, and considering your own track record where you can't be trusted to interpret plain english as being exactly that, plus cannot even stay focused enough to make your arguments about the topic, then...

    Now, to back up and really get to the meat of this: you made the statement "...you seem so eager to accept their ruling, without debate".

    how applicable is this to our discourse?


    not at all, because in no way, shape or form have i:
    1- debated the ruling in any way with you or anyone (so how do you know i accept it or not? i don't accept your opinion, but you know nothing about how i feel about the judicial findings. i will state i accept them over your own interpretation, but that's not the same argument or point)
    2- stated it's constitutional application per my opinion and interpretation of the law
    3- stated that this is in any way a final ruling for anything

    perhaps you make assumptions because of how, when and where i posted??

    i ask this because after you engaged my posts you, personally, have demonstrated:
    1- strawman
    2- delusional belief about the reasoning of a post
    3- nonsensical and illogical interpretations of the post (all of mine, anyway), poster (myself and others) and the argument in general
    4- opinionated biased interpretations of the judicial review by cherrypicking data and using your opinion as factual interpretation of law


    so where is the confusion in this discourse?
    was it because i stated you shouldn't trust an article or biased news source as factual when there is source material?

    at this point i don't know and personally, considering your bias, prejudice and continual delusional interpretation of clear concise communication, i am beginning to think that this is some elaborate troll

    ....

    now, to leave you with your own words: If that still confuses you, you're beyond any help I can offer.

    feel free to troll on as it is apparent that you are here only to demonstrate your own irrefutable and irreparable problems
     
  19. Tiassa Let us not launch the boat ... Staff Member

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    Basic Competence (Part the First)

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    Click because why would you want to keep it from anyone?

    You should probably learn to follow the discussion. Or is it simply that you're as insincere as your posts read? Either way, the point is that your exclusion↑—("... misconstruing the Constitution as somehow protecting the rights of foreigners")—is fallacious.

    Do you have a point, or just another fallacious distraction?

    Troll?

    Seriously: You fallaciously complained about a statement in the Fourth Circuit decision according to the irrelevant proposition that Ex parte Milligan "was specifically about a US citizen"; now you dismiss the actual answer to your fallacious complaint as non sequitur, and without any supporting argument.

    Your mere say-so, even if we could believe you sincere, is insufficient.

    That was never my problem, Syne, but yours:

    As I noted already↑:

    • The first sentence is one you can make some substantial argument about: Where in the Constitution itself are such rights suspended explicitly for foreigners? The Fourteenth Amendment to the U.S. Constitution obliges the states to afford equal protection of the laws to all persons within its jurisdiction; Amendment V, which similarly but not identically obliges the federal government, repeatedly attends the term person, and is not explicitly limited to U.S. citizens.​

    You respondeded↑ by repeatedly focusing↑ on who is a citizen. Thus: Yes, "describing who is a US citizen 'literally means US citizens'", but that has precisely nothing to do with justifying your fallacious exclusion.

    (1) Immigration law is bound by the U.S. Constitution.

    (2) Liberty of movement and travel is at stake. Due process must necessarily respect the Constitution.

    That's not in question, but, rather, is a stumbling straw man.

    What is in question is whether or not due process can discriminate in a manner that violates the Constitution empowering said process.

    See part two, below.

    Again, immigration law in particular, and administrative law generally, are bound by the Constitution; your asserted exclusion of foreigners is fallacious.

    Er ... ah ... okay. If you say so.

    I mean, trust me, you're welcome to explain how I'm opposing my own dearth of ignorance, but I'm not certain that's actually relevant to anything useful.

    You really don't know what the words mean, do you?

    You're right, you never refuted it. But your complaint of cherry-picking is an utterly useless conceit resulting from your ignorant and insupportable insistence that the court's authority to hear a case is somehow non sequitur.

    Seriously, Syne, it's not just that you're wrong, but also that you're blitheringly, incoherently wrong. That you would pitch this sort of fit over the course of days while wallowing in ignorance is kind of disgraceful. Honestly, dude, what the hell? The next post is going to cite rudiments of American history and Constitutional law, and the idea that you didn't know these things when you pretended to invent an exclusion↑ isn't even funny. I mean, sure, it's ridiculous in the sense that your behavior is worthy of ridicule. But, honestly, you're not using the words right, and you not only behave as if you have no idea what you're talking about, you make demands confirming that you lack fundamental knowledge of the subject.

    I stand on what I said when I checked into this debacle↑: It is, quite simply, stupidly irrational to assert that no one seems capable of making a constitutional argument aside from the ones Syne refuses to recognize.

    So, think of it this way: That mysterious something or other that everyone else seems to be in on—you know, the lawyers, judges, media, armchair pundits, and so on—is history. In truth, it's actually kind of impressive the court hauled out Milligan, because it seems really obscure. You say non-sequitur, but this context, that the "Constitution remains 'a law for rulers and people, equally in war and peace'" is the connection. Your assertion↑ that the court starts its misconstrual of the Constitution by "citing Ex parte Milligan, which was specifically about a US citizen" is not so much non sequitur as it is sosobra ex nihilo. The question whether the "Constitution remains 'a law for rulers and people, equally in war and peace'" does not evaporate just because the law asserts to touch a person from another country. The reason you seem to be the only one having this trouble is that other people are to various degrees generally sensibly enough aware of history as to preclude certain pathways to proverbially opening their mouths and proving a particular point.

    ―End Part I―
     
  20. Tiassa Let us not launch the boat ... Staff Member

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    Special Accommodation (Part the Second)

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    Click for terror, you know, just because.

    Do you have any idea how stupid that demand is?

    This is basic logic:

    → The Constitution of the United States is the supreme law of the land.

    ↳ All laws empowered under the United States Constitution are subject to its authority.

    ↳ This includes immigration and other administrative law.

    ∴ When immigration law regards any particular foreigner, that person is guaranteed due process according to Amendment V. Furthermore, where persons affected by these orders are among the states, those states are obliged to afford those persons the equal protection of the law, per Amendment XIV.​

    The fact of judicial review makes the point. There was Hylton in 1796, and, more famously and definitively, Marbury v. Madison in 1803:

    The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

    The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

    That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

    This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

    The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

    Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

    If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

    We might also look to Alexander Hamilton↱ in the Federalist No. 78:

    Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

    There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

    If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

    Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

    Seriously, do you actually need me to cite the Supremacy Clause of Article VI↱?

    This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

    The idea that a law empowered by the Constitution will be subject to the Constitution really is not controversial. It seems absolutely absurd that we should waste any substantial effort pretending otherwise.

    ―Fin―



    ____________________

    Notes

    Constitution of the United States of America. 1992. Law.Cornell.edu. 27 May 2017. http://bit.ly/2r9FFNM

    Hamilton, Alexander. "The Judiciary Department". The Federalist No. 78. 28 May 1788. Congress.org. 29 May 2017. http://bit.ly/2rerogS

    Marshall, C. J. John. "Opinion of the Court". Marbury v. Madison. Supreme Court of the United States. 24 February 1803. Law.Cornell.edu. 29 May 2017. http://bit.ly/2qANSa0
     
  21. billvon Valued Senior Member

    Messages:
    14,143
    Yep - four courts so far.

    As others have noted, the argument against is simple - the US Constitution. Specifically the 14th amendment.
     

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