Month: January 2017

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Opening Arguments - OA39: Trump’s Muslim Ban

Today's episode revisits a question we tackled way back in Episode #16, namely, whether President Trump has the authority to enact his Muslim Ban. We begin with an examination of the recent CREW lawsuit seeking a declaratory judgment that President Trump has violated the Emoluments Clause.  Is that lawsuit likely to prevail?  What could it accomplish?  Listen and find out. In the main segment, we consider not only the recent Trump Executive Order restricting the entry of aliens from seven majority-Muslim nations (the "Muslim Ban").  We address questions of legality and constitutionality, as well as break down the recent injunction handed down by the Southern District of New York in response to the ACLU's lawsuit. After our main segment, we turn to a question from a conservative listener about abortion and whether Roe v. Wade was an "activist" decision. Finally, we end with the answer to Thomas Takes the Bar Exam question #8 about a landowner's duties regarding trespassers who accidentally fall into the landowner's murder lake.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Show Notes & Links
  1. The CREW lawsuit is here.
  2. We reference two decisions on the "political question" doctrine:  Baker v. Carr, 369 U.S. 186 (1962) and Nixon v. U.S., 506 U.S. 224 (1993).
  3. We initially discussed the Muslim Ban way back in OA Episode #16, which is worth another listen!
  4. The authorizing statute (the "1952 Law") is 8 USC §1182(f).
  5. The "1965  Law" is 8 USC §1152(a).
  6. In light of those two provisions, we think you can spot the errors in David Bier's op-ed in the New York Times.
  7. I wrote a lot on Facebook about the ACLU lawsuit and the injunction handed down by the court on Saturday, so you can check that out if you want the relevant documents.
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The Gist - Up in the Air

The Trump administration’s executive order restricting travel to the U.S. set off at least four legal challenges, an international contagion of protests, and the harshest Republican rebukes yet to a Trump White House action. But it’s not yet clear how many people have been affected by the ban or exactly what it requires. Ben Johnson, head of the American Immigration Lawyers Association, calls the policy “as ill-conceived as it is wrong.” 

For the Spiel, we could block out the sun with all the supposed trial balloons for autocracy floated in the past week.   

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