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Saturday, March 18, 2017

Judges ruling on travel would also apply to military force...

There is literally no difference between the constitutional/statutory authority for the United States to use military force and the constitutional/statutory authority for the United States to restrict travel.

  • The constitution provides the President and executive branch very wide latitude to engage in military action limited to a specific amount of time. It's up the legislative branch to offer a declaration of war or an authorization of military force, for the executive branch to move forward. 
  • For border security the constitution (and Supreme Court precedents) provides the President and executive branch with very wide latitude to control who is and is not permitted to visit, immigrate, or garner refugee status. The legislative branch has already clarified much of this with the statutes that have been posted previously. 

If it holds true that the United States Government issuing a travel ban to a specific country represents a violation to the constitution because that country is mostly Islamic and therefore the ban is religiously discriminatory... then it would also hold equally true that any use of military force, declaration of war, or authorization of military force would offer the same violation.

Moreover... as a matter of potential harm... certainly the concept of military action with the intent of injuring or killing military personnel, destruction of property, and the very real potential for collateral damage to civilians would be considered much more harmful than a restriction of travel.

The constitution of the United States places the executive branch with the main control of national security for a reason. They have the FBI, CIA, DOJ, DHS, NSA, and all branches of the military answering to them. They have all of the national security information required to make national security decisions. When the decision becomes larger (as in declaring war) they must involve the legislative branch, which has access to a subset of that information. Nowhere does the constitution suggest that the executive branch must ask the courts for permission to make national security decisions.

Bottom line. The Judicial branch effectively has no national security information in which to question either the executive or legislative branches on the merits of any decision. Plainly stated, the constitution does not give them any authority on the subject. This is exactly why the concept that any one of twenty seven hundred federal judges could conceivably put a temporary restraining order the use of military force is absurd. Therefore the same basic logic holds true for a travel restriction.


27 comments:

Roger Amick said...

Since you went nuts about Obama playing golf, will this be ok. Mr Hypocrisy squared won't care, or blame it on the alleged wiretapping and Russian government interference.
Immediately after the election Trump transition spokesman Jason Miller explained that Melania would be staying in New York because there was "obviously a sensitivity to pulling out a 10-year-old in the middle of the school year".
We have since learned that the cost of security for Melania and Barron to remain at Trump Tower is $183 million/year. There is also no indication that they will actually move to DC this summer. So in essence the Federal government is giving the Trump family a $183 million annual voucher so Barron can attend the elite private prep school of his choice.
Meanwhile, we learned last night that Trump's budget would completely eliminate funding for the National Endowment for the Arts. The NEA, with an annual budget of only $148 million, is able to provide seed money for arts programming in literally every Congressional district in the country.
So, on the one hand you have a $183 million school voucher for a single 10-year-old at an elite private school. On the other hand you have a program that impacts arts and cultural programming throughout the entire nation.
NOT NORMAL. BUT ACCEPTABLE!!! Unbelievable

Loretta Russo said...

Spam by the drunkard

Roger Amick said...

After this weekend, Trump will have already spent about $16.5 million on trips to Mar-a-Lago. For that amount, Meals on Wheels could feed 5,967 seniors for a year and after school programs could feed 114,583 children for a year. Copy. Not spam from your intellectual superior

opie said...

Trump will have already spent about $16.5 million

But obama went Hawaii and loretta's house to spread the word. Hawaii is very very expensive. But not to worry, trump is holy and his spawn spends the week in ny with melodia which by itself is a burden to tax payers.....but, he's not taking his salary as he pledged. That has to help a little.

Roger Amick said...

So let's see where your logic takes us.
"
Bottom line. The Judicial branch effectively has no national security information in which to question either the executive or legislative branches on the merits of any decision. Plainly stated, the constitution does not give them any authority on the subject."

The courts have no power to declare unconstitutional, a law written by the congress, any law that they decide it is to provide national security. The same logic, any executive direction, they declared to be in the national security, the courts cannot address the constitutionality of the declaration.

By your "logic" the Marbury vs Madison decision is moot if either branch declares any executive direction or law, is in the national security interest.

KD, The Russians Rule Liberals said...

Everything Trump does puts the liberals into a new dog chasing tail spin,'

I love watching how President Trump being elected has totally blow them up, what happened to blackliesmattercopkillermovement?

Answer, just more black getting used by the liberals.

opie said...

Off subject, but the heat goes on and all the models are wrong...


February 2017 was the planet's second warmest February since record keeping began in 1880, said NOAA's National Centers for Environmental Information (NCEI) on Friday; NASA also rated February 2017 as the second warmest February on record. The only warmer February was just last year, in 2016. Remarkably, February 2017 ranked as the fourth warmest month (expressed as the departure of temperature from average) of any month in the global historical record in the NASA database, and was the seventh warmest month in NOAA’s database—despite coming just one month after the end of a 5-month long La Niña event, which acted to cool the globe slightly. The extreme warmth of January 2017 (tenth warmest month of any month in NASA’s database) and February 2017 (fourth warmest) gives 2017 a shot at becoming Earth’s fourth consecutive warmest year on record, if a moderate or stronger El Niño event were to develop by summer, as some models are predicting.

With the exception of last month, the top five warmest months on record since 1880 (expressed as departure from the 1951 - 1980 average) in the NASA database all occurred during the strong El Niño event of 2015 - 2016, which worked to raise global air temperatures by exporting heat from the oceans:

February 2016, 1.32°C above average
March 2016, 1.28°C above average
January 2016, 1.13°C above average
February 2017, 1.10°C above average
December 2015, 1.10°C above average


KD, I love the nutz that buy the Hoax said...

For over 40 years of my life the liberals have been predicting the end of the world, and for all those years we are still here, even better then before because of Capitalism.

You would think the libs would self-extinguish, there by reducing the burden on the Earth they say they love , but really damage daily by living.

KD said...

I see Hillary's kid, needing case as the foundation funds dried up right after the defeat, historic I might add.

it is called how my mom blew it, or some kind of title just as meaning less.

Hillary total book sales = laugh out loud low

Trumps total book sales = Best Seller

Roger Amick said...

Opie, climate change is a socialist conspiracy to demolish capitalism! I heard it on Coldheartedtruth.

C.H. Truth said...

Roger

The courts can determine the constitutionally of any law or order. But that must be an independent determination based entirely on the constitution, statutory laws, and precedent.

That is the oath they take.

Are you going to argue that these rulings do not include the Justices questioning the reasoning and motivation of the President?

If you concede as much (which you obviously must) then it's cLear that we have a situation where a Justice (with no national security information) are superimposing their own judgement over the head of the entire executive branch.

If a judge can do it for over a travel ban then a judge can do it over military action.

C.H. Truth said...

Remember Roger, the judicial branch is only an equal branch... not a supervising branch. Their authority is limited to that which the constitution allows.

THE constitution does not allow them to arbitrate or ovrrrule policy on merit.

Commonsense said...

Marbury v. Madison seems to be only supreme court decision Roger knows about.

Unfortunately for him it is a non sequitur Knauff v. Shaughnessy is more to the point:

Held: this action was authorized by the Act of June 21, 1941, 22 U.S.C. § 223, and the proclamations and regulations issued thereunder, notwithstanding the War Brides Act of December 28, 1945, 8 U.S.C. § 252 et seq. Pp. 539-547.

(a) The admission of aliens to this country is not a right, but a privilege, which is granted only upon such terms as the United States prescribes. P. 338 U. S. 542.

(b) The Act of June 21, 1941, did not unconstitutionally delegate legislative power to prescribe the conditions under which aliens should be excluded. Pp. 338 U. S. 542-543.

(c) It is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of Government to exclude a given alien.

(d) Any procedure authorized by Congress for the exclusion of aliens is due process, so far as an alien denied entry is concerned. P. 338 U. S. 544.

Roger Amick said...

You simply don't understand what you believe is irrational.

"The Judicial branch effectively has no national security information in which to question either the executive or legislative branches on the merits of any decision. "

Who decides that the law or executive order is national security information, and therefore not subject to constitutional review, per Marbury Vs Madison.

Conservatives have been trying to revers that decision for over a century. They believe that in our "republic" not a democracy, that either a state or federal executive or legislative cannot be reviewed. Because it is not exactly spelled out in the Constitution. You woule be opening a can of worms that would devour our representative democracy, because any law or executive order has a clause that says it is national security information. And under that interpretation, we would have to write and pass an amendment limiting the power of the legislative or executive branch, can alone, declare anything as national security.

Just think, if a true leftist government in both branches won veto proof majorities, and decided to rewrite hundreds of laws and declare them as national security issues and therefore cannot be reviewed by the courts to determine if they are not constitutional It literally would make us a dictatorship, depending who won the elections. You can damn well bet that if either side won, the other would not be allowed to participate in the elections, because they are a national security risk.

Roger Amick said...

I figured you would miss the meaning of parts of that decision, but the one that caught my attention was "(c) It is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of Government to exclude a given alien,

A specific law would have to be passed, to make it 'authorized by law" What law has been passed, that would be make that determination?

Commonsense said...

Again for the willfully stupid Knauff v. Shaughnessy

(c) It is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of Government to exclude a given alien.

It's can't be any clearer than that yet shit for brains keeps babbling about Marbury v. Madison which is totally irrelevant.

Commonsense said...

What law has been passed, that would be make that determination?

No law fool. In fact current law gives the executive wide latitude to determing who can enter the country without judicial review.

C.H. Truth said...

You have It backwards Roger. The ruling states that it is NOT within the province of ANY court... unless expressly authorized.

So to argue that it IS within the authority... you would need to find the law, not demand it.

But how is this?


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.

Perhaps you can explain to us how this law expressly authorizes Judicial review?

C.H. Truth said...

But basically Roger...

You ARE actually arguing that the courts should have veto power over military force and declarations of war.

You really believe that the courts are the ruling branch,not an equal branch.

Roger Amick said...

You are arguing that either the executive or legislative branch wouldn't be subject to review, if they declared that either the executive order or law is in the national security interest. And they alone could make that declaration, exempting them from judicial review.

Roger Amick said...

No, you are saying "You ARE actually arguing that the courts should have veto power over military force and declarations of war." No, I'm not. You are giving the other two branches the ability to exempt EVERY law or executive order from judicial review.

C.H. Truth said...

Yes Roger.

The constitution makes is crystal clear that with three equal but separate branches... that there are situations where one branch has absolutely zero say.

Military action and subsequent declarations of war do not require or even allow for any judicial review.


Like it or not... our constitution did not create a government where there would be 2700 Judges all with the power to overturn the entire executive or legislative branch on issues that they are not constitutionally involved in.

They are only allowed to get involved when those actions go outside of the norms to the degree where they violate the constitution. For all practical purposes they would only get involved with new laws and new orders that have not been previously established.

This is both a matter of stare decisis or precedent... and separation of powers.

_______

Travel bans are not new. They come under the constitutional authority of the executive branch, and they have been clarified by the legislative branch. This travel ban is 100% within those boundaries and was written nearly identically to travel bans that have been used in the past.

The three Judges in question have questioned the merits of the ban, have questioned the motivation of the ban, and have questioned the reasoning of the President (and by doing so, are questioning the entire executive branch - of which the President represents).

Not only do they not have this authority, but they simply do not have the expertise or information to question the collective wisdom of the President and the branch that he represents.

This is what happens, when people are not adult enough to respect the Presidency, the laws, the constitution, and the separation of powers...

all because they lost an election and want to make sure that we don't "normalize" Donald Trump and allow him to actually be President.

rrb said...

Commonsense said...
Marbury v. Madison seems to be only supreme court decision Roger knows about.
____________________________________________________________________________________________________________________________________

indeed. it's like a weird fetish with him or something.

it's a pity he doesn't understand a word of it.

not surprising though, as he's under the false impression that it's the right that would overturn it if they could.

rrb said...

You are giving the other two branches the ability to exempt EVERY law or executive order from judicial review.
_____________________________________________________________________________________________________________________________________

well rog, at last count there was somewhere around 4500 federal criminal statutes and around 300,000 federal regulations on the books.

so i suppose you would find it to be a worthwhile endeavor for our judiciary to review each and every one of those in the event that trump would choose to use one or two.

i mean, c'mon...

the man's a fucking lunatic and there's no telling how much constitutional damage he could do with say, a pen and even a phone.

so yes, let's begin that judicial review. it goes without saying that neither you nor i would live to witness the conclusion, but hey, at least we go to our graves with the knowledge that herr donald trump fuhrer might have been prevented from taking an action that would send a liberal to zer fainting couch with zer panties in a bunch.



Eli Blake said...

The REASONING of the President (regardless of motivation) is absolutely something they should question. If the reasoning is faulty there is no reason why they should feel obligated Constitutionally or otherwise to uphold it.

In fact this is not the first time when courts have overturned an executive order, such as when the Supreme Court ruled (Hamdan v. Rumsfeld, 2006) that the military tribunals at Guantanamo were both in violation of the Uniform Code of Military Justice and the four Geneva Conventions, as per the line in article III, section 2, paragraph 1 which specifically gives the courts authority in any cases involving the laws of the United States (UCMJ) and treaties made (Geneva Conventions.)

For that matter, the courts have also overturned executive orders or actions by other Presidents (like President Obama's directives on immigration.)

The entire idea of check and balances is that the three branches of government all serve as a check on each other; Trump's check on the courts is his nomination of Neil Gorsuch (and other judges to follow.)

No one branch can operate independently of either of the other two, and as much as you wish it Trump is not a dictator. Technically a court could rule against a military action. The reason this is unlikely to occur is that Congress (if it does it's job) has a much faster way to support or oppose a military action-- a declaration of war, invocation of the War Powers Act and the choice to fund or not fund ongoing military operations.

The fact that Congress has for years chosen to make a political choice on military actions by not declaring war, not invoking the War Powers Act and acquiescing to requests for supplemental appropriations for war, actually does increase the chance that sooner or later the courts will have to rule on military action.

Commonsense said...
This comment has been removed by the author.
Commonsense said...

Why is it Eli that courts have to rule on "military action".

War is organized murder without due process. What possible point of war would a court find constitutional.

The founders clearly have given the Congress power to declare war and the executive power to execute a war.

They wisely did not give the court power to review those decisions on war or the execution of foreign policy in general.

Any attempt by the court to review and decide upon to constitutionality of war or foreign policy is an unconstitutional usurpation of power.