SCOTUS upholds Trump’s revised travel order
In the end, the vote went as so many SCOTUS decisions do, 5-4 with Kennedy being the swing vote.
I am almost certain that had Garland been confirmed at the end of Obama’s administration, instead of waiting for Trump and Gorsuch, this decision would have gone the other way.
However, it also seems completely obvious to me that the majority here was correct: the order as presently worded is completely in line with the powers granted the executive by statute and by the Constitution. That four SCOTUS justices saw it differently is a demonstration of the fact that a person—and particularly a lawyer—can find arguments that seem logical and correct to that person, in order to reach a desired endpoint. But the minority’s analogies to Korematsu (the case involving the detention of ethnic Japanese citizens during WWII), are inappropriate, because, as the majority has pointed out:
Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission…The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.
IMHO, the present case would have been decided unanimously for Trump had the law been properly applied. If presidents are not allowed to make immigration decisions like Trump’s, the power of the executive to regulate immigration becomes meaningless.
I truly believe that, years ago, even liberal justices would have acknowledged that power and would have upheld this travel order—especially, of course, if a Democratic president had issued it. But times have changed.
That change reflects a trend on the left that is easy to see, which is the attempt to blend the categories of legal and illegal immigrants, of immigrants and visitors, and of all those categories and citizens, and to equate their relative rights to enter the US no matter what the executive might say—particularly if that executive is trying to restrict immigration of any kind rather than to expand it.
That ideological blending is purposeful, and although it is partly rhetorical it is not meant to stop at rhetoric such as “undocumented” (a change in terminology that began some time ago and was meant to soften the public for later and more radical arguments). The open-borders crowd, the more extreme of who push the idea that there should be no difference in the rights afforded citizens, legal immigrants, illegal aliens, and temporary visitors, are determined to convince people of the rightness of their cause.
[ADDENDUM: Predictably, the left is unhappy with the ruling.]
Only Justice Thomas’s concurrence addresses the issue of “national injunctions,” which disappoints me. That a single District judge can bring a national policy to a complete halt everywhere and for everyone is, to me, an aspect of current “lawfare” that should be given a legal KO.
If the court ignores the letter of the order and instead says that it’s void because Trump was motivated by prejudice, which they infer from statements made in campaign rhetoric, then Trump would never be able to address the immigration issue in any way without it being ruled void because of his mental state.
Why he did something is only important if the letter of the order is unclear. If the order is clear and legal on its face then there’s no need to look at his state of mind when he did it. A legal order does not become illegal just because you are convinced he had base reasons for issuing it.
In the military we looked at the order to determine its legality, not the person issuing it or his motives. That is as it should be.
ColoComment:
I agree that is a huge issue that needs addressing.
Trump will use this decision to stop the chaos at the southern border.
Ideological tribalism, particularly on the left, knows almost no bounds.
On the other hand, kudos to US Senator from NY (Democrat) Chuck Schumer (a person that I dislike) for responding to Maxine Waters’ call to action:
Me stating the obvious: We need more Republicans in Congress, particularly in the Senate, so that President Trump can appoint more SCOTUS justices to replace the seemingly inevitable retiring justices. Unfortunately, Chief Justice Roberts has already demonstrated that he cannot be counted on to read laws as they are written.
CNN is still using the anti-Muslim BS in it’s reporting on this. Yet if you look at the map of the Muslim-majority countries affected, none except Iran have a functioning government, and Iran wants to kill us. I’m beginning to think CNN administers an IQ test for it’s employees: anyone who is over about 40 doesn’t get a job.
Most of us know that Trump doesn’t weigh his words before speaking, but even his early statement about keeping out Muslims was followed up by “until we can find out what’s going on.” Everyone knew that ISIS was shipping people to the west and that they had acquired blank ID forms.
I just read the Legal Insurrection post. It’s interesting that the Muslim activist groups were praising the contributions Muslims have made to our country. I’d like to be snarky and ask if they are referring to the formation of the Marines. I guess the Tripoli pirates did make a contribution.
The ruling was a symbolic smack on the knuckes of the lower courts, are you listening Hawaiian judges? The minority 4 should be ashamed of referring to Korematsu, of course they will not because they are champions of the ‘New World Order’.
I agree that had not McConnell and Grassley stymied the attempt to seat Garland the verdict would have been reversed. If djt and the senate are able to get 2 more truly Constitutional judges on SCOTUS it might be possible to avoid CW2 for a generation. I will be making humble donations to gop candidates opposing vulnerable dem senators in the states that were won by djt.
expat,
You made me smile. I will suggest that the IQ required to work at CNN is perhaps more likely to be the average temperature in January in Siberia. And the poke in the eye of muslim pirates made me laugh. Thanks.
The relevant law is clear and unambiguous. “That four SCOTUS justices saw it differently is a demonstration” of their unfitness for the office they hold.
They’re not there to make law, they’re not there to interpret the law according to their sense of rightness. They’re solely there to rule on the Constitutionality of the law and, when in dispute, on the Constitutionality of US citizens’ actions. That standard applies whether someone is simply a citizen or a government official of any capacity.
You made me laugh expat! Nice.
Regarding Justice Thomas’s concurrence: Clarence Thomas is a national treasure and should be protected as such. Especially after Justice Scalia was smothe—I mean, after Justice Scalia “passed away”.
“which is the attempt to blend the categories of legal and illegal immigrants”
Immigrants are by definition here legally, illegal immigrant is an oxymoron, like jumbo shrimp. The democrats no longer call people illegal aliens, or even undocumented immigrants. Now they are all immigrants even if they are here illegally.
Regarding the left’s support of open borders, if they thought the illegals entering were potential Republican voters, they would be all in for mining the border.
If, in quieter times, you had presented this case to a first-year constitutional law class, there would have been no hesitation in predicting this outcome:
1. The plaintiffs had no standing. Hawaii might want more visitors from the proscribed countries? Seriously?
2. The factual predicate was entirely false: The order did not ban anyone (only suspended admission to the US), not even a substantial percentage of the world’s Muslims were “banned,” nor were non-Muslims from the “banned” countries allowed in.
3. The EO was entirely within the President’s power to exclude a class of aliens on national security grounds: All the “banned” persons were from failed or actively hostile states — exactly what the statute gave the President the authority to do.
4. It was not a case or controversy, it was a political question, a dispute over policy. Not only was that obvious on its face, but the argument was solely based on campaign rhetoric. (Could you sue Herbert Hoover if you didn’t have two chickens in your pot? Could you sue Woodrow Wilson if he didn’t keep you out of war?)
The case was utterly without merit and should have been dismissed by every judge whom it came before, with sanctions, under FRCP Rule 11.
Hopefully Trump has learned not to shoot his mouth offl
I think we can all declame Truimp can’tt think.
Immigration should not exceed the rate of assimilation and integration before Planned Parenthood.
That said, emigration reform to remember children separated from parents by social justice adventures on a trail of tears (UN’s “refugee crises”), and to help the children and parents left behind in second and third-world “shitshows”.
I think we can all declame Truimp can’tt think.” Steve57
You presume much while ignoring a mountain of contrary evidence. Animosity disrupts objectivity.
And politically, Trump shooting “his mouth off” got him elected President. Not because he isn’t full of bombast and crudity but because he’s right about most of the issues and actually wants to follow through and do something about them. Proven by his actions since elected.
An unwillingness to consider contrary evidence reveals a closed mind. Many here were not for Trump during the primaries and feared the worst during the campaign. Many of us only voted for him because the alternative was unthinkable.
Since he was sworn in as President, many here have come to a reluctant but honest reappraisal of Trump. Recognizing that for all his faults, “this man fights”.
Only Justice Thomas’s concurrence addresses the issue of “national injunctions”
He’s right. Democracy dies with judicial legislation aided and abetted by journolistic bullhorns.
Parker
The thing is that very few cases reach SCOTUS so the liberal lower courts will continue to misbehave when they can. Resist!
No I didn’t mean that.
Yes Cornhead, the lower courts will continue to abuse their mandates. But if 6-4 or (wishful?) 7-2 Constitutional majority is reached, it will act as a temporary barrier to lawfare aimed at erasing all vestiges of a Republic.
parker Says:
June 26th, 2018 at 11:41 pm
Yes Cornhead, the lower courts will continue to abuse their mandates. But if 6-4 or (wishful?) 7-2 Constitutional majority is reached, it will act as a temporary barrier to lawfare aimed at erasing all vestiges of a Republic.
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What depresses me is that all of the elections that are going one-way on policy & practice — for literally hundreds of candidates country-wide, not just President and Congress – can be overturned by one man in a black robe.
However, for the moment, that also works for policies I don’t like.
In the long run, this is not a healthy way to run a republic.
ColoComment Says:
June 26th, 2018 at 3:09 pm
Only Justice Thomas’s concurrence addresses the issue of “national injunctions,” which disappoints me. That a single District judge can bring a national policy to a complete halt everywhere and for everyone is, to me, an aspect of current “lawfare” that should be given a legal KO.
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This.
President pen+phone is a threat to humanity. Oh, wait. That was the last one.