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Boardman writes: "Trump's screaming tweet, complete with all caps in the original, captures the essence of this president's bald move to take total power over the United States. When he says 'the security of our nation is at stake,' he refers demagogically to the imaginary threat of terrorists from seven countries."

Donald Trump. (photo: AP)
Donald Trump. (photo: AP)

Constitutional Crisis Deepens as Trump Fights Checks and Balances

By William Boardman, Reader Supported News

11 February 17


– Tweet from Donald J. Trump, February 9, 2017

rump’s screaming tweet, complete with all caps in the original, captures the essence of this president’s bald move to take total power over the United States. When he says “the security of our nation is at stake,” he refers demagogically to the imaginary threat of terrorists from seven countries. He is right to say “the security of our nation is at stake,” but not at all in the way he means – the security of our nation is profoundly at stake in this case because, if he wins, then presidential orders will become dictatorial decrees beyond the reach of the courts. Our constitutional crisis continues.

At issue is Executive Order 13769, issued January 27, 2017, establishing the so-called Muslim ban on immigrants from seven countries (Iran, Iraq, Yemen, Syria, Somalia, Sudan, and Libya). The order was prepared with limited vetting and implemented with no advance planning, creating immediate, global chaos that led to numerous court challenges and partial stays of the order. The case brought January 30 by the states of Washington and Minnesota together persuaded a Washington State judge (appointed by President Bush) to issue a nationwide temporary restraining order (TRO), enjoining the U.S. government from enforcing key provisions of the Executive Order (which the government apparently took its time to obey). The government’s motion for an emergency stay of the TRO was heard February 7 by a three-judge federal district Appeals Court (one step below the U.S. Supreme Court). On February 9, the Appeals Court unanimously affirmed the lower court’s ruling and left the TRO in place, unmodified, until the lower court holds a duly-scheduled hearing of the government’s appeal of the TRO before deciding whether to make the TRO permanent.

Trump’s Executive Order has created a watershed crisis in U.S. constitutional government. Trump fired an acting attorney general for questioning his order’s constitutionality and legality. Several lower federal courts have found the order, in the words of the Appeals Court, “unconstitutional and violative of federal law.” The issue is likely to reach the Supreme Court before long. If the Supreme Court rules for the president, then he will be able to rule by decree. If the Supreme Court upholds the lower courts, that will check the president’s power to rule by decree, but only until the next challenge to the U.S. Constitution’s traditional balance of powers.

9th Circuit Appeals Court rejects attack on Constitution

What follows is a brief summary of the Appeals Court’s 29-page order, including the constitutional issues that court identified. The language of the Appeals Court order is as restrained and dignified as the president’s tweets are hysterical and outrageous. The court begins (p. 3) by stating the basis for deciding the issue:

To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay.

In sketching the background for the Executive Order, the court notes (p. 3) that the only specific attack or threat cited to justify the danger to national security is 9/11. The court described elements of the Executive Order and their impact as they were implemented.

In a February 10 tweet, President Trump asserted:

LAWFARE: “Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute.” A disgraceful decision!

Since the court cites the Immigration and Nationality Act, codified at 8 U.S.C. (p. 4), it’s not clear what statute Trump had in mind. The court also wrote (p. 6) that in issuing its initial restraining order:

The district court preliminarily concluded that significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an Executive Order that the States were likely to be able to prove was unlawful.

The U.S. government claimed that the states had no standing to sue, no right to sue, because the states had not suffered sufficient injury from the Executive Order. The government did not dispute that the state universities “are branches of the States under state law” (p.8). After reviewing the impact of the Executive Order on members of the state universities, the court held (p.12):

We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.

According to government lawyers, the federal courts have no legitimate authority to review any presidential orders “to suspend the admission of any class of aliens: (p. 13). The government argues that such orders are even more unreviewable when the president is motivated by national security claims, even if the orders violate constitutional rights and protections. The government claims that court review of unconstitutional orders violates the principle of separation of powers in government. The court rejects these arguments (p. 14):

There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy…. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches….” We are called upon to perform that duty in this case.

The court notes (p.15) that the government is so desperate to find support for its claims that it misquotes from a case (Kleindienst v. Mandel) to reach a false conclusion. Even in national security cases, the courts have a legitimate role, contrary to the government argument. The court points out that, while the Supreme Court counsels deference to national security decisions of the White House or Congress, the Supreme Court also made clear that (pp. 17-18):

… the Government’s “authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war…. it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.

Addressing the government’s motion to stay the lower court order, the Appeals Court points out that a stay is not a matter of right, but a matter of court discretion based on the particular circumstances of the case. The government, by requesting the stay, bears the burden of showing that those circumstances support the request:

Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” [citation omitted]

The court concludes that the government fails to satisfy any of the four criteria. The court cites the Constitution’s Fifth Amendment requirement that “No person … be deprived of life, liberty, or property without due process of law …” and describes the government position in quietly scathing terms (pp. 19-20):

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause. [emphasis added]

To make this argument, the government lawyers must ignore the plain language of the Constitution referring to “No person” and hope that no one notices that the individuals affected by the Executive Order are, in fact, living, breathing persons. People noticed, and people noticed that this attitude is authoritarian and in antithesis to American democratic standards.

The government tries to mitigate the Executive Order by referring to an “Authoritative Guidance” issued by White House Counsel Donald F. McGahn addressing and seeking to remedy certain portions of the order relating to lawful permanent residents. The court rejects this government argument with withering dry scorn (pp. 21-22):

The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely. Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.

In analyzing this and other poorly thought out, incomplete, and incompetent aspects of the government’s case, the court points out (p. 24) that “it is not our role to try, in effect, to rewrite the Executive Order.” What the court says, with somewhat sly due deference, is that it’s up to the White House to do its job correctly.

The court turns to the states’ argument that the Executive Order violates both the Constitution’s First Amendment’s command that “Congress shall make no law respecting an establishment of religion,” as well as the Equal Protection Clause of the Constitution. White citing Supreme Court holdings supporting the states’ argument, the Appeals Court chooses not to address it in the context of the government’s emergency motion. The court reserves the right to address the issues when the appeal of the TRO is heard.

Although the court does not address it directly, the underlying absurdity of the Executive Order is that it is based on fear-mongering over imaginary threats. If the “terrorist threats” endlessly uttered by the Chicken Littles of government and media had any basis in reality, then suspending the Executive Order might actually be dangerous and might even lead to “irreparable injury.” The court rejects that government argument, too (p.26):

The Government has not shown that a stay is necessary to avoid irreparable injury…. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years. The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. [emphasis added]

In contrast, the court found that the states had provided ample evidence that the Executive Order had already caused irreparable damage to some people and that, if reinstated, it would cause irreparable damage to many more.

Assessing the general public interest, the court saw favorable arguments on both sides. The public has a “powerful interest in national security,” but the public also has an interest in “free flow of travel, in avoiding separation of families, and in freedom from discrimination.” At this point, the court denies the government’s motion for an emergency stay, in effect because there is no perceptible emergency. Or rather there is no emergency as the government defines it. Taken as a whole, the court’s order illustrates a serious constitutional emergency perpetrated by the president against his own government and people. While the court doesn’t list other public interests, the public also surely has a substantial interest in a government that follows the constitutional due process of law, that acts in good faith, that supports its arguments with facts based in reality, and that does not claim the right to act dictatorially with no checks and balances.

White House acts as if it is not only ABOVE the law, it IS the law

Late on February 10, Trump administration sources said there would be no appeal of this decision to the Supreme Court. That leaves the future district court decision as a possible vehicle for a Supreme Court ruling. But late on February 10, the president hinted at just issuing a brand new Executive Order (adding “I like to surprise you.”). This might be good for the White House, avoiding a possible Supreme Court decision requiring them to act within the constitutional framework of the law. That might also be better than a Supreme Court decision that reinforced the president’s power to rule by decree. We don’t know how far the Supreme Court will go either for ideology or to protect judicial authority. We can be pretty sure that our constitutional crisis will not be over any time soon, and may not turn out well for the Constitution.

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News. your social media marketing partner


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+78 # Andrew Hansen 2017-02-11 14:19
Let's put it this way, if one must resort to all caps inside the first month of a four year battle, well, the position held is rather precarious. Keep the pressure on, broadly, from the ground up, from the people. There is no way this administration can withstand persistent, thoughtful, and organized opposition. At some point the Dems will come around to help as well.
+15 # grandlakeguy 2017-02-11 15:17
So how are the Dems going to help us?
By bringing back Hillary Clinton?
Had they not decided to shove her down our throats as their pre-ordained nominee we would instead have enjoyed the sweeping victory of Bernie Sanders along with an unknown number of down ticket races!
Thanks DNC but this is your doing.
+25 # carytucker 2017-02-11 17:24
Quoting grandlakeguy:
So how are the Dems going to help us?
By bringing back Hillary Clinton?
Had they not decided to shove her down our throats as their pre-ordained nominee we would instead have enjoyed the sweeping victory of Bernie Sanders along with an unknown number of down ticket races!
Thanks DNC but this is your doing.

No, it is the doing of voters who supported Mr Trump by voting for him, and those who supported Mr Trump by claiming he was preferable to the evil Sec'y Clinton. Many in this space held that view. How's that working out?
-6 # madresabia 2017-02-12 12:51
Quoting carytucker:
Quoting grandlakeguy:
So how are the Dems going to help us?
By bringing back Hillary Clinton?
Had they not decided to shove her down our throats as their pre-ordained nominee we would instead have enjoyed the sweeping victory of Bernie Sanders along with an unknown number of down ticket races!

Thanks DNC but this is your doing.

No, it is the doing of voters who supported Mr Trump by voting for him, and those who supported Mr Trump by claiming he was preferable to the evil Sec'y Clinton. Many in this space held that view. How's that working out?

You are wrong and carytucker is correct. Had the DNC chosen not to ram Hillary (an incredibly flawed candidate, one with just too much destructive baggage) down our throats, we would not now be in this situation. I am so, so tired or listening to or reading about all the blame going around as to why HRC did not win. Wake up, please do wake up. The only reason that Trump won was Hillary, Hillary, Hillary--a hard pill to swallow, I know, but the DNC should not blame anyone else!
+7 # Observer 47 2017-02-11 18:09
A couple weeks ago, in this forum, I made exact the point you outline, but received only multiple thumbs down. Nevertheless, we are correct.
+7 # Kiwikid 2017-02-11 22:44
Actually, it's yours, and your cronies. A pity you're unwilling to accept the unpalatable truth that you have unleashed this monster on all of us - thanks a bucket!
+6 # Jaax88 2017-02-12 14:49
I would say those who were here, (and their like)and have now disappeared, bashing Hillary unstintingly and promoted Green voting, not that I am against the Green part, had much to do with getting monster trump elected. I defy anyone to establish that Hillary would have been a worse president than trump has shown himself to be and will continue to be until ousted.
+69 # 2017-02-11 15:03
Close ranks in the face of the tyrant and let us move forward united and firm.”
+42 # cetiger 2017-02-11 15:15
When he says "the security of our nation is at stake," I think that's his personal code language for "my intent to rule this nation myself is at stake."
-38 # ojkelly 2017-02-11 15:35
Sorry to rain on everybody's parade, but I think that this case will be used as a justification for a conservative Supreme Court. The Ninth Circuit based its decision on the concept that illegal aliens have constitutional due process rights.

"First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. "

Think about that for a second.The executive order delays entry by persons already holding visas for 90 days. Someone in the United States illegally does not have a visa which would be affected by the executive order. The only logical application is to suppose that someone in the United States illegally has a constitutional right to exit and re enter? I suspect that's with the new executive order is going to prohibit. And it will be so simple that, yes, even a high school student will understand how stupid the Ninth Circuit was. 2 B continued
+27 # futhark 2017-02-11 18:42
From the Fifth Amendment to the Constitution of the United States:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law,,,"

If you inspect the Bill of Rights, you will find that they protect persons, not exclusively citizens, from abuses of government power.
+3 # Jim Young 2017-02-12 14:36
The 14th Amendment also protects everyone within our jurisdiction (I think that is the real reason my old party wants to overturn it though they use the excuse of stopping "anchor babies"). That would mean they could torture, or otherwise do to non-citizens pretty much what ever else they wanted to. We already have private profit prisons that use prison labor for profit.

This seems leading us towards the abuses of Russian forced labor like that described at
+13 # WBoardman 2017-02-11 20:31
ojkelly asserts that the Appeals Court "relied" on the
Zadvydas case, which seems to be an over-statement for a case cited 3 times in 29 pages, usually with other cases.

On p. 14 Zadvydas is cited for the proposition that "the Supreme Court has repeatedly and explicitly rejected the notionnthat the political branches have UNREVIEWABLE AUTHORITY over immigration or are NOT SUBJECT TO THE CONSTITUTION when polycymaking in that context." [emphasis added]

Similarly cited on p.16. Both cites supporting the section of the order dealing with the authority of the court to review the executive order.

Zadvydas cited also pp 21-22, inter alia, supporting Fifth Amendment rights of persons even unlawfully in US

The dissenters were Kennedy, Roberts, Thomas, and Scalia.

ojkelly seems to misread the gravemen of Zadvydas, which
seems to me to be one of rationality that might be framed as follows: just because the government can't find a place to send their prisoner, does that give the government the right – never mind reason – to keep the prisoner locked up for life?

Neither Zadvydas nor the other plaintiff (Kim Ho Ma) was "stopped at the border"

Zadvydas case at:

Even a high school student can understand the Fifth Amendment use of "person" (as discussed in the article)
+29 # ptalady 2017-02-11 15:41
This is a great article summarizing and providing context for the court's opinion. Thank you for writing and publishing this!
+43 # HowardMH 2017-02-11 15:54

The security of our Nation has been handled quite adequately for years before Trumpy even arrived. What changed now that he is in the Oval Office that wasn't already being taken care of BEFORE his Executive Order was signed?

The sky is falling, the sky is falling - he is such a joke.

When will the impeachment hearing start??
+7 # Skyelav 2017-02-11 15:55
Andrew talks about the Dems but fails to recall a) the Dems sat by and allowed scare tactics to run through the Bush jr. Administration and their own Obama's for eight years without so much as a whimper. So when DJT rails about issues of "National Security" he has had precedents. SO the only thing the Dems will help with is what we always help with-- the political expediency of the moment as in Trump is becoming a dictator. Do we think security is working well? Are we gong to oppose everything DJT does and says for the next four years? We probably won't come up with something new on any of these issues so I guess it's business as usual. Let's not forget these voters won't just disappear when spanked by us.
+11 # MindDoc 2017-02-11 20:45
Quoting Skyelav:
So when DJT rails about issues of "National Security" he has had precedents.

True, and the precedent you cite during the W administration was the trumpeting [sic] of fuel rods and imminent nuclear attack, requiring vast new police state powers and tooling up for years of war. Some of the other precedents being followed come out of the era best (and often) cited by Germans, who well know this history: the rise of "populist", purity-based youth groups and fascism fueled by hate toward specific groups - religions, races, or "anyone who is not one of US". The goal was, to use another favorite Trump term, to "exterminate". And the masses saluted. or lingered in the darkness of ignorance. History. Real (not alt-) reality. But I digress. My main point: Beware the precedents known as propaganda, disinformation, and ginned-up fear and hate. It's crucially important. I do think eyes need to stay open and there needs to be sources of reality-based facts - otherwise, for sure, I'd agree, "business as usual" along with divisiveness as usual. They say those not willing to learn from history are doomed to repeat it. Can we learn ,and avoid oncoming disaster?
+10 # Andrew Hansen 2017-02-11 21:45
Indeed, I have not forgotten. And to "Dems and political expediency", I agree, that was my closing point. The Dems in power will only come to help when they see the tide turn and the tide will only turn when the people stand up.
-15 # ojkelly 2017-02-11 16:00
The Zadvydas case they rely on involved career criminals under deportation order but no country would take them because of their criminal background. The statute authorized they be held in detention indefinitely.Th e court over strong dissent, including Justice Kennedy ,said that criminal illegal aliens , after being held in detention for a reasonable period sufficient to give the government time to look for a country to take them, and if the government can't find any other country to take them, have a constitutional right to due process to have a hearing as to whether or not they could be paroled with an ankle bracelet as opposed to indefinite detention. Now, how was somebody like that going to get a visa to come back into the country?
Reliance on that case is ridiculous. Further, that case itself reaffirmed the principle that an alien "stopped at the Borders" has no constitutional rights whatsoever. And that's what the EO did, stops them at the borders.
+18 # WBoardman 2017-02-11 20:42
ojkelly largely repeats without amplifying
his previous comment.

His false premise, that the 9th circuit appeals court "relied"
on Zadvydas, which implies much more than is true.
The court cited Zadvydas 4 times to support two points
(see my comment above).

The court also "relied on" another three dozen or so other
cases, as well as – most heavily – the body of and amendments to the US Constitution.

When ojkelly, writes, ungrammatically,
"And that's what the EO did, stops them at the borders"
he is deploying a strawman argument
in defense of the Executive Order
on which the courts have yet to rule substantively,
as the article went to pains to make clear.
+6 # Dudu101 2017-02-11 16:07
I searched for legal definitions of injunction. It was helpful for me.
Temporary injunction: Limited to 14 days and meant to protect one of the parties before the trail starts. The trial is expected to commence within the 14 days.
Preliminary injunction: Injunction imposed during the trial. May remain effective until conclusion of the trial.
Permanent injunction: At conclusion of trial, injunction imposed against the losing party or the preliminary injunction is imposed permanently.
+21 # grandlakeguy 2017-02-11 16:09
I expect that in the next few months we will see a Trump meltdown that will rival the amazing performance of Humphrey Bogart in that wonderful courtroom scene in THE CAINE MUTINY!
+17 # Femihumanist 2017-02-11 16:24
The people are so fickle, and of such short-memory that a repeat of the (phony news of) the Tonkien Gulf could allow him to claim an emergency and institute martial law. Remember the mobs that believed him all that time leading up to the election.

Besides, doesn't war create jobs? What better excuse do you need?
+15 # MindDoc 2017-02-11 16:24
Thanks to Mr. B for this concise piece explaining the specific points and reasoned (logical and legal) response to each of the "fake news"-rich arguments for special emergency powers due to an imminent crisis. Clearly the crisis is Constitutional, as stated, while on another (daily-life) level, the constant Newspeak/Double speak messages - of imminent doom and urgency for powers of dictatorship - are also taking a human toll, globally. Innocent lives & institutions are being irreparably harmed under the guise of keeping us safe from some imminent attack solely from countries not doing business with Trump, while the proven attackers of the U.S. (the ones with a Trump presence) are ignored for "some reason". Logic is being so routinely twisted beyond belief (literally) that those caught in our bubbles of "news we believe" are becoming as skeptical about reality as the Donald is in his denial of it.

Say a lie repeatedly and it's the "truth", right? Ever notice how the bigger the lie, the more DJT repeats it, for emphasis?

Well, no need to "preach to the choir" who see the absurdity & outright "trumpery" (see dictionary). No need to underscore how divided & angry & nervous many are, while at the same time others are blissfully enjoying their proxy - the magnificent one - "doing what he said he would". Really. And more.

I see hope in the sustained reaction of an awakened population.
But many lack the attention span, focus or conceptual skills, or interest - in reality.
+10 # oakes721 2017-02-11 17:02
The Untidy States of Amiracle ~ Do you Believe in miracles and mirages? Donald Triumph certainly likes to short-circuit American jurisprudence and constitutional law. Sparks fly when a hot wired lead touches the ground.
ASSUMING dictatorial powers is LOUDLY essential to the role of Donald Tyrant as it is the duty of followers to cower spinelessly glad-handing him the poisoned pen to sign away the genuine miracles: Our Constitution and possibly Our Declaration of Independence.
+14 # DongiC 2017-02-11 18:00
Hard to believe but a coup is under way. So far the judiciary is holding the ground backed up by large numbers of citizens. The FBI, various police forces, the Border Patrol, the ATF, Treasury Agents, US Marshalls will probably back Trump and his tight band of advisers from Bannon to Spicer. The crooked cabinet will throw their lot in with Trump. The struggle will be a sharp one. But, the Constitution will prevail; the Declaration of Independence too. The time to rally for all patriots is now.
+12 # elkingo 2017-02-11 20:34
"Say a lie repeatedly and it's the "truth", right? Ever notice how the bigger the lie, the more DJT repeats it, for emphasis?"

Well. there you have it, MindDoc! Remember (or even even hear of) the Big Lie technique of Hitler?
+19 # intheEPZ 2017-02-11 20:43
Great article W. Boardman. You are at your best when restrained in your always right-on analysis. The court's order speaks for itself, and you let it. Thanks, and keep writing!
-1 # ojkelly 2017-02-13 07:24
As to discrimination in favoring Syrian Christians, perhaps readers are unfamiliar with the Lautenberg Amendment which was responsible for the immigration of 350,000 -400,000 Jews and other persecuted minorities in identified countries like Baha'i in Iran. Such immigrants were granted refugee status and significant financial benefit based upon the presumption that a combination of a religion and place of national origin. I was unaware that the Constitution prohibits discrimination in immigration based upon religion or place of origin .

Then one has the separation of powers issue where the 500 district court judges are empowered to hold a hearing in order to weigh evidence of presidential intent and passing on the validity of executive orders?

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