4th Circuit Serves Trump A Sour Lemon.

The 4th Circuit today (May 25th), in a rare en banc proceeding, struck down President Trump’s second shot at a travel ban in a resounding 10–3 decision. This smackdown was harsh. The court came swinging right out of the first paragraph declaring:

"The question for this Court, distilled to its essential form, is whether the Constitution . . . remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination."

However, what really stood out in this decision was the 4th Circuit’s determination that the President acted in bad faith. Relying heavily on the campaign statements of President Trump and his representatives, the court found:

"Plaintiffs have more than plausibly alleged that EO-2’s stated national security interest was provided in bad faith, as a pretext for its religious purpose . . . plaintiffs have plausibly alleged with particularity that an immigration action was taken in bad faith . . . Plaintiffs have made an affirmative showing of bad faith."

The words “bad faith” in describing the President’s approach are used a stunning number of times in the decision. To apply such language to the nation’s Chief Executive is exceptionally rare. A court would not normally do so unless it was very necessary to the decision. As it turns out, this determination was very necessary to the decision. To understand why you have to understand the battle in the briefs between the “Mandel Standard” vs. the “Lemon Test Standard.” Central to this decision was which of those standards to use.


The Lemon Test


Familiar to first year law students, the Lemon Test from the Supreme Court’s 1971 decision in Lemon v. Kurtzman is the traditional test for determining whether a government action violates the establishment clause of the 1st Amendment. Per the Lemon Test a “government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion.”


It was the first prong of this state, that the action must have a primary secular purpose that was at issue, for if the action has the purpose of religious discrimination, that prong of the test fails and the action is unconstitutional. The District Court applied this test, used the campaign statements by Trump and his advisors against him, and ruled the the travel ban unconstitutional (see my prior article on the decision).


The Mandel Standard

Trump’s attorneys argued the Lemon Test is the wrong legal standard, preferring the court adopt the much more deferential Mandel Standard, from the Supreme Court case of Kleindienst v. Mandel decided in 1972.


It involved a professors who invited a foreign communist to speak on their campus. At the time a statute barred known communists from getting visas. Exceptions were allowed, but the administration declined to grant one. The professors sued alleging 1st Amendment violation.


The court ruled against them, holding the power of Congress to regulate immigration was nearly plenary and declared that: “when the Executive exercises this power [to exclude an alien] on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the [plaintiffs’] First Amendment interests.”


The government argued that since the travel ban dealt with immigration the Mandel standard applied and that under that standard the travel ban wins because courts must not “look behind” any facially neutral action to challenge the discretion of the executive.


How the 4th Circuit Applied Mandel.


Be careful what you wish for. The 4th Circuit took the Mandel Standard head on, and decided Trump’s travel ban failed it. The Court of Appeals focused on the standard’s “facially legitimate and bona fide reason.” While everyone agreed the Travel Ban 2 was “facially legitimate” the 4th Circuit, making a near unique determination, found it was not for a “bona fide reason.”


The government argued that if facially legitimate it was bona fide. The 4th Circuit rejected that as just writing out the separate bona fide requirement all together. The government, of course, argued that the purpose of the travel ban was for the “bona fide reason” of national security, and with that we get to the reason for bad faith determination.


The Court of Appeals found the national security excuse was essentially a sham, invented for the purpose of litigation:

provided in bad faith, as a pretext for its [the travel ban’s] religious purpose . . . the Government’s asserted national security interest . . . appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.”

To be sure, this was a high standard. Plaintiffs had to plausibly allege this bad faith and general allegations would not do. Plaintiffs had allege “with particularity” the facts supporting their claim of non-bona fide, or a bad faith reason. The court noted that it would be “the rare case where plaintiffs plausibly allege bad faith with particularity,” but found the exceptional record created by Trump and his minions more than adequately did so.


With Trump failing the Mandel Standard the 4th Circuit reverted back to the Lemon Test, and Trump lost again under that standard because he simply must, as every court applying that standard has concluded.


Trump’s lawyers argued his campaign statements should not be held against him because they “predate President Trump’s constitutionally significant transition from private life to the Nation’s highest public office.” However, the Court of Appeals said they could not ignore such a wealth of evidence and concluded that “The campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action.” Those are sensible reasons.


Trump has, once again, been hoisted on the petard of his own words. He sure makes things tough on his attorneys. While we shall undoubtedly hear the gnashing of teeth about a “activist judges” this is the second Court of Appeals decision against Trump’s two travel bans. Trump previously whined he lost because of the “rogue circuit” of the 9th, but this came from the 4th Circuit in Virginia. It was a 10–3 decision. Counting the 9th Circuit decision on the original travel ban, Trump is 3–13 with Court of Appeals judges. That excuse just isn’t holding water anymore.


This is a self inflicted wound for Trump. Perhaps the message that demagogic pandering to religious hatred to gain power, will make actual governing more difficult for you, is a good thing.



Dino Manalis Added May 26, 2017 - 7:22pm
We should only ban terrorists to keep all of us safe!
Keith Added May 26, 2017 - 7:50pm
And we should only jail would be criminals to keep us safe!
Bill Caciene Added May 26, 2017 - 9:02pm
I wouldn’t call the decision a self-inflicted wound.  I think it actually serves to help Trump.  First, Trump gets to claim that he tried to get something done on immigration, but obviously court decisions are out of his control.  Second, the Constitution gives the president a wide range of powers when it comes to immigration, that fact a liberal court disagrees with the ban simply shows its liberal bias and a reason to elect conservatives so that the court can go back towards the center.  Third, the far left may not see a problem with Muslim immigration, the rest of us know they pose a greater risk of terrorism than immigrants from other countries. 
So while you and the court agree, I don’t think the American people see it your way, which means the decision should only strengthen Trump’s chances of serving another term. 
Billy Roper Added May 27, 2017 - 6:44am
I've started a GoFundMe account to buy all ten judges tickets to the next Ariana Grande concert.
Bill Kamps Added May 27, 2017 - 7:42am
This is a self inflicted wound for Trump. Perhaps the message that demagogic pandering to religious hatred to gain power, will make actual governing more difficult for you, is a good thing.
I would agree.
While most people say that Trump's unpredictable rantings, and going "off script" really do no harm, this is  an example otherwise.  Apparently you can't say for 18  months that you will ban Muslims, and then put in a travel ban that doesnt mention Muslims, that under normal circumstances would pass muster, but does in fact affect Muslims.
If the courts assign Trump's motives based on his campaign statements, or tweets he has a problem. 
His statements, at best, are destabilizing for voters, foreign allies and adversaries.  While there may be some tactical advantage at times for Trump's unpredictability, in a complex and dangerous world I think the negatives outweigh any positives and his style of communication should be discouraged.  Too much time is spent by staff trying to walk back his statements, or explain what he really meant.  Presidents should speak carefully so they can be taken at their word.
Keith, thanks for a clear explanation of the issues in the decision.  While the law can be obtuse, you made it pretty easy to follow.
Bill Kamps Added May 27, 2017 - 8:27am
Of course this is why Congress makes the laws.  If Congress creates a law, and the Supreme Court does not object, then it is the law, end of story.  If the President issues an order, well that is full of maybes.  Since Trump has not really bothered to build a working majority in Congress, it is unlikely that much of his agenda will get put into law.
Keith Added May 27, 2017 - 8:34am
Actually Bill, you provide an excellent suggestion of how Trump can work around this.  He can ask Congress to implement his travel ban by legislation rather than implementing it through the individual fiat of his executive order.  Congress, lacking the history of religious bigotry that has so deservedly dogged Trump, would presumably get a clean review from the courts.  
John Minehan Added May 27, 2017 - 8:44am
I would expect this decision to be reversed 5-4 by the US Supreme Court.
Asserting bad faith in a facially unobjectionable executive order based on campaign rhetoric is a particularly sophistic piece of boot-strapping.
Further, the states listed are all failing or failed states, where it is very hard to accurately vet immigrants, barring the development of the kind of strategic de-briefing program we had for defectors from the East during the Cold War and this is a much larger number of people.   
Keith Added May 27, 2017 - 8:49am
It's not "bootstrapping" when the guy who wrote it flat out says Trump told him to write it to be a Muslim ban but to make it legal.
John Minehan Added May 27, 2017 - 9:21am
It is "bootstrapping" given the last three words of your sentence.  
Keith Added May 27, 2017 - 9:32am
You are ignoring the legal standard that focuses on purpose.
Bill Kamps Added May 27, 2017 - 9:40am
Keith, IF Trump had a working majority in Congress yes, having Congress do this would be the best approach.  Having Congress pass a law is always preferable to an EO.   However, EO's are generally done because the White House calculates they cant get it done in Congress.  Trump has so far not really worked on getting that majority in Congress.
John, EOs are unpredictable because there are so many ways to stop them if people are inclined to do so.  Part of what keeps the President from being a dictator.  Yes, maybe the Supremes will reverse the decision, who knows.
While I  dont have a problem with this EO, how Trump is going about it shows his inexperience in governing.  That his campaign rhetoric is coming back to haunt him just shows there is karma after all.  He can ask the Kennedys about that, they have a wealth of bad karma.
Keith Added May 27, 2017 - 9:54am
Trump has a flat out clear majority in both houses of Congress.  If it is not "working" then that is Trump's problem that a fair number of Republicans don't support his travel ban.  
Bill Kamps Added May 27, 2017 - 11:14am
I would say there are a fair number of Replublicans that dont support Trump in general.  Why should they ? he trashed the GOP in general during the  campaign.  While he ran as an outsider in the extreme, it is difficult to govern that way.
John Minehan Added May 27, 2017 - 11:21am
The other side of that is that there are a fair amount of people who don't favor Trump, and who oppose most of his ideas, who think that the Travel Ban makes a lot of sense.  
John Minehan Added May 27, 2017 - 11:23am
"You are ignoring the legal standard that focuses on purpose."
But the purpose is absolutely irrelevant if the ban is legal on its face.  No harm, no relief. 
Keith Added May 27, 2017 - 11:48am
Quote:  "the purpose is absolutely irrelevant if the ban is legal on its face."  
The United States Supreme Court disagrees.  See above OP discussion of the Lemon Test.  It is well established that if the purpose was rooted in religious discrimination that the establishment clause is violated by even a facially neutral statute.  
John Minehan Added May 27, 2017 - 11:50am
Lemon has been distinguished to death.
Not seeing it.
Jeff Michka Added May 27, 2017 - 12:59pm
"but chief!!! Terrorists are pouring in through our nonexistant borders.  They'll open up on us as soon as they get their AKs! Close it down!!! QUICK!!, better yet shoot anyone appearing brown, then throw their bodies over the non-existent WALL...It's the only way we'll survive." Really?
Bill Kamps Added May 27, 2017 - 1:22pm
John, I would agree that the limited scope of the travel ban makes sense.  However, if Trump is too inexperienced to get his policies adopted, then he wont be an effective President.  This is what it will come down to with him.  Can he figure out how to get done what he wants, he isnt CEO anymore where he can say it and make it so.
The EO process comes with lots of problems and limitations, and we are seeing that play  out.  ANY AG can file a claim in court and put a hold on the order.  That means he has to plan to take these things to the Supremes, which is a lengthy and unpredictable process. 
We can debate how the lower court should have ruled, but they ruled.  Now Trump has to decide if he wants to spend more time and energy to get that over turned. 
Jeff Michka Added May 27, 2017 - 6:10pm
B ill Kamps insists: ANY AG can file a claim in court and put a hold on the order.  That means he has to plan to take these things to the Supremes, which is a lengthy and unpredictable process. - Will it be soon enough to please the Orange Mess's "base?"  Or will "they" not notice because they'll all be back digging coal at any moment 'cause the Orange Turd said so?
Jeff Jackson Added May 27, 2017 - 6:22pm
It appears that the court did not take into consideration the number of terrorist attacks that are clearly, not even the slightest bit fuzzy, but clearly the work of people who share a common religious conviction. Let's say that the ban is declared unconstitutional by the court and another 911 happens, and it is, again, committed by a group of a certain religious conviction. What liability, if any, would that court face? Keep in mind the federal court judges have been impeached, and about 15 or so of them have been. Look at Alcee Hastings for some interesting reading.
Could federal charges be brought against them, for, if nothing more than negligence or dereliction of duty, or failure to recognize a "clear and present danger" to the citizens of this country? While I'm sure that the judges are interpreting the U.S. Constitution, keep in mind that this guy named Abe Lincoln imprisoned a lot of people who were writers and disagreed with him, in a state of war. The Constitutional right was the suspension of the writ of habeas corpus. No federal judges acted against Lincoln, though many could have. I agree that Lincoln was in a war, but imprisoning people and limiting free speech is a far more serious crime than denying immigrants entry into the U.S., would you not agree?
This idea that immigrants have federal rights is nonsense. ISIS has declared war on the U.S. ISIS is not a sovereign nation, and therefore the members of ISIS are not citizens as recognized by international law, or U.S. law for that matter. It is our weaknesses that ISIS and other terrorists are exploiting, and in this case we are legally weakening ourselves.
Were I the president, I would advise the courts that if their decision could be directly traced to acts of violence committed by people they allowed to enter the U.S. by their decision, the law could be stretched to implicate them as co-conspirators. Keep in mind that ignorance to the law is no excuse, even if you are a judge. If the consequences of their decisions lead to more acts of violence, they are guilty by negligence, and ignorance is, again, no excuse, Constitution or not. Immigrants do not possess the right to enter the U.S. and kill U.S. citizens, and our weakness (as opposed to presenting a strong position) may have horrific results. 
Keith Added May 27, 2017 - 6:31pm
Seriously Jeff, read the decision.  I link it in my OP so you really have no excuse not to.
Those bringing the action were not immigrants, but U.S. citizens.  The government challenged their standing but the court ruled against them.  I agree it's kind of a close call, but every court reviewing it has done the same.  
One of the things the court noted was that not a single act of terrorism in the United States has been committed by an immigrant from one of the banned seven countries.  If you had read the decision, you would know that.
And no, the judges involved cannot be sued for acts in their official capacity of interpreting the Constitution.  Nor could they be criminally prosecuted for the same.  You really do not know what the word "conspirator" means in the law and are so equally ignorant regarding the term "co-conspirators."  That's just crazy talk.  
You also seem to be under the delusion that the President can make prosecutorial decisions, he can't.  If he tried to that would be grounds for impeachment.  If this was prosecuted the same judicial system from which these judges work would properly dismiss the charges while deeming the entire prosecution criminal malicious prosecution.  
Norton Louis Added May 27, 2017 - 8:09pm
The final word will be from the Supreme Court.  Though many in the US have forgotten this, the role the Judiciary is SUPPOSED to have within the three branches of government is to base decisions upon the Constitution, laws passed by the legislative branch and to consider any precedent laws or rulings occurring at the State and Local level.
The argument lower courts have used to overturn the Trump Travel Ban goes against the Powers of the Constitution as written, is not based on legislation nor on an appropriate precedent.
With the Trump Travel Ban, only 6 predominately Muslim countries are banned, all exhibiting security conditions that work against accurate vetting.  The majority of Muslims in countries around the world are not affected by this Travel Ban.
If you believe that the recent rulings on this Travel Ban by lower courts are correct, then you should be bound by your primary objection to this ban.  If this truly were a First Amendment issue regarding the Muslim faith, then why are the majority of Muslims unaffected? The Supreme Court will easily see through this disingenuous and fallacious argument.
It's an irony that the recent Manchester attack involved ISIS operatives that traveled back and forth from Libya; one of the countries on the Trump Travel Ban.
Keith Added May 27, 2017 - 10:04pm
Quote:  "It's an irony that the recent Manchester attack involved ISIS operatives that traveled back and forth from Libya; one of the countries on the Trump Travel Ban."
It's idiocy that  you don't understand that Trump's travel ban does not, and could not, apply to citizens and that this guy was a natural born citizen of Britain.  Your suggestion it would have mattered at all is rooted in complete ignorance.  
Norton Louis Added May 27, 2017 - 10:27pm
Keith my point is that Libya is a training ground for terrorists.    The nationality of the terrorist does not matter....the fact that the security situation in Libya is so bad that is has become a training ground for terrorists does, however matter.  This is what I meant by saying when referring to the six countries covered in the temporary travel ban "all exhibiting security conditions that work against accurate vetting." 
A terrorist training ground that is sending ANYONE (citizen or not) to commit terrorism in other countries  seems worthy of a temporary travel ban to me.  
Look up the psychological term called "Projection" the next time you are tempted to label the arguments of others as idiocy or any other denigrating term for that matter.  
Name calling, like violence, is the last resort of the incompetent.  In this case, it was your lack of full comprehension of my comment that caused the problem in communication.  One might say it was idiotic, if they were a less than civilized.
Keith Added May 27, 2017 - 10:35pm
Sure, Libya is training ground for terrorists.  Got it.  You attempted to connect a travel ban to this incident even though the travel ban could not have possibly involved the perpetrator of this incident.  
And yes, that is idiocy, and I am well aware of the psychological term called projection.  Having a degree in the field, I don't even need to look it up.  
Labeling your argument as idiocy is not name calling, just FYI.  You might want to look that up.
Norton Louis Added May 27, 2017 - 10:44pm
So your degree is in insulting and denigrating speech?  I was not aware they gave out degrees for that.
Please substitute "insulting speech" for "name calling" in my comment above.  My mistake.  Are there any more hairs you'd like to split, or would you like to be so bold as to reply the MAIN portion of my comment that argues that the Supreme will have no choice but to uphold the constitution due the fact the travel ban does not ban all Muslims, (therefore it is not a religious 1st mendmeant issue) and that the President has the authority granted to him to enact this ban within the Constitution.
Legislating from the Bench is dangerous and can cut both ways.  
Keith Added May 27, 2017 - 10:54pm
Could you quote that provision in the Constitution conferring upon the President the authority to enact this ban?  
I'll just be waiting for that before resuming the discussion regarding idiocy.
Norton Louis Added May 27, 2017 - 10:58pm
Keith, one more thing,......So let me get this straight.  The Perpetrtor of the Manchester attack was trained in Libya, one of the countries on the Temporary travel ban executive order.  The reason for the order is due to concerns about proper vetting.  And you are saying we should ignore Libya as a common denominator why?
If you go back and reread my comment, I never said that the Manchester attacker was Libyan citizen.  Did they teach reading comprehension at insult school?
Jeff Jackson Added May 27, 2017 - 11:05pm
Those bringing the action were not immigrants, but U.S. citizens.  The government challenged their standing but the court ruled against them.  I agree it's kind of a close call, but every court reviewing it has done the same.
Keith, the citizens had no standing to bring the lawsuit- period. The error was fundamental. I apologize for my "ignorance" of things.
Nor could they be criminally prosecuted for the same.  You really do not know what the word "conspirator" means in the law and are so equally ignorant regarding the term "co-conspirators."
Please excuse my suggesting that there be judicial responsibility for decisions. After all, apparently the courts can make policy without any fear of culpability. I don't don't think you get the suggestion that they be held responsible for setting policy. They would do well to number one, not grant just any group of citizens to have standings in national policy, and granting those who may not be affected to suddenly be granted standing, and number two, understand that, by their decision, are making national policy that could in fact have catastrophic results. While the threat of conspiracy is unenforceable, the point is that as long as they can make policy that causes harm to citizens, they are not serving those citizens, nor are they serving the country that they are sworn to serve. They could have bowed out, but the new normal is "activist" judges who are making policy without being elected and not bearing any responsibility. More than a few people have suggested that judges making policy should be held accountable, and I stand behind that principle.
Keith Added May 27, 2017 - 11:20pm
What I said Mr. Louis is that the travel ban would not have effected this at all because it does not apply to citizens.
Keith Added May 27, 2017 - 11:27pm
Quote:  "Keith, the citizens had no standing to bring the lawsuit- period."
The court addressed that and determined they did.  They were citizens, who by way of example, had relatives in the banned country who would be precluded from visiting.  That provides the particularized harm that is the essence of standing, not that I imagine you know anymore about that than you do about what it takes to be a conspirator.
Quote:  "Please excuse my suggesting that there be judicial responsibility for decisions."
"Judicially responsible" whatever that means, is quite different from criminally liable.  Move on.  
Quote:  "After all, apparently the courts can make policy without any fear of culpability."
Yes, that's the point of an independent judiciary.  Suppose for example a judge makes a completely proper ruling that a defendant must be freed because the police improperly beat a confession out of him.  The defendant later commits a crime.  Under your ridiculous theory the judge is a co-conspirator in that crime.  "Ridiculous" is too kind a word.
The judges in this case did not really "make policy."  The applied the policy expressed in the Constitution's establishment clause.  I realize you don't like the result, but don't corrupt what they did.
Keith Added May 27, 2017 - 11:28pm
So your argument now is not that the Constitution confers upon the President this authority, but that a statute does.  The problem with that, of course, is that an application of that authority cannot conflict with the establishment clause of the Constitution.
Norton Louis Added May 27, 2017 - 11:32pm
The first article of the Constitution says "ALL legislative powers...shall be vested in a Congress."  The second article vests "the executive power...in a President."  The third article places the "judicial power of the United States in one Supreme Court" and "in such inferior Courts as the Congress...may establish." 
Section 212(f) of the Immigration and Nationality Act (INA) passed by the Legislative Branch in 1952 and signed by the Executive gives the President of the United States broad authority to implement immigration restrictions by proclamation. The statute allows the President to suspend the entry of any aliens or of a class of aliens or place restrictions on the entry of a class of aliens temporarily if he or she determines that the entry of such aliens would be detrimental to the U.S. interest.
So in summary, the Constitution spells out the broad powers of each branch.   To further elucidate and strengthen the President's  Constitutional authority in the area of immigration, the Legislative Branch passed the INA Section 212f over 50 years ago.  There has been no challenge to this portion of the law since it has been passed. 
The Supreme Court, in its role as an INTERPRETOR, not WRITER of Legislative Law will have no choice but to rule for the travel ban.  By not supporting the Travel Ban, the Lower Courts have usurped the authority of both the Executive and Legislative Branches.  As mentioned before, the First Amendment concern exhibited by the lower Courts is fallacious, because it does not ban all Muslims, nor all Muslim countries....only countries that exhibit security and vetting concerns. 
Norton Louis Added May 27, 2017 - 11:36pm
Keith The Constitution grants broad powers that are in alignment with this Travel Ban and the Statute further elucidates and strengthens those powers. 
Would you like to take a bet on how the Supreme Court rules on this?  It is doubtful they will support a Constitutional Crisis over the ability for non-vetted potential terrorists to travel to the US.....regardless of the Establishment Clause. 
Jeff Jackson Added May 27, 2017 - 11:45pm
Simple resolution. Have Congress declare a state of war, then whatever Trump wants to do (as in Lincoln, Roosevelt, Wilson) is legal. The Supreme Court has, in times of war, allowed numerous policies that would be considered egregious as perfectly legal in a state of war, e.g. incarceration of certain ethnic groups deemed a threat.  ISIS as well as Al Qaeda has, as mentioned, declared war on us, so we do the same. The administration is attempting to enforce a policy that would not be questionable in a state of war. They are delicately, or not delicately depending on your position, attempting to ensure the safety of the U.S. citizens, as they are sworn to do. The ban is temporary, not permanent, and is an attempt to protect our citizens. The courts would do well to simply confine the order to a limited period of time, instead of complete rejection. They declared war on us, and some of us are treating it as just an idle threat, which it is not.
Norton Louis Added May 27, 2017 - 11:55pm
Jeff, I like your thinking.  However, the Establishment Clause won't stop the Supremes from ruling for the Ban.  Since the Ban only addresses six countries with demonstrable security and vetting issues and ignores most of the Muslim population of the world, it is an overreach to apply the Clause.  Campaign rhetoric does not rise to An Establishment Clause level.
Jeff Jackson Added May 28, 2017 - 12:15am
Norton, I don't consider it an Establishment clause under any circumstance. The ban is for foreign nationals from certain countries, not for any particular religion. If we banned Mexicans, it would only be a coincidence that most Mexicans are Catholic, and Islam is only a coincidence as well. I hope the Supremes do get to rule on it, because, as they have ruled previously, the safety of the nation is of prime importance. They understand that the safety of the nation comes first, and have ruled as such many times.
Keith Added May 28, 2017 - 9:08am
Quote:  "Keith The Constitution grants broad powers that are in alignment with this Travel Ban and the Statute further elucidates and strengthens those powers."
Even granting that claim, the Constitution then limits those powers in the First Amendment to prohibit the implementation of policies that have a religious discriminatory purpose.  
Norton Louis Added May 28, 2017 - 10:28am
Keith,  As mentioned three times earlier, correlating campaign rhetoric to the First Amendment represents Judicial Overreach.  But even if it were not overreach, the net effect of this temporary Ban does not affect the majority of Muslims; only Countries that have demonstrable security and vetting issues.  Ergo, no Establishment Clause violation.  
If not for activist Judges and unwise Campaign rhetoric, this order would never have been an issue.  Trust that the Supremes will resolve this in favor of the Constitution either way....it's what they (usually) do.  
Keith Added May 28, 2017 - 11:04am
There is an establishment clause violation if the purpose was religious discrimination.  The campaign rhetoric is evidence of that impermissible purpose.  Particularly when combined with a direct statement tying the policy to that rhetoric when Guilani said Trump told him to do a Muslim ban but make it legal.  
You demand the court ignore such evidence.  Doing so would be dereliction of duty.
Norton Louis Added May 28, 2017 - 11:28am
Keith,  There is no way the Court can definitively link true intent to suppress religion with the Temporary Travel Ban.  First of all, they would have to prove Trump meant what he said on the Campaign trail, which would be difficult since most of his positions are demonstrably calculated to be extreme to set up better negotiating power.  Second, they would have to prove that this Travel Ban actually has the power to harm The Muslin Faithm and weigh that power against the stated intent of the Ban to protect Americans. Finally, courts are not supposed to engage in speculation nor enter into "proving" prosecutorial behaviors.....they judge...based on the Constitution and laws passed by Legislation, States and localities.  
Your argument hangs by the very thinnest of threads......that will snap in short order when heard by the Supremes.
In the meantime, you'll get your wish to allow improperly vetted people into our country to potentially blow up children.
Keith Added May 28, 2017 - 12:10pm
He repeatedly said what he meant on the campaign trail.  He then told the person he charged with drafting the travel ban to do his Muslim ban but make it legal.  That's pretty damn definitive, whether you like it or not.  
The Plaintiffs in the case were found to be suffering a particularized and identifiable harm due to the travel ban.  That's the requirement for standing, and it was met.  
The President's statements obviated the need for "speculation."
You clearly have not read the decision.  I suggest you do so.
Norton Louis Added May 28, 2017 - 12:26pm
Keith, Call me crazy, but I prefer to look that the prospect of American children potentially being blown up by improperly vetted people traveling from security-risk countries as "particularized and identifiable harm". 
As I said, the Supremes will settle this once and for all, most probably in alignment with the Constitution, the true intent of the travel ban, and common sense.
So why is it that people like you are in favor of open, relatively unchecked borders and the terrorism and drug trafficking it invites anyway?  I don't get it. 
Keith Added May 28, 2017 - 12:32pm
Now who is engaging in speculation?  Speculation rooted at undermining Constitutional rights.  The court noted that not a single act of domestic terrorism was linked to any person visiting from one of the six countries on the list.  
You lost credibility with me when you hatefully stated that I "wish to allow improperly vetted people into our country to potentially blow up children."  If you think that is what I wish, then just piss off and go to Hell.  Not interested in having a dialogue with a person who is just going to make up self serving lies about me.
Norton Louis Added May 28, 2017 - 12:43pm
Keith,  Actions speak louder than words.  Your article and obvious investment in oppposng this travel ban is truly puzzling to me.  Seriously, why is it people like you take stances that actively snd provably endanger Americans?  What is the rationale that you use to justify opposing a ban that seeks to prevent improperly vetted potential terrorists into our country?  If I have it wrong about you in any way, then by all means please enlighten us instead of taking your ball and going home. 
Keith Added May 28, 2017 - 12:47pm
Not going to talk to a person who continues to impugn my motives as hating this country.  Go to Hell.
I answered your idiot question even though you didn't deserve it.  Not answering it again.
Norton Louis Added May 28, 2017 - 12:57pm
Keith, If you reread my comments, I never said anything about you hating your country.  I am genuinely interested in how you justify to yourself and others opposing an executive order that protects Americans from improperly vetted potential terrorists.  I am asking you why even the hint of Muslim Faith discrimination directed OUTSIDE of this country trumps the safety of American children in your mind?  These are serious questions deserving of more than running away and slamming the door. 
Keith Added May 28, 2017 - 1:03pm
Don't try to parse your mealy-mouthed words with me.  You flat out said I wish children to die at the hands of terrorists.  Once again, go to Hell.   
If you want a "serious discussion" then suggesting I want to see American children die is not the way to go.  As stated, you lost your credibility with me in that moment.  You aren't making it any better as you continue to run down that road.  
I will delete further posts from you suggesting any such thing.  I see no reason for my thread here to be forum for you to tell hateful lies about me.  
I trust that is clear.
Norton Louis Added May 28, 2017 - 1:05pm
LOL and so goes the censorship of the Left.
Keith Added May 28, 2017 - 1:06pm
So goes the lying of the right.
You seem to believe you have a right to lie about me on my thread.  You don't.  Piss off.
Norton Louis Added May 28, 2017 - 1:28pm
Piss off is a uniquely English term...are you even an American Citizen?  If so this places you on even shakier moral footing than you already are.  Oh and by the way, thank you for the flattery of censoring my restatement of what I actually said to you on "wish".  I challenge you to go back and reread all of your statements to me now in terms of Projection - you might learn something about yourself. 
Keith Added May 28, 2017 - 1:48pm
As you continue to lie about me, the answer is yes, I am an American citizen.  I also served as an officer in this nation's Army for 11 years.  By further information, I have been a life long Republican who voted Republican in every Presidential election since I first voted for Ford over Carter in 1976, until this election.  Yes, that means I voted against Obama twice.
A "restatement" of your lie is still a lie.  You said I wish to let terrorist to result in the death of children.  You linked those things together.  If you "restate" your damned lie again I will delete it again.  What you need to do is "un-state" your lies, not restate them.  I am under no obligation to answer to, or offer any explanation, regarding your lies about me.  Nor will I.  Period.
Norton Louis Added May 28, 2017 - 2:26pm
Keith, LOL - You seriously made me laugh out loud.  Feigning anger and hurt at "unjust accusations" is a great technique for avoiding answering questions.  Anyone wishing to see what I actually said to you can reread it again, unless of course you choose to start deleting those comments as well.  Have a Great Memorial Day.
Keith Added May 28, 2017 - 2:30pm
Ask legitimate questions and you will get legitimate answers.  Questions couched in suggestions that I am on the side of terrorists killing children will get no kind of answer from me.  Period.  
What I "wish" for is for every scumbag terrorist to be dead.  Any suggestion I wish for their success is a lie.  
Barry aka. Hyperminde Added May 28, 2017 - 9:46pm
RE (article): Trump.... Perhaps the message that demagogic pandering to religious hatred to gain power
RE (Keith):  I also served as an officer in this nation's Army for 11 years.
@ Keith - I call BULLSH:T on your military service claim.
Of course, maybe Anti-Christian Radical Leftists are the new normal in the officer ranks of the US military.
Keith Added May 28, 2017 - 10:23pm
Barry, I call BULLSHIT on your claim I did not serve in the military.  I can prove my service.  Unlike that draft dodging President, I served honorably.  
What delusional sense of garbage in your brain leads you to believe I am "anti-Christian radical leftist"?  
Just FYI, if you make this a forum to lie about me, you will suffer the same fate with your posts as the last person who made this a forum to lie about me.  Also, just another FYI, lying is not a Christian value.  Kinda of an evil thing, actually.  Look it up.
Barry aka. Hyperminde Added May 29, 2017 - 1:01am
RE (Keith): What delusional sense of....
In just simple observation, Risk Assessment (plus/minus for list of items) shows certain nations pose a higher threat level to the US, and "Border/Travel Restrictions" are a Control Measure.
Someone just illustrated that blocking/detaining people traveling to Libya and back to the UK could have prevented a bombing at a concert.
From a "battlefield mindset", it seems really weird to talk about Judicial Technicalities..... Those who serve in the Enlisted (non-officer) Combat Arms occupations generally focus on "kill the enemy" rather than Supreme Court rules, and whether or not one's actions (like artillery strikes) indicate Racist Intent.
RE (Keith): ... that draft dodging President
Regarding the last President ... Did you yell "Hooray, we've got the smartest President EVER!!!" when (reported in 2015) roughly $600 Million of US Weapons fell into Terrorist hands (because Obama ordered our troops to "drop them and walk away")?
RE: "Command"
Do you realize HOW ABSURD it is to allow ONE "SPOILER" to prevent "Executive Decisions"?

Name an EFFECTIVELY Managed Company or Nation where the CEO or President makes a Decision and then NOTHING IS DONE ... IF ONE of 50 "Board Members" says "I don't like it."
If you held a command position over 100 soldiers (Company size element), then you would realize that TWO OBJECTIONS Cancelling a Mission would be insane.
If something were "Unlawful" (especially when EVERYONE is a "Judge"), then at least 40 states should have said "your Executive Order violates US law."
By the way (Fun Fact), the Obama Justice Department’s UNANIMOUS Loss rate from Supreme Court Rulings from 2012 to 2014 was especially bad - 13 cases in 30 months.
Keith Added May 29, 2017 - 7:12am
Barry, I voted against Obama, both times.  End of Message.
Steve Bergeron Added May 29, 2017 - 1:39pm
Here's the bottom line, folks:  1) Terrorists, who are Muslims, have been, and are infiltrating our country.  I don't think any sane person will argue against that.  2) No one is able to vet people from certain countries, namely the list of countries in the ban.  So, to invite tens or hundreds of thousands of them to come over, is to invite probably thousands of terrorists among their midst.  Or so say the FBI, et al.  3)  No one has come up with, or suggested, a better solution to the Executive Order.  
So, my questions are these:  Are those against the ban saying they will accept the wholesale slaughter of Americans for political reasons? And if they are, is it okay if they begin with them, their families and friends?  Does anyone doubt that we will have another terrorist attack in our country?
Keith Added May 29, 2017 - 2:03pm
1)  There is no evidence Muslim terrorists are "infiltrating" our country.  Doing so through the lengthy immigration process is not how it would be done if they wanted to.  There is particularly no evidence of such infiltration particular to the six designated nations.
2)  Not a single act of terrorism has been committed on American soil by a person from the six countries on the banned list.  9/11 was committed mostly by Saudis, and that nation is not on the banned list.  The EO is attempting to solve a problem that does not exist.  
3) The original EO was supposedly only to be in place for 90 days to allow new procedures to be put in place.  That was 122 days ago.  For all the supposed emergent risk of that order not a single act of terrorism from the banned countries occurred in that 122 days.  Had that EO been in effect it would have expired over a month ago.  The "better solution" you seek is for us to have already done in this 122 days to improve the process whatever we were going to do in the 90 days.  
Those opposed to the ban are not saying they "accept the wholesale slaughter of Americans."  There was no such slaughter related to those nations before the bans, with the courts vacating the bans to date no such slaughter has happened, the period for the original ban has long past to allow whatever reviews and changes that ban was intended to accomplish to take place.  The sheer fantasy that justified the ban has been proven false.  Even if the risk was real the period proposed by  the original ban to address the problem has passed.  
Finally, none of your arguments even attempt to address the legitimate Constitutional concerns found now by two separate Courts of Appeals.  
Jeff Michka Added May 29, 2017 - 2:15pm
Keith sez: with the courts vacating the bans to date no such slaughter has happened,- Nope, we've not all been struck down by repeated terrorist attacks for immigrants to this country, much to the disappointment of the Trump admin, and numerous WB rightist and the general Trumpeter community, who WANT attacks, who WANT to be scared of their own shadows, and fear Muslims because "Thet aren't white like me," in the end.  The courts called BS on the Trumpeting nonsense, but according to Orange Don, those judges shouldn't make decisions for him.
Phil's Personal Perspectives Added May 29, 2017 - 3:26pm
All the legal language aside, which is absolutely correct, I need to ask one question.  Merely using common sense how can anyone think this is a solution to a problem?
Keith Added May 29, 2017 - 3:35pm
Enter your comment here...
Keith Added May 29, 2017 - 3:35pm
I agree Phil.  It takes a special kind of stupid to believe that supposedly determined terrorists are going to be deterred by a travel ban from six countries.  
Mike Haluska Added May 30, 2017 - 11:57am
I used to wonder why the Left was so obsessed with getting "their" judges appointed.  Back then I thought that judges rule based on what is in the Constitution.  Now, the lower courts feel they can rule based on innuendo, opinion, campaign speeches, whether or not they just don't like the President, if they think it's a good/bad idea, etc.
Douglas Proudfoot Added Jun 5, 2017 - 10:39am
Keith: The 4th Circuit opinion convicts Donald Trump of having politically incorrect motivation.  The normal standard for these orders is to determine whether the plain text serves a legitimate purpose.   Motivation and prior statements are not to be considered unless the plain text is ambitious.  The 4th Circuit said the order would have been legal if signed by any other president than Trump.  Admitting immigrants has been an executive branch decision since 1789 and the statute law has defined immigration as the president's decision since 1952.  Singling out Trump for special treatment by name is arguably a Bill of Attainder. The 1952 statute has no provision for prior judicial review.   The 4t Circuit and 9th Circuit Courys of Appeal both gave legal standing to groups and individuals that really had none.  The judges voted on party lines like party hacks. 
The Supreme Court should overturn the 4th Circuit decision on the injunction based on lack standing for the plaintiffs.  However, the pernicious "Living Constitution" doctrine has made Supreme Court cases more like NFL games.  On any given day, the Supreme Court could go 5 to 4 either way.  
Regardless, the rule of law has already left the building.  The law is neiter predictable nor understandable now.  There are too many party hacks in black robes ruling to make the law what they want it to ne, rather than ruling what the law is. 
Norton Louis Added Jun 26, 2017 - 12:11pm
The Supreme Court Serves Trump a Lemon Souffle' (not a lemon).
The Supreme court this morning lifted the stay on most of the Trump travel ban, pending a hearing in October.  This decision, made in relative haste to support national security interests prior to SCOTUS taking its summer break, will probably serve as a blueprint once oral arguments are heard this fall.
As I said earlier, citing the Establishment Clause in this case is nonsense.  Regardless of what Trump said as a candidate, the Executive Order as it stands does not ban most Muslims, only people in certain Muslim countries where the security and intelligence situation is so poor that proper vetting is difficult to impossible.
This is why we have a Supreme Court.
Phil's Personal Perspectives Added Jun 26, 2017 - 2:58pm
Keith,  most informative post on some of the legal precedents and issues.  Your narrative should help anyone appreciate and understand the process.  Your post did not advocate for either side.  This is most beneficial at the current time.
Norton Louis Added Jun 26, 2017 - 3:25pm
Phil....What is most beneficial at the current time is to make rulings on laws and executive orders based on the CONSTITUTION, not politics or walking on the center line of the freeway for its own sake.
Keith Added Jun 26, 2017 - 3:28pm
Well Norton enjoyed misrepresenting and lying about me, now he does the same for the Supreme Court.  In fact, every Plaintiff involved in the case retains relief as the Court of Appeals injunction is sustained for them and still benefits them.  Every person in the United States similar to the Plaintiffs in this case retains relief as the Court of Appeals injunction is sustained for them and still benefits all of them. 
Further, the court did not rule on the merits but issued a complex decision rooted solely in the standards for injunctive relief and a equitable standards for a restraining order.  The Court did not address at all whether the travel ban was rooted in religious animus.
Your premature gloating also ignores another major fact.  The travel ban says that ban last "90 days from the effective date of this order."  Section 14 of the travel ban expressly defines the effective date as March 16, 2017.  That was 102 days ago.  The travel ban has expired by its own internal deadline that Trump created.  
Notwithstanding the supposed emergent need for this travel ban not a single act of terrorism has occurred that would have been prevented by it.  The purpose of the travel suspension was to review and improve vetting processes.  Whatever could have been done in 90 days in that regard can certainly have been done in 102, leaving absolutely no remaining justification for the ban.  
Norton Louis Added Jun 26, 2017 - 3:44pm
As to gloating, yes I gloat on behalf of our Constitution.  I will be certain to log on to this post in October when the order is further upheld after arguments are presented to SCOTUS and gloat even further.
As to dating of the executive order.....seriously?  This became a constitutional issue exclusive of dating due to activist judges.   Your trip into the dating weeds is frankly sad.
I have no doubt that SCOTUS will uphold the Constitution this fall....and find it hilarious that this drives Liberals crazy!
Gloatingly yours.......
Keith Added Jun 26, 2017 - 7:50pm
Norton, the Supreme Court today did not address the Constitutional issues.  It just didn't happen.  The ruling affirmed Circuit Court decisions that the specific Plaintiffs involved (and those like them) were likely to prevail on either the Constitution's establishment clause question (4th Circuit) or the the claim that the statute does not empower the President to do this (9th Circuit).  
As to the dating question, the EO says what it says and it says what I said it said.  If you doubt that, read the EO.  Facts are not weeds.  
I won't pretend to know what will happen in October.  I commented on what happened today, and I am right.
Norton Louis Added Jun 26, 2017 - 8:18pm
Today was a good day for Trump and the Constitution, so there!  LOL!
Talk to you in October........
Leroy Added Jun 26, 2017 - 9:16pm
Amen, Norton.  Thomas, Alito, and Gorsuch rendered their option that the ban should be reinstated in its entirety.  Here's what they said:
The Government has satisfied the standard for issuing a stay pending certiorari. We have, of course, decided to grant certiorari. See ante, at 8–9. And I agree with the Court’s implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits—that is, that the judgments below will be reversed. The Government has also established that failure to stay the injunctions will cause irreparable harm by interfering with its “compelling need to provide for the Nation’s security.” Ante, at 13. Finally, weighing the Government’s interest in preserving national security against the hardships caused to respondents by temporary denials of entry into the country, the balance of the equities favors theGovernment. I would thus grant the Government’s applications for a stay in their entirety.
Note: Gorsuch has lived up to his promise to be a Constitutionist.  That is another dagger in the heart of progressives who had hoped he was not a justice in the image of Scalia.
Keith Added Jun 26, 2017 - 9:43pm
Quote: "Thomas, Alito, and Gorsuch rendered their option that the ban should be reinstated in its entirety."
Indeed they did.  You do realize that was not the Court's decision but was rather a minority dissenting in part decision?
Norton Louis Added Jun 26, 2017 - 9:44pm
Leroy.....thanks for the quote above from the temporary stay.......some people try to warp the facts fit the argument as with the author of this post, and others want the facts to speak for themselves..as you do.
There is no higher (human-based) authority than our Constitution in the USA.  Thank goodness we have the SCOTUS to protect us from those that would twist our Constitutions meaning to serve their short sighted and purely temporal political purposes.
Keith Added Jun 26, 2017 - 9:49pm
Norton you talk as if the Constitution expressly grants the President this authority, it does not.
Norton Louis Added Jun 26, 2017 - 9:59pm
As mentiomed before in great detail, the tried and true structures built upon the broad powers the Constitution that grant powers to the three branches of govemrment very clearly do grant the Presidenr these powers.  I won't repeat it all here, but you know better anyway.
SCOTUS interprets the Constitution AND existing laws currently in-force based upon the Comstitution when rendering decisions.
Your wishful thinking is bordering upon fantasy.   Today's decision to partially suppor the ban was 9-0 in favor.  Time will tell, but today was a strong indicator of the final decision from SCOTUS.  I look forward to telling you "I told you so" in October.
John Minehan Added Jun 26, 2017 - 10:31pm
Generally, lifting injunctive relief on appeal is a bad sign for the movant (for the injunction's) case.
Let's see.
John Minehan Added Jun 26, 2017 - 10:34pm
"Quote: "Thomas, Alito, and Gorsuch rendered their option that the ban should be reinstated in its entirety."
Indeed they did.  You do realize that was not the Court's decision but was rather a minority dissenting in part decision?"
I would suspect that Roberts will join them.  What Kennedy does is critical.  Gorsuch's personal relationship with Kennedy can't be overlooked . . . .  
Leroy Added Jun 26, 2017 - 10:48pm
"Indeed they did.  You do realize that was not the Court's decision but was rather a minority dissenting in part decision?"
Yes, Keith, I can read.  Good to see you can too.
"Norton you talk as if the Constitution expressly grants the President this authority, it does not."
Between the Constitution and the laws passed by Congress, the President has exclusive authority to do so.  It is at his discretion alone.  He has very few limitations.
Norton Louis Added Jun 26, 2017 - 11:07pm
Leroy, thank you for the voice of reason.  Keith acts as if all of the laws passed by Congress since the Constitution was written have no bearing on the Constitutionality of the Presidents powers to protect our country regarding immigration.  Wishful thinking in the extreme.  The only shot Libs had the continued erosion of our borders and National Security was the Establishment Clause.  Nationality Security will Trump that overreach in October based on today's ruling.
Apologies to all for typos made on my phone in earlier comments.
Leroy Added Jun 27, 2017 - 8:14am
Thank you, Norton, for being on the forefront fighting this hypocrisy.
Keith Added Jun 27, 2017 - 8:34am
Leroy, that's funny.  If the President acts pursuant to a law passed by Congress it is not his "exclusive" power.  What Congress gives Congress can take away.  In fact, as the 9th Circuit noted, the power to make immigration law is entrusted exclusively to Congress, see Article I, Section 8, Clause 4.  
Clearly neither of you have read the 9th Circuit's opinion on this.  It was solely statutory in nature, avoiding the Constitutional argument because it did not need to use it.  It was the 4th Circuit that applied the Constitutional argument that the travel ban violated the establishment clause because it was motivated by religious animus.  The 4th  found that the INS statute simply does not confer upon the President the authority to do this.  That conclusion is quite reasonable, I mean if you actually read the statute.  
The President and his supporters love to quote Section 212(f) of the INA.  Fair enough, it reads:
"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."
That does appear to be a sweeping delegation of statutory power to the President and if that was all there was to it the statutory analysis would be done.  But that is not all there is to it.  Like I said what Congress gives it can take away and this grant of authority is restricted by another provision that the President and his supporters don't like to mention, but that the courts are obliged to not ignore. 
Section 1152(a)of the INA states:
"no 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."
So Congress in one hand granted the President broad discretion to bar those he feels would be detrimental to the United States but in the other hand took from him the power to base that on nationality.  It's right there.   
To the extent you view these provisions in conflict, there is a long standing principle of statutory interpretation that specific provision trump (if you pardon the expression) more general provisions.  In the words of the 9th Circuit "Congress could not have used more explicit language in unambiguously directing that no nationality-based discrimination shall occur."
Put simply, the 9th Circuit found that the President travel ban exceeded the statutory authority granted him by Congress.  The words of the statute well support that conclusion, I mean if you read all of them and not just the parts you want.
Don't suffer the delusion that the SC yesterday rejected this argument.  It did not.  It did not address it.  The decision was narrowly based on balancing the equities for an injunction.  However, in allowing the injunction to stand on behalf of plaintiffs and all like the plaintiffs, the accepted the conclusion of the Circuit Courts that the plaintiffs were likely to prevail on either this statutory argument or the Constitutional establishment clause argument.  
Norton Louis Added Jun 27, 2017 - 10:43am
You are trying awfully hard to make the law reflect your personal opinion....just like an activist judge.
Rather than restating all the things that I have said as well, I'll simply echo President Trump's words and say "see you at the Supreme Court" this fall.  
I hope you retain this blog so that we can all have party to celebrate.
Keith Added Jun 27, 2017 - 10:49am
LOL, I'm quoting the law.  Deal with it. Address what it says.  The supposed "activist judges" deferred to what Congress actually wrote.  You obviously don't have any real thoughts or points to address the law.  
Leroy Added Jun 27, 2017 - 5:37pm
Keith, the decision was 9-0.  It doesn't bode well for a victory.  Deal with it.
Keith Added Jun 27, 2017 - 8:05pm
Leroy, I don't know if it was a 9-0 decision.  You don't know if it was a 9-0 decision.  Trump doesn't know if it was a 9-0 decision although he falsely claimed to.  You, and the subject of your personality cult worship, need to look up what "per curiam" means.  I'm tired of educating you.  It may have been a 9-0 decision, and it may not have been, I will leave it at that.  
Whatever decision it was, it was one where the majority conclusion affirmed the conclusions of the two Courts of Appeals that the Plaintiffs were likely to prevail on the merits.  
Leroy Added Jun 30, 2017 - 8:28am
Keith, I suggest that you look up the definition of "per curiam".
I might further suggest that you stick to building decks in the backyard rather than attempting to practice law.
Norton Louis Added Nov 9, 2017 - 3:33pm
Keith - almost forgot to log on here and give you the promised "I told you so" on this topic.  The Constitution wins again, in spite of your wishful thinking.

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