Travel Ban

Appeals Court Rules Against Trump's Travel Ban 3.0

The court concluded that the travel ban exceeds the scope of presidential authority and violates immigration laws enacted by Congress.

|The Volokh Conspiracy |

Seal of the US Court of Appeals for the Ninth Circuit, which just issued a ruling against the travel ban.

Last night, the US Court of Appeals for the Ninth Circuit issued a ruling against the third version of President Trump's travel ban, which permanently bars entry into the United States by nearly all citizens of six Muslim-majority nations. The court's opinion is available here. Famed legal journalist Lyle Denniston has a helpful summary of the ruling:

The unanimous opinion of the three judges was filled, end to end, with strongly worded critiques of the executive order the President signed on September 24. It ruled that the challengers of that version were likely to be able to prove, at a full-scale trial, that this version contradicted immigration laws passed by Congress in four different ways.

But, this time, the Ninth Circuit Court added a stern constitutional lecture to its finding of flaws: when the President uses his power as the nation's Chief Executive in the face of contrary laws passed by Congress, that power "is at its lowest ebb," the panel said, quoting from a 1952 opinion by a Supreme Court Justice when the highest court nullified President Harry Truman's seizure of the nation's steel mills during the Korean war, to keep them operating despite a labor union strike….

Congress, the panel wrote, is given the primary authority to control U.S. immigration policy and, while it has given presidents wide discretion to curb entry by foreign panels, but that power is not unlimited and President Trump appears to have far exceeded those limits.

The panel appeared to be deeply disturbed by the claims that the President's lawyers had made in defending the latest order – that is, that "the President, at any time and under any circumstances, could bar entry of all aliens from any country" and that "no federal court – not a federal district court, nor our court of appeals, nor even the Supreme Court itself – would have Article III jurisdiction" based on the breadth of the claim to White House power.

Since Congress has never voted to strip the courts of their authority to review presidential orders banning foreign entrants, the opinion commented, "we doubt whether the government's position could be adopted without running roughshod over the principles of separation of powers enshrined in our Constitution…"

In concluding that the President had probably failed to obey immigration laws passed by Congress, the Ninth Circuit Court concluded that Trump appeared to have (1) exceeded powers given by Congress to bar entry into the U.S. of foreign nationals, (2) failed to make the specific finding imposed by Congress that the foreign nationals being kept out would harm United States interests, (3) violated a congressionally-imposed bar [on discrimination] based on the nationality of those excluded, and (4) lacked the authority under his own Executive powers to impose the curbs without explicit power given by Congress.

"The Executive," the panel remarked, "cannot without assent of Congress supplant its statutory scheme [for immigration] with one stroke of a presidential pen."

The decision closely follows a recent trial court ruling against the travel ban which the Trump administration was appealing, and also its own earlier decision against the previous version of the travel ban. The Ninth Circuit decision is based purely on statutory issues, and on separation of powers principles, which limit executive authority relative to that of Congress. It does not address claims that the travel ban is unconstitutional because it was adopted for the purpose of discriminating against Muslims. Thus, Trump's various statements promising to target Muslims and institute a "Muslim ban" are not relevant to the issues addressed by the Ninth Circuit.

As Denniston notes, the Ninth Circuit opinion is noteworthy for its strong rejection of Trump's claim to virtually unlimited and unreviewable presidential power to exclude aliens, regardless of any limitations imposed by Congress. Letting the president claim such boundless authority would be a dangerous breach of separation of powers whose implications go far beyond the travel ban.

In October, a federal trial court decision in Maryland ruled that Travel Ban 3.0, like its predecessors, violates the First Amendment's ban on religious discrimination. That ruling is now on appeal to the US Court of Appeals for the Fourth Circuit, which previously struck down Travel Ban 2.0 on the same basis. A violation of the First Amendment would, of course, be unconstitutional even if Congress had authorized it.

In my view, Travel Ban 3.0 is both unconstitutional and a violation of statutory law, for reasons I outlined here. In that post, I also explained why the inclusion of North Korea and some Venezuelan government officials does not obviate the anti-Muslim purpose of the ban. I have previously discussed why Trump's various travel bans qualify as unconstitutional discrimination despite the fact that they do not exclude all the Muslims in the world. With respect to the statutory issues, Travel Ban 3.0 is actually more blatantly illegal than its predecessor, as explained by immigration law scholar Peter Margulies (who thought the previous version was within the president's power, in part because of its temporary nature).

Technically, the Ninth Circuit ruling is not a final decision, but merely upholds much of the preliminary injunction issued by the trial court. However, the court's opinion makes it very clear that they would almost certainly rule against the administration in any final decision on the merits.

The injunction will not go into effect until the Supreme Court either rules on the case or declines to review the Ninth Circuit's decision, because the Supreme Court, on December 4, issued a ruling staying preliminary injunctions against Travel Ban 3.0 until such time as one of those events occurs. Some commentators have argued that this ruling indicates that the justices are likely to uphold the travel ban when and if the case gets to them. They could be right. But there are a number of other possible interpretations of the Supreme Court's actions.

In any event, we may well soon see what the justices really think. Both the Ninth Circuit ruling and the expected Fourth Circuit decision on the religious discrimination question are likely to be appealed to the the Supreme Court. The legal battle over Trump's travel ban is likely to return to the Supreme Court soon—an outcome I thought likely ever since the Court dismissed as moot the cases involving Travel Ban 2.0, after that order expired.

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  1. This is why the Supreme court should not have mooted the earlier case. It was transparently obvious that it would come back to them with basically identical reasoning. All they did was waste the nation’s time.

    1. Whaddya mean “All they did was waste the nation’s time” ?

      What about wasting money ?

      1. “Money”? Pish-tush, all they have to do is print more.

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    2. Kind of like Kennedy’s ridiculous ruling in Windsor and then having the nation waste two years of litigation and mental energy on the issue before using the identical “reasoning” in Obergefell. Complete waste of time.

      1. If there is one thing the Conspiracy’s intolerant right-wing fans can’t abide, it is Prof. Somin’s libertarianism.

        Carry on, clingers. (And Merry Christmas!)

        1. If by “libertarianism” you mean a tendency to see legalisms as Holy and judges as priest-kings, then yes. And a Merry Christmas to you too.

        2. Jeez, he’s followed VC to Reason?? All ALK ever does is insult and display poor reasoning. He’s not even good enough to be a troll:(

          1. He just points out your hypocrisy. Rather evident by your posts here. And he is usually right.

    3. Seems to me, the waste of time and money, is the lower court ruling against the travel ban, after the SCOTUS has already overruled what appears to be a similar ruling.

      This is just a delaying tactic of the left. What it does do, is educate conservatives in how to resist future liberal presidents and their use of executive orders. Just get one court to rule against an EO, and when overturned by the SCOTUS, get another court to do the same on slightly different reasoning. Again and again. Frankly, it’s a good way to muck up the government, but someone has to fund it.

      1. Unfortunately, most right-leaning courts are not activists courts and actually try to rule fairly on cases, regardless of their own personal opinions. Left-leaning activist judges generally have no similar integrity – they would fit in nicely with Maduro’s Venezuelaen kangaroo courts.

        1. I think it’s a little more complicated than that: The left wing judges view their role differently, they actually regard their activism as an expression of integrity. This actually makes them more dangerous, because their consciences, instead of restraining them, egg them on.

    4. It didn’t come back on anywhere near identical reasoning.

      The 9ths decision has very little to do with discrimination or animus.

    5. No, it now comes back with more panel opinions from which they can glean insight.

      While we might imagine 9 intrepid (or corrupt, if you are, ahem, certain commenters on the blog) justices, they do in fact read and consider all the opinions of the other courts.

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  2. The same appeals court that lost the full injunction twice at the USSC? Yeah, don’t care.

    1. You should care. Given the 9th’s record for reversal, if Trump had won here, he’d be in a lot of trouble at SCOTUS.

      (Actually he is in a lot of trouble anyway. Kennedy is odds on to go with the libs.)

      1. Too many rogue lefty judges that wipe their ass with the constitution.

      2. “Given the 9th’s record for reversal”

        Depends on how you look at it.

        Sure the 9th comes off the worst if you simply look at the raw number of Supreme court reversals / year.

        However, if you look at it from # of cases reversed by the Supreme Court / # of cases reviewed by the Supreme Court then the 9th only comes out in 3rd place, behind both the 11th circuit and the 6th circuit.

        But even that is distorted by the fact that the 9th circuit has the highest case load of all the appellate circuits and the Supreme court only reviews a tiny fraction of cases.. If you go to # of cases decided by the 9th circuit / # of cases reversed by the Supreme Court, the 9th’s reversal rate drops under 1%.

        1. ” If you go to # of cases decided by the 9th circuit / # of cases reversed by the Supreme Court, the 9th’s reversal rate drops under 1%.”

          Reinhardt’s infamous, “They can’t catch ’em all.”; The 9th is consciously spamming the Supreme court, with the idea that the Supreme court hasn’t got time to reverse everything they do, even if so inclined.

          1. Brett,

            That ignores the fact that only considering the cases reviewed by SCOTUS, the 9th is not the worst circuit on percentage of reversals. The 9th circuit comes in third place on that, with a reversal rate of 79%, behind the 11th, (85%) and the sixth (87%) and just barely ahead of the 3rd (78%).

            Keep in mind that:

            1.) The Supreme Court’s over-all reversal rate is 70% on all the cases they review.

            2.) The 9th Circuit the largest not just in terms of case load. Their case load is largest, because their jurisdiction has the highest population, not quite 20% of the total US population and almost twice the population of the next largest circuit (11th) and more then 3 times the population of the smallest of the regular (excludes the Federal circuit and the DC circuit) circuits (The 1st).

            Regardless of what you think of the 9th Circuits jurisprudence, the data doesn’t support your claims about what SCOTUS thinks of them.

    2. Which is why, I suspect, the judges on the Ninth Circuit, were intent on giving a “stern constitutional lecture” that (barely) disguised their political predilections: when you know you are going to be overturned, you can afford to be self righteous. I don’t expect Breyer or Kagan to do the right thing on the merits of this case, but I do expect the Supreme Court as a whole, to. In the meantime, everything the lower courts say about this from here on is dictum and should be treated as such.

      1. You figure it will be Self-Righteousness 2, Bigotry and Backwardness 7 at the Supreme Court?

        I sense you ascribe too much prospect to ignorance and intolerance, but you have a Republican majority to push your way.

        Carry on, clingers.

        1. Wow, that brings me way back.

          Specifically, back before the old VC had the ‘Ignore Commenter’ button . . .

  3. ” I also explained why the inclusion of North Korea and some Venezuelan government officials does not obviate the anti-Muslim purpose of the ban.”

    Ilya, you’ve never answered this question… How is 15% of Muslim countries anti-Muslim. What makes these countries different than the others? (Hint, it is explained in the order from the DoJ in regards to the ban). If the sole purpose of the ban was to be anti-muslim, why have 2 countries gone off the list after agreeing to US demands to increase vetting processes and share intel data?

    If you want to keep your arguments to facial analysis based on bald assertions, fine. But the fact that you can’t answer basic rebuttals proves the weakness of your argument.

    1. Jesse,
      If there was a law that said, “Blacks in Alaska cannot [x], while whites in Alaska can [x].”, you would agree that it is, on its face, unlawful discrimination, yes? A court would not be persuaded by a counter-argument that, “Hey, blacks in Alaska make up only 1% of all African Americans.” If I am understanding your first questions correctly, the percentage of affected people (as compared to some larger population) seems quite irrelevant to me, in terms of how a court should look at the proposed legislation.

      1. A weak analogy as it implies different treatment for different Alaskans. A better one might be a law that said residents of Washington DC, Detroit, Philadelphia, Los Angeles, and Baltimore cannot [x] but everybody else can. It would hit some white Americans and it would miss lots of black Americans. But overall it would disproportionately hit black Americans. Would it be anti-black discrimination ? If you’re one of those who think that anything that disproportionately affects one race is unlawful discrimination, whatever the motivation for it, then yes it would be. If you prefer the view that the motivation is decisive, then you need to delve into the motivation. If you think that what matters is the actual ground of discrimination, then you’d need to analyse that.

        1. You’re analogy fails also. It would be acceptable if the ban on the cities you mentioned was immediately & repeatedly preceded by public statements along the lines of “we plan to do X to black Americans” (see this:https://www.youtube.com/watch?v=viDffWUjcBA or just about anything that came out of Trump’s bizarrely shaped mouth during the entire presidential campaign). Your use of the phrase “whatever the motivation might be” given the blatant nature of the justification for the ban is mendacious in the extreme or to be unfairly charitable willfully ignorant.

          1. No, my analogy works fine, and you’re missing the point. Since we’re doing charity, I’ll put it down to overexcitement.

            I’m describing three different criteria on which you could decide that something is unlawful discrimination.

            1. disproportionate effect
            2. motivation
            3. the ground of discrimination (ie the factor that is used formally to sort the wheat from the chaff)

            You obviously think 2 is what matters, and that the facts in Trump’s case support a decision against Trump on criterion 2.

            But you’re whining about my description of 1 – “anything that disproportionately affects one race is unlawful discrimination, whatever the motivation for it”

            motivation plays no part in 1, which is why I went out of my way to say so.

            So simmer down, try to think logically and before you put pen to paper, read the question.

            1. That is as articulate an argument for bigotry as one encounters.

        2. Even better, you could cite any of a number of real-life voter-suppression efforts pursued by Republican officials across the country, each perfectly demonstrating the point that you can intentionally discriminate against a group of people without effectively discriminating against all of them.

          1. Where “vote suppression” is typically (Though not always!) defined as, “Not making voting quite as convenient as Democrats would prefer.”

            North Carolina, for example, “suppresses” votes by only having nineteen days more early voting than New York, and absentee ballots available without cause. This is considered “vote suppression” because Democrats would prefer more days of early voting.

            By any objective standard, it’s New York, not North Carolina, that’s “suppressing” votes. But since Democrats handily control New York, and almost all “voting rights” activists are Democrats, New York is incapable of “vote suppression”.

            Voting suppression can be a real thing, of course, but discussions of it are almost always warped by the Democratic tendency to treat anything relating to voting that they don’t like as “suppression”.

            1. Where “vote suppression” is typically (Though not always!) defined as, “Not making voting quite as convenient as Democrats would prefer.”

              No, but I’m amused that you’ve conceded the point in two different ways here without apparently realizing it. First, because you straightforwardly admit that “voting convenience” is something that Democrats care about and Republicans do not, because of the electoral outcomes it tends to serve. One would think that both parties would have every reason to want to promote convenience in voting, as we do whenever it comes to virtually any other question of government administration. But no, you acknowledge – Republicans want to suppress Democratic votes.

              Second, because the example was adduced originally to show how a measure can be intended to discriminate against a group of people without effectively discriminating against all of them. If you acknowledge that “voter suppression” tilts the scales against Democrats, then you’re acknowledging that it does so without making it literally impossible for all Democrats to vote, or even inconvenient for all of them.

            2. North Carolina, for example, “suppresses” votes by only having nineteen days more early voting than New York…

              First, it is entirely possible that both New York and North Carolina “suppress” the vote. Just because Democrats are less focused for partisan reasons on modernizing the electoral process in New York does not mean their concerns about North Carolina are invalid. If Republicans had some genuine concern about their vote being “suppressed” in New York, they would say something about it. Are they?

              Second, it is hard to get New York legislators to do anything that does not involve spending taxpayer money in order to shovel money at public unions, well-connected industries, or into their own pockets.

              Third, the relevant consideration of “voter suppression” is to look at the intent of the measures. If New York had a relatively limited voting period precisely because that limited Republican participation, then you’d have a point in drawing a comparison to North Carolina. But that’s not what’s happening.

              By any objective standard, it’s New York, not North Carolina, that’s “suppressing” votes….

              No. An objective standard of “voter suppression,” in my view, would be: (i) a measure that makes it more difficult for a legal voter to cast their vote, (ii) without providing a demonstrable benefit whose value outweighs that increased difficulty, that (iii) effectively sways the outcome of an election.

      2. This is the worst attempt at an analogy I’ve seen in a long time. The obvious analogous situation would be “Muslims can do this and non-Muslims can do that”, but what he was talking about was specifically that the ban was not about the vast majority of Muslims.

        A situation where all of one group (all African Americans) is affected is obviously completely irrelevant

      3. Except the ban doesn’t mention race or religion. You fail at the outset. Again, what aside from being Muslim majority countries did the ones on the list have in common? What was different about other Muslim majority countries not on the ban? It isn’t difficult. Sesame Street should have taught you to spot the difference. The difference is the vetting measures of the countries on the list. Measures less onerous than those from other countries who share much more Intel data with the US.

        AGAIN, go beyond your naive facial analysis.

        1. The ban does not mention the underlying bigotry because right-wingers have reacted to societal improvement by being less forward about their bigotry.

          Educated, informed Americans are not fooled, however.

          1. You are a bloody fool, not an “educated American”, if you don’t understand why Muslim countries end up at the bottom of the list when it comes to immigration or travel restrictions.

      4. We are not at war with Christian countries, Christian countries are generally doing economically well, foreign Christians don’t target us for terrorism, and Christian countries tend to be fairly democratic. Many Christian countries have permissive visa policies for Americans.

        We are at war with Muslim countries, Muslim countries are frequently doing economically poorly, foreign Muslims target us for terrorism, and Muslim countries tend to be repressive and intolerant. Muslim countries tend to have restrictive visa policies for non-Muslims.

        And there you have a whole bunch of rational reasons why many predominantly Muslim countries are subjected to more scrutiny and restrictions than Christian countries. That is, it’s not prejudice or religious discrimination, it’s the non-religious aspects of Muslim countries that result in them being restricted.

    2. Seems to me, if a Muslim believes in Sharia law, and that Muslims should rule over everyone with non-Muslims and Muslims of other sects as 2nd or 3rd class citizens, then they shouldn’t be admitted to the US, because their beliefs are contrary to the Constitution’s freedom of religion, freedom of speech, and equality before the laws. Thus, they couldn’t truthfully swear an oath to the Constitution.

      1. What do you think about Christians who think that Christians should rule over everyone else?

        Do you think that private thoughts and beliefs, as opposed to actual behavior, is what matters?

        Suppose an American Muslim who believes as you describe works legally to amend the Constitution so it prescribes Muslim rule. How is that violating the Constitution?

        1. What do you think about Christians who think that Christians should rule over everyone else?

          Would you be so kind as to identify any significant body of Christians in the United States that self-identify as having anything close to that sort of belief?

          1. What difference does it make if there are many or few?

            1. I take that to say you can’t, and thus your whataboutery doesn’t even have the benefit of being a reasonable comparison. Thanks for playing.

          2. Can you identify a significant body of Muslims who do? If we were to address your questions with the kind of subtlety and nuance we typically afford Islam and Muslims, when ascribing motivations and beliefs, we might respond simply by pointing to “Evangelical Christians” as those who favor the permanent imposition of Christianity as the U.S.’s “state religion.” But as it should turn out, we needn’t even go that far: recent polling suggests that a majority of Republicans believe that Christianity should be established as the state religion.

            1. Can you identify a significant body of Muslims who do?

              Given how slanted the statistics are I’m going to guess you’re playing word games of some sort, but since it’s Christmas Eve I’ll give you the benefit of the doubt for one round. Click the first link in here.

              1. Given how slanted the statistics are I’m going to guess you’re playing word games of some sort, but since it’s Christmas Eve I’ll give you the benefit of the doubt for one round.

                I’m not going to follow URL-shortened links posted by pseudonymous antagonists on a libertarian website. If you have a point, make it here.

                1. The commenting system here does not have much tolerance for long strings. Your choices are get used to tiny urls and embeds or follow almost no links whatsoever.

                  Most here will tolerate your choice, but not wilfull ignorance.

                  1. Look, links are citations. They’re not arguments. If you have an argument, bring it. Don’t point me to a link and leave it to me to figure out how to rebut an argument you’ve not bothered to make.

                    1. Look, links are citations. They’re not arguments.

                      It’s not Thomas’s fault that you’re too lazy to cross-check references.

                    2. It’s not Thomas’s fault that you’re too lazy to cross-check references.

                      I think I’ve been pretty clear about why I won’t follow a suspicious-looking link posted here. It has nothing to do with laziness, and everything about not trusting you people.

                      Again, if there’s an argument to be made, there’s nothing to stop you from making it here. That’s just the way it has to work. You can’t link me to some third party and then expect me to figure out how much of that third-party source you’ve actually read, understood, and intend to present here as your “argument.”

                    3. I think I’ve been pretty clear about why I won’t follow a suspicious-looking link posted here. It has nothing to do with laziness, and everything about not trusting you people.

                      Good, we’ve established that nothing you’ve posted here has any legitimacy whatsoever.

                      “You can’t link me to some third party and then expect me to figure out how much of that third-party source you’ve actually read, understood, and intend to present here as your “argument.”

                      Arguments are typically supported by references. So far, you’ve provided jack shit. Try again.

            2. Can you identify a significant body of Muslims who do?

              Funny, turns out that’s been the goal of the Muslim Brotherhood for decades. Eugene Rogan talks about it extensively in “The Arabs: A History.”

              1. Funny, turns out that’s been the goal of the Muslim Brotherhood for decades.

                Not only is this incorrect, but the narrowness of the claim helps to demonstrate why the broader claim in contention – that there might be some justifiable basis in banning a much larger group of Muslims from ever entering the country – is itself based on a flat misconception of what Sharia is and its role in modern Islamic thought.

                The Muslim Brotherhood has been many things and has served many different roles throughout its existence and in the various political environments in which it has worked. But in most cases, their philosophy and approach have not been fundamentally at odds with American pluralism in the way that’s been supposed to be the case.

                1. Not only is this incorrect, but the narrowness of the claim helps to demonstrate why the broader claim in contention – that there might be some justifiable basis in banning a much larger group of Muslims from ever entering the country – is itself based on a flat misconception of what Sharia is and its role in modern Islamic thought.

                  Your sophistry is a pretty weak cloak for your lack of knowledge of history.

                  The Muslim Brotherhood has been many things and has served many different roles throughout its existence and in the various political environments in which it has worked.

                  “Many things”
                  “Many different roles”
                  Translation: “I don’t know shit about what I’m posting here, but maybe if I throw out these vague generalizations, people will think I know what I’m talking about.”

                  1. Were bigoted, backward, superstitious right-wingers always prevalent at Reason.com, or are these authoritarian Republican commenters recent arrivals attracted by the Volokh Conspiracy’s movement conservatism?

                    Thank you.

                    1. Well, I used to be a hip, progressive left-winger like you. But over the last decade, I have gradually turned into what you call a “bigoted, backward, superstitious right-winger” because conservatives have made better arguments than progressives and because I actually read up on the history of progressivism.

                      See, as a gay immigrant atheist myself, I have come to realize that I’m better off in a predominantly moderate protestant society than an Islamic society, or a Catholic society, or an atheist society, or a multi-religious society. Moderate protestant societies are pretty close to the libertarian ideal of small government, free markets, freedom of association, respect for property rights, and personal responsibility, and they have been a whole lot more effective in instilling those values in populations than libertarians ever have.

                    2. Alabama is, or nearly is, the closest modern America gets to a “protestant society,” consequent to the evangelical population, and conservative Alabama is a bigoted, backward economic, political, cultural, educational, and moral stain and drag on our nation.

                      Do you have any persuasive arguments for stale, right-wing thinking?

                    3. Alabama is, or nearly is, the closest modern America gets to a “protestant society,” consequent to the evangelical population, and conservative Alabama is a bigoted, backward economic, political, cultural, educational, and moral stain and drag on our nation.

                      Racist scuzzbag.

                    4. Alabama is, or nearly is, the closest modern America gets to a “protestant society,” consequent to the evangelical population,

                      Well, the “closest modern America gets to a ‘protestant society'” is obviously not good enough.

                      conservative Alabama is a bigoted, backward economic, political, cultural, educational, and moral stain and drag on our nation

                      I don’t have first hand experience with Alabama, but it is likely not as bigoted, economically backward, intolerant, and ignorant as you.

                    5. Try reading a book other than Harry Potter sometime, Arthur. You can start with the one I listed above.

            3. 99% of Afghans believe that Sharia should be the law of the land. This was done by the Pew forum polling site: http://www.pewforum.org/2013/0…..ut-sharia/

        2. What do you think about Christians who think that Christians should rule over everyone else?

          Since Christian churches are effectively dead as cultural gatekeepers in this country, your analogy is pointless.

          1. That makes no sense whatsoever.

            1. Neither did your stupid strawman.

          2. I’d say that I haven’t encountered any such Christians. Though in principle I expect there are at least a few around.

            It’s conspicuous that separation of state is baked into Christianity, (Render unto Ceasar…) but not into Islam. Due to Christianity beginning as a persecuted minority, and Islam getting its start doing the persecuting.

            This is not to say that you can’t point to historical periods and places where Christianity aspired to the status of state religion or even theocracy. The difficulty is pointing to anywhere/when Islam aspired to anything else.

            Belief systems have implications for the behavior of people who adopt them. To deny this is to not take them seriously enough. Every system has it’s perfect case to make it fail. Islam and freedom of religion may be liberal democracy’s.

            1. ‘My fairy tale can beat up your fairy tale. In fact, my fairy tale can beat up everyone else’s fairy tales.’

              Always charming, especially from ostensible adults.

              Carry on, clingers.

    3. Trump spent months demonizing Muslims and promising a Muslim-ban. That was one of the first promises he tried to deliver and one of the only ones he seems sincere about. This order is a direct descendent of that original order and has the same widely-understood motive, to be as much of a Muslim ban as he can legally make.

      The percentage of Muslim countries targeted is irrelevant, as is the inclusion of non-Muslim countries, or the legality of any particular version. The law is his best attempt to ban Muslims, it is by definition “anti-Muslim”.

      1. Muslims demonize themselves on a monthly or weekly basis.

        The question is why leftists defend the most sexist, homophobic people on the planet.

        1. It’s a religion of evil and destruction. The less muslims the better.

      2. And what countries are the terrorists coming from? (Hint: it isn’t Iceland.) The Obama administration named these countries specifically as threats…because they are.

      3. Here is a picture of a Muslim protesters. The sign says, “NO to Democracy, We just want Islam.” https://tinyurl.com/y7blnzda

        The constitution says we have to let these people in??? Someone said the Constitution is not a suicide pact.

    4. It isn’t anti Islamic, and it shouldn’t be a problem even if it is so.

  4. The parts of the opinion I looked at don’t have 100% airtight reasoning, but at least they’re focusing on the statutory questions and not on broad constitutional pronouncements (except the question-begging proposition that the President has to obey immigration statutes).

    1. Why is it question begging exactly? Congress enacts laws, the president faithfully executes those laws (except where doing so would be unconstitutional), the supreme Court strikes down laws as unconstitutional. The President does not impose laws by fiat, despite Congress’ recent history of abandoning it’s role in the separation of powers out of political expediency. I find the implication of your comment deeply disturbing – the President need not concern himself w this or that stature – particularly given the increasingly lawless nature of the Executive. it’s always been cavalier eg alien & Sedition act but post-WWI the curve toward tyranny has begun a startling rise toward infinity … In other words I’m not saying Trump is unique in his lawlessness except perhaps in its cash and carry & absolutely unprincipled tenor or it’s artlessness. But we are a nation of buffoons so it makes sense that we would have a buffoons as the figurehead of our government.

      1. OK, let me update my comment: The statutory arguments aren’t 100% persuasive for me (except the argument re immigrant visas, which national-origin discrimination is strictly limited).

        So it’s good they said Trump has to obey immigration statutes (assuming they’re constitutional), but that begs the question of whether Trump is actually disobeying those statutes (at least as regards non-immigrant visas).

        1. National origin discrimination may be strictly limited, but is “inability to vet” discrimination? This will, of course, mimic national origin discrimination, since it may be generally impossible to vet immigrants from certain specific countries.

          You can, I suppose, distinguish them by looking at people applying to immigrate from nations other than their original nation of origin.

  5. So… the Trump travel ban which uses the only definition of cousin explicated anywhere in US law violates immigration law passed by congress and exceeds the scope of presidential authority. Interesting.

    1. Your comment is absolutely baffling, both for it’s monomaniacal focus on a completely irrelevant matter & for it’s bald faced untruth. Maybe my sarcasm meter is broken, maybe there is some private joke I’m not privy to, but if not, the meaning & legal relevance of the term cousin has been explored in depth repeatedly in the US. Google, I don’t know, collateral descendancy as it relates to probate for example. Maybe you mean US as in Federal statute as opposed to state or common law? Even then I’m going to have to call bullshit in this; I don’t have a case to cite off hand but the US rules on calculating genealogy for the purpose of determining “blackness” we’re the inspiration for the Nazi Nuremberg laws. They have rules for every type of relationship there is.
      Baffling.

  6. Why, it’s almost the 9th is full of Liberal Democrats legislating from the Bench. Thank Goodness, they got rid of that trouble-maker Kosinski. Leftists gotta love them some Venezuela, amirite?

    1. Kosinski quit. He got rid of himself, in more ways than one. His departure was as overdue as his elevation to the bench was premature.

      1. dead thread-fucking is weak, artie poo.

        1. I am disinclined to take pointers from authoritarian right-wing bigots.

          Do you have a persuasive argument to the contrary?

          Carry on, clingers. So far as your lousy educations, intolerant souls, superstition-laced gullibility, and shambling backwater communities can carry someone, anyway.

          1. So far as your lousy educations, intolerant souls, superstition-laced gullibility, and shambling backwater communities can carry someone, anyway.

            I’ll remember to laugh at this as I post from my highly educated, high-trust middle-class suburb.

  7. #TheResistance is alive and well in the Ninth Circuit, even if they have to manufacture entirely new theories to push their aims. (Yes, their new theories may have something to it, but you’d think they would have already given them a try out when their case would have been stronger with the earlier, less nuanced versions of the bans, when their argument just boiled down to, “if Trump does it, it’s means it’s illegal”. Kinda a contrary take on Nixon’s opinion on the matter.)

    Someday, “judges” will understand that they should be a little more circumspect, and a little less bald-faced, playing politician.

    1. They have to be obvious, the Libs won’t get it otherwise.

      1. Were intolerance, backwardness, and a preference for superstition over reason common at Reason.com before the Volokh Conspiracy brought its movement conservatism to this site, or are the bigotry, belligerent ignorance, and appetite for childish dogma recent arrivals?

        Thank you.

        1. Arthur, stop punishing the rest of society for your daddy issues.

          1. I do not consider right-wing goobers “the rest of society.?”

            1. Are you an anti religion bigot like that Hank Phillips guy?

            2. I don’t consider left-wing dipshits to be human.

              1. Why are you wasting time on liberals, libertarians, moderates, RINOs and the like?

                Aren’t there some black voters who are not being adequately suppressed, some gays who are in danger of being treated decently, some doobies on the loose, some Muslims to be banned, a health care facility that treats women and therefore needs to be micromanaged by government, a person who frightened you and therefore should be subjected to endless detention without trial (or tortured), or some modern, accomplished, educated elitists who need to be put in their place?

                1. Why are you wasting time trying to convince us you’re intelligent?

                  1. You misunderstand my aim, which is to identify faux libertarianism and bigoted, backward right-wingers.

                    1. Look in the mirror and you will see a faux libertarian and bigoted, backward left winger.

                    2. You misunderstand my aim, which is to identify faux libertarianism and bigoted, backward right-wingers.

                      You misspelled, “confirm the stereotype of a progressive bugman.”

        2. It is my preference of reason over superstition that makes me prefer not to import superstitious people, people who hate me for my religious beliefs or my sexual orientation, or people who plunge the US further into debt and require my taxes to be raised even further. I know, that makes me a bigoted little xenophobic educated gay immigrant, but I can’t help who I am.

  8. Professor Somin: You buried the lede. As Legal Insurrection reported on December 4, the Supreme Court has stayed the Hawaii and Maryland injunctions until the Justices either refuse to hear an appeal or rule against the government on the merits. The panel itself noted, “In light of the Supreme Court’s order staying this injunction pending ‘disposition of the Government’s petition for a writ of certiorari, if such writ is sought,’ we stay our decision today pending Supreme Court review.” As such, the travel order will, for the time being, continue to be enforced with respect to all nationals of the targeted countries. The Decision is non-binding and stayed by the Panel.

  9. Pity the poor conservatives. Comstock Law and Sharia Law bigots are virtually identical in their prohibition laws–laws that point loaded guns at us unsuperstitious infidels. But with mystical bigotry fast losing numbers to reason and logic in most of America (and gunfire in Texas), the desire to import fanatical zealots is strong. Those same zealots, however, ungratefully responded to George Holy War Bush’s bombing of Ottoman soil with repeated attacks on what is now the World Trade Crater. Naturally, confusion set in. The 1873 Comstock Laws American Progressives copied from iSlam are so whittled away that even their asset-forfeiture provisions are at risk. Clearly the solution is to crush and assimilate amok berserker religions with the Supreme overwhelming finality that crushed Native American peyote ceremonies in 1929. When was the last time you saw any 9th Circuit judges sticking up for the religious freedom of a teenager caught with mescalin? Q.E.D.

  10. What’s with this crap about registering with Vibeall when I try to Log In? Whenever I click the Log In icon the Vibeall page pops up overiding the log in page.
    I fond a work around but won’t mention it or the spammer will corrupt that too.

    The 9th Circuit’s ruling is moot since SCOTUS has already issued a stay on all previous and pending lower court decisions.Trump’s ban stays in place until SCOTUS issues a full ruling.

  11. I find it quite strange that for an opinion that rests on the conclusion that the President exceeded his authority granted to him by the immigration statute, that the language of the statute itself is not front and center. Rather, I couldn’t find the statutory language anywhere in the opinion.

    Also funny how the courts says that the Presidents order violates the statue and prior practice. What does “prior practice” have anything to do with it? The fact that the immigration law has been pretty much ignored for the past 25 years precludes the present administration from enforcing the law that the President took an oath to enforce? Very odd times we live in….

    I don’t like Trump either, but there will need to be an asterisk next to all sorts of judicial opinions in the future, indicating that this was only the law when Trump was in office, and that it goes back to the regular once someone more suitable occupies the oval office.

    1. What the Constitution or the law says is irrelevent. What matters are the feels and getting the right result.

    2. And I find it quite strange that anyone would criticize the opinion for not featuring the statutory language when… it actually does…?

      Also funny how the courts says that the Presidents order violates the statue and prior practice. What does “prior practice” have anything to do with it?

      You might ask the President this, since it’s the President who was making the argument that “prior executive practice” means that he wins here. Let’s trace this through:

      At issue in the opinion is whether the President acted within his lawful authority under the relevant congressional statute. In order to show that he was within his authority, the President’s counsel cited a string of executive orders issued under the relevant statute, orders also barring foreign nationals from entering the United States, and then cited the principle of “congressional acquiescence” for support. Under that principle, which is essentially a principle of statutory construction, a contested interpretation of a statute is given greater weight if the courts or the President have been acting in accordance with that contested interpretation, while Congress could have, but has chosen not to, alter the statute in order to foreclose that particular interpretation. Essentially, the President was arguing, “Congress seems to be fine with X; it follows that Y should be fine, too.” But the court rejected this implication, noting all the ways that Y differs from X.

    3. So, the court didn’t claim that the President “violated” prior practice. He just failed to act within the scope of authority that Congress could be understood to have granted.

      Another way to think about the analysis is to ask why Congress couldn’t implement exactly the policy that the President did, through legislation. The whole argument that the President is making, here, is that he is acting pursuant to an authority granted by Congress to address emergency situations. The more it seems like executive action is necessary to address an “emergency,” the more like the prior executive practice his actions are, and the more likely his actions could be said to be authorized by Congress. But this has gone on for months, without congressional action. Why?

  12. On Dec 4, the Supreme Court already allowed the travel ban to go into effect while legal challenges continue. So the practical effect of this ruling is nil.

    “In October, a federal trial court decision in Maryland ruled that Travel Ban 3.0, like its predecessors, violates the First Amendment’s ban on religious discrimination.”

    Since non-US citizens living in other countries aren’t covered by the US Constitution (instead they are covered by their own nation’s laws) no one has really explained why anyone would have a standing to sue to declare this unconstitutional in the first place. Yes I know, Hawaii found a creative work around by suing on behalf of Universities that would supposedly lose some students over the travel ban. But that’s not workable; if that is the standard, then anyone from any country anywhere could file a lawsuit against the US for any reason.

  13. “It does not address claims that the travel ban is unconstitutional because it was adopted for the purpose of discriminating against Muslims.” This idiot is a law professor? Yeeks. IT IS NOT A MUSLIM BAN. Why is that so hard to understand? LOL

  14. Just another ruling that will be overturned by the Supreme Court. Because the ban is clearly constitutional, despite what Somin thinks.

    1. Bull cow can’t help himself. He’s a globalist shill.

      1. Hey look– it’s Mini-Me!

        Welcome to the newest iteration of this all-white, all-male, right-wing blog, Mini-Me.

        The faux libertarianism seems to fool fewer people over here, although there are still plenty of wingnuts,some of them masquerading as libertarians.

        1. “Faux libertarianism” is what you are guilty of. In fact, you simply are a typical US-style “liberal”: you approve of a selective subset of libertarian principles and ignore the tradeoffs they involve. You advocate opening borders without linking it to restoring property rights and freedom of association, for example. It’s textbook left wing ideology, you’re simply trying to sneak it in under the libertarian label because “democratic socialist” and “progressive” have become so tainted by their horrific histories.

          1. The other Kirkland isn’t just a US liberal, he’s a full blown Communist.

        2. Hey look– it’s Mini-Me!

          He’s twice as smart as you at half the size.

  15. Poor, poor, bull cow. Still throwing feces and reeeeeeing because your communist, globalist ideology assumes that all national borders should be eliminated. How many threads will you start when SCOTUS slaps you and your ilk down?

  16. I’m hoping that RBG retires quickly; another conservative judge would do SCOTUS a world of good.

    Oh, and the idea that religious non-discrimination should apply to immigration is ludicrous, in particular when the religion in question is also a political ideology.

  17. Which part of the conservative agenda most attracts you, Mark22? Is it the vestigial, diffuse intolerance? The sacred ignorance? The pining for good old days that never existed? The authoritarianism of the drug war, the gay-bashing, the government surveillance, the torture, and the pre-emptive invasion of the wrong country?

    You can root for another Alito, Thomas, or Gorsuch. I’ll hope we get a libertarian who isn’t a stale-thinking right-winger.

    1. I’m an immigrant myself, a gay man, and a “cultural protestant” (I am an atheist with protestant values). I spent part of my youth behind the iron curtain. I came to the US because it offered me economic opportunity and relative freedom from government oppression. I’m sorry you are so unfamiliar with the history of progressivism and left wing ideology that you delude yourself into thinking that conservatives are responsible for the ills you list.

      I prefer small government, freedom of association, private property rights, free markets, and the right to self-defense. Generally, I believe moderate conservatives and moderate Christians are actually the best political compromise for moving towards these goals right now. On the other hand, the policies you and many other self-proclaimed “libertarians” advocate take us away from those goals; in your ignorance, you actually promote the agenda of authoritarians and bigots.

      1. A gay man who seeks comfort in the company of Christians?

        May I suggest Opus Dei? The self-flagellation seems a natural for you.

        1. A gay man who seeks comfort in the company of Christians?

          Unlike you, he’s not a small-minded, limp-dick doofus.

        2. A gay man who seeks comfort in the company of Christians?

          As opposed to who? Atheists? Look at the horrific history of progressivism and socialism. Homosexuals are a convenient marginalized group to use and discard for leftists as is politically convenient (Hillary is just the latest example).

          Christian churches were generally not the primary drivers behind criminalization of homosexuality. Behind the Iron Curtain, it was often Christians and Christian churches that provided refuge to homosexuals against persecution by socialists and atheists. And, European protestant denominations have generally been tolerant of homosexuality for many decades.

          May I suggest Opus Dei? The self-flagellation seems a natural for you.

          May I suggest reading a bit about history and religion so that you don’t continue to make a fool of yourself, “Rev.” Kirkland?

      2. It is difficult to have an intelligible – much less constructive – conversation with someone so devoted to newspeak that it’s hard to tell what exactly they’re talking about.

        RAK assigns blame to conservatives for the ills he cites because it was the “political conservatives” at the time who pursued them. You evidently wish to trace their actions to a “history of progressivism” that truly explains the actions of these “conservatives,” but you do so only at the risk of undermining the other point you’re trying to make, which is that you believe these same “conservatives” are the ones most likely to pursue your interests in government and law. His whole point is that these “small-government conservatives” you think you’ve allied yourself to are anything but; and, indeed, they are such craven, mendacious, and authoritarian-leaning politicians that you can be assured that their government will be far more oppressive and exploitative than anything Democrats could manage to construct.

        1. RAK assigns blame to conservatives for the ills he cites because it was the “political conservatives” at the time who pursued them.

          Yes, and he is wrong. Progressivism has never been a conservative movement. Furthermore, Democrats, democratic socialists, and progressives today are direct ideological descendants of the socialists and progressives of the early 20th century. And why they were fairly moderate for a few decades, the Democratic party has moved to extremist positions.

          1. Yes, and he is wrong. Progressivism has never been a conservative movement.

            Do you understand that what you’re saying is that George W. Bush was a “progressive” president?

            1. He may well have been; there have always been some progressive-leaning Republicans. What’s your point?

        2. they are such craven, mendacious, and authoritarian-leaning politicians that you can be assured that their government will be far more oppressive and exploitative than anything Democrats could manage to construct.

          I actually used to be a Democrat for most of my adult life, a natural default position for a gay immigrant atheist. It’s over the last few years that I have come to recognize that Democrats have become so “craven, mendacious, and authoritarian-leaning”. One of the biggest lies has been for Democrats, progressives, and socialists to cover up their crimes and hateful policies of the 20th century and pretend that “conservatives” were responsible.

          I haven’t “allied” with anyone, I have simply rejected the kind of bigotry that you and RAK are spreading, as well as the foolish partisanship and FUD by which you let yourself be manipulated. In actual fact, I recognize that both parties are full of ignorant people, bigots, and statists. So, I vote strategically.

          However, in general, I have to say that I have found conservatives and Republicans generally nicer to be around and more mature than progressives and Democrats. I also think nobody with your kind of views can seriously be considered a “libertarian”.

          1. One of the biggest lies has been for Democrats, progressives, and socialists to cover up their crimes and hateful policies of the 20th century and pretend that “conservatives” were responsible.

            Again, this kind of newspeak simply makes it hard for me to understand what you’re saying. What “crimes and hateful policies of the 20th century” are you referring to? Do I have to surmise that you’re talking about the “Democrats” of the earlier 20th century who supported racist policies, and that the line you’re drawing from them to modern Democrats dismisses the “Southern Strategy” account for why southern states that used to vote Democrat now vote Republican and connects modern welfare policies with keeping black Americans “on the plantation?”

            Or is there some other equivocation you’re engaging in here?

            However, in general, I have to say that I have found conservatives and Republicans generally nicer to be around and more mature than progressives and Democrats. I also think nobody with your kind of views can seriously be considered a “libertarian”.

            Neither can one so easily manipulated by Republican rhetoric and lies.

            1. Do I have to surmise that you’re talking about the “Democrats” of the earlier 20th century who supported racist policies, and that the line you’re drawing from them to modern Democrats dismisses the “Southern Strategy” account for why southern states that used to vote Democrat now vote Republican and connects modern welfare policies with keeping black Americans “on the plantation?”

              There is a straight line from early 20th century Democrats to modern Democrats, from 20th century progressivism to current progressivism. The idea that the Southern Strategy somehow resulted in a switching of party labels is another one of those lies Democrats use to hide from their history.

              Or is there some other equivocation you’re engaging in here?

              You are repeating Democratic lies here, although I suspect it’s more out of ignorance and gullibility than malice.

        3. His whole point is that these “small-government conservatives” you think you’ve allied yourself to are anything but;

          I realize you’re not used to interacting with Reason commenters, but just about every one of us going back years understands this and has commented on it to the point that it’s a running joke. RAK is easy to mock simply because his whole commenting schtick appears to be acting like a caricature of a problem-glasses wearing catlady.

          1. I realize you’re not used to interacting with Reason commenters, …

            The only thing that I’ve surmised about Reason commenters is that they are apparently indistinguishable from the typical MRA redditor/Breitbart hound, perhaps with a better vocabulary. If there’s any “running joke” about “small-government conservatives,” I haven’t seen it evidenced on any Reason thread I’ve so far delved into.

            1. The only thing that I’ve surmised about Reason commenters is that they are apparently indistinguishable from the typical MRA redditor/Breitbart hound, perhaps with a better vocabulary.

              That’s been the typical reaction from leftists who can’t fathom that someone might not belong to their hivemind.

            2. The only thing that I’ve surmised about Reason commenters is that they are apparently indistinguishable from the typical MRA redditor/Breitbart hound, perhaps with a better vocabulary.

              The socialist propaganda where I grew up considered anybody west of the Iron Curtain to be an amorphous mass of capitalist, racist, imperialist fascists. Obviously, you share those views and confusions.

      3. I’m like you – I have zero appetite for “big government,” I have confidence in liberty and free markets, etc. I should be a Republican. But the reason I cannot ally myself to them is that they have established themselves as the anti-intellectual party. When the analyses came in showing how their Obamacare repeal would increase the number of people uninsured, they didn’t say that was a feature, not a bug. They dismissed the analysis as partisan, proceeding effectively without any advice. When not a single competent analysis came out supporting their contention that the tax bill would cause enough economic growth to pay for itself, they again elected to dismiss the evidence and proceeded full steam ahead.

        They’ve minimized their deficit-busting bill by explaining that entitlement reform will follow but how is that even possibly going to be politically workable? They’ve just passed this notoriously top-heavy tax cut, and now they’ll head into the 2018 elections by embracing the “third rail” of politics in an effort that will require the full cooperation of vulnerable Republicans and even a good number of Democrats? It was all a lie designed to keep Corker, Flake, and other deficit hawks in line. Vote for the tax cut with the expectation of spending cuts later; when those spending cuts don’t materialize, blame the Democrats.

        I’m sorry, if you ally yourself with the Republicans because you think their coalition serves the interests you’ve listed, you’re an idiot.

        1. But the reason I cannot ally myself to them is that they have established themselves as the anti-intellectual party.

          Rather ironic statement considering your clear lack of intellectual curiosity.

          When the analyses came in showing how their Obamacare repeal would increase the number of people uninsured

          Medicaid is welfare, not insurance.

          They’ve minimized their deficit-busting bill

          I’m not sure if you’re aware of this, but the national debt has gone up every year since 1957, irrespective of who’s been in charge.

          1. Rather ironic statement considering your clear lack of intellectual curiosity.

            What lack of intellectual curiosity? I am still working on that book you cited back in that other thread. I’ll get back to you once I’ve guessed at the argument you’ve tried to make by referring to it.

            Medicaid is welfare, not insurance.

            Obamacare is not Medicaid.

            I’m not sure if you’re aware of this, but the national debt has gone up every year since 1957, irrespective of who’s been in charge.

            The point wasn’t to say that the Republicans, in passing the tax bill, were doing anything novel by increasing the deficit without clear plans for reducing it. The point was to say that they were rather patently lying about their plans, in an attempt to deflect negative attention on the bill’s most obvious failing.

            1. Obamacare is not Medicaid.

              Obamacare is not insurance either. What ACA actually is is a crony capitalist scheme to impose big monthly charges on all Americans and transfer that money into the hands of big corporations and lobbies under the guise of massively inflated payments for medical services. To get it passed, Democrats engaged in a “craven and mendacious” FUD campaign of massive proportions. To top it all off, proponents of ACA kept lying through their teeth about how medical insurance and care works in other countries.

              ACA was one of the recent debates that brought into focus for me just what a bunch of “craven, mendacious, and authoritarian-leaning” crooks Democrats actually are.

              1. Obamacare is not insurance either. What ACA actually is is a crony capitalist scheme to impose big monthly charges on all Americans and transfer that money into the hands of big corporations and lobbies under the guise of massively inflated payments for medical services.

                I am not endorsing Obamacare; I agree with your characterization. But it’s fitting, in my view, that it was first conceived and implemented by “conservatives”; and if you seek to disavow that genesis, I’ll point you to more recent “conservative” proposals to reform Social Security along almost the same exact lines.

                ACA was one of the recent debates that brought into focus for me just what a bunch of “craven, mendacious, and authoritarian-leaning” crooks Democrats actually are.

                Yeah. Meanwhile, the Republicans are trying to return us to the status quo ante, where everyone is dependent upon tax-subsidized, employer-provided health insurance, unsustainable and under-funded “high-risk pools,” and medical bankruptcies and mandatory ER treatment as a backstop. Which they’re getting to by (i) picking apart the regulatory framework that makes ACA work, (ii) imposing costs on health insurers without providing promised subsidies, (iii) in the hopes that the whole thing will implode spectacularly, resulting in the political support needed to effect a full-scale repeal.

                That’s what your “voting strategically” amounts to, bud.

                1. But it’s fitting, in my view, that it was first conceived and implemented by “conservatives”;

                  Which is pointless since no one on these boards supported it irrespective of who was proposing it–in fact, that was pointed out as a particular stupid reason for nominating Romney, who implemented a version of it when he was governor.

                  the Republicans are trying to return us to the status quo ante, where everyone is dependent upon tax-subsidized, employer-provided health insurance, unsustainable and under-funded “high-risk pools,” and medical bankruptcies and mandatory ER treatment as a backstop.

                  But the point of Obamacare, supposedly, is that it would get everyone “health insurance”–either by putting them on Medicaid or forcing them to buy it under threat of taxation. Hell, it didn’t even stop the increase in healthcare costs.

                  1. But it’s fitting, in my view, that it was first conceived and implemented by “conservatives”; and if you seek to disavow that genesis,

                    This may surprise you, but details matter. Romneycare was a state level plan, under state budget rules, in a wealthy state. ACA is a federal plan under federal rules and budgets. Even if the plans were identical, they would have completely different effects.

                    ACA was passed without any Republican support. Don’t blame Republicans for a disaster created by Democrats.

                    1. ACA was passed without any Republican support. Don’t blame Republicans for a disaster created by Democrats.

                      The Republicans withdrew their support from the ACA at the 11th hour, after the Democrats had bent over backwards to try to accommodate their various concerns. That’s why the ACA is structured as it is, without a “public option” in the form of a federal insurance program that people could buy into, and without being single-payer. Its structure was lifted straight from conservative think tank proposals and, yes, the example set by Romney.

                      The Republicans withdrew their support from the ACA when they saw that the Democrats could pass it without their support and they deduced – apparently correctly – that they could more effectively win future elections by running against it.

                2. Which they’re getting to by (i) picking apart the regulatory framework that makes ACA work

                  The ACA isn’t working. Even its Democratic proponents have admitted that, and have admitted that they expected that before they passed it.

                  imposing costs on health insurers without providing promised subsidies, (iii) in the hopes that the whole thing will implode spectacularly, resulting in the political support needed to effect a full-scale repeal.

                  Thereby mirroring the Democratic strategy of “once we get enough people dependent on this, we can never get rid of it”. So, as far as political strategies go, that sounds like the best open Republicans have, given that Democrats are unwilling to see reason.

                  That’s what your “voting strategically” amounts to, bud.

                  Well, it’s preferable to the corrupt shit Democrats have been passing over the last eight years, and the even more corrupt shit that Hillary threatened to pass if she became president.

                  (NB: I didn’t vote for Trump in 2016; in 2018/2020, I may vote straight Republican, given the authoritarian losers that Democrats are putting up.)

                  1. The ACA isn’t working.

                    Partly because it has been picked apart by Republicans and court challenges. Mandatory Medicaid expansion was an important part of its scheme – deemed unconstitutional. Republicans have undermined appropriations for important federal subsidies covering health insurer losses. Trump is doing his damnedest to convince Americans to lose confidence in the schemes.

                    I think anyone can recognize that the behavior of insurers on the exchanges right now are not what was originally intended. But it is false to attribute this to the inherent structure of the ACA itself. No, this has been an outcome deliberately orchestrated by Republicans, so that gullible dolts like you would buy their story.

                    Thereby mirroring the Democratic strategy of “once we get enough people dependent on this, we can never get rid of it”.

                    Uh, no, it wouldn’t “mirror” a strategy of creating a popular entitlement with widespread popular support. It’s just bad governance.

                    Well, it’s preferable to the corrupt shit Democrats have been passing over the last eight years, and the even more corrupt shit that Hillary threatened to pass if she became president.

                    You realize that Democrats haven’t “passed” anything since 2010?

                  2. You should vote straight Republican, because voting for backwardness, hypocritical authoritarianism, belligerent ignorance, and stale bigotry seems likely to make you happy.

                    Carry on, clingers.

            2. The point was to say that they were rather patently lying about their plans, in an attempt to deflect negative attention on the bill’s most obvious failing.

              They were perfectly clear about their plans: they were going to cut taxes without spending cuts. Sorry if you don’t like it. I don’t consider that a failing either. I am all in favor of spending cuts, but if spending cuts don’t happen, I am still better off with a dollar in my pocket than the same dollar in federal coffers.

              If you or your fellow Democrats disagree, you are, of course, perfectly welcome to donate your tax savings to the treasury for deficit reduction. The benefit of your donation is not diminished in any way by my refusal to waste my money in that way.

              1. I am all in favor of spending cuts, but if spending cuts don’t happen, I am still better off with a dollar in my pocket than the same dollar in federal coffers.

                I think what you mean is that you’re “better off” with a dollar in your pocket and more than a dollar of additional debt, than you are with that same dollar in federal coffers, without that debt.

                If you or your fellow Democrats disagree, you are, of course, perfectly welcome to donate your tax savings to the treasury for deficit reduction.

                Not a Democrat. But, again, the lying. I’m not saving any money under the tax cuts. My taxes are likely going to go up. The same is true for millions of other individuals. Of course, the Republicans spun this as a “win” for the middle class – a majority get a tax cut! – and of course that rhetoric is true, in a sense. But why taxes needed to go up for anyone is the question they didn’t bother to answer. The truth is a bit too inconvenient.

                1. I think what you mean is that you’re “better off” with a dollar in your pocket and more than a dollar of additional debt, than you are with that same dollar in federal coffers, without that debt.

                  I meant what I said. To put it differently, I don’t care about the federal debt because we are going to max it out no matter what anyway, and it makes no difference to me whether we do it sooner rather than later.

                  Not a Democrat. But, again, the lying.

                  Calling you a Democrat isn’t a lie, it’s a supposition. Furthermore, if you claim that you are not a Democrat, I don’t believe you.

                  My taxes are likely going to go up. The same is true for millions of other individuals.

                  If you’re among the 6% of Americans seeing a significant tax increase, it’s because you have benefited from unusually high deductions in the past and are now forced to pay your fair share without such loopholes. I have no problems with that.

                  1. I meant what I said. To put it differently, I don’t care about the federal debt because we are going to max it out no matter what anyway, and it makes no difference to me whether we do it sooner rather than later.

                    What you mean is, you favor total economic collapses, as a means towards radical reformation of government.

                    If you’re among the 6% of Americans seeing a significant tax increase, it’s because you have benefited from unusually high deductions in the past and are now forced to pay your fair share without such loopholes. I have no problems with that.

                    What makes you think I wasn’t paying my fair share? I’ve been writing big fat checks to the IRS for years, buddy. I pay more of my income in taxes than people making a lot more than me, and I pay more than the people who were already net tax payees and who stand to benefit from the increased standard deduction. I happen to belong to that enviable slice of the taxbase: people who make too much to qualify for most of the common deductions, who make enough to be able to absorb higher taxes, and who are numerous enough that even slight adjustments to the tax rates can generate a lot of revenue (unlike the ultra-wealthy). When taxes are “reformed,” we almost always lose.

                    Basically the only “loophole” I was benefiting from was the SALT deduction. Now that it’s going away, the check I write the government will be larger. But, no, I get it. You’re envious.

                2. But why taxes needed to go up for anyone is the question they didn’t bother to answer. The truth is a bit too inconvenient.

                  The existing tax code was full of favors to special interest groups. All things being equal, eliminating these “loopholes” means people have to pay more. Republicans partially compensated for that by generally lowering taxes.

                  Of course, the Republicans spun this as a “win” for the middle class – a majority get a tax cut! – and of course that rhetoric is true, in a sense.

                  It’s a pyrrhic victory. The only way the US can continue to finance its social programs is through substantially raising taxes on the middle class. That is, if we want a European-style social welfare state, we need European-style taxation, and Europeans finance their social welfare states through much higher taxes on the middle class.

                  1. The existing tax code was full of favors to special interest groups. All things being equal, eliminating these “loopholes” means people have to pay more.

                    You don’t seem to recognize that the new bill also creates new loopholes for people to exploit. It’s going to keep me very busy in the new year, finding those loopholes and creating new ways for clients to avoid taxes.

                    It’s a pyrrhic victory.

                    There’s more truth to this than you probably realize.

                    Have you ever asked yourself why there was such urgency to push the bill through? Why didn’t the Republicans take their time and really reform the tax code? Whatever happened to the postcard return? Why did we need this sloppy package of big corporate tax cuts and hastily assembled and inadequate pay-fors, with just enough sops to swing votes to keep them on board?

                    It’s because the Republicans know that 2018 is going to be tough for them. The donors were pushing for a bill on an expedited basis because they knew it was now or never. A year-long, deliberative and bipartisan approach to tax reform would have resulted in broader benefits for Americans and our economy, and the donors would have been patient if they felt that Republicans were making real progress. But they’re not counting on coming through 2018 unscathed.

            3. I’ll get back to you once I’ve guessed at the argument you’ve tried to make by referring to it.

              The argument was pretty straightforward–that the Muslim Brotherhood supports an international Islamist state–so it’s rather amusing that you think no argument was made.

              Obamacare is not Medicaid

              Obamacare expanded the Medicaid rolls by increasing the enrollment baseline. If you’re going to make a claim, at least try not to make a dishonest one.

              The point was to say that they were rather patently lying about their plans

              If by lying, you mean “we’re going to pass an across-the-board tax cut” that became an across the board tax cut, your definition of lying appears to be rather broad.

              1. And if you don’t want to wait for the book, here’s an article from the Atlantic which delves into the same topic.

              2. The argument was pretty straightforward–that the Muslim Brotherhood supports an international Islamist state–so it’s rather amusing that you think no argument was made.

                Fair. Perhaps I should have said, rather, that it would take some time to assess the original materials you’ve cited in order to determine whether (i) your interpretation of them was at all correct and (ii) if so, whether the underlying materials have made a defensible case for the conclusion you’ve cited them to support. In any event, I have no reason to trust your say-so, given the nature of your trolling up and down this page.

                The link to the Atlantic article is not exactly promising. In order to support his contention that the MB supports a global Islamist state, for instance, he cites himself, referring apparently only to similarly bare assertions in his own book. So there’s just more work here to do.

                Obamacare expanded the Medicaid rolls by increasing the enrollment baseline. If you’re going to make a claim, at least try not to make a dishonest one.

                Nothing about this being true shows that my statement that “Obamacare is not Medicaid” is untrue or dishonest. Yes, Obamacare included an intended expansion of Medicaid, one that many states declined. It included a lot of other things, as well.

              3. If by lying, you mean “we’re going to pass an across-the-board tax cut” that became an across the board tax cut, your definition of lying appears to be rather broad.

                Try to keep up. I was referring to statements they were making at the same time they were trying to ram a deficit-increasing tax cut through. They said: entitlement reform will follow. I am saying this was a lie designed to minimize, for their supporters, the relevance of that deficit price tag. They would be crazy to dive into entitlement reform now, and I think we’ll see that promise fall apart in short order.

        2. But the reason I cannot ally myself to them is that they have established themselves as the anti-intellectual party.

          It was scientists and intellectuals who promoted eugenics, racism, segregation, and forced sterilization in the US and Europe; who justified disastrous policies of nationalization, redistribution, and economic intervention; who forced electroshock therapy, institutionalization, sterilization and castration on homosexuals; who justified imperialism and colonialism; who got the US into every major war; who caused mass starvation in the Soviet Union.

          The whole point of classical liberalism, science, and libertarianism is that individuals ought to be free to make their own choices instead of having intellectuals impose their views on them through government.

          You need to read Sowell’s “Intellectuals and Society”

          I have confidence in liberty and free markets, etc.

          By everything you say, you clearly are a progressive, pretty much the exact opposite of a classical liberal or libertarian.

          1. It was scientists and intellectuals who…

            Even if I were to concede that “scientists and intellectuals” lent their talents to these various ends, I am not sure why that means we ought to endorse anti-intellectualism, now. We can understand that anthropogenic climate change is occurring, for instance, without necessarily concluding that what we need now is a national policy forbidding the use of fossil fuels. We could, for instance, use that information to rescind federal policy subsidizing coastal development, make better decisions about allocating military resources as famines and desertification force mass migrations, and so on. But on that particular issue, the Republican response is to question the science and do nothing.

            You need to read Sowell’s “Intellectuals and Society”

            If Sowell is right, wouldn’t your advice be exactly the opposite?

            By everything you say, you clearly are a progressive, pretty much the exact opposite of a classical liberal or libertarian.

            I don’t particularly care to play the Scotsman game here. I don’t care if you believe I’m a libertarian or not. I’m interested in good policy and sound government. You evidently are not.

            1. We can understand that anthropogenic climate change is occurring… We could, for instance, use that information to rescind …

              “The science” behind the fact that climate change is occurring is completely different from “the science” that might let us predict famines, desertification, mass migrations, etc. And while the former is firmly established, the latter is simply not predictable decades ahead.

              Furthermore, for a libertarian and an advocate of free markets, subsidies of coastal developments should be stopped no matter what and famine and desertification are best dealt with through market mechanisms. So, your reasoning is typical of the scientism and hubris of progressives and socialists.

              I don’t care if you believe I’m a libertarian or not. I’m interested in good policy and sound government. You evidently are not.

              Correct on both counts. What you clearly don’t realize is how foolish and harmful your position is.

              1. “The science” behind the fact that climate change is occurring is completely different from “the science” that might let us predict famines, desertification, mass migrations, etc. And while the former is firmly established, the latter is simply not predictable decades ahead.

                You don’t understand my point. I am not suggesting that we somehow “predict” where major famines, etc. might occur. I am saying that there is a political party that is dedicated to denying even the possibility that climate change is a real thing that is happening. That is the Republican party.

                I am not asserting that we need comprehensive government-based solutions to things like famines and the like. I am just saying that we need to be prepared to address the security challenges posed by these kinds of consequences of global climate change.

                Furthermore, for a libertarian and an advocate of free markets, subsidies of coastal developments should be stopped no matter what and famine and desertification are best dealt with through market mechanisms.

                You don’t seem to understand or care that assertions like “such and such are best dealt with through market mechanisms” are either (i) inherently empirical questions that must be falsifiable or, if not, discarded or (ii) essentially no better than fantastical ideological beliefs. Given that you so reject the relevance of science and intellectualism to policy-making, I can only surmise that you fall firmly into the (ii) camp.

            2. You need to read Sowell’s “Intellectuals and Society”

              If Sowell is right, wouldn’t your advice be exactly the opposite?

              Are you serious? You look at the title of a book called “Intellectuals and Society” and you draw conclusions about what Sowell is saying?

              1. No. I admittedly didn’t read the book, but I did look into this author and what his basic thesis in that book seems to be. I am guessing you didn’t manage to do that much.

  18. Winston Churchill: The River war, 1899

    “How dreadful are the curses which Mohammedanism lays on its votaries! Besides the fanatical frenzy, which is as dangerous in a man as hydrophobia in a dog, there is this fearful fatalistic apathy. The effects are apparent in many countries, improvident habits, slovenly systems of agriculture, sluggish methods of commerce, and insecurity of property exist wherever the followers of the Prophet rule or live.

    A degraded sensualism deprives this life of its grace and refinement, the next of its dignity and sanctity. The fact that in Mohammedan law every woman must belong to some man as his absolute property, either as a child, a wife, or a concubine, must delay the final extinction of slavery until the faith of Islam has ceased to be a great power among men.

    Individual Muslims may show splendid qualities, but the influence of the religion paralyses the social development of those who follow it. No stronger retrograde force exists in the world. Far from being moribund, Mohammedanism is a militant and proselytizing faith. It has already spread throughout Central Africa, raising fearless warriors at every step; and were it not that Christianity is sheltered in the strong arms of science, the science against which it had vainly struggled, the civilization of modern Europe might fall, as fell the civilization of ancient Rome.”

  19. OT, but I notice that when I google “Volokh Conspiracy”, Reason still doesn’t appear on the first page of search results. Google is still directing people to the Washington Post.

  20. It’s certainly true that Congress, not the President, is responsible for setting immigration law and the President must obey its instructions. The difficulty here, as (I think) with the Obama policy that was similarly castigated as a defiance of Congress, is that Congress has chosen to delegate a great deal of discretion to the Executive branch, much more than it typically does on domestic matters. This discretion gives the President unusually broad powers, powers both to give amnesties and to impose new restrictions.

    It is normal these days for Presidents to push the boundaries of their discretion. I don’t think it was fair to castigate Obama for doing so, and I don’t think it’s fair to castigate Trump either. This is totally separate from whether I agree or disagree with their policies.

    Trump’s policies are just as presumptively lawful as Obama’s, perhaps more so since Obama also imposed bans on immigration from selected(mostly Moslem) countries, and also selectively relaxed restrictions and gave amnesties to immigrants from particular countries in ways that could have been regarded as ethnic favoritism if one was inclined to view things that way.

    I think far more harm is done to separation of powers if courts use the principle to uphold policies they like and strike down policies they don’t.

    Trump has the same amount of discretion as Obama, and his foreign policy decisions are entitled to the same deference.

    I’m not sure that discr

  21. In short, imposing and relaxing restrictions on immigration are normal and even quintessential Presidential acts. This means this case, this whole area of law, is nothing remotely like the Steel Seizure cases. Treating the two as comparable is a completely false comparison. The rhetoric involved was completely inappropriate on the 9th Circuit’s part, and the reasoning leading to it was wrong.

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