In Fourth Circuit Hearing on Obama's Travel Restrictions, ACLU Lawyer Admits, Sure, This Executive Order Might Be Legal if Hillary Clinton Signed It

Well, this was all pretty much implied from the lower courts' reasoning -- which always centered not on the law itself, but on statements Trump made (or was alleged by Rudy Giulliani to have made).

Minus those statements, then the EO passes muster. It's facially constitutional. But they're saying a bad man wants to pass it, which makes it unconstitutional by prior statements.

There is no such category. Courts distinguish between a law, order, or rule being facially unconstitutional -- the law or order or rule's own words themselves contain unconstitutional directives -- and unconstitutional-as-applied, where a mandate may be written in a way that is perfectly constitutional, but as actually applied by officials, is discriminatory. A good example of this, which courts aren't bothered by at all, is that "hate crimes" legislation is mostly executed in an unconstitutional-as-applied way: It's mostly a crime that only white people can be guilty of.

But while those distinctions exist, there is no "facially constitutional but unconstitutional because Trump is a very bad man who uses very bad words" category.

And in fact you can't even fault this directive for being discriminatory -- Presidents are permitted to be discriminatory as regards non-US-citizens coming into the country.

The ACLU lawyer, quizzed by judges on this strange new doctrine they were arguing for, admitted that sure, Hillary Clinton signing the same EO would be perfectly constitutional, because she's not a Very Bad Man like Trump.

Posted by: Ace at 02:26 PM

Comments

(Jump to bottom of comments)

1 First? And WTF?

Posted by: Brother Cavil, Abbot of St. Costello-on-the-Hurlingbone at May 09, 2017 04:19 PM (9krrF)

2 Gonna be one of those days.

Posted by: Max Power at May 09, 2017 04:20 PM (q177U)

3 OWWW MY NECK!!!!!

Posted by: Cicero (@cicero) at May 09, 2017 04:20 PM (Mouru)

4 Let's do the time warp againnnn!

Posted by: Lord Chancellor johnd01 at May 09, 2017 04:20 PM (ukNFU)

5 Even I'm confused now.

Posted by: The City on the Edge of Forever at May 09, 2017 04:20 PM (QQ+il)

6 Dammit, I even read the post!

This wouldn't have happened without the time warp.

Posted by: Brother Cavil, Abbot of St. Costello-on-the-Hurlingbone at May 09, 2017 04:21 PM (9krrF)

7 Well, Ace is keeping us on our toes today..which thread is new? which thread is not new?

Posted by: IC at May 09, 2017 04:21 PM (a0IVu)

8 So, different rules for Democrats and Republicans? We admit that now?

Great. Just effing great.

/also, can someone get into the Wayback Machine and re-set Ace's clock? Or at least tell him to stop crossing time zones when he's posting?

Posted by: shibumi at May 09, 2017 04:21 PM (8zWAk)

9 It's not what the rule is; it's who's the person making it. A nation of men, not laws.

Posted by: Anon Y. Mous at May 09, 2017 04:22 PM (R+30W)

10 The ACLU lawyer, quizzed by judges on this strange new doctrine they were arguing for, admitted that sure, Hillary Clinton signing the same EO would be perfectly constitutional, because she's not a Very Bad Man like Trump.

The vagina gives her moral authority. It's right there in the Constitution.

Posted by: Cicero (@cicero) at May 09, 2017 04:23 PM (Mouru)

11 That time machine that Ace totally does not have is getting a serious workout today. First post in the future, then in the past.

Posted by: Uber Lyft Driver at May 09, 2017 04:23 PM (K7T1G)

12 Associate Justice of the Supreme Court Alexthechick.

Because fuck this shit, that's why.

Posted by: Colorado Alex In Exile at May 09, 2017 04:23 PM (S2V6F)

13 It's an undernood under a previous undernood that stomped a nood that never became an old.

Posted by: Jack Sock at May 09, 2017 04:24 PM (mEjqT)

14 I can't wait until we go back and start reviewing all the federal laws on the books to see whether the people who drafted them did so with the proper mindset.

Posted by: Cicero (@cicero) at May 09, 2017 04:24 PM (Mouru)

15 Is this the new Nood or the new old undernood?

Posted by: IP at May 09, 2017 04:24 PM (UmSfZ)

16 That time machine that Ace totally does not have is getting a serious workout today. First post in the future, then in the past.

Posted by: Uber Lyft Driver

It's just a jump to the left--

Posted by: Brother Cavil, Abbot of St. Costello-on-the-Hurlingbone at May 09, 2017 04:24 PM (9krrF)

17 The vagina gives her moral authority. It's right there in the Constitution.

Posted by: Cicero (@cicero) at May 09, 2017 04:23 PM (Mouru)

Ah the Vagina Clause. Not to be confused with Vagina Claus, who comes once every couple of months - if your lucky - after the honeymoon.

Posted by: flounder, rebel, vulgarian, deplorable, winner at May 09, 2017 04:25 PM (tbOMB)

18 Who keeps messing with the timeline?

Posted by: Conan the Delorean at May 09, 2017 04:25 PM (BXC+l)

19
I just want to be able to sue Presidential candidates for promises made on the campaign trail -- because obviously they carry the force of law.

Posted by: E Depluribus Unum at May 09, 2017 04:25 PM (HTdUD)

20 Trump is a very bad man.

Posted by: Anthony Fremont at May 09, 2017 04:26 PM (IqV8l)

21 So we can abolish the EPA then, right? Because Nixon.

Posted by: WhatWhatWhat? at May 09, 2017 04:27 PM (ul9CR)

22 And in fact you can't even fault this directive for being discriminatory -- Presidents are permitted to be discriminatory as regards non-US-citizens coming into the country.

BUT EVERYONE HAS A RIGHT TO COME TO LIVE IN THIS COUNTRY!!!

It's right there in the Constitution near the Vagina Clause.

Posted by: Cicero (@cicero) at May 09, 2017 04:27 PM (Mouru)

23 I've posted this before but thought worth repeating to show the absurdity of the anti-Trump rulings:

Ninth Circuit said that Trump had a Bad Heart and so upheld Seattle's knocking down the Old Travel Pause Order.

Hawaii judge says the same thing about the New Travel Pause Order, ignoring the changes that were made, because Trump still has a Bad Heart.
So the Hawaii judge addresses, well, what must Trump do to not have a Bad Heart, so that he can do what Congress has already authorized him to do.

Answer is in footnote 17 of his opinion. Translating from the High Legalese, a heartfelt public and abject apology by Trump to Muslims everywhere is required. And he must bring the judge a shrubbery

Posted by: Ignoramus at May 09, 2017 04:27 PM (SIY7D)

24 The horde has been divided and scattered like chaff.. it'll take hours to get them all back on one nood.
Hours I say... or at the very least bewbs

Posted by: IP at May 09, 2017 04:27 PM (UmSfZ)

25 Can't wait for SCOTUS to slap these nitwits down

Posted by: Traddy at May 09, 2017 04:27 PM (GSJcT)

26 I want each of these political SOBs impeached and imprisoned for usurpation of Constitutional authority.

Failing that, I want them reassigned to traffic court in Alaska.

Posted by: Brother Cavil, Abbot of St. Costello-on-the-Hurlingbone at May 09, 2017 04:28 PM (9krrF)

27 Did the fourth circuit judges tell the ACLU to eat a bag of dicks?

(I can dream, can't I?)

Posted by: IC at May 09, 2017 04:28 PM (a0IVu)

28 20 Trump is a very bad man.
Posted by: Anthony Fremont at May 09, 2017 04:26 PM (IqV8l)

Very bad *finger wag*

Posted by: Babu Bhatt at May 09, 2017 04:28 PM (BXC+l)

29 Here's another.

Cliterectomies of girls under 18 are banned by federal legislation, but not male circumcisions?

Is that religious-based discrimination prohibited by the Constitution?

The logic of the Hawaii judge says yes, if the sponsors of the legislation had ever dissed Muslims before enactment

Posted by: Ignoramus at May 09, 2017 04:28 PM (SIY7D)

30 Did the fourth circuit judges tell the ACLU to eat a bag of dicks?

In Latin, because law.

Posted by: Cicero (@cicero) at May 09, 2017 04:29 PM (Mouru)

31 This Executive Order Might Be Legal if Hillary Clinton Signed It

-
Well, not so much legal as not prosecuted, but still.

Posted by: Anonosaurus Wrecks and You're Not at May 09, 2017 04:29 PM (Nwg0u)

32 It's not the Vagina clause but the Democrat clause. He should have been cited for contempt of court for making that asinine admission.

Posted by: Jack Sock at May 09, 2017 04:29 PM (mEjqT)

33 12 Associate Justice of the Supreme Court Alexthechick.

Because fuck this shit, that's why.
Posted by: Colorado Alex In Exile at May 09, 2017 04:23 PM (S2V6F)

Chief Justice. Demote that hack Roberts.

Posted by: rickl at May 09, 2017 04:29 PM (xjiRE)

34 Two things in the article (one at Powerline is better):

1) Jadwat, asked whether the order on its face is valid, says No. Why? "I don't think so, Your Honor, because the order is completely unprecedented." To which one of the Fourth Circuit judges replies, with astonishment that seems mostly genuine: "So the first order on anything is invalid?"

2) They are arguing when you can heed Trump's words and whether something said in a campaign is binding, but that's utterly irrelevant. The only thing they can rule on is whether the order is constitutional or not. Period. It does not matter what the president said at some point vaguely related to the law. That has zero to do with their decision making process.

There is no legal precedent, principle, rule, or concept by which something which is legal becomes illegal because of the person who does it said something you find problematic. That is completely without justification or rational basis.

Posted by: Christopher R Taylor at May 09, 2017 04:30 PM (39g3+)

35 Associate Justice of the Supreme Court Alexthechick.

I fear even Alexthechick would "grow in office."

Posted by: Cicero (@cicero) at May 09, 2017 04:30 PM (Mouru)

36 What is frustrating is that even if President Trump had said nothing at all about Muslims in his entire campaign, they still would be trying to stop these orders.

Posted by: Christopher R Taylor at May 09, 2017 04:31 PM (39g3+)

37 Where the fuck am I?

Posted by: Conan the Vulgarian at May 09, 2017 04:31 PM (HgMAr)

38 I fear even Alexthechick would "grow in office."

So take away the booster seat.

Posted by: Grump928(c) at May 09, 2017 04:31 PM (QQ+il)

39 Chief Justice. Demote that hack Roberts.
__________

Do we try to hem the existing robe, or just order a new one.

Posted by: IP at May 09, 2017 04:31 PM (UmSfZ)

40
I fear even Alexthechick would "grow in office."

Posted by: Cicero (@cicero) at May 09, 2017 04:30 PM (Mouru)

2-3", or 2-3 cup sizes?

Posted by: Colorado Alex In Exile at May 09, 2017 04:31 PM (S2V6F)

41 Where the fuck am I?
Posted by: Conan the Vulgarian at May 09, 2017 04:31 PM (HgMAr)

I don't know, goddammit.

Posted by: Conan the Sectarian at May 09, 2017 04:32 PM (Mouru)

42 All this time-warping noodity is making me motion sick.

Posted by: Insomniac, Lord Hurlingbone, Earl of Melancholy at May 09, 2017 04:33 PM (0mRoj)

43 I don't know, goddammit.
Posted by: Conan the Sectarian at May 09, 2017 04:32 PM (Mouru)
__________

Do I know you?

Posted by: Conan the Octegenarian at May 09, 2017 04:33 PM (UmSfZ)

44 Presidents are permitted to be discriminatory as regards non-US-citizens

-
Wrong! Newthink says non-citizens have more rights than citizens

Posted by: Anonosaurus Wrecks and You're Not at May 09, 2017 04:34 PM (Nwg0u)

45 Dammit! Posted on the wrong thread. Eh, that's old age fer ya...

Posted by: Conan the Centenarian at May 09, 2017 04:35 PM (BXC+l)

46 I've dropped about a fifty pounds of muscle.

Posted by: Conan the Vegetarian at May 09, 2017 04:35 PM (mEjqT)

47 *snuffles around*

Woof?

Posted by: Pug Mahon, Very Confused Corgi at May 09, 2017 04:36 PM (RwwCT)

48 I can see Uranus.

Posted by: Conan the Planetarian at May 09, 2017 04:37 PM (tbOMB)

49 There is no legal precedent, principle, rule, or concept by which something which is legal becomes illegal because of the person who does it said something you find problematic. That is completely without justification or rational basis.

Posted by: Christopher R Taylor at May 09, 2017 04:30 PM (39g3+)

++++

Trump has deplorable motives. Thus, he and all the fruits of his labor shall be deplored.

Posted by: Anon Y. Mous at May 09, 2017 04:38 PM (R+30W)

50 The Leftist judges on these cases come in a few flavors of fruit.

#1 Most fruity are the Seattle and HI district court judges who were effectively hand-picked by the plaintiffs. They see Trump as a bad actor -- even illegitimate -- who must be stopped. So theories of Religion Establishment and Bad Heart President get created.

#2 Ordinary Lefties, who are a majority on the 4th and 9th Circuits. At a minimum they want to establish that even though Congress has given Trump plenary authority here, the federal Courts should always have the last word BECAUSE. Some may side with Trump in the end, but only with an opinion that says they had the authority to say no.

Posted by: Ignoramus at May 09, 2017 04:38 PM (SIY7D)

51 I fear even Alexthechick would "grow in office."

-
It's the LSD in the water coolers that does it.

Posted by: Anonosaurus Wrecks and You're Not at May 09, 2017 04:38 PM (Nwg0u)

52 I climb the Alps barefoot.

Posted by: Conan the Austrian at May 09, 2017 04:39 PM (HgMAr)

53 I can see Uranus.
Posted by: Conan the Planetarian at May 09, 2017 04:37 PM (tbOMB)

Get back to your plow, dreamer.

Posted by: Conan the Agrarian at May 09, 2017 04:39 PM (Mouru)

54 Drone strikes by Bush: Evil war crimes against humanity
Drone strikes by Obama: Nobel Peace Prize
Drone strikes by Trump: Evil war crimes against humanity

Posted by: tu3031 at May 09, 2017 04:39 PM (qJhUV)

55 Drone strikes by Bush: Evil war crimes against humanity
Drone strikes by Obama: Nobel Peace Prize
Drone strikes by Trump: Evil war crimes against humanity

It IS hard to keep up.

Posted by: Cicero (@cicero) at May 09, 2017 04:40 PM (Mouru)

56 It just amazes me the Christian hate shown in opposing the idea of preferring religious minorities in refugees. They know what that means.

Posted by: Christopher R Taylor at May 09, 2017 04:40 PM (39g3+)

57 I climb the Alps barefoot.
Posted by: Conan the Austrian at May 09, 2017 04:39 PM (HgMAr)

Amateur. I'm barefoot *all the time*.

Posted by: Conan the Pedestrian at May 09, 2017 04:41 PM (ScbAG)

58 Conan and Clinton are sure getting a workout today.

Posted by: wth at May 09, 2017 04:42 PM (HgMAr)

59 Conan and Clinton are sure getting a workout today.
Posted by: wth at May 09, 2017 04:42 PM (HgMAr)

You really should come to one of our meetings.

Posted by: Conan the Rotarian at May 09, 2017 04:44 PM (Mouru)

60 Candidate Trump said mean things during his White House run, therefore President Trump must recuse himself from his own Presidency.

Posted by: ACLU at May 09, 2017 04:44 PM (OVmeB)

61 Leave me be!

Posted by: Conan the Libertarian at May 09, 2017 04:44 PM (kTF2Z)

62 "There is no legal precedent, principle, rule, or concept by which something which is legal becomes illegal because of the person who does it said something you find problematic. That is completely without justification or rational basis."

This is not the Korematsu case where FDR's EO put Japanese-American citizens in concentration camps. But some want to pretend it is.

Were that case to come up again, some would argue that if FDR had said bad things about the Japanese it ought to figure in the legal analysis. Back then, we were in a real war, local Japanese were a potential sabotage threat, so all bets were off. In a real war, lots of rights get suspended.

That's not this case, but many want to go back in time and kill Korematsu in its infancy. It's like a killing Hitler fantasy

Posted by: Ignoramus at May 09, 2017 04:45 PM (SIY7D)

63 I'm flitting about from thread to thread, not quite sure which one is current...

Posted by: IC at May 09, 2017 04:45 PM (a0IVu)

64 And here come the Smegma Cops.

Posted by: Max Power at May 09, 2017 04:45 PM (q177U)

65 Let's do the time warp again!!

Posted by: Rocky Horror Picture Show at May 09, 2017 04:48 PM (jxbfJ)

66 Fix the title.

Posted by: Kaldar at May 09, 2017 04:48 PM (uA8nN)

67 off, barbarian sock.

Posted by: OregonMuse, deplorable since 2004 at May 09, 2017 04:48 PM (ScbAG)

68 I'm really Scots-Irish.

Posted by: Conan the Presbyterian at May 09, 2017 04:49 PM (mEjqT)

69 57.

Your dogs must be barkin' something awful.

Posted by: Conan the Veterinarian at May 09, 2017 04:49 PM (OVmeB)

70 Hearing this, our country truly is screwed. I don't think Trump can fix this. Not in 8 years. Not 12-16 assuming Pence gets in afterwards.

Convention of States? Doubtful
EMP from the Norks? maybe.
SMOD - definitely.

Posted by: Our Country is Screwed at May 09, 2017 04:50 PM (jxbfJ)

71 It IS hard to keep up.
--

Here's your cheat sheet, provided by the MSM:

Democrats: good
Republicans: evil

That pretty much sums it up I think.

Posted by: shibumi at May 09, 2017 04:50 PM (8zWAk)

72 I try to be funny.

Posted by: Conan the Gingerhairian at May 09, 2017 04:51 PM (HgMAr)

73 ...

Posted by: Conan the Planarian at May 09, 2017 04:52 PM (9krrF)

74 8 Ace can't help the time zone thing; he's still stuck at the Fyrefestival That fishing boat captain who took his money never showed up.

Posted by: Richard McEnroe at May 09, 2017 04:52 PM (oOCN8)

75 I tried to be President <hic> <bump> <thud> <shart>

Posted by: Conan the Failed 2016 Dem Candidate aka Hillary at May 09, 2017 04:52 PM (jxbfJ)

76 Winter is coming.

Posted by: Conan the Targaryan at May 09, 2017 04:53 PM (Mouru)

77 Democrats: good
Republicans: evil

That pretty much sums it up I think.
Posted by: shibumi at May 09, 2017 04:50 PM (8zWAk)

Let me augment that a little:
Democrats: Good, allowed to do evil
Republicans:Evil, not allowed to do good

Posted by: WisRich at May 09, 2017 04:53 PM (hdpay)

78 What's the over/under on where the next thread shows up? Get it? Over? Under?

Posted by: tu3031 at May 09, 2017 04:54 PM (qJhUV)

79 Maybe:

Democrats: Good, allowed to do evil
Republicans: Evil, not able to do good

Posted by: Christopher R Taylor at May 09, 2017 04:55 PM (39g3+)

80 Another new one is now on top

Posted by: Uber Lyft Driver at May 09, 2017 04:56 PM (K7T1G)

81 "It just amazes me the Christian hate shown in opposing the idea of preferring religious minorities in refugees. They know what that means."

Most galling is that there is a federal statute which gives priority to religiously persecuted minorities which Obama and now the federal courts are ignoring. (Wonder why they thought we should have that?)

The judicial overreach on Trump's EOs is not just on the Presidency, but on Congress, because Congress gave the Presidency these powers

Posted by: Ignoramus at May 09, 2017 05:03 PM (SIY7D)

82 Every decision the courts are allowed to do this, the closer we get to real constitutional crisis and a challenge to the entire fabric of the nation. Courts only enjoy the power they do out of the goodwill and respect of the people.

Posted by: Christopher R Taylor at May 09, 2017 05:07 PM (39g3+)

83 This need's a good Al Pacino: "I'm out of order? You're out of order! You're out of order! This whole trial is out of order!"
"If I was that man I was five years ago I'd take a flamethrower to the court." um...different movie but it still works.

Posted by: WisRich at May 09, 2017 05:12 PM (hdpay)

84 The only thing that will fix this, it would get me banned for saying it.

Well, at one point it would have. Ace seems to have "grown in office" as regards the historic inevitability of violent political unrest.

Posted by: Colonel Kurtz at May 09, 2017 05:46 PM (+uiPc)

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