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Comment by DannyBee | Hacker News Reader

This is nice, but the thing that is going to hurt them massively here is standing issues. All of the harm to the plaintiffs in these cases is very attenuated compared to direct lawsuits from people affected.

The current 9th circuit one has a large chance of getting reversed on standing issues (en banc most likely), and honestly, probably should be.

Past that ,the real best hope is that folks like Thomas, et al will ask "remind me again why, if the constitution gives this power to congress, you believe it's okay for congress to give all of it to the executive branch"

But that seems unlikely. More likely roberts decides he doesn't want to be on the wrong side of history.

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MIT filed an amicus curiae brief. This isn't saying "we assert standing" but saying "we have an interest in this case, and here are our thoughts on the matter."

Given that the plaintiffs in the suit are people who have been denied entry by the executive order but have valid visas, I doubt standing would be denied. And I'm pretty sure one of the lawsuits has an affected green card member as a plaintiff, which is going to be very hard to deny standing to.

If I understand the attorneys-general' strategy correctly, they're recycling the same standing argument that the 5th circuit upheld in Texas v. US, just in pursuit of a different objective. Of course a circuit split could ensue but given that Texas had 25 co-plaintiffs there's a good chance that they're now hoist by their own petard.

I'm very weak on civil procedure though so feel free to tell me I'm an idiot.

http://www.ca5.uscourts.gov/opinions%5Cpub%5C15/15-40238-CV0...

Also raises the much more interesting question of where to locate the apostrophe for the possessive case when discussing the actions of attorneys-general. Priorities!

http://abovethelaw.com/career-files/lawprose-lesson-116-what...

Trump can just re-word the XO, get it challenged first in Texas by a pliant patsy, and immediately appeal to the 5th Circuit.

Then he'll have a unanimous ruling in his favor in the new circuit.

> remind me again why, if the constitution gives this power to congress, you believe it's okay for congress to give all of it to the executive branch

Do you really want to hinge your case on Congress' ability to delegate power? I mean that COULD be a fun court case if you want to have it and make it a constitutional issue, because the whole executive branch, and the executive branches of every single state, would be ripped to shreds :D

1 million unemployed in the federal government, upwards of 15 million in the states!

but thats only possible if you believe the Supreme Court's rulings are based on a strict understanding of the constitution they are all reading, or if it is based on the past of least resistance. (its the latter)

the above argument has a thin chance of surviving in 2017

This case already happened, specifically in reference to immigration, 70 years ago: see Knauff v. Shaughnessy[0] (1950).

> The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power, but is inherent in the executive power to control the foreign affairs of the nation. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.

[0]: https://supreme.justia.com/cases/federal/us/338/537/

Yeah, i'm aware. But there's a lot of cases where the constitutional power has been handwaved into existence, and then snuffed out x years later. ;)

> Do you really want to hinge your case on Congress' ability to delegate power? I mean that COULD be a fun court case if you want to have it and make it a constitutional issue, because the whole executive branch, and the executive branches of every single state, would be ripped to shreds :D

Trump's argument is not so much that Congress delegated the executive broad powers to decide eligibility of immigrants and visitors but that the powers are literally "unreviewable" by the courts (see https://www.unitedstatescourts.org/federal/vaed/358386/80-0...., I am not making this up). The response of the judge to that argument was basically "nothing can prevent the courts from reviewing constitutional arguments".

"Do you really want to hinge your case on Congress' ability to delegate power?"

At some point, yes. Your other arguments are basically handwaved into existence.

Don't get me wrong, some of them even have precedent for that handwaving, but i'm always in favor of arguing based on first principles than "well, you guys have fucked this up for 50 years, so no point in changing this now"

"I mean that COULD be a fun court case if you want to have it and make it a constitutional issue, because the whole executive branch, and the executive branches of every single state, would be ripped to shreds :D"

You know, of course, that the whole point of having different branches was ... to have different branches :)

"the above argument has a thin chance of surviving in 2017 "

Probably, but like most other arguments based on judicially created rights, i think others are even more tenuous over time, and are just kicking the can down the road.

See right to privacy, etc.

At some point, it needs to be grounded in the actual text of the constitution, or it just erodes. There is nothing in the constitution granting green card/etc holders any rights directly at all.

The 9th Circuit one was not a decision on the EO itself, rather the temporary restraining order that the judge in Seattle placed on the EO while arguments were heard to determine its legality.

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