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TB Liberal Legal Scholars -
Posted on: February 7, 2017 at 07:32:51 CT
90Tiger STL
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Judge Nap (summarizing):
Per the 1952 law, POTUS has the discretion to suspend immigration of a person or class of persons based on nation security (or other concerns), provided it doesn't do so based on a 1st amendment protected right (association, religion, speech).
The "hardship" clause is an INDIVIDUAL clause and the person suing the US for an exception must demonstrate a hardship.
Example: The little girl from Yemen scheduled for heart surgery. Result: She was allowed in, had the surgery and is doing fine.
What it DOES NOT ALLOW:
A State to make a blanket argument "this ruling may cause some harm to some people in my state".
What the judge in Washington asked in court was "have their been any terrorists allowed in from the 7 countries in the EO?".
Regardless of the answer, that's the wrong question. It isn't in the purview of the courts to second guess the national security concerns of the Executive Branch.
The Courts should be evaluating individual harm suits and any First Amendment concerns - like the "this is a ban on Muslims" argument.
That argument at least has a legal basis, regardless of how you feel about it, the Washington State position does not.
NAP also summarily dismisses the "this is a ban on religion" argument for the obvious reasons already hashed out here multiple times.
Per the 1952 law, POTUS has the discretion to suspend immigration of a person or class of persons based on nation security (or other concerns), provided it doesn't do so based on a 1st amendment protected right (association, religion, speech).
The "hardship" clause is an INDIVIDUAL clause and the person suing the US for an exception must demonstrate a hardship.
Example: The little girl from Yemen scheduled for heart surgery. Result: She was allowed in, had the surgery and is doing fine.
What it DOES NOT ALLOW:
A State to make a blanket argument "this ruling may cause some harm to some people in my state".
What the judge in Washington asked in court was "have their been any terrorists allowed in from the 7 countries in the EO?".
Regardless of the answer, that's the wrong question. It isn't in the purview of the courts to second guess the national security concerns of the Executive Branch.
The Courts should be evaluating individual harm suits and any First Amendment concerns - like the "this is a ban on Muslims" argument.
That argument at least has a legal basis, regardless of how you feel about it, the Washington State position does not.
NAP also summarily dismisses the "this is a ban on religion" argument for the obvious reasons already hashed out here multiple times.
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TB Liberal Legal Scholars - - 90Tiger ATL - 2/7 07:32:51
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