President of the US Picks

[smh_23]

I’m going to ask him to respond, but for now:

[quote=“thunderbolt23, post:1044, topic:215570, full:true”]
With due respect to your law professor friend, I don’t think either of those scenarios can provide standing for someone whose rights are directly impacted by a ban on Muslims. The contractual example is the least connected - if you contracted with someone, there are lots of instances where the person with whom you contract with could suffer some legal injury that would hurt your contractual relationship (loss of business, etc.), but you can’t sue on that person’s behalf claiming you’d be harmed. It’s not an option.[/quote]

None of those instances involve an unconstitutional policy enacted by the federal government, and the suit is not on the non-citizen’s behalf, but my own (me being a businessperson and American citizen). My contracts and business interests are injured by a government policy which my Constitution explicitly prohibits – namely, an official dis-preference on religious grounds.

[quote]
Re: a family member: it’s less attenuated, but still, that non-citizen’s interest is not the citizen’s.[/quote]

It isn’t the non-citizen’s interest in question. It is the citizen’s. The citizen’s government is structurally prohibited from enacting and enforcing the policy in question; the policy has been enacted and enforced. The relationship from citizen to policy is direct.

[quote]
The citizen has no right under law to have a family member become a US citizen and it’s not a legal injury to not
have them join them as citizens (because, obviously, they have no right to make that so in the first place). And let’s be realistic - as a prudential matter, no court is going to recognize the standing of a citizen to sue on behalf of a non-citizen family member who doesn’t enjoy constitutional rights because where would it end? [/quote]

See above: the suit is not on behalf of anyone else.

[quote]
In short, there’s really no way for anyone to march into a court and challenge a ban on Muslims and demand strict scrutiny review. Can’t happen. [/quote]

As I said, I’ll ask him to respond. I don’t know anything about standing. But various prominent legal scholars wrote a lot about this precise question, and to my knowledge none saw any issue with standing, so I doubt very much that it can’t happen.

[SkyzykS]

That was damn good Tb.

[Alrightmiami19c]

You lucky bastard. The pit yours too?

[Alrightmiami19c]

@smh_23

But various prominent legal scholars

Who?

@smh_23

to my knowledge none saw any issue with standing

Don’t sound like great legal minds to me. Saw no issue whatsoever?

If the Constitution extends to non citizens, wouldn’t the 14th amendment grant every person on the planet the right to immigrate to the U.S?

[smh_23]

[quote=“Alrightmiami19c, post:1050, topic:215570, full:true”]

@smh_23

But various prominent legal scholars

Who?[/quote]

Lawrence Tribe, Daniel Halberstam, and (something) Vladeck, off the top of my head. E. Volokh has the following to say:

“(which is consistent with Eric Posner’s and my view, given the possibility that today’s Court would indeed overrule or limit the plenary power doctrine precedents)”

…so that’s every prominent scholar writing for a popular audience I care to find ATM, and zero issues with standing. If both Tribe and Volokh (close to polar opposites) think a case would go before the Court, I’m generally satisfied.

If the Constitution extends to non citizens, wouldn’t the 14th amendment grant every person on the planet the right to immigrate to the U.S?

No. You should probably follow this from the beginning. I’m not going to catch you up.

[smh_23]

@thunderbolt23

With due respect to your law professor friend, I don’t think either of those scenarios can provide standing for someone whose rights are directly impacted by a ban on Muslims. The contractual example is the least connected - if you contracted with someone, there are lots of instances where the person with whom you contract with could suffer some legal injury that would hurt your contractual relationship (loss of business, etc.), but you can’t sue on that person’s behalf claiming you’d be harmed. It’s not an option.

Re: a family member: it’s less attenuated, but still, that non-citizen’s interest is not the citizen’s. The citizen has no right under law to have a family member become a US citizen and it’s not a legal injury to not
have them join them as citizens (because, obviously, they have no right to make that so in the first place). And let’s be realistic - as a prudential matter, no court is going to recognize the standing of a citizen to sue on behalf of a non-citizen family member who doesn’t enjoy constitutional rights because where would it end? Despite you friend’s thoughts that certain sitting justices may ruminate otherwise, such standing wouldn’t stop at challenges under the EC clause, they couldn’t, it would by extension apply to every other right a citizen would have, and to decide otherwise is simply the height of arbitrariness. Non-citizens either have constitutional rights or they don’t - it ain’t mix and match buffet style. And it’s impossible to conceive that the Constitution opens the doors that wide, which would permit non-citizens to bootstrap constitutional rights in all sorts of contexts where they don’t otherwise get them.

In short, there’s really no way for anyone to march into a court and challenge a ban on Muslims and demand strict scrutiny review. Can’t happen.

That doesn’t mean that I don’t think the ban would be unconstitutional - but the constitutionality of it would be determined in the legislative process, which makes it a purely political question.

http://www.wneclaw.com/religion/standing.html

[quote]
Noneconomic injury

A change in behavior as a result of the asserted Establishment Clause violation such as a decision to refrain from an activity that the plaintiff has previously engaged in, or some other alteration in the challenger’s lifestyle or activities. An example of a change in behavior could be a change in the route traveled in order to avoid a religious symbol on public property.[/quote]

Re-read what my pal wrote above about (let’s say annual) family visits vis-a-vis alteration in the challenger’s lifestyle. If a drive by the park is an injurious alteration to a lifestyle, I daresay a cancellation of mom’s annual visit is one. Furthermore, non-taxpayer-related economic injury would seem to cover the business-interest hypothetical.

[smh_23]

[quote=“smh_23, post:1053, topic:215570, full:true”]

@thunderbolt23

With due respect to your law professor friend, I don’t think either of those scenarios can provide standing for someone whose rights are directly impacted by a ban on Muslims. The contractual example is the least connected - if you contracted with someone, there are lots of instances where the person with whom you contract with could suffer some legal injury that would hurt your contractual relationship (loss of business, etc.), but you can’t sue on that person’s behalf claiming you’d be harmed. It’s not an option.

Re: a family member: it’s less attenuated, but still, that non-citizen’s interest is not the citizen’s. The citizen has no right under law to have a family member become a US citizen and it’s not a legal injury to not
have them join them as citizens (because, obviously, they have no right to make that so in the first place). And let’s be realistic - as a prudential matter, no court is going to recognize the standing of a citizen to sue on behalf of a non-citizen family member who doesn’t enjoy constitutional rights because where would it end? Despite you friend’s thoughts that certain sitting justices may ruminate otherwise, such standing wouldn’t stop at challenges under the EC clause, they couldn’t, it would by extension apply to every other right a citizen would have, and to decide otherwise is simply the height of arbitrariness. Non-citizens either have constitutional rights or they don’t - it ain’t mix and match buffet style. And it’s impossible to conceive that the Constitution opens the doors that wide, which would permit non-citizens to bootstrap constitutional rights in all sorts of contexts where they don’t otherwise get them.

In short, there’s really no way for anyone to march into a court and challenge a ban on Muslims and demand strict scrutiny review. Can’t happen.

That doesn’t mean that I don’t think the ban would be unconstitutional - but the constitutionality of it would be determined in the legislative process, which makes it a purely political question.

http://www.wneclaw.com/religion/standing.html

Noneconomic injury

A change in behavior as a result of the asserted Establishment Clause violation such as a decision to refrain from an activity that the plaintiff has previously engaged in, or some other alteration in the challenger’s lifestyle or activities. An example of a change in behavior could be a change in the route traveled in order to avoid a religious symbol on public property.[/quote]

Re-read what my pal wrote above about (let’s say annual) family visits vis-a-vis alteration in the challenger’s lifestyle. If a drive by the park is an injurious alteration to a lifestyle, I daresay a cancellation of mom’s annual visit is one. Furthermore, non-taxpayer-related economic injury would seem to cover the business-interest hypothetical.

His response:

"Your correspondent is mistaken. Even if we assume that the policy would be enacted in such a way as to bar citizens from taxpayer standing, the proposed ban would create uncountable avenues for nontaxpayer Establishment Clause standing. The Court noted the following in Valley Forge:

‘Respondent Americans United claims that it has certain unidentified members who reside in Pennsylvania. It does not explain, however, how this fact establishes a cognizable injury where none existed before. Respondent is still obligated to allege facts sufficient to establish that one or more of its members has suffered, or is threatened with, an injury other than their belief that the transfer violated the Constitution.’

It simply is not plausible, particularly given the current legal climate, that the hypothetical citizens I offered in my last email- and many thousands more- would not meet a ‘has suffered, or is threatened with, an injury other than their belief that the [ban] violated the Constitution’ standard. The injury would be widespread, concrete, and easily found out by a group looking to challenge the Constitutionality of President Trump’s stab at statesmanship."

[smh_23]

@pushharder

Which brings me back around to my point that your zealous conviction might need to be tempered a bit in this regard.

Apparently not.

[20 Characters.]

[Alrightmiami19c]

Great dogs. My old man had three. They were fearless (until it rained). For whatever reason they never played with anything but rocks. The oldest, Sarge, spent the last ten years or so dragging a 20 lb rock up and down a hill for hours on end. You never got between Sarge and his rock.

[smh_23]

@pushharder

Yeah, you go right ahead and dig in deeper, whippersnapper.

Not really sure what you’re getting at here. Dig in? You appear to want to object to my arguments, but you sure as hell haven’t done it. You haven’t even tried. Not once. I have adduced a lot very specific evidence in this thread – quotations, precedent. You haven’t responded on the substance to one word of it. Literally – not a word.

[smh_23]

@pushharder

@smh_23

I have adduced a lot very specific evidence in this thread – quotations, precedent. You haven’t responded on the substance to one word of it. Literally – not a word.

You have adduced no precedent in regards to limits the Congress may authorize in immigration policy. Literally – not a single one.

And yet I have described the standard of judicial review that such authorization must pass in this context – and why it is extraordinarily likely, prohibitively likely that it wouldn’t. That’s what the argument is. That’s the argument that you won’t touch with a thirty-foot pole.

I get it: you’re trying to dance around the beating you took here. You said something about my not understanding the Establishment Clause, and it turned out that the lady did protest too much. You hadn’t (and still haven’t) read Lemon, Larson, etc., and, having not done the homework, can’t even begin to try to touch the substance.

Let’s understand the following, though: Nobody is saying that the SCOTUS has already ruled on this – this conversation wouldn’t be possible if such were true (it would literally just not happen). That you’re pretending this nonsense aids you is telling, but entirely limp. The debate is about what precedent tells us about what the Establishment Clause means, which standard of review would obtain, and what these things mean for a SCOTUS decision on Trump’s proposal. The argument has been made in detail and with evidence in attendance, and it will not be lost on anyone, after your next post, that you continue to tuck and run from the substance itself.

Again, pretending that, in an argument about how SCOTUS is likely to rule on something, “SCOTUS hasn’t ruled on this” is an argument in your favor – this doesn’t fool anyone. We all know SCOTUS hasn’t ruled on this. That’s the point. However, we know lots of things that help us to make a strong determination re: what is likely to happen, among them the meaning of the term “narrowly-tailored” and the Court’s understanding of that term over the past, say, 35 years.

[smh_23]

[quote=“pushharder, post:1062, topic:215570, full:true”]
You can continue to furiously pound that keyboard and fire artillery barrage after artillery barrage of lengthy verbiage, “and it will not be lost on anyone”, that you are speculating. You are speculating but tried to come off as if your speculation was some kind of Fact akin to the 1st and 2nd Laws of Thermodynamics.[/quote]

No. It is implied when we are talking about a future SCOTUS ruling that nobody has traveled to the future and confirmed that, yeah, this is what is going to have happened in the future which I just saw, and it turns out that there was no big surprise. But we know some things with utter certainty, and these things we can synthesize, and this can lead us to all kinds of conclusions, and these conclusions can be all kinds of solid. That’s what an argument is. I made mine. You objected for unclear reasons – these reasons certainly had nothing to do with your read of the evidence – but have refused and continue to refuse to make a counter-argument on even a single shred of substance. We’ll assume that this is not going to change.

[quote]
Now you’ve gathered your wheelbarrow full of resources but it’s not lost on anyone that other wheelbarrows chock full of valid opposing viewpoints pepper this great land with serious ubiquity.[/quote]

Undoubtedly true, but we have yet to see any evidence of this here. TB has raised an interesting point about standing, but it appears very likely that standing wouldn’t be an issue in a challenge. Other than that, a bunch of people have objected vaguely to what I have to say about the EC vis-a-vis Trump’s pathetically stupid (remember the practical implications of discovering more than 75 million persons’ religious convictions) ban, but nobody – you very much included – has made anything that could be mistaken even momentarily for a counter-argument.

Edited.

[thunderbolt23]

1. You don’t have a constitutional right to a business or contractual relationship with a third party. The constitutional violation has to be an injury to you, not someone else. By way of example, you have a contractual relationship with a non-citizen who gets taken out by a drone on suspicion of being involved in terror - do you have a right to claim a constitutional violation of Due Process on a theory you’ve been harmed by virtue of no longer being able to do business with the killed person? Of course not. None of your own constitutional rights are implicated. If this were an option, federal courts would be swamped with civil rights violations lawsuits that really involve a question of rights of a third party, an absurd result that won’t pass muster under the “cases and controversies” requirement of the constitution.

2. Again, re: the family members: what is the legal injury? How were that person’s rights violated? Whether economic or non-economic, the injury still has to be your own. And it can’t simply be described away - regardless of label, really what this would be is an attempt to vindicate the constitutional rights of someone else, and a court would see if for what it was - an end around the “cases and controversies” requirement to get a court involved in opining in the constitutionality of a law. They won’t, though, you can’t challenge laws by invoking the rights of others.

If what you suggest is available, SCOTUS would get into the business of advisory opinions (basically), which it won’t do (and has no authority to do).