Monday, June 12, 2017

Plaintiffs' Supreme Court Position Due In Moments -- And 45 Loses (Yet Again!) In Ninth Circuit -- On The INA Grounds I Discussed In January

It is very significant, from a legal perspective -- that in some 11 separate close reviews of Mr. Trump's Muslim Bans 1.0 and 2.0 -- not a single court has found that it passes muster [such complete unanimity wasn't seen -- even in the plenary power to tax and spend (by Act of Congress), in the cases putatively brought against the ACA of 2010 -- those failed, BTW].

Not one. He's something like 0-10, now -- but maybe worse -- since I haven't been covering the Detroit area federal case, at all.

Here is the Ninth Circuit's per curium opinion (just published a few moments ago, as a large PDF file) -- it primarily relies on the Johnson-era amendments to the INA I first mentioned in January of this year. Here's that bit -- in context:

. . . .Contemporaneous to enacting the Civil Rights Act of 1964 and the Voting Rights Act of 1965, Congress passed the INA of 1965 to eliminate the “national origins system as the basis for the selection of immigrants to the United States.” H.R. Rep. No. 89-745, at 8 (1965). Section 1152(a)(1)(A) was enacted as part of that act, and provides:

[N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A) (emphasis added).

Section 1152(a)(1)(A)contains specific exemptions, and § 1182(f) is not among them. . . .

We cannot blind ourselves to the fact that, for nationals of the six designated countries, EO2 is effectively a ban on the issuance of immigrant visas. If allowed to stand, EO2 would bar issuance of visas based on nationality in violation of § 1152(a)(1)(A).

The Government did not dispute this point at oral argument, and it stands to reason that the whole system of the visa issuance would grind to a halt for nationals of the six designated countries whose entry is barred from the United States. Issuance of visas will automatically stop for those who are banned based on nationality.

Yet Congress could not have used “more explicit language” in “unambiguously direct[ing] that no nationality based discrimination shall occur.” Legal Assistance for Vietnamese Asylum Seekers, 45 F.3d at 473. . . .

Indeed. On to the Supremes, where in a few moments, the plaintiffs from the Fourth Circuit will argue that the Supremes should take the case on cert., right now -- and decide it, right now. That's my conjecture. And, those likely very cogent briefs are due -- in about 15 minutes at the SCOTUS. Now you know. [Graphics soon.] Sweltering, and twisty copper colored afternoon, this. . . now -- with Loving Day 2017 rolling like thunder. . . across our wonderful and re-awakwening. . . nation. . . smile.


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