Some have pointed to legal precedent the President has to control immigration and make policy based on national security issues.

I take that as the intent behind Steven Miller's comment there.

I think the emphatic talk of voter fraud from him is more of the "wow" for me. I heard him live on the Stephanopoulos show. At some point you have to make the case, you can't just keep throwing it out there and never saying "here look, this is what happened".

That and Spicer is not always 100% correct. But Sean Mellisa Mccarthy Spicer is 100% funny.

Sadly, I think this @sshole may have a point. The US have been in a "state of emergency" since 9/11 which was not only renewed every year by W but by Obama as well. Add to that the NDAA Act of 2011 which has defined the entire US as a "battlefield" with the legal equivalent of being invaded by an occupying force and you have a legal argument that we are at war. Considering all of the authoritarian laws that Bush and Obama have passed and a chicken-sh*t roll-over congress and I think most would be very surprised at how much Miller isn't simply pulling this sh*t out of thin air. This has been a bipartisan effort for 15+ years now and the sooner people stop fighting with each other over some stupid left/right BS like building a border wall or who is allowed to use which bathroom and start looking at what is and has been going on since 9/11 the better. This has been a slow motion transformation from democracy to authoritarian plutocracy and Steve Miller is actually just bringing that fact out in to the open.

you have a valid point axeman and sound like you don't like it as much as the rest of us, at least on some level.

you have a valid point axeman and sound like you don't like it as much as the rest of us, at least on some level.

I think its a f&(*ng disaster. The whole idea of our constitution is to create a checks and balances so as to prevent a tyrannical concentration of power. Saying the president is above the law and judicial review because of a, you know, ongoing national security emergence against, um "associated forces" that DOES have a limited time line but er, we just don't know when the end is aaaand it probably will not be in our lifetimes is Total Bull$hit and any rational objective sane person knows this.

The whole legal argument for executive war time powers comes from the idea that a) we are at war for a b) finite duration i.e. the powers are temporary. We have not formally declared war and no one can or wants to say when this will end. Or who we are even at war with for that matter. Ask 20 people who we are at war with and I guarantee you you will get several different answers including some who would question (rightfully) question why we are fighting Al Queda in Iraq but arming them in Syria. Are we at war with them or not? It's also fair to question whether we are even AT war right now. Even Justice Scalia recognized the fact that executive war powers are supposed to be temporary and expressed concern that the War on Terror TM had no definite time table. Even Scalia couldn't bring himself to fully endorse all this bullsh*t.

The president is not above the law. Miller, sadly, actually has some ammunition to make the case that the president has extraordinary power at the moment thanks to W and Obama. It is incomprehensible to me having grown up in the 80s to now see our executive branch openly claiming dictatorial powers and people actually Supporting this sh*t. What a nightmare.

[Edited on 2/13/2017 by axeman]

Steven Miller " … our opponents, the media and the whole world will soon see as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned."

Some of the precedent and court rulings that I think would leave a person like Miller to say that the President's authority is substantial and should not be questioned on this issue:

http://www.latimes.com/politics/la-na-pol-travel-ban-legal-analysis-20170206-story.html

Fortunately for Trump, the law on immigration and related matters favors the president. Legal precedents have traditionally accorded the chief executive complete and nearly unchecked power to deny foreigners permission to enter the United States.

“The exclusion of aliens is a fundamental act of sovereignty … inherent in the executive power,” the Supreme Court said in 1950. And lest there be doubt, Congress adopted a provision in 1952 saying the president “may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants” whenever he thinks it “would be detrimental to the interests of the United States.”

Typically, legal experts say, the president would almost certainly win a legal fight involving national security and foreign citizens entering the country.

But the rollout of this executive order has been far from the norm. Trump’s campaign promise to impose a Muslim ban, his recent tweets attacking the GOP-appointed judge who ruled against him and the White House’s clumsy handling of the order’s implementation may change the calculation.

The contention of the LA Times piece is the circumstances surrounding the lead up and the implementation of the order plus attacks on the judicial make it more legally questionable than it might otherwise would've been.

Although Eric Posner is not a Trump supporter (was on record hoping for his defeat last November), here are two blogs from his legal perspective on a Muslim ban from 2015. It doesn't address the specific EO in question, but does have an interesting legal angle with some relevant legal and constitutional information.

CONSTITUTIONAL LAW
Is an immigration ban on Muslims unconstitutional?
December 8, 2015 Eric Posner

Probably not. The Supreme Court has held consistently, for more than a century, that constitutional protections that normally benefit Americans and people on American territory do not apply when Congress decides who to admit and who to exclude as immigrants or other entrants. This is called the plenary power doctrine. The Court has repeatedly turned away challenges to immigration statutes and executive actions on grounds that they discriminate on the basis of race, national origin, and political belief, and that they deprive foreign nationals of due process protections. While the Court has not ruled on religious discrimination, it has also never given the slightest indication that religion would be exempt from the general rule.

There is even precedent for Trump’s plan. In 1891, Congress passed a statute that made inadmissable people who practice polygamy (directed, at the time, at Mormons), and in 1907 extended this ban to people who “who admit their belief in the practice of polygamy.” While Congress later repealed the latter provision (the former seems to be still on the books), no court–as far I know–ruled it unconstitutional.

The plenary power doctrine is universally loathed by scholars and some have argued that it is effectively a dead letter. But any honest answer to a journalist’s question about whether Trump’s plan to ban Muslim immigration is unconstitutional should start with the plenary powers doctrine, and observe that it would be an uphill battle to persuade the Supreme Court to abandon a century of precedent. Unfortunately, that is not what scholars–who certainly know better–are telling journalists. They are likely being abetted by journalists and headline writers who don’t like the idea that Trump’s ban would be lawful. Not everything that is stupid or offensive is unconstitutional.

(N.B.: blocking American Muslims overseas from entering the country would certainly be unconstitutional, and blocking immigration by Muslims would raise complicated international-law questions.)

http://ericposner.com/is-an-immigration-ban-on-muslims-unconstitutional/

And

CONSTITUTIONAL LAW
But President Trump couldn’t exclude Muslims by himself, could he?
December 8, 2015 Eric Posner

Wouldn’t he need to ask Congress to pass a new statute that authorized him to block Muslims? Nope.

Immigration law gives the president more than enough authority to deny entry to classes of people who would otherwise be allowed into the country. From 8 U.S.C. 1182, the following aliens are inadmissable:

“An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.”
“Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.”
“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.”

The provisions leave it to the president and his subordinates to determine who is a threat and who isn’t. But doesn’t the Constitution limit the president’s power to use these sections? The relevant case is Kleindienst v. Mandel from 1972, in which the Supreme Court ruled that the Attorney General acted lawfully by denying entry to a Marxist journalist because of his political beliefs. The Court said:

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under s 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively 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 First Amendment interests of those who seek personal communication with the applicant. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address or decide in this case.

Courts and commentators have disagreed about the precise meaning of this language. And under some interpretations, Trump would lose. But his argument is not a bad one. President Trump could certainly argue that the “Muslims-are-a-threat” reason is “facially legitimate and bona fide.” Indeed, the post-9/11 sweeps of Muslim as well as Arab men relied on just such an assumption. That Trump singles out a religion rather than a set of political expressions could conceivably be a distinguishing factor, but just how much of a threat is a Marxist intellectual, after all?

The bottom line: if you (like me) don’t want Trump to block Muslims from entering the United States, then stop him from getting elected president. Don’t depend on the Constitution, Congress, or the courts.
http://ericposner.com/but-president-trump-couldnt-exclude-muslims-by-himself-could-he/

Here is a very thorough piece with comparisons of the 1952 vs 1965 laws:

Trump’s Exclusion of Aliens from Specific Countries Is Legal by Andrew C. McCarthy January 28, 2017 5:30 PM

Arguments to the contrary ignore the Constitution and misstate federal law. On Friday, President Donald Trump issued an executive order calling for heightened vetting of certain foreign nationals seeking entry into the United States.

The order temporarily suspends entry by the nationals of seven Muslim-majority countries: Syria, Iraq, Iran, Sudan, Libya, Somalia, and Yemen. It is to last for 90 days, while heightened vetting procedures are developed. The order has predictably prompted intense protest from critics of immigration restrictions (most of whom are also critics of Trump). At the New York Times, the Cato Institute’s David J. Bier claims the temporary suspension is illegal because, in his view, it flouts the Immigration and Nationality Act of 1965. This contention is meritless, both constitutionally and as a matter of statutory law.

Let’s start with the Constitution, which vests all executive power in the president. Under the Constitution, as Thomas Jefferson wrote shortly after its adoption, “the transaction of business with foreign nations is Executive altogether. It belongs then to the head of that department, except as to such portions of it as are specifically submitted to the Senate. Exceptions are to be construed strictly.”

The rare exceptions Jefferson had in mind, obviously, were such matters as the approval of treaties, which Article II expressly vests in the Senate. There are also other textual bases for a congressional role in foreign affairs, such as Congress’s power over international commerce, to declare war, and to establish the qualifications for the naturalization of citizens. That said, when Congress legislates in this realm, it must do so mindful of what the Supreme Court, in United States v. Curtiss-Wright (1936), famously described as “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress.”

In the international arena, then, if there is arguable conflict between a presidential policy and a congressional statute, the president’s policy will take precedence in the absence of some clear constitutional commitment of the subject matter to legislative resolution. And quite apart from the president’s presumptive supremacy in foreign affairs, we must also adhere to a settled doctrine of constitutional law: Where it is possible, congressional statutes should be construed in a manner that avoids constitutional conflicts.

With that as background, let’s consider the claimed conflict between the president’s executive order and Congress’s statute. Mr. Bier asserts that Trump may not suspend the issuance of visas to nationals of specific countries because the 1965 immigration act “banned all discrimination against immigrants on the basis of national origin.” And, indeed, a section of that act, now codified in Section 1152(a) of Title 8, U.S. Code, states that (with exceptions not here relevant) “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” (emphasis added).

Even on its face, this provision is not as clearly in conflict with Trump’s executive order as Bier suggests. As he correctly points out, the purpose of the anti-discrimination provision (signed by President Lyndon Johnson in 1965) was to end the racially and ethnically discriminatory “national origins” immigration practice that was skewed in favor of Western Europe. Trump’s executive order, to the contrary, is in no way an effort to affect the racial or ethnic composition of the nation or its incoming immigrants. The directive is an effort to protect national security from a terrorist threat, which, as we shall see, Congress itself has found to have roots in specified Muslim-majority countries.

Because of the national-security distinction between Trump’s 2017 order and Congress’s 1965 objective, it is not necessary to construe them as contradictory, and principles of constitutional interpretation counsel against doing so.

Nevertheless, let’s concede for argument’s sake that there is conflict. At issue is a matter related to the conduct of foreign affairs – a matter of the highest order of importance since it involves foreign threats to national security. If there were a conflict here, the president’s clear constitutional authority to protect the United States would take precedence over Congress’s dubious authority to limit the president’s denial of entry to foreign nationals.

But there is no conflict.

Federal immigration law also includes Section 1182(f), which states: “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” (emphasis added).

Section 1182(f) plainly and sweepingly authorizes the president to issue temporary bans on the entry of classes of aliens for national-security purposes. This is precisely what President Trump has done. In fact, in doing so, he expressly cites Section 1182(f), and his executive order tracks the language of the statute (finding the entry of aliens from these countries at this time “would be detrimental to the interests of the United States”).

While Bier ignores the president’s constitutional foreign-affairs authority (although Trump expressly relies on it in the first line of his executive order), he concedes that Trump is relying on a statute. He theorizes, nevertheless, that because Section 1182(f) was enacted in 1952, whereas the non-discrimination provision (Section 1152(a)) was enacted years afterward, the latter must be deemed to have amended the former – thus removing the president’s authority to impose class restrictions based on the aliens’ country of origin.

Nice try.

Put aside that Trump is principally relying on his inherent constitutional authority, and that the class restriction he has directed is based on national-security, not racial or ethnic considerations. Trump’s executive order also expressly relies on an Obama-era provision of the immigration law, Section 1187(a)(12), which governs the Visa Waiver Program. This statute empowers the executive branch to waive the documentation requirements for certain aliens. In it, Congress itself expressly discriminates based on country of origin.

Under this provision, Congress provides that an alien is eligible for the waiver only if he or she has not been present (a) in Iraq or Syria any time after March 1, 2011; (b) in any country whose government is designated by the State Department as “repeatedly provid[ing] support for acts of international terrorism”; or (c) in any country that has been designated by the Department of Homeland Security as a country “of concern.” Trump is principally relying on his inherent constitutional authority.

So, not only has Congress never repealed the president’s sweeping statutory power to exclude classes of aliens from entry on national-security grounds; decades after the 1965 anti-discrimination provision touted by Bier, Congress expressly authorized discrimination on the basis of national origin when concerns over international terrorism are involved. Consequently, by Bier’s own logic, the 1965 statute must be deemed amended by the much more recent statute.

Bier concedes that, despite the 1965 anti-discrimination statute, President Jimmy Carter barred entry by Iranian nationals in 1980, after the Khomeini revolution led to the U.S.-hostage crisis. But he treats Carter’s restriction based on national origin as an aberration. Instead, he insists, we should place more stock in the federal courts’ affirmation of the 1965 anti-discrimination provision during the 1990s — specifically, in a litigation involving an alien from Vietnam who had fled to Hong Kong and objected to being required to return to Vietnam to apply for a visa when applicants from other countries faced no such requirement.

But there is no inconsistency here. Bier perceives one only by overlooking the salient national-security distinction. The discriminatory treatment of Iranians was rationally rooted in anti-terrorism concerns, and was clearly proper. The discriminatory treatment of the Vietnamese alien was unrelated to national security or terrorism, and thus problematic. Trump, like Carter, is quite properly acting on national-security concerns.

One can debate the policy wisdom of the executive order, which is plainly a temporary measure while a more comprehensive and thoughtfully tailored policy is developed. The seven countries the president has singled out are surely hotbeds of radical Islam; but he has omitted other countries – e.g., Saudi Arabia, home to 15 of the 19 suicide-hijackers who attacked our country on 9/11 – that are also cauldrons of jihadism.

Furthermore, as I have argued, the real threat to be targeted is sharia-supremacist ideology, which is inherently hostile to the Constitution. Were we to focus our vetting, unapologetically, on that ideology (also known as “radical” or “political” Islam), it would be unnecessary to implement a categorical ban on Muslims or immigrants from majority-Muslim countries. That is critical because non-Islamist Muslims who can demonstrate loyalty to our constitutional principles should not be barred from admission; while Islamists, on the other hand, are not found only in Muslim-majority countries – other things being equal, a sharia supremacist from the banlieues of Paris poses as much of a threat as a sharia supremacist from Raqqa.

Yet, all that can be debated as we go forward. For now, there is no doubt that the executive order temporarily banning entry from specified Muslim-majority countries is both well within President Trump’s constitutional authority and consistent with statutory law.

Read more at: http://www.nationalreview.com/article/444371/donald-trump-executive-order-ban-entry-seven-muslim-majority-countries-legal

I suspect the ultimate ruling on if the 1965 amendment voids the section of the 1952 law would have t come from the supreme court.

Really, the illegality and unconstitutional nature of the exiting EO is very much in question and ultimately will have to be ruled upon at the highest court as interpretations of past court cases, laws and prior Presidential actions bring alot to the table to evaluate.

[Edited on 2/14/2017 by nebish]