Travel Ban

Appeals Court Rules That Trump's Travel Ban 3.0 Is Unconstitutional

The US Court of Appeals for the Fourth Circuit concluded that the ban violates the First Amendment because it is intended to discriminate against Muslims.

|The Volokh Conspiracy |

Yesterday, the US Court of Appeals for the Fourth Circuit ruled that Donald Trump's third travel ban is unconstitutional because it was adopted for the purpose of discriminating against Muslims, in violation of the First Amendment. The presidential "proclamation" permanently bars nearly all entry into the United States by citizens of six Muslim-majority nations. In a 9-4 en banc decision, the court concluded, after "[e]xamining official statements from President Trump and other executive branch officials, along with the Proclamation itself,… that the Proclamation is unconstitutionally tainted with animus toward Islam." Five of the judges in the majority also conclude that the Travel Ban 3.0 violates immigration laws enacted by Congress, relying on reasoning similar to that adopted by the Ninth Circuit in in its December ruling against the ban.

The Fourth Circuit decision includes a detailed discussion of why Travel Ban 3.0 is just as "tainted" by religious animus as its predecessors, and why the addition of North Korea and some Venezuelan government officials in this latest travel ban does not materially affect its anti-Muslim focus. The inclusion of North Korea and the Venezuelan officials does not keep out any significant number of people who might have gained entry otherwise, and the other six nations covered by the travel ban are all overwhelmingly Muslim.

In addition, as the court explains, the supposed security justifications for the travel ban are extremely weak, and "the President repeatedly distanced himself from the[se] non-discriminatory policy rationales." For that reason, the court concluded that it must "accept the President's consistent characterization of his Proclamation as intended to invidiously discriminate against Muslims—and therefore hold that the Proclamation violates the law."

Judge James Wynn's concurring opinion includes an exceptionally thorough discussion of the reasons why the president's numerous statements advocating a "Muslim ban" and equating that goal with the "territorial" approach adopted in the various travel ban orders are relevant evidence that courts must consider. I addressed this same issue, myself, here. Campaign promises and other statements by decision-makers are relevant evidence of motive, and motive is an essential element of any case where the plaintiffs challenge a seemingly neutral law or regulation on the basis that it is intended to discriminate on the basis of race, sex, religion, or some other prohibited classification.

Such pretextual discrimination claims are a longstanding and vital element of constitutional antidiscrimination law. Without them, government officials could easily target disfavored minority groups simply by focusing on some characteristic that is heavily correlated with group membership. For example, officials intent on discriminating against African-Americans could target people who live in overwhelmingly African-American neighborhoods, a strategy similar to Trump's approach of targeting overwhelmingly Muslim nations.

The Fourth Circuit decision is not a surprise. The same court issued a very similar ruling against Travel Ban 2.0, for much the same reasons, by a 10-3 margin that was nearly identical to yesterday's 9-4 vote. The Fourth Circuit decision largely affirms an October 2017 trial court ruling against Travel Ban 3.0, which was also based on religious discrimination grounds.

Yesterday's ruling reinforces my view that Travel Ban 3.0 has nearly all the same flaws as its predecessor, and may in some ways be even worse. The same two appellate courts that issued rulings against Travel Ban 2.0 have now also ruled against the latest version, and for largely the same reasons.

The 285 pages of majority, concurring, and dissenting opinions in the Fourth Circuit case include discussion of a variety of secondary issues, such as whether and to what extent different plaintiffs have standing to challenge the travel ban. But by far the most important aspects of the case are the question of anti-Muslim discrimination, and whether the travel ban violates federal law forbidding discrimination on the basis of "nationality" in the issuance of immigration visas. Both issues have important implications that go beyond the travel ban case. Their resolution will determine whether and to what extent the president will be free to adopt discriminatory restraints on entry into the United States, particularly ones that openly discriminate on the basis of nationality or use a thin veneer of neutrality to target disfavored religious groups.

Even before the Fourth Circuit issued its ruling, the Supreme Court had already decided to review the Ninth Circuit ruling against Travel Ban 3.0. The two cases are now likely to be consolidated and reviewed together. Unlike in the case of the Travel Ban 2.0 cases, which the Supreme Court dismissed as moot after that travel ban order was displaced by the third one, this time the Supreme Court will probably have to decide the case on the merits.

I am currently in Japan, completing an academic speaking engagement, and so do not have the time to analyze the Fourth Circuit ruling in greater detail. But I will have much more to say about the Travel Ban 3.0 cases in future posts.

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  1. I don’t buy this at all. The Equal Protection Clause is quite explicit about applying only to Americans, or at least people already within our borders.

    It’s open to debate whether the power to limit immigration properly belongs to Congress or the President, but whoever gets to make that decision clearly has the discretion to do it for any political reasons he/they desire.

    1. Several of the plaintiffs are people already within our boarders. But that doesn’t matter, because this isn’t a 14A/equal protection case.

      1. No, it’s a discrimination on the basis of national origin case, shoehorned into a 1st amendment case. Because the ban isn’t on Muslims from wherever they originate, it’s from people originating from particular countries.

        The plaintiffs just thought they had more chance of prevailing if they could pretend there was religious discrimination going on.

        1. Well it’s a national origin case maybe on the statutory side. But on the constitutional side, it’s a 1A case.

          “The plaintiffs just thought they had more chance of prevailing if they could pretend there was religious discrimination going on.”

          Well of course, because Rudi Guliani didn’t say “This is intended as a national origin ban targeting Iraq, Iran, etc.” He said “Muslim ban”. And since a national origin ban might not be constitutionally impermissible, I suppose you’re right that the plaintiffs thought they could improve their chances of prevailing on a constitutional claim, if they pretended to have a constitutional claim. Great point.

          1. I don’t know what Rudy has to do with this.

            But the problem here is the court doesn’t have jurisdiction over what was said. They have jurisdiction over what was DONE. And what was done was based on nations of origin, not religion.

            ” I suppose you’re right that the plaintiffs thought they could improve their chances of prevailing on a constitutional claim, if they pretended to have a constitutional claim. ”

            Exactly.

            1. “And what was done was based on nations of origin, not religion.”

              That’s what’s at issue. Current law is that you can look behind the action to find animus, and there’s plenty of evidence of animus. Current law can change, or course. But even if it does, your statement remains speculation.

              Stupid speculation, too. The true facts that I see are neither as sinister as the plaintiffs’ claim nor as innocent as you assert. The President found a wedge culture-war issue (Muslims!) because that’s been his thing for decades (Central Park Five!). EO-1 was a sincere but rushed attempt to avoid constitutional scrutiny while still making good on a campaign promise. I don’t think the President has hate in his heart for all Muslims, but I also think it isn’t a national origin ban. It’s a Muslim ban because that’s what the President’s supporters want. I suspect that’s what you want, not because you hate all Muslims, but because you hate liberals, and you think it’s offensive that you should even have to pretend to be civil.

              1. Let’s look at this from a perspective that doesn’t assume animus.

                Islamic terrorism is a serious problem. It is thus a legitimate policy goal to exclude from the country people who are presently Islamic terorrists. If you could identify people who were at a hightened risk of becoming Islamic terrorists in the future, that would also be a legitimate goal.

                Start from the perspective that non-Americans have no right, whatsoever, to come to America. What is the most certain policy to achieve both the above goals?

                A Muslim ban.

                All Islamic terrorists are Muslims, and existing Muslims are much, much more likely to become Islamic terrorists than non-Muslims. Both these facts explain why countries with greater populations of Muslims experience more Islamic terrorism.

                So, given absolutely no ill feeling towards Muslims at all, you would arrive at a Muslim ban as the most effective solution to the real problem.

                Now, if you saw some positive value in importing more Muslims into the country, you might none the less oppose such a ban. But not seeing such a value is not animus. Animus is hostility, or ill feeling. Just logic, facts, and uttter indifference to Islam as such, would lead you to conclude that a Muslim ban was appropriate.

                So, Trump’s statements don’t prove animus. All they demonstrate is that he is paying attention to real world facts, and doesn’t positively value increasing America’s Muslim population.

                1. Not to mention that the ban is only against nations that support terrorism and/or high animus to the USA. What is never mentioned in all these arguments is the fact that countries with very high majority Muslim countries like Indonesia, Pakistan, etc., where the majority of Muslims live are not included. While less than 20% of the world’s Muslims live in the banned countries so how can any court ruling, based on animus toward Muslims, survive; let alone survive based on the Constitution which does not apply to foreign nationals not under the control of the USA and the Constitution.

                2. Preface: I think the 4th and 9th got it wrong. I think the travel ban is constitutional. I think SCOTUS will reverse.

                  But I’m not going to follow you down the rabbit hole that we should blanket ban anyone who has “a heightened risk of becoming” something undesirable here in the United States. I don’t agree with you that terrorism generally, much less Islamic terrorism specifically, are “a serious problem” (in the United States). They’re infinitesimal problems. And I’ve got more than zero confidence the government’s ability to screen would-be terrorists without blanket bans, anyway.

                  You’re right that the President’s statements don’t definitively prove animus. But so what? There’s an alternative to “paying attention to real world facts” that is consistent with his (and your) statements, namely that you’re irrationally focused on a specific subset of risks for animus reasons. I simply don’t agree with you that “[j]ust logic” explains you or the President’s policy decisions, given the relative insignificance of the Islamic terrorist threat.

                  1. I don’t agree with you that terrorism generally, much less Islamic terrorism specifically, are “a serious problem” (in the United States).

                    Right you are, they aren’t. Muslims are less than 1% of the US population. (Before Obama got to work, they were about half a percent.)

                    Both are serious problems in countries with larger Muslim minorities.

                    Is the lack of malaria in the US a reason to import Anopheles mosquitoes?

                    1. Ffs, Muslims are not a hive mind.

                    2. Not sure what you think your point is, Sarcastro.

                    3. Brett arguing that when the Muslim population gets above some threshold suddenly terrorism becomes a problem.

                    4. that is a pathetic attempt at logic. 1 sociopath in a country of 300 million isn’t a national problem. 50 million is. At what point did they “suddenly” become a problem?

                  2. Judging the non-animus arguments weak is one branch substituting its reasoning for the reasoning of the elected head of another branch.

                    There is nothing in the Constution authorizing this to the judicial branch (as opposed to the constitutionality of this w.r.t. the First Amendment, e.g.)

                    The proper recourse is for The People to judge the reasoning weak at the next election.

                    God knows I would love more rejection on principle by judges and an abandonment of simple rational basis, which VC is trying to stirr up via emphasing the due part of due process, very much neglected compared to the process part of it.

                    But this is a lame place to start, and let’s face it, is little more than situational ethics to be abandoned the next time it works against the 9th and friends.

                3. “Animus is hostility, or ill feeling.”

                  Not in Constitutional law. It’s a term of art.

                  1. Animus is short for “Kennedy wants another landmark decision”. Obergefell is a joke and just like when I read Harlan’s Plessy dissent I picture Mickey Rooney from “Breakfast at Tiffany’s” reading it when I read Kennedy’s majority I picture George F Edmunds reading it.

                    1. “Animus” is a long term concept that arose before Kennedy was on the Court.

                4. Islamic terrorism is a serious problem.

                  Sunni Islamic terrorism is a serious problem.

                  Shia Islamic terrorism is pretty much non-existent.

                  So, given absolutely no ill feeling towards Muslims at all, you would arrive at a Muslim ban as the most effective solution to the real problem.

                  Now, if you saw some positive value in importing more Muslims into the country, you might none the less oppose such a ban. But not seeing such a value is not animus. Animus is hostility, or ill feeling. Just logic, facts, and uttter indifference to Islam as such, would lead you to conclude that a Muslim ban was appropriate.

                  Iran is a Shia country without a history of Islamic terrorism, the inclusion of Iran in the ban demonstrates that “Muslim” not “terrorist” was the motive behind the ban, hence animus.

                  1. Hezbollah

                  2. Get better talking points. Iran has been the major state sponsor of terrorism for a long time. Even the Obama administration said so. Remember the 1983 Beirut barracks bombing? That was a group of Shia terrorists, who some US officials believe were backed by Iran. More recently, Iran has provided material support for roadside bombings in Iraq and the civil war in Yemen.

                    Trying to frame this ban in terms of Sunni vs Shia shows how poor the argument about anti-Muslim animus really is, because it ignores the very specific criteria for selecting those nations. “Donald Trump travel-banned North Koreans because he hates Mooslims!” – crazy leftist meme of the month

                  3. No, because Iran was included because they are not cooperating in vetting, which was the express point of the ban.

                    1. The State sponsoring terrorism is terrible, but it doesn’t make visitors from that country any riskier.

                      As for the “vetting” excuse that’s just drawing the bullseye after you’ve shot the arrow. Iran was banned because they’re a prominent Muslim nation and a political target due to the Nuclear deal. Actual fears of terrorism have nothing to do with it.

                    2. “The State sponsoring terrorism is terrible, but it doesn’t make visitors from that country any riskier.”

                      You do understand, don’t you, that a state is comprised of people and that a state’s acts are carried out by people? People like the delightful Iranian visitors Manssor Arbabsiar and Gholam Shakuri, whose American vacation included plans to assassinate a foreign ambassador, blow up a crowded cafe and bomb, not one, but two foreign embassies. Had their US holiday not been cut short by an arrest and 25 year federal prison sentence, they planned to visit Argentina next, and blow up some Jews.

                  4. You keep repeating this and beclowning yourself. Shia Iran has been the world’s leading state sponsor of terrorism since, well, since we began keeping lists of state sponsors of terrorism. Anyone with an internet browser can look up Iran’s extensive and longstanding involvement in and financing of global terrorism.

                    If any country should be on the list, it’s most definitely Iran.

                  5. Iran is a Shia country without a history of Islamic terrorism

                    Ok, this is well into the territory of “delusional”

            2. I’m happy to regard this as a focus on nations rather than religion, but it simply leads us to ask when, finally, Trump is going to make good on his promise of a total shut down of Muslims entering the U.S. Perhaps he’ll turn to that once Mexico pays for the wall. Mark my words.

              1. I’m having trouble figuring out if you’re being sarcastic or paranoid.

          2. “Well of course, because Rudi Guliani didn’t say “This is intended as a national origin ban targeting Iraq, Iran, etc.” He said “Muslim ban”. ”

            So a quick line in an interview with the news media by a person who is not exhaustively covering the issue now determines case law.

            It seems to me that the courts are adopting the news media’s “gotcha” approach to making determinations.

    2. The Equal Protection Clause is quite explicit about applying only to Americans, or at least people already within our borders.

      The 23 plaintiffs in the case are all Americans or lawful permanent residents. Want to try again?

      1. What the case actually says is:

        “The twenty-three individual Plaintiffs are all U.S. citizens or lawful permanent residents, and most of them have close family members who are nationals of the Designated Countries and who are in the process of applying for immigrant and nonimmigrant visas to the United States.”

        Meaning, the relatives want to bring their families in. Those in the US are here, are not being deported, and have the full right to practice whatever religion they want.

        So, no, the issue here is whether the EP Clause (or its federal equivalent) applies to allow foreigners outside the country to enter the country. That their relatives in the US would like to see them enter is neither here nor there. There is no EP violation here, because the persons whose rights are being affected are outside the country.

        1. There’s no EP violation here because it isn’t an EP case. But if it were an EP case, some of the plaintiffs are in the United States, today.

          1. However none of the plaintiffs in the USA have standing nor a case as their Constitutional Rights have not been violated. I would note that foreign national plaintiffs also have no standing nor case as Constitution does not apply to those not under it jurisdictional control. Not to mention that there is no violation of the Constitution in the case as the countries under the ban have less than 20% of the world’s Muslim population while the countries like Indonesia, Pakistan, etc. have high majority Muslim populations and are not banned.

            1. “However none of the plaintiffs in the USA have standing nor a case as their Constitutional Rights have not been violated.”

              If the travel ban violates the establishment clause, many of the plaintiffs in the USA have standing.

              I don’t know what SCOTUS will do on standing. Importantly, even one of the dissenters in the 9-4 decision above thought the plaintiffs had constitutional standing (but not standing on the statutory claims).

              You keep bringing up this “less than 20% of the world’s Muslim population” point but should be careful there. The fact that those others aren’t banned lends credence to the argument that the President’s EO-1 wasn’t intended to make the US safer, but was rather just intended to garner support for a facially permissible Muslim ban.

              1. Actually it lends credence to the argument that is was intended to make the US safer by banning countries with animus toward the USA, not to mention said countries also support terrorism. Not to mention that the countries residents are banned regardless of religious affiliation yet countries with higher Muslim populations are not banned.

                1. Well it leaves out countries with animus towards the United States as well. The relationship between the countries banned and the countries not banned was poorly defended at the trial court level by the government. It’s theater, not security.

              2. As for standing, I find it interesting how the same courts allow standing in these cases without any actual violation of plaintiffs Constitutional Rights yet in many more cases they refuse standing with actual violation of Rights.

                1. Well I can’t respond to assertions this vague.

              3. The fact that those others aren’t banned lends credence to the argument that the President’s EO-1 wasn’t intended to make the US safer, but was rather just intended to garner support for a facially permissible Muslim ban.

                Wow. Yikes.

      2. The plaintiffs in the case don’t have standing as their Rights have not been denied nor do the foreign nationals outside the USA.

        I would also note that foreign nationals, not under the jurisdiction/physical control of the USA, do not have Constitutional Rights.

  2. So, the Japanese could have invaded America in 1941 because to refuse them entery would be discrimination based on National Origin? Can we charge Admiral Nimitz with hate crimes even after he’s dead?

    The federal judiciary and the left wing law professorate have officially jumped the shark.

    The judiciary is co-equal to the executive and the executive is in charge of foreign affairs and execution of the laws. The President, even one you did not vote for, is not subject to 600 federal district judges.

    Madness.

    1. The “so you mean” is a red flag of getting things wrong strikes again!

      Art. I has various provisions that provides congressional power over foreign affairs. The courts also don’t lose their judicial power when foreign affairs is involved, including when interpreting a treaty or something.

      The last part is particularly striking. If the President orders an American citizen held without due cause, they are not subject to a habeas corpus holding by a judge?

    2. This case isn’t about discrimination on the basis of national origin. It’s a 1A case.

      However, a Shinto and Buddhism ban in 1941 probably would have survived the Lemon test anyway, and it wouldn’t have mattered because the Supreme Court cannot stop the federal government from resisting invading troops on American shores.

      1. Yet more than 80% of Muslims in the world are still allowed to apply and receive visas under the ban(s).

        1. We all know that.

      2. I think it is so comical how “tolerant” you believe you are but you get to be the “ugly American” telling foreigners which religions you deem legitimate! ISIS believes their practice of Islam is legitimate regardless of what ugly Americans like you and Obama believe! Fundamental to their religion is killing infidels which historically is consistent with the beliefs of many religions.

        So by denying entry of ISIS into America you are violating the Lemon test because you are denying them entry due to their deeply held religious beliefs which killing infidels is a huge part of! And before you say you have the right to live remember that are free to convert to Islam and avoid being killed. So just admit it?you are an anti-Muslim BIGOT denying entry to good Muslims!

    3. Here’s one: Using quotas for hiring is illegal but the progressives, who will openly state that they want to give minorities preference in hiring and promotions, call what they are doing “using secondary criteria” that, magically gets them the exact numbers they have set as a goal.
      So, why aren’t those well-known intents a disqualifier of these quota programs?

  3. Yawn. Since the Nazgul already agreed to decide this issue, the opinions are just law review articles.

    A waste of judicial and clerk time as well, instead of writing 285 pages they could have just stayed it until the Supreme Court opinion was issued.

    1. They just want to slip in as many more immigrants contrary to Trump’s policy as they can.

      Then when the Supreme court rules in Trump’s favor, and he tries to deport them again, they’ll enjoin that, too.

      I’m expecting a serious Supreme court smack down here, the Court does not want to end up continually being bombarded with lower court rulings trying to micro-manage the Executive branch.

      1. Animus is Tony K.’s baby so do not be so sure it won’t be 5-4 against the government.

        Betting on Tony K. to do the right thing is a sucker’s bet.

        1. The irony is Obergefell is dripping with animus towards Mormons that practice polygamy…how many times can a Justice reference “couples”? And polygamists have actually been targeted by the feds and Romney family lived in exile for decades out of fear of the feds!?! How awful that the bigot Kennedy has a lifetime appointment to spread his poison?

      2. Let me translate this a bit.

        Federal judges have the power to interpret the law and in the process deal with specific cases that in a slew of ways limit the power of the executive department to do things. This occurs regularly and the Supreme Court largely doesn’t find it too disconcerting and many Trump supporters like it, since it results in various results they like (e.g., protecting property owners from EPA actions or whatnot).

        But, in this case, it is somehow a problem, since I disagree with how the courts are interpreting the law. It is quite possible that in this specific case a conservative leaning court will find for the Trump Administration though it already showed that it was concerned with the breadth of its actions in this area. On that front, the Supreme Court itself “micromanaged” by requiring a more restrictive policy.

      3. We conservatives must take a stand on the immigration issue?diversity as a factor in immigration policy is RACISM! Any liberal that advocates anything less that a colorblind immigration policy based on merit has animus for white Christian Americans. We gave liberals an inch on college admissions and they took a mile and we can’t let that happen again.

        1. Good luck with your extremely rational and normal stand against diversity and families.

          1. Color blindness is anti-diversity and anti-family? Please explain that one.

        2. We gave liberals an inch on college admissions

          The real mistake with respect to education, though, was made by liberals, when they began to provide accreditation to conservative-controlled campuses that teach nonsense, infringe academic freedom, suppress science to flatter superstition, enforce strident censorship and old-timey conduct codes, collect loyalty oaths, engage in viewpoint-based discrimination in everything from hiring to admissions, and consequently inflict on our society hundreds of third- or fourth-tier (or unranked), snowflakey, backwater goober factories.

          Our strongest schools, of course, are operated in and by the liberal-libertarian mainstream.

          1. Harvard was the best college in the country when they were having Obama senior deported for being a black man impregnating white women.

            1. The liberal-libertarian alliance has Yale, Berkeley, Columbia, Carnegie Mellon, Williams, NYU, Stanford, Harvard, Michigan, and Penn.

              The conservatives have Biola, Liberty, BYU, Hillsdale, Ave Maria, Franciscan, Grove City, Regent, Oral Roberts, and Wheaton.

              I know which side I expect to prevail over time.

              1. Once again, Harvard was the best college in the country when they kicked out Obama senior for impregnating a white woman.

                1. Much has happened in America during the relevant half-century. You might not like all of this damned improvement in American society, but denying it has occurred is not persuasive (unless your’re focusing exclusively on an audience of gullible, superstitious, right-wing yahoos, of course).

                  1. You are the commenter saying Muslims believe in a “fairy tale”. Welcome to the Dark Side young Skywalker.

                    1. What, in your judgment, is dark about recognizing that superstition, religion, fairy tales, and fiction are relatively interchangeable terms?

                      Choose reason. Every time.

                      Especially over sacred ignorance and dogmatic intolerance.

                      Choose reason. Be an adult. Or, at least, try.

                    2. You are calling all Muslims ignorant and intolerant.

                    3. Not all Muslims are intolerant and ignorant. Similarly, not all Republicans, conservatives, or Christians are intolerant and ignorant.

                    4. Not all Muslims are intolerant and ignorant. Similarly, not all Republicans, conservatives, or Christians are intolerant and ignorant.

                      Then to what do you attribute conservative beliefs? Surely not to a valid alternative point of view. Of course you believe them to be mistaken, and perhaps in some cases delusional, but you appear to have left open the possibility of conservatives who are not evil. Has Arthur I. Kirkland been getting to you?

    2. Who are the Nazgul in this scenario? And why are they analogous to the Nazgul?

      1. 9 justices wearing black robes = 9 Nazgul wearing black robes

        1. YES!
          I have a blue bathrobe, so by Bob’s logic I think I get to be a wacky side character!

          1. It is a joke reference. Not original to me.

            1. Yes, I did not think you were actually of the belief that Roberts was a Witch King.

              I was just making a very nerdy reference.

              1. “I have a blue bathrobe”

                The Blue Wizards were wacky?

                Anyways, I picture you in a bath robe more like more like Steve Martin in The Jerk than a Maia.

                1. Haha, that’s a fair put, I am white and my ambition far exceeds my actual funkiness.

                  Though I never pictured the Maia as particularly graceful; their fit in the mortal world wasn’t exactly as intended after all.

    3. It’s a conspiracy!
      By a majority of appellate judges across the country!
      To disagree with Bob and Brett’s understanding of what the Constitution super-clearly means!

      1. “By a majority of appellate judges across the country!”

        By a majority of appellate judges in two circuits you mean.

        Forum shopped circuits, especially the crazy 9th. Why were these cases not brought in the DC circuit, that is where the President issued the orders?

        1. We have two data points. You’ve discarded them both as conspiracies against Trump. And imputed forum shopping. To the fourth circuit?
          ========================
          And despite right-wing radio, the 9th isn’t crazy by any normalized metric – it’s just big. Good enough reason to break it up, but IIRC from a Conspiracy post 2 or 3 years ago, I think the 2nd was is the most liberal.

          1. The ninth is the most overturned, by a long shot.

            1. retiredfire,

              Did you miss the “it’s just big”? Guess so.

              The 9th is not the most overturned Circuit. Unless you just mean raw number of reversals, but it is also decides roughly 50% more cases than the next largest Circuit. Basically, it is kind of like saying India has more left handed people than Switzerland, Paraguay, Grenada, and Bermuda….combined! What’s up with all those left-handed people? What is India doing?!?!

              You are just wrong to the extent you are trying to make any relevant, meaningful assertion.

              http://www.politifact.com/pund…..-country-/

          2. Two non-random samples are not convincing. They barely qualify as multiple points, much less anecdata.

      2. Sarcastr0: “By a majority of appellate judges across the country!”

        But 7 of 9 Supreme Court justices sided with the Trump administration. So there’s that.

        Supreme Court Allows Trump Travel Ban

        1. Meh, we’ll see.

          I wouldn’t bet on this surviving the Court either, but the point is that the people dismissing this as a bunch of judges who all hate Trump are crazy.

  4. Decisions like this have a chilling effect on political speech.

    1. [grabs popcorn]

      Please … explain how this court decision has any merits on “political” speech?

      1. “…[T]he president’s numerous statements advocating a “Muslim ban” and equating that goal with the “territorial” approach adopted in the various travel ban orders are relevant evidence that courts must consider.”

  5. Oh, look, another “because Trump” ruling.

    1. It’s odd how when a ruling went against the Obama Administration it was absolute proof of that administration’s lawlessness, but when a ruling goes against Trump it’s just more hard evidence of a massive conspiracy against Trump.

      1. You have to ignore or be completely ignorant of the body of the courts rulings to argue that.

        1. In other words, you agree with Trump and not Obama, and anyone who isn’t in the same boat is ‘completely ignorant.’

          1. No. We agree with what the courts are supposed to do and that is to abide by the laws and the Constitution.
            Decisions against 0blama were soundly decided as being in violation of either of those.
            These “rulings” against Trump are in exact opposition to what the law and the Constitution says. The fact that they are grounded in campaign rhetoric is the most stark proof of that.

            1. Not just in opposition, but in “exact opposition”. I take it that you strenuously object to the rulings.

            2. Liberty, Ave Maria, and Regent should just go ahead and award law degrees to retiredfire. He has already mastered everything a conservative law school tries to teach.

          2. Right, because any case decided against Obama was racist. And any case decided against Trump is just.

            Way to mimic that which you despise.

            1. You seem to be having a conversation with an imaginary liberal in your head. No one in this thread saying anything that would, in the most generous terms, justify your caricature. No one even said the cases the Obama administration lost were wrong.

              Try to actually read a post before hitting the macro that inserts your pre-written responses.

        2. Well, that or being conscious for the last decade. Both good.

          1. When you post in response to someone, make sure you put into your response a quote from the original commentator, or at least their name. With Reason’s dreadful layout; I have no idea at all whom you are responding to.

      2. OtisAH: “It’s odd how when a ruling went against the Obama Administration …”

        Bad analogy. In its ruling in December, SCOTUS ruled /for/ the Trump administration’s position. That means (if we favor the set up of the courts) that the appellate rulings against the administration’s position were wrong. And that this most recent ruling is egregiously wrong, amounting to insubordination.

      3. The whole “animus” thing actually does mean the ruling is “because Trump”

        1. Because of what he’s said != because of who he is, as some here are implying.

          Status versus action is a fundamental legal distinction.

  6. I thought this was a libertarian blog, hosted by a libertarian website.

    Instead, it appears to feature on a lone libertarian Conspirator (among a dozen or so) and a group of reliably authoritarian, right-wing commenters who can’t abide the libertarian’s occasional contribution.

    If self-described “scholars” are able to describe this blog as “often libertarian” or “libertarianish,” academic integrity standards have diminished beyond worth.

    1. I thought this strawman, hosted by strawman strawman.

      Instead, strawman strawman strawman!

      It’s exactly like I said!

      1. Strawman is the new FRAUD

    2. Yes. Eugene Volokh has already supported “the Left” in at least two major Supreme Court cases this term, the Masterpiece Cakeshop and union fees cases. Where or where will we find a libertarian?

      Seriously, libertarians often make an exception for the executive’s power in foreign affairs, and many here really are conservatives. You do see libertarian qualities overall here but there does seem to be a conservative cast to it. And, it is a particularly vocal one, so it at times seems to dominate.

      1. I see comments deriving mainly from the disaffected, selfish, easily frightened strain of conservatives that masquerades in unconvincing libertarian drag.

        1. I see another butthurt slaver liberal spewing nonsense, again.

          1. It’s the right-wing schools that teach nonsense, goober. And backward, conservative yahoos who believe it.

    3. …it appears to feature on a lone Progressive Libertarian Conspirator…
      FIFY

      Carry On Arse Kisser!

      1. What does Post have to do with this?

        Somin certainly isn’t a progressive, he’s just a suicidal libertarian (a libertarian who wishes to enact policies that would result in anti-libertarian ends)

        1. And the word “suicidal” sums up liberals’ position on this issue. Liberals oppose Islamic values but they feign allegiance to Free Exercise Clause and throw up their hands and claim there is nothing we can do to save our culture from the impact of clearly inferior cultures. Don’t get me wrong?I support a colorblind immigration policy because I have faith in the superiority of our culture, but what I don’t want is a critical mass of immigrants from inferior cultures negatively impacting our culture. So if San Diego becomes Tijuana a large number of people of color living in San Diego will be negatively impacted.

  7. In a general sense, it seems odd that the United States cannot decide which (non-citizen) individuals to enter the country. Even if the selection is based on religious or other beliefs. For example, I understand why Westboro Baptist Church is protected in this country from discrimination because of the 1st Amendment, but if that church was based in Sweden and all the members wanted to immigrate to the United States, why can’t the United States as a sovereign nation say, “No thank you, we don’t want your type here.”

    If you keep taking this to the extreme, it gets absolutely ridiculous. What if a certain foreign society ardently believes that persons of color should be enslaved? And what if the President, rebukes that belief and denounces those individuals? If the President then sets up a travel ban related to the applicable country, can the ban be invalidated because the President has expressed animus towards people that want to enslave Black people?

    1. If you keep taking this to the extreme, it gets absolutely ridiculous.

      If only there were some kind of limiting principal at work here

    2. A ban against people who want to enslave Black people is going to survive the Lemon test, even if the President gets up in his State of the Union and says “I can’t stand slavers and I want to ban them, especially those slavers who do so on the basis of race.”

      1. Look at how the 4th Circuit applied the Lemon test in this case. They didn’t look at all behind the Muslim label. They simply said — Islam is a religion, the President is biased and motivated against this particular religion, therefore this action is wrongfully motivated by an anti-religious bias.

        Thus, say, for example, that a religion (I’ll just refer to New Methodists for this example (sorry if there are actual New Methodists out there)) New Methodists are ardently in favor of overthrowing all Western government and replacing them with governments that do not recognize any female rights. If a President said, you know what, I don’t think it would be great to have New Methodists in our country, so let’s keep them out. The 4th Circuit would have to say, sorry Mr. President, your action is biased against the New Methodist religion.

        1. Well it was an appeal of preliminary injunction so there wouldn’t be a searching factual review “behind the Muslim label” until later. If the President said “We need to ban New Methodists” that would be some evidence that the President had animus towards New Methodists, right?

          1. Does it demonstrate animus to say that people who disagree with you are a basket of deplorables? Or that they bitterly cling to their guns and religion, when it’s perfectly obvious which religion that is?

            1. 1. Yes, it would display animus. I suspect that most liberal politicians have animus against those on the extreme of gun rights, those who want to entirely ban abortions, anti-vax nuts, anti-gay-marriage advocates, etc. I suspect that most conservative politicians have animus against “all guns should be confiscated” folks, pro-choice advocates, atheists, anti-vax nuts (Hey! common ground!!!), and so on.
              2. I don’t know which religion you’re talking about. Catholics? Protestants? Methodists? Episcopalians? Baptists??? Seriously, what specific religion *are* you talking about? (The fact that, to you, it’s blindingly obvious, but it’s opaque to me, might say something about your premise.)

        2. look at all behind the Muslim label

          See, if you only understood that Muslims are all in favor of overthrowing America and enslaving women, Trump doesn’t have animus at all!

          1. Yes, let’s look behind the Muslim label.

            Over 80% of Muslims are still allowed to request and receive visas, aka their countries are not banned (Indonesia, Pakistan, etc.) Whereas the banned countries do have other commonalities beside Muslim majorities like animus toward the USA, support of terrorism, etc.

            Not to mention that foreign nationals not under USA jurisdiction do not have Constitutional Rights nor standing in USA courts. But please my friend, don’t let facts get in the way of a good meme or sarcasm.

            1. Let’s look at the muslim label.
              Islam is not a religion, but an entire societal construct, masquerading as one.
              It has its own laws and Draconian punishments, that are inimical to Western jurisprudence. Its eventual goal is to have everyone convert, or those that don’t to be relegated a second-class existence, paying for the right to live by their own beliefs.
              Not every group that declares itself a religion gets 1A protections. Islam shouldn’t either.
              It should be treated as the Nazi Party would, if it declared itself a religion.

              1. Which fairy tales pass your Constitution muster, retiredfire?

              2. Nazis get 1A protections.

                We could probably ban Nazi immigration, but alas Islam is not Naziism. Despite your pinched assertion, Islam does not have a uniform theocracy with it’s own laws and punishments.
                No more than all the Catholics being against the death penalty means Catholicism is inimitable to countries that allow it.

                Even ignoring the great variation across Islam, your thinking would ban Orthodox Judaism from America as well.

                1. Nazis get 1A protections.

                  American ones, sure.

                  German ones? Not so much.

                  1. Funny to see the right abandon the negative-positive liberty distinction at the drop of a hat.

              3. If you told the Founders that Muhammadanism wasn’t a religion they’d have called you an idiot.

        3. Everything you said is reasonable however liberals’ goal is to destroy America. So I frame this as I believe opposing LGBT rights is antithetical to American values so I don’t want more Mormons, conservative Christians, or Muslims to be allowed to come to America. Liberals know only Muslims are a big enough group to come to America and change it so they don’t care that they socially conservative because liberals have the most animus for white Christians. So liberals believe the enemy of their enemy is their friend and anything that will decrease the power of white Christians works to their advantage…they are vile racists and we have allowed their hate to be deemed legitimate.

          1. Sebastian,
            How did you wrangle an invitation to attend our secret “Hey, let’s destroy America in a way that no rational conservative will notice, but Sebastian alone will be smart enough to spot” meeting?

            We’re usually better about screening out intelligent people like you.

            Now our plot is ruined. Oh well; back to the Trilateral Commission to come up with a new plan. 🙁

            1. Why do liberals defend the homophobic and misogynistic beliefs of Muslims but they don’t defend the beliefs of white American Christians?

              1. It’s almost as though liberals are able to disapprove of something and be against using state power to ban it.

                1. So you “disapprove” of forcing Christian bakers to bake wedding cakes for gay weddings?

                  1. I don’t think broad public accommodation laws are good policy, but I believe the Civil Rights acts are Constitutional, so I believe these laws are as well.

                    1. Lol.

  8. Could be the overriding question for our time is ? will Judeo-Christian Western Culture be benevolent enough to preside over its own demise? Given enough clueless progressive judges and politicians, it appears the answer is yes.

    1. You keep rooting for enough right-wing, authoritarian backwardness and bigotry to buoy Republican candidacies and thwart the tide of American progress, WJack! It suits you.

      1. Fuck off, slaver.

        1. Carry on, clinger.

          With even more hapless, bigoted disaffection, please.

          1. President of the United States: Donald J. Trump.

            Suck on it.

            1. I expect right-wingers to continue sucking on the consequences of Trump for a half-century, retiredfire. Young people — who will be voting for a half-century, and long after all of the cranky, backward, frightened right-wingers have taken their stale thinking and bigotry to the grave — are watching the Republican Party and conservatism be branded (deservedly) with bigotry, backwardness, superstition, and corruption.

              Think of how far America has progressed — against the preferences and efforts of conservatives — during the most recent half-century. Continuing American progress seems predictable, for several reasons.

              This is great news for America, bad news for right-wing bigots and boors.

              I will think of Republicans’ shattered aspirations as I enjoy America’s future.

    2. A principal of ‘Judeo-Christian Western Culture’ is about diversity and evaluating people on their individual merits, not prejudging them via guilt-by-association.

      Only a brave few have the courage to say that the only way to preserve these principals is by making an exception to these principals.

      1. “A principal of ‘Judeo-Christian Western Culture’ is about diversity and evaluating people on their individual merits, not prejudging them via guilt-by-association.”

        I don’t agree and I think WJack is a better exemplar for “Judeo-Christian Western Culture” values. Although that’s not flattering for Judeo-Christian Western Culture.

      2. Um, I don’t think diversity is actually a long standing element of Judeo-Christian western culture. More of a recent graft.

        And, certainly, people should be evaluated according to their individual merits. But the point of the travel ban is that those countries done, or can’t be trusted to, cooperate in providing the information necessary to that evaluation.

        You can’t reasonably complain that people aren’t being individually evaluated when the information to do so isn’t available from the countries in question, or can’t be trusted because they’re hostile state sponsors of terrorism.

        1. It’s the result of the consistent liberalizing and thus diversifying thrust of the whole Western Civ narrative.
          From including citizens and not just kings in the old Greek Republics. To the Romans rolling up and assimilating every culture they conquered.
          After the Dark Ages, the Enlightenment included lower classes in the mix, and sometimes even women. Later other races and even faiths were included as the ideal of the cosmopolitan city rose, wherein the concept of diversity was a value in and of itself and not just an indirect effect of liberalization.
          America’s Constitution sure spends a lot of efforts maintaining the rights for ideological minorities for diversity not to be seen as a benefit by that point.

          1. So, it’s liberalizing to proceed from including in the polity everybody already present in the country, to importing to the country people who aren’t already present, and who reject our values?

            I don’t buy it. At some point you increase diversity to the point that you abolish diversity, because you say, “This group can’t have a different composition from that group!” The individual group becomes more “diverse”, the universe of groups less so.

            I don’t think we advance the cause of America by diversifying the country, by importing people with hostile values as well as compatible ones.

            1. The ‘who embraces our values’ is itself a rather modern understanding of nationalism.

        2. Um, I don’t think diversity is actually a long standing element of Judeo-Christian western culture.

          Says the guy who apparently lives so far into the sticks he has never encountered an egg roll, lasagna, collard greens, a bagel, Guinness Stout, hummus, a pierogi, Jameson, tacos, or lutefisk.

          Or maybe he just couldn’t see them, because he’s so far back they need to pump in sunshine.

          1. Says the guy who is entirely familiar with all those things, and enjoys roughly half of them.

            I’ve eaten things Andrew Zimmerman would turn pale at the thought of.

      3. A PRINCIPLE of Jude-Christian Western culture is equality before the law, and of individual rights. It’s not a principle of that culture that all other cultures are equally good and must be afforded equal access to our nations.

  9. “What’s he doing is perfectly legal, with plenty of historical precedent, but we don’t like WHY we think he’s doing it, which we have discovered using our telepathic powers, and therefore we will overrule all of US law.

    1. Yeah, my main problem with this is that its a classic case of bad facts creating bad law. The judges don’t like what they are seeing so they are bending/ignoring/changing the law to address these particular facts. But, all they are doing is creating terrible precedent.

      Sometimes, when a terrible monster engages in a horrible crime, and everyone knows he’s guilty, a judge still has to let him off the hook if, for example, a 4th Amendment violation has taken place. Judges who go out of their way to adapt the law to a particular case to achieve a desired result in that case, create a ton of future problems.

      1. “Sometimes, when a terrible monster engages in a horrible crime, and everyone knows he’s guilty, a judge still has to let him off the hook if, for example, a 4th Amendment violation has taken place. ”

        That’s only because they’ve rejected the obvious remedy, using the evidence and criminally sanctioning the government officers who violated somebody’s civil rights.

        They ruled out any punishment for the rights violation as infeasible, so all that was left was minimizing its consequences by barring use of the product of the rights violation.

    2. Telepathic?

      You don’t need telepathy to read someone’s public statements.

      1. The problem here is that they’re barring Trump from actions that another President could pretty unambiguously take. So, their objection isn’t really to the actions, it’s to the President. Obama could have instituted the travel ban without a peep out of the judiciary.

        So, what they’re really doing is saying that, because Trump is a bad person, he’s foreclosed from exercising the powers of his office in certain ways another President could exercise them. What the courts are doing here is a kind of partial, context dependent impeachment.

        But removing a President isn’t the judiciary’s job, it’s the Legislature’s.

        1. Well it’s a preliminary injunction, so the Government is still in a position to argue on the merits that the policy isn’t directed by animus from the President, because [reasons]. But your concern is well-founded and why many judges, including at least one on the Supreme Court, don’t think much of animus arguments. Maybe five SCOTUS judges will do away with animus.

          1. I think it will be more than 5 SCOTUS Justices upholding Executive Constitutional authority. About the only one I see fully against would be Sotomayor, possibly Ginsburg. YMMV

            1. Kennedy in Din hinted at it, and Alito was in on that concurrence. Breyer and Kagan dissented full-on in that case, too (along with Ginsburg and Sotomayor). I think it’s 6 tops for your position, but 7 tops for the alternative.

              1. Even if the minority opinion in Din were controlling precedent, it would only support a preliminary injunction against applying the automatic travel ban to spouses (and presumably minor children who are not already US citizens) of US citizens. It would not support striking the whole thing.

        2. It’s based on the President’s explicit statements, not on the Pre

          When someone says nigh contemporaneously to them doing something they have an impermissible motive to do something, I have no problem with the court believing them.

          To me, the question is where you draw the line between ‘nigh contemporaneously’ to ‘recently.’ It doesn’t come up must because most politicians are pretty circumspect, but I’m pretty excited about the Supreme Court’s chop on this concept.

          1. I have a problem with it, when they are quite visibly proceeding to do something else, instead.

            1. Another fine question of fact to ask – is the action at bar sufficiently associated with the impermissible motive that it was performed with that motive?

              Just because it doesn’t ban all Muslims doesn’t mean it’s not done due to animus against them. It’s up to the fact finder lower courts to determine that.
              Similarly, adding non-Muslim parties later is to me clearly pretextual attempt to hide the continuing impermissible animus. Again, a question of fact for the trial court.

              1. “Just because it doesn’t ban all Muslims doesn’t mean it’s not done due to animus against them.”

                That’s true, can’t argue with that.

                The problem here is that the policy doesn’t “ban Muslims” at all. It bans entry from a list of countries, regardless of what your religion might be.

                Further, the list originally derived from a list the previous administration, not accused of animus, had compiled, of problematic countries from an immigration standpoint.

                Trump simply made the determination that, rather than being subject to extra scrutiny, they’d be categorically barred, because the extra scrutiny was futile given their lack of cooperation with vetting.

                Are they mostly Islamic countries? Sure, and ask Obama why that is.

                1. Exactly, the restrictions are on countries with high levels of terrorist organizations in which background checks are difficult. To their credit liberals also believe Bethesda and Baltimore should be policed the same…until the murder rate in Baltimore skyrockets.

                2. “The problem here is that the policy doesn’t “ban Muslims” at all.”

                  Well originally the President said he was going to except some Christians, but sure, the current policy is facially neutral on religion.

                  1. Trump is a moron and I didn’t vote for him so I don’t care what he says or does one way or the other.

                    The initial travel ban was clearly drafted to get under the skin of liberals but keep in mind that in the future Muslims in a majority Christian nation could be being persecuted and need singling out in a refugee situation. So in WW2 we wouldn’t have to accept all Germans but we could limit it to Jews. I know the liberal argument is religion is this amazing gift from God that promotes kindness and goodness is all of God’s children but the reality is that religion is not innocuous and actually can be a negative force.

                  2. The argument that “the policy doesn’t ‘ban Muslims” at all'” is unavailing for the same reason that North Carolina’s recent argument that they didn’t prevent black citizens from voting was a loser at the Fourth Circuit. North Carolina Republicans sought data on which IDs were more likely to be used by black citizens and then excluded those IDs from the list of approved IDs for voting purposes. Most black people did not use those particular IDs, but those IDs were more likely to be used by black citizens and there was direct evidence of an intent by Republican legislators to reduce the voting rate of black citizens in North Carolina. The Fourth Circuit rightly called this voter ID plan what it was: racially discriminatory.

                    Similarly, the argument here is that the countries targeted are overwhelmingly Muslim, though most Muslims live in other countries, and there is direct evidence of an intent to reduce the ability of Muslims to enter the country (“Muslim ban”). Hence, it is not unreasonable to conclude the ban discriminates on the basis of religion.

                    1. I admire the optimism exhibited by one who attempts to reason with retrograde right-wingers who are lathered up on bigotry, but hope you recognize you might as well be yelling at a lamp.

                      A particularly stupid lamp, at that. Some lamps respond to verbal command, or to clapping.

                    2. You make an excellent point. I appreciate your own efforts, though, to provide a little light in these dark times.

                    3. Too late for that, he is already Darth Kirkland.

      2. Trump has never stated that he hates Muslims just because they are Muslims.
        He certain has said he finds them a threat – and considering that Muslims are responsible for thousands of terrorist attacks every year, that’s not an unreasonable position.

        The immigration restrictions clearly point directly to national security – countries that cannot or will not cooperate with immigrant and visitor screening to US standards are the targets of this order.

        The Court goes beyond Trumps public statements, the law, and the order as written to decide that Trump actually meant something else. Unless the judges have secret recordings/interviews of Trump no one has ever mentioned (including them), they only way they could know Trumps inner motives is through telepathy.

        1. “The Court goes beyond Trumps public statements…”

          The Court did not go beyond public statements by people in the administration.

          1. The Court did not even get to public statements by Muslims, which clearly demonstrate a desire to destroy America and kill Americans. What was your point? I thought you were against taking a few outliers and using them to judge an entire group.

    3. If you were having lunch with the President right now, do you think he would say he didn’t intend to ban Muslims? Give the man some credit.

      1. I think he’s say he’d intended to, but found it wasn’t really permissible, so he settled for doing something else that was actually allowed.

  10. How on earth can one’s purpose of discriminating against Muslims be shown by discriminating on a small fraction of the world Muslim population? It’s either a terrible & fruitless effort at discrimination or an idiotic claim of discrimination. Besides that it seems to me that Trump has the right regardless of reason for non-citizens, but I’m no lawyer so apparently thought wrong by some better trained.

    If we’re to weigh so heavily on a presidents spoken intent to overturn his policies, I’d rather start with such Presidental statements as “You’re going to save $2500 on your premiums,” “You can keep your doctor,” “No new taxes, read my lips,” & overturn the obvious fabrications used to trick our “stupid” [Gruber] population.

    1. How about, “This tax cut will pay for itself.”

      We are not talking about claims about the effects of a policy. We are talking about statements made as to their purpose.

      1. “It’s not at tax, it’s a penalty”

        How did SCOTUS decide it really was a tax when Obama stated plainly it’s purpose was to penalize and was not at tax?

        1. Because animus is an issue in 1A cases but not in Article 1 Sec. 9 cases. The federal government has the categorical power to tax, regardless of its motive. It does not have the categorical power to establish or interfere with the free exercise of religion, regardless of motive.

    2. The same way that refusing to rent to black people who apply to live in your building is discrimination even though you’ve technically never refused to rent to every black person on earth.

      1. Hey, pal, this is a libertarian(ish) blog, especially when being libertarian means it’s fine and even necessary to discriminate against blacks, because tyranny!

        1. Yeah, Art, you’ve never quite grasped that distinction between “fine to do” and “ought to be legal”, have you? In your world not outlawing something is endorsing it as good.

          1. No one ever accused him of having a 3-digit IQ.

          2. I’m still working on the ostensible distinction between “very fine people” and “deplorable bigots,” especially in the context of conservatives.

    3. texToo,

      “How on earth can one’s purpose of discriminating against Muslims be shown by discriminating on a small fraction of the world Muslim population?”

      How could North Carolina Republican legislators have a purpose of discriminating against black voters by discriminating against a small fraction of black voters who used particular forms of ID?

      “Before enacting that [“omnibus” election] law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans……Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.” ( http://www.ca4.uscourts.gov/Opinions/…..1468.P.pdf )

      1. You might want to draw the line between “affects a small fraction of X” and a court ruling that says “animus against Y because government actions ‘target [Y] with almost surgical precision'”, because it isn’t as obvious as suggested by a quote without further comment.

        1. Michael P,

          So you think the North Carolina case would have gone better for Republicans if their methods were, perhaps, had less “surgical precision”, but they very openly and publicly stated that there purpose was to prevent black citizens from voting? If so, we disagree.

          I never claimed the two cases were on all fours. My rather obvious point was that tex is mistaken in his belief that, so long as you don’t target a majority of a particular group, policies with a stated goal of discriminating against a group cannot actually be discriminatory.

          OtisAH made the point more succinctly above.

  11. Given the Court’s opinion, it may be time for us to clarify the Constitution; that is, if the Court continues to opine that the Constitution does not grant either the President or Congress the ability to regulate our borders as deemed appropriate, we need to amend the Constitution.

    We’re often told that the Virginia gubernatorial race was a bellwether — and in many was it was. In particular, the victorious Democrat had to modify his stance regarding immigration and sanctuary cities: there is simply no public support for open borders and it is our absolute right to implement policy we find most suitable, even if doing so requires us to modify the Constitution.

    1. Constitutional limits including properly executing federal laws has an exception when regulating borders. Then, the rule is if the President or Congress “deems appropriate” something, it is okay. That’s the idea?

      1. Well, no. If an American citizen, or even somebody who had a Green card, were to travel abroad, and the President barred their reentry without good reason, that wouldn’t be ok.

        But since non-citizens and non resident aliens who are in other countries utterly lack any right to come here, it’s impossible for the President to violate their right to come here. Because it doesn’t exist to violate.

        1. The litigation doesn’t only affect non-citizens and non-resident aliens but even if it did, the Constitution limits the power of the President to do various things. It still would be unconstitutional or at least beyond the reach of current immigration law — putting aside standing to sue issues — if such things were done. This is true even if it was “deemed appropriate” by the President or Congress.

          If the President, e.g., only gave green cards to Protestants or people who believe the 2A means what the dissent in Heller believes, it could violate the First Amendment.

  12. Obama has consistently directed animus towards ISIS which is a religion group…it even has Islam in its name!?! Why does a man like Obama who famously rejected the Islam of his father to embrace the Christian religion get to use the office of the presidency to whip up hatred towards a group of Muslims?? Obama clearly made a value judgment that Christianity is superior to Islam…how is that not animus towards Islam?? I guess the American justice system is like the Iranian justice system in which Shia are seen as the true practitioners of Islam and the Sunni are seen as charlatans. Can these judges maybe produce a memo to inform us which Muslims practice Islam that is deserving of protection?

    1. Well since Obama was a Moslem himself, that guarantees there was no unconstitutional animus in his statements.

      Because we all know now it’s unconstitutional not to like something like terrorism or illegal aliens murdering your wives and children.

      1. ‘Well since I am a crazy person who believes crazy things, your hypothetical isn’t true!’

        Amazing.

      2. Obama REJECTED Islam which shows animus towards Islam. ISIS is a religious group and Obama consistently directed animus towards them saying things like they aren’t true Muslims. Why does he get to be the Muslim police?

        1. I know you’re being cute, but if you can’t distinguish between ISIS and Muslims generally, you’re not going to really get the court’s argument. Or fit into modern America, really.

          1. Wrong, ISIS is practicing Islam as they believe it must be practiced. My argument is that we can make value judgments about religion and I can say ISIS is evil while also arguing that Islam in general has many beliefs antithetical to American values. So I agree with Mark Steyn that Americans are free to practice whatever religion they want but I can make value judgments about the religion of foreigners wanting to come here just like Obama can make value judgements about ISIS.

            1. Nobody is telling you that you can’t argue that ISIS is evil, or that Islam in general has many beliefs antithetical to American values. You (and the President) are free to make value judgments about the religion of foreigners wanting to come here.

              1. Right, just make sure you keep your mouth shut about those value judgments.

                1. Yea, because if you’re crazy enough to voice your value judgments about Muslims or call for a Muslim ban, 70 million Americans might elect you President!

                2. The court isn’t striking down the President’s value judgements, phatty…

                3. Obama consistently expressed value judgments that put Islam in a negative light. He literally rejected Islam in favor of Christianity!!

                  1. That bone you keep worrying is not the one that will own the libs.

                    No one thinks that one’s choice of faith means that you have animus against other faiths.

                    1. You must not be religious. Btw, remember when Obama opposed samesex marriage because of his deeply held religious beliefs which Kennedy believes were motivated by animus. Deeply held religious beliefs are not innocuous.

                    2. Deeply held religious views are protected by the First Amendment, even if you are President.

                    3. Americans are and should be entitled to believe as they wish.

                      They are not entitled to have superstition-based arguments treated with respect in reasoned debate, because adults neither offer nor accept religious arguments in reasoned debate.

                      They also are not entitled to have bigotry and backwardness excused for being cloaked in religious garb.

                    4. Finrod,
                      Very true. And on the day when Donald Trump is prosecuted criminally for expressing his viewpoint, I will be the first one to contribute to his defense fund. I assume that was the point you were making, yes?

          2. I do not agree with Trump, but the public statements I heard him make about his third executive order were all addressed to allowing the government to do precisely that: distinguishing Muslims generally from ISIS terrorists. The Fourth Circuit didn’t simply listen to Trump’s words. The court assumed that certain of his words were more reflective of his true intentions then others, (a dangerous exercise as far as Trump is concerned, since we can never be sure that he means anything he happens to be saying at any given moment).

            Anyhow, we now have apparently established the precedent that campaign rhetoric can now be cited by the courts as evidence of legislative intent and of the “true meaning” of legal enactments. It will be interesting to see how this reasoning is used going forward. Will we now, as attorneys, go through hour after hour of campaign footage to find the one unfortunate Instance of rhetorical excess that will allow us to have a law struck down?

            1. “The court assumed that certain of his words were more reflective of his true intentions then others…”

              That’s the appropriate standard at the preliminary injunction stage.

            2. Nah, it’s likely just TrumpLaw, which can be expected to be abandoned as without precedent as soon as somebody the political/legal establishment likes better takes his place.

          3. He is being cute, but the point he’s making isn’t that out of line. Fundamentally, aren’t you really just deciding for yourself that one religion is favored and legitimate and another religion is disfavored and illegitimate?

            Do you not think that members of ISIS don’t believe with all their heart that they are practicing true Islam? My god, they are willing to die for that religion and their beliefs.

            1. The analysis isn’t about the sincerity of the belief.

              I have a great idea of what any given ISIS member thinks, and that there’s a quite compelling interest in keeping them out of America.
              On the other hand, I have no idea what a random Muslim thinks, or their merits as a potential American resident.

            2. Exactly, Obama saying ISIS is an afront to true Islam is making a value judgment about their deeply held religious beliefs. I personally have no problem saying Christianity is the best religion even though I am not that religious. I also respect the beliefs of other Americans but I have no problem with Evangelicals trying to convert Americans or in the alternative Nation of Islam trying to convert Americans which is obviously a value judgment.

              1. Awesome stuff.

                In America we do not regulate values. We do, however, regulate government action.
                And that analysis can turn on the permissibility of government rationale for said action.

                Irrationality in our government includes making blanket value judgements about a large and diverse faith. Individuals can do that all they want, but not while acting for the government!
                On the other hand, it’s pretty likely making value judgements on a small apocalyptic cult would not be held to be irrational.

                You seem to believe the analysis is a simple religion? yes means no laws can touch you! It’s nowhere near that simple.

                1. Which Obama consistently did with ISIS?he made value judgments about their beliefs. Fact?most Muslims overseas oppose samesex marriage and equal rights for women. I believe foreigners that oppose equal rights and LGBT rights hold values that are antithetical to American values. Religious beliefs are not innocuous and the only reason you think they are is most likely because you believe that all religious people are idiots…which of course is animus towards religious people.

                  1. So did you read where I distinguished judging ISIS from judging Islam?

                    For instance, what ‘most Muslims’ believe isn’t something we agree with, but it’s not violent antisocial behavior. Have some faith in the triumph of American values!

                    1. Wrong, most Muslims overseas oppose LGBT rights and equal rights for women. Those values are antithetical to American values…religion is not innocuous. I know you believe we can force Muslim bakers to serve gay weddings because you don’t care about their values but believe it or not those with deeply held religious beliefs actually care about their beliefs.

              2. I personally have no problem saying Christianity is the best religion

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

                Always charming, especially among ostensible adults.

                1. Let the animus flow young Skywalker!! I knew I would be able to bring out the dark side in the liberals.

                  Religion is not innocuous and we can make value judgments about religions without being bigots.

                  1. I prefer progress to backwardness, education to ignorance, reason to superstition, tolerance to intolerance, inclusivity to insularity, science to dogma.

                    This bothers many right-wingers, especially the faux libertarians. Some call it “animus.”

                    1. You clearly have animus towards Muslims and yet you want more to come here?!? Liberals like you are so transparent because your animus towards white Christian Americans seethes out of every synapse of your brain. The great irony is the Progressive movement was founded by American Protestant Christians proud of their culture and with the belief that others would greatly benefit by assimilating to WASP culture. So the Progressive movement promoted reducing immigration and they were successful in 1924 and the “melting pot” went to work and our standard of living exceeded their wildest dreams…eventually.

                    2. Choose reason. And education, tolerance, education, progress, inclusivity, science, and modernity.

                      Reject ignorance, backwardness, insularity, dogma, superstition, and bigotry.

                      Be an adult. Or, at least, try.

                    3. Next Sunday you should go to Ebenezer Baptist Church in Atlanta and express your views on religion…I will chip in to buy you a plane ticket to Atlanta.

    2. An immigration ban on ISIS members would survive the Lemon test.

      If President Obama had said that he hated Christians and then had banned immigration from 7 Christian-majority nations, I suspect there might be a few people filing lawsuits to prevent the President from doing that. Don’t you agree?

      1. Obama REJECTED Islam in his 20s.

        1. What’s your point? If you think “being Christian” is sufficient to find animus to support a preliminary injunction on 1A grounds, I don’t agree. Nobody else does, either.

          1. This shouldn’t have quotation marks. Should’ve been brackets.

          2. Obama isn’t just a Christian he famously REJECTED Islam.

            1. So what? What’s wrong with rejecting Islam?

              1. Obama believes Christianity is superior to Islam?he made a value judgment. Trump is making a value judgment about Muslims overseas which is that many hold values antithetical to American values. I also think many Russians hold values antithetical to American values which is why we might want to consider a travel ban against Russia.

                1. “Obama believes Christianity is superior to Islam?he made a value judgment.”

                  Again, what’s your point?

                  1. Obama believes Christianity is superior to Islam?this court is conflating reasonable value judgments with animus.

                    1. WHAT IS YOUR FUCKING POINT?

                    2. Value judgments are legitimate and as Americans we are free to make value judgments about religions. Yes Americans are free to practice whatever religion they desire but like Obama I believe Christianity is the superior religion. I would like to see a merit based colorblind immigration policy that does not take into account religion but I have no problem saying Islam as practiced overseas is a negative force. I know many Muslims and Russians would never come here because we are too tolerant and that is fine by me.

                    3. The fact Obama personally in his 20s did something doesn’t necessarily mean that President Obama doing the same thing would be legitimate.

                      And, broad “value judgments” can be made in government policy. But, in various cases, the policy is invalid because it violates the religious component of the 1A (e.g., illegitimate religious discrimination, including against some group that personally a person might want to shun but legally need to be treated equally).

                      Finally, Obama to my knowledge never fully practiced Islam (even if he went as a boy to an Islamic school akin to someone who might go to a Catholic school w/o being Catholic) and later was active in the Christian Church. But, this didn’t mean he was somehow completely dismissive of “Islam” as a whole, especially since many Muslims practice a form of religion much like the one he practices.

                      The problem here is a narrow number of Muslims and the overall culture they reflect, the latter often more important than specific religious beliefs (e.g., treatment of women often is a cultural matter, not compelled by Islamic doctrine).

                    4. Obama was a Muslim if his parents classified him as a Muslim just as I was a Christian when my parents forced my to attend church, and the only reason you would take issue with that fact is because you have animus for Islam. So in 2008 Hillary answered a query about Obama’s religion on 60 Minutes and the animus directed towards Islam spewed by the Obama supporters was simply appalling and a sad day for America. Why are you nitpicking facts about Obama’s childhood if you believe Islam is a force for good or simply innocuous?

                    5. Sebastian,

                      You keep repeating that Obama made “value judgments”. NToJ and everyone else acknowledges that every reasonably intelligent adult makes value judgments.

                      You appear to believe that, because Obama made value judgments, Trump can implement any immigration policy he wants, no matter how discriminatory it is against a particular religion (or presumably race) because “value judgments are legitimate.” But your conclusion is a non sequitur. On the one hand, we have value judgments; on the other, we have policies. We also have a Constitution. It explicitly protects making value judgments, but specifically prohibits enacting certain policies based on otherwise permissible value judgments.

                      Maybe this will help:

                      As a state official, you are absolutely free to hold and express racist views (i.e., make a value judgment). You are prohibited from enacting policies that further or promote your racist views (e.g., prohibiting minority children from attending the school at which you are a principal, arresting only minorities for possessing small amounts of marijuana while letting white offenders go free, etc., etc.); you are required, by the Constitution, to act in a non-discriminatory manner.

                    6. edit : I said “absolutely free to hold and express racist views”……in private, not in your official capacity…..and, obviously, if you choose to express those views and your later actions are questioned, your private conduct may be considered in evaluating your actions as a state official. Which sort of makes the point about Trump. He can have anti-Muslim animus and express it, but then he can’t cry foul if he implements a policy that disproportionately affects Muslims and judges consider his expressed anti-Muslim sentiments in adjudicating whether the policy was motivated by animus.

                    7. You are conflating value judgments with animus. Basically you have animus for Trump so you characterize everything he says in the worst possible light. This is a common tactic with liberal Obama supporters who in 2008 were calling the Clintons racists and condemning remarks Hillary made relating to RFK being in a primary campaign in June.

                    8. I am not conflating anything with anything. You are under the misimpression that making “value judgments” automatically validates any actions a government official take based on those values. No. The purpose for taking official actions matters. Even if the purpose is rooted in “value judgments.”

                      I didn’t characterize anything Trump said “in the worst possible light.” He promised “to ban Muslim immigration to the United States.” That’s what he said. His repeating of a fabricated story about General Pershing, even in the best of light, indicates what, exactly, other than contempt for Muslims and the laws of war? Likewise, his retweet of anti-Muslim videos together with his official spokesperson’s explicit linking of those videos to his “Travel ban” really can’t be interpreted any way other than an admission that Trump’s purpose behind the EO was to ban Muslims from immigrating to the United States (yes, not all Muslims, but Trump also openly regretted that he couldn’t do more because to do so would not be “politically correct”).

                      But, of course, you don’t want to talk about substance, you want to force-fit your caricature of liberals onto anyone with the temerity to state what is plain: Trump wanted to ban Muslims and that is relevant to the legal issues to be decided, at least under one reasonable interpretation of the law.

                    9. Obama chose to become a Christian over a Muslim because Christianity is the superior religion. Are you a Muslim?? Why don’t you convert if Islam is such a great religion? If you don’t convert then that means on some level you have animus for Islam.

                    10. Sebastian, you are either a troll or really, really dumb.

                    11. I have already stated that Trump is a moron, but just because Trump is a moron that says stupid things doesn’t mean his policies are not based on sound reasoning. These countries were on Obama’s list and now Trump has instituted a security measure based on sound reasoning. Basically this court would not allow Trump to ban ISIS entry into America because Trump made negative statements about Muslims. So Americans will be put at risk because Trump made stupid remarks…that is insane and quite frankly this ruling could have a chilling effect on political speech!

                    12. ‘My fairy tale can beat up your fairy tale.’

                      Always charming, particularly among those who purport to be reasoning adults.

                    13. All of your points, other than that Trump is a moron (true) and that “this court would not allow Trump to ban ISIS entry into America” (false), are debatable. But none of them have anything to do with your “values judgment” / “Christianity is the superior religion” argument. Presumably, you have changed tack because you realize that is a stupid and irrelevant argument.

                      Whether a government official’s statements should be considered when evaluating a facially neutral government action is debatable, at least at the margins. However, there is undoubtedly some combination of crafting neutral language that targets a group based on suspect classification and statements indicating animus that would invalidate a facially neutral action. (See, e.g., NC Republicans targeting black voters with “surgical precision” and making statements indicating their purpose was to target black voters with facially neutral election laws.)

                    14. Wrong, I just have made my point and you are playing dumb which are very good at.

                      So again, religion is not innocuous. The notion a group of people expressing their views on various issues are immune from criticism because their views are an expression of their religion is absurd. So a religious view in the news right now is Conservative Christians opposition to LGBT rights because of their deep religious beliefs. Liberals express vitriol for Conservative Christians all the time and so by your absurd standard bathroom laws that allow transgender people to use bathrooms of their gender would be struck down because the laws are motivated by animus for Conservative Christians.

                      So Obergefell is dripping with animus towards people that practice polygamy which is a fundamental aspect of many religions. Our federal government has a long history of animus towards religions that practice polygamy. In fact the 2012 presidential election featured two candidates whose families were forced to leave America because our society’s negative view of polygamy. So right now our marriage laws should be struck down because they do not allow polygamy because our lawmakers have animus for religions that practice polygamy.

                    15. “I just have made my point.”

                      No. You didn’t. You switched topics from “value judgments” insulate policy decisions from legal assault to religion is bad so discrimination against religious people is okay.

                      “The notion [that] a group of people expressing their views on various issues are immune from criticism because their views are an expression of their religion is absurd.”

                      It is absurd. Which is why exactly zero people, at least people with an IQ above 90, think that. No one suggested that in this thread. Try again.

                      “…by your absurd standard….” You clearly have no idea what my standard is because it does not lead to your parade of horribles. At all.

                      “…dripping with animus…”

                      Why does that sound gross? I mean, aside from your shameful treatment of the straw man you are trying to shove into Supreme Court precedent. And, with your bathroom example, you demonstrated that you have a very idiosyncratic understanding of “animus.” Passing a law that someone does not like is not necessarily indicative of animus. It is indicative of passing a law.

                      “So right now our marriage laws should be struck down…..”

                      You are switching topics again. Although some laws affecting religious people run afoul of non-discrimination principles, that does not mean all laws affecting religious people (or impacting their conduct) violates non-discrimination principles.

                    16. The reason your argument fails is because you have no respect for any religion because in America religion is used by Conservative Christians to further their political goals like discriminating against our LGBT citizens. Your opposition to Trump’s travel ban is motivated by pure animus for Trump/Conservative Christians! That said if you could express an argument for not having a travel ban on these countries it would not be tainted by your previously expressed animus…of course you can’t do that because you are blind with animus towards white Christian Americans.

                      I don’t know if you set out to show how a policy proposal would fail due to animus but you have successfully enlightened all of us here. You have hate in your heart and there is a guy named Jesus who you might just want to let in your life.

                    17. Your enthusiastic misunderstanding of animus doesn’t really help anyone.

                    18. Your comments do nothing except add to your carbon footprint.

                    19. You aren’t serious. I actually thought maybe you were for a moment. You are a caricature. Good one.

    3. I love when you guys practice at being clever. It’s like watching a .gif of a foal trying to stand for the first time, but which ends before it can.

      1. And your attempt at being clever is completely lacking in substance.

        1. See? Right there, that’s what I’m talking about. Love it.

          1. And still nothing of substance…at least you are contributing to climate change every time you post something “clever”.

            1. I’m sorry but I still haven’t mastered, or discovered any point in, providing substance in response to gibberish.

              1. I should learn from you. Sebastian is good at the gibberish.

              2. Thank you for emitting more CO2.

  13. I find it interesting that illegal intent can be so easily assumed in the absence of a trial at which actual testimony would be offered.

    1. That’s how preliminary injunctions work.

      1. I can’t think of a single instance when enforcement of a law has been enjoined based on an assumption that a politician had an illegal motive because of out-of-court statements reported in the newspaper, without further factual development.

        1. I don’t know remedies at all, but I do note this comment has a completely different goalpost than your first one.

          1. Perhaps because the reply to which I was responding did not address the ease with which the court assumed illegal intent in the absence of real evidence, which was the point of my original post, but instead blithely asserted something about how preliminary injunctions work, to which my response was addressed. Preliminary injunctions do not generally work this way, and certainly not in the context of enjoining otherwise-valid executive action based on a finding of supposed illegal motive. But thanks for your concern trolling, which I am certain is genuine.

            1. “…in the absence of real evidence…”

              What is it you think impermissible animus would look like? If your point is that there can be no impermissible animus unless it’s in the face of, e.g., an EO, that’s fine. That’s not current law, but it’s a fine position. (I generally agree.) But in a look behind case, what precisely do you think the evidence would be, besides the President’s words?

              1. Well, good evidence of actual animus would be if he’d applied the travel ban to a Muslim country that wasn’t already identified as either a failed state or state sponsor of terrorism.

                I mean, how do you prove that a traffic cop is pulling blacks over out of anti-black animus, rather than to enforce traffic laws? You prove he pulled blacks over who hadn’t violated traffic laws.

                So, which peaceful state that cooperates with vetting, but is Islamic, did he ban travel from?

                1. I specified a “look behind case” which means you have to find evidence outside the travel ban itself. I’ll ask again, do you think the President’s statements would be some evidence?

                  “I mean, how do you prove that a traffic cop is pulling blacks over out of anti-black animus…”

                  Well, if the cop had said “Today I’m going to pull over some black people because I hate black people” do you think that would be some evidence of animus? What if I also showed that the cop arrested 10 people in a single day, 9 of them happened to be black, and the jurisdiction he’s in has more white people than black people, and roughly equivalent traffic violations by race? Wouldn’t that also suggest some animus?

                2. Or show evidence that he has a history of not pulling over white drivers who were driving identically. Both would be ways of showing animus, I think.

                3. Brett,

                  “I mean, how do you prove that a traffic cop is pulling blacks over out of anti-black animus…? You prove he pulled blacks over who hadn’t violated traffic laws.”

                  Well, maybe, but rarely. You can also prove that he pulls blacks over for violations of traffic laws, but doesn’t pull whites over for violation of those same laws. If he disproportionately enforces the law against black drivers, that is evidence of animus. But your idea that if black drivers are not innocent of a traffic violation, they could not be improperly targeted, says a lot about your misconceptions of how discrimination works. (And surely you know that almost everyone violates some traffic law every time they make a trip to the grocery store.)

      2. I think you are confusing the standards for a preliminary injunction for the standards to defeat a motion to dismiss. Preliminary injunctions are not merely about adequately pleading facts that allege a violation of the law.

  14. The Supreme Court in Mandel said

    We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

    According to the dissent, although the reasons given by the Executive here were facially legitimate and bona fide, the District Court looked behind it first to conclude that the Proclamation was not bona fide.

    The trouble with that approach, as the dissent pointed out, is that such an approach was rejected in Mandel itself.

    In Mandel, the allegations were such that Justice Marshall, writing in dissent, observed that “[e]ven the briefest peek behind the Attorney General’s reason for refusing a waiver in this case would reveal that it is a sham.”

    But, as held by Mandel and other cases, a lack of good faith must appear on the face of the government’s action, not from looking behind it.

    The Fourth Circuit here doesn’t like the Mandel standard and would like to change it but the Supreme Court affirmed Mandel in Din (2015) and the same justices are still on the court, except that Scalia has been replaced by Gorsuch.

    1. Furthermore, the dissent pointed out the absurdity of an interpretive approach by which the court relies on campaign statements in order to impose a new meaning on unambiguous language, adding that in the Establishment Clause context, the Supreme Court has warned against “judicial psychoanalysis of a drafter’s heart of hearts.”

      1. Apparently the dissenters don’t know what psychoanalysis is.

    2. Careful with Din. Kennedy and Alito in that case thought that “an affirmative showing of bad faith” would permit the Court to look behind the government’s exercise of discretion. Combine that with Breyer, Ginsburg, Sotomayor, and Kagan’s dissent, and there are sufficient votes to get around Mandel’s proclamation.

      How would you respond to footnote 12 of the opinion?

      1. Footnote 12 starts:

        Contrary to Judge Niemeyer’s assertion, Mandel does not demand that “a lack of good faith?appear on the face of the government’s action.” If that were the case, the Court would not have needed to examine the record evidence to determine if the Government’s reason for denying Mandel’s requested waiver?violation of his prior visas?was true. See 408 U.S. at 756?58, 769.

        But the Court was merely reciting the facts of the case, not evaluating the reason for denying Mandel’s waiver. And on page 769 it explained that Mandel was informed of the reason and the reason was facially legitimate and bona fide, those being the requirements.

        Furthermore, if the majority was evaluating Mandel’s reasons, then why did the dissent say:

        Moreover, the majority demands only “facial” legitimacy and good faith, by which it means that this Court will never “look behind” any reason the Attorney General gives.

        Remainder of Footnote 12:

        Nor would it have been necessary in Din to emphasize that the plaintiff “admit[ted] in her Complaint” facts that demonstrated the Government “relied upon a bona fide factual basis for denying” the requested visa.

        All it says is that the Government indicates that it relied on a bona fide factual basis for denying the visa. The Court in Din didn’t say that it had to be proven that the reason given was bona fide.

        [continued]

        1. [continued from above]

          Remember also that Mandel was refused a visa because he advocated Communism. In other words it was because of his exercise of First Amendment rights. Even if it is true that the current aliens are being denied admission because of their religion, Mandel held that First Amendment rights of the alien or of those in this country who want to hear the alien, do not save him.

          So even if the mere allegation of bad faith, based on later Presidential statements conflicting with statements during the campaign, were held to constitute “an affirmative showing of bad faith,” and even if the “bad faith” did not have to be on the part of the “consular officer,” as Kennedy said, but could be on the part of the President or Congress, we are still left with the accusation of a denial of First Amendment rights of an alien or U.S. residents, which will lose as it did in Mandel, unless Mandel is overruled.

          1. “In other words it was because of his exercise of First Amendment rights.”

            Communism is a religion?

            “Mandel held that First Amendment rights of the alien or of those in this country who want to hear the alien, do not save him.”

            They ducked the question.

            “So even if the mere allegation of bad faith…”

            The distinction made by the court is that this isn’t a case of “mere allegation of bad faith”–it’s pretty brazen bad faith, actually–Din didn’t involve bad faith at all, and Mandel had a facially valid, bona fide reason separate and apart from anti-communism (he violated prior visas).

            I think SCOTUS will reverse this decision, but I don’t think you’re accurately characterizing Mandel. The case is distinguishable.

            1. You and Obama get to classify members of ISIS as non-Muslims so why shouldn’t that commenter get to classify communism as a religion?

              1. You apparently think this (I am paraphrasing not quoting) “Obama has criticized ISIS and taken action against them, so it is obviously not improper to take action against any religious or other group” is a great argument. It isn’t. The more you say it, the more it reveals that you don’t really understand the issues.

                1. I have established that the liberals on this site have no respect for any religion and the only reason they are defending Muslims is because they have animus for white Christian Americans.

                  I understand that religion was very important to people at our founding and that it was an established power structure that could be used as a tool to check tyranny. So that is the context of the Free Exercise Clause along with the Establishment Clause and to me religion in 2018 is free speech and not all free speech is positive for society. I give no special value to religious speech just like I give no special value to speech by the “press” even though that is specifically mentioned in the 1st Amendment as well. The only speech that maybe should accorded more value is political speech, but only because the government has the police power.

                  1. Sebastian,

                    You haven’t established anything, including who is liberal and who is not. Your concern about “animus for white Christian Americans” tips your hand. You really don’t need to be taken seriously. But, feeling generous….

                    The issue is not whether you give special value to religious speech. The issue is whether, under the U.S. Constitution which provides specific protections for religious beliefs, the government may make take action with the purpose of discriminating against a particular religious group. (Also, whether government officials’ statements may be considered in determining whether the action is discriminatory.)

                    And you are quite in the minority if you believe we should just read explicit terms out of the Constitution. Your argument might have some logic worth considering if you said all speech should be highly protected (so no category of speech deserves “special” treatment), but you say that some speech should have more protection than other speech and that we should completely ignore the text of the Constitution in determining which speech should be more highly protected. You are the real-world manifestation of the caricature of the living Constitutionalist that the Scalia-Thomas-type originalists of the world love to pillory.

                    1. So you would give special protections to a religion which has a central tenant of white supremacy? Come on man, it’s 2018…you can’t be this naive. The Mormons were persecuted because their religion promoted polygamy…polygamy is still not legal.

                      I consider that last paragraph a compliment, Scalia’s Heller opinion was the worst opinion in recent times until Obergefell.

                    2. “So you would give special protections to a religion which has a central tenant of white supremacy?”

                      What are you even talking about? Some religions have odious views. Agreed. The government cannot outlaw white supremacist religions, much as I would like such religions to disappear.

                      “I consider the last paragraph a compliment….”

                      Yes, because you are sufficiently simplistic to think that any criticism by someone you don’t like is necessarily praise. No. You have posited that the text of the Constitution is meaningless and we should just adopt your standards for free speech instead. A seriously naive and shortsighted view.

                    3. No, the text with regard to “religion” and “press” is dated. The editor of NY Times stated that physical newspapers will be gone in 10 years…are you seriously arguing that once physical newspapers are gone then we no longer have freedom of the “press”?? Press has a very a specific meaning and it refers to newspapers and pamphlets that were produced with a printing press.

                      As an aside I am the world’s preeminent 3rd Amendment scholar.

                    4. The Third Amendment is my favorite amendment. Hats off.

                      “…are you seriously arguing that once physical newspapers are gone then we no longer have freedom of the ‘press’?”

                      That doesn’t follow from anything I have said in any way. I never argued that only the text and the original understanding (i.e. original definitions) matter. The Founders could not have conceived of the internet, so couldn’t have included it in the text. Even those I consider rather wacky originalists don’t go as far as your caricature. And I am not an originalist. I am more a “living constitutionalist” than Scalia-type originalist, but I am the kind that is embarrassed by the likes of you. Interpreting the Constitution in the light of the text, subsequent history, and technological developments, is not the same as what you seem to advocate which is: your ideas of what ought to be are more important than even explicit words in the document (i.e., you think religion is bad, so just read those parts out).

                      Again, you avoid the point to make a separate, irrelevant point that is directed at a straw man rather than anything I or anyone else in this thread said.

                    5. The issue is whether, under the U.S. Constitution which provides specific protections for religious beliefs, the government may make take action with the purpose of discriminating against a particular religious group.

                      The answer to that question was given in Mandel, where the government discriminated against an alien by denying him a visa because of his speech (freedom of speech, like freedom of religion, being both First Amendment rights) and the Supreme Court held that (a) unadmitted and nonresident aliens do not have a constitutional right of entry to this country, and (b) the First Amendment right of U.S. residents to hear the speech of aliens applying for a visa are not balanced against the right of Congress and the Executive to control the entry of aliens to this country.

                    6. swood,

                      That freedom of speech and the religion clauses are both found in the First Amendment does not necessarily mean that the precise standards apply to each. For example, there is no “Establishment Clause” equivalent in free speech jurisprudence. The government is free to speak (pay attention, Sebastian) including by taking ideological positions. However, the government may not establish a national religion or favor one religion over another.

                      Obviously, there is significant debate on whether the principles espoused in Mandel apply and, if so, dictate the result in the “Muslim ban” cases. The plaintiffs in the present case include people in the United States (so your (a) is inapplicable to at least some of the plaintiffs) and the question is specific to religion, whether the government may expressly prefer a particular religion in its immigration laws. On that point, basically everyone agrees the answer is “no.” That is why most of the debate focuses on whether it is permissible to look behind the plain language of the EO for indications of animus and whether it is permissible to consider Trump’s anti-Muslim statements in determining whether the EO is animated by animus.

                      Just saying “Mandel” does not win the day. Mandel itself pointed out that it turned on a “narrow issue” of the right to hear such that a government must be compelled to allow entry to someone otherwise categorically excluded.

                    7. However, the government may not establish a national religion

                      Are you implying that the Supreme Court might find an action by the President that has no effect on the religious practice any U.S. citizen or resident to be the establishment of a national religion?

                      or favor one religion over another.

                      Unadmitted aliens, the only people affected because of their religion, do not have a constitutional right to enter this country.

                      and the question is specific to religion, whether the government may expressly prefer a particular religion in its immigration laws. On that point, basically everyone agrees the answer is “no.”

                      Can the government expressly exclude people who advocate Communism (exclude them based on their speech) as was the case in Mandel? If so, why can’t it expressly exclude any person holding a religion that advocates Islamic terrorism (this of course would just be a subset of all Muslims)?

                    8. “Are you implying…..?”

                      No. But no such action is being considered, so not sure the relevance of your question. (Or you are assuming that which you must prove.)

                      Are you implying that an immigration law that only allowed Presbyterians to immigrate would not run afoul of the Establishment Clause?

                      “…do not have a right to enter this country….”

                      That isn’t the legal question. I believe you know that. The question is whether immigration policy may discriminate against members of a particular (and extremely diverse) religion such as Islam and, assuming not, whether this EO does discriminate based on religion. But you know that.

                      “If so, why can’t it expressly exclude any person holding a religion that advocates Islamic terrorism (this of course would just be a subset of all Muslims)?”

                      You’ve answered your own question with your parenthetical.

                      I should also point out that, again, you are assuming immigration rules based on an individual’s speech (something for which the individual is wholly responsible) are subject to the same standards as rules based on a person’s religion (the person is not responsible for the acts of others who fit under the same, broad religious label and “Islam” is a very broad label….pretty much just as broad as Christianity which includes Catholics, the Amish, Jehovah’s Witnesses, Mormons, Southern Baptists, and Unitarians.). Freedom of speech and the religious clauses serve different purposes. The differences are relevant in this case.

                2. I have established that the liberals on this site have no respect for any religion and the only reason they are defending Muslims is because they have animus for white Christian Americans.

                  I understand that religion was very important to people at our founding and that it was an established power structure that could be used as a tool to check tyranny. So that is the context of the Free Exercise Clause along with the Establishment Clause and to me religion in 2018 is free speech and not all free speech is positive for society. I give no special value to religious speech just like I give no special value to speech by the “press” even though that is specifically mentioned in the 1st Amendment as well. The only speech that maybe should accorded more value is political speech, but only because the government has the police power.

                  1. This advocacy for “white Christian Americans” will become either more important or less important as America’s continue to improve, becoming less religious, less rural, less white, less backward, and less intolerant just about every day.

                    That must be a frightening prospect for those who perceive persecution of “white Christian Americans” to be an important (if not the most important) problem in the United States.

                    No wonder those folks are disaffected, cranky, and having trouble advancing coherent arguments.

                  2. I have established that the liberals on this site have no respect for any religion and the only reason they are defending Muslims is because they have animus for white Christian Americans.

                    Haha.

                    1. More CO2! Welcome to the Dark Side young Ben Solo.

        2. “And on page 769 it explained that Mandel was informed of the reason and the reason was facially legitimate and bona fide, those being the requirements.”

          I don’t understand how this responds to the footnote. The court’s point was that violation of prior visas (the stated reason in Mandel) is facially legitimate and bona fide, whereas banning Muslims is not “bona fide” in the present case.

          “Furthermore, if the majority was evaluating Mandel’s reasons, then why did the dissent say…”

          Marshall and Brennan just misread the majority opinion. The majority explicitly says they won’t look behind unless the reason given is not facially legitimate and bona fide.

          1. “Mandel held that First Amendment rights of the alien or of those in this country who want to hear the alien, do not save him.”

            They ducked the question.

            Hardly. First, the Court observed that even appellees agreed “that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.”

            Then, they pointed out that the power to exclude aliens is:

            “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government?”

            They recognized a First Amendment interest on the part of U.S. residents to hear Mandel speak but said that if the governmental power to withhold a waiver must yield whenever a bona fide claim is made that American citizens wish to meet and talk with an alien, then either every claim would prevail or the court would have to come up with rules as to when a claim is important enough to prevail. The dangers of this are obvious, which is why the decision has, properly, been placed in the hands of the Executive.

            Therefore, the Court held that the First Amendment rights of residents of the U.S. are not balanced against the authority of the Executive and Legislative branches to restrict the entry of aliens.

            1. [continued]

              Communism is a religion?

              Being kept out of the country because of one’s speech (advocacy of Communism) is analogous to being kept out of the country because of one’s religion (both First Amendment).

              Mandel had a facially valid, bona fide reason separate and apart from anti-communism (he violated prior visas).

              That Mandel had violated prior visas was the facially valid, bona fide reason given for the denial of the visa. However, his violation of prior visas consisted in his expressing his pro-Communist views in this country on his prior visits.

              The distinction made by the court is that this isn’t a case of “mere allegation of bad faith”–it’s pretty brazen bad faith, actually

              By “brazen bad faith” you mean that the government’s reason for rejecting the visa really was the religion of the alien. But it is clear that in Mandel the government’s reason was really the speech of the alien. Why would Justice Kennedy call the reason given in Mandel “facially legitimate and bona fide” but not the reason given here?

              Finally, given their history it seems unlikely the Supreme Court will give federal trial courts such a broad power to second-guess the executive on national security issues.

  15. I almost pity Prof Somin and the activist Judges/Justices when SCOTUS destroys their Progressive Plantation (Marxist Utopia) dreams of destroying the USA.

    1. Don’t get apocalyptic. The drama undercuts your case.

      No one wants to destroy the USA. Just because you think they want bad policies doesn’t mean they intentionally want to destroy this country.

      1. Upholding a ruling that negative remarks about a group constitute the basis to prevent that President (or other lawmaker) from undertaking otherwise lawful actions that impact that group would, indeed, destroy the USA.

        Many politicians are currently speaking out negatively about gun owners. Previously, many have spoken out against racial groups, or religious groups. Would these politicians be prevented from passing laws about those groups?

        And if you think certain Democrats don’t have an animus against gun owners, or certain Republicans against abortionists, you are crazy.

        If this ruling cannot be universally applied, it’s TrumpLaw – and that’s just an attempt at judicial tyranny.

        1. “Many politicians are currently speaking out negatively about gun owners. Previously, many have spoken out against racial groups, or religious groups. Would these politicians be prevented from passing laws about those groups?”

          With respect to gun owners, no, because animus wouldn’t matter, at least under current jurisprudence.

          Previously speaking out against religious groups would not prevent laws. It just affects the standards for having them upheld. This was a preliminary injunction case, the government could still win on the merits.

    2. I was tempted to write off FlameCCT as just another half-educated bigot, but the impressive display of random capitalization persuades me the guy is a distinguished right-wing intellect.

      1. Prosecutors reportedly have concluded that random capitalization is a marker for Russian fakes; those foreign goobers can’t manage standard English because their English is shambling.

        Random (or “Trump-style”) capitalization also is a signature of right-wing yahoos. These homegrown goobers can’t manage standard English because they managed to avoid an adequate education despite all of the opportunity America provides to those who wish to become competent adults.

  16. Many remarks here appear to have been made by some who have been made delusional by over exposure to progressive educators.

    For any who might wish to gain some insight into the present posture of politics in the Western Nations minimum reading requirements include The Decline of The West authored by Oswald Spengler and The Clash of Civilizations authored by Samuel Huntington.

    1. The Decline of the West, published 1918 and 1922.

      That’s one half of the minimum required reading for insight into the present posture of politics in the Western Nations. The other half is a book that predicts culture clashes replacing ideological clashes as the principal cause of post-Cold War conflict in the world (actual answer: fresh water).

      1. Might want to read the books rather than make assumptions based on what is said in book reviews.

        1. The first part notes that the exciting insights into modern politics you’re promoting were published during, and shortly after, WWI. And the second part accurately summarizes the point of the book. There’s nothing regarding book reviews.

  17. I think I’ll wait to see what the Supremes say. They may not be any more sensible than anyone else, but they’re more “final.” Then we can see if what they say makes any sense.

    The lower courts are trying to mark their territory, but the Supremes are the big dogs, and they’re the ones all the other judges will have to heed.

  18. One day it will come out that the Rev. Arthur L. Kirkland is really Ilya Somin posting under pseudo. I’m just leaving this comment here to memorialize that I called it.

    1. You called it, much like Trump called Obama’s birth certificate.

      Carry on, clingers. But leave the thinking to your betters.

  19. What we need is a 100% immigration ban. Put it in place for two years and use the time to decide what characteristics are in the best interest of America. As part of the process, apply a standard for acceptable visitors as well.

  20. I’m not a lawyer, and can’t provide, or even follow, a complex analysis of this topic. In very plain, layman terms, it seems to me that allowing courts to stop enforcement of presidential actions, executive orders, policies, and so forth, based on past statements and perceptions of animus, is wrong. Executive orders should be interpreted and evaluated according to face value of the order and the law. Otherwise, opponents of the president are sure to be able to find a judge, somewhere, who will stay an order, for any number of real or imaginary reasons. This is not right.

    1. Executive orders should be interpreted and evaluated according to face value of the order and the law.

      Speaking as a member of our liberal-libertarian mainstream, I sense that this there is where superior education, smarts, and reliance on reason would come in quite handy.

      I nonetheless reject such a dangerous, simplistic bromide.

      1. I miss the “ignore user” feature.

    2. Consider what North Carolina Republicans did:

      They requested voter data by race, passed legislation targeting black voters for vote-suppression with “surgical precision”, but in facially neutral language, and you would just whistle past the graveyard to the Voting Rights Act (not to mention the 15th Amendment)? There is such a thing as reality and judges needn’t ignore it to protect clear, explicit Constitutional rights.

      It is debatable how far we should let judges go in considering prior statements by government officials in determining whether a law is unconstitutionally discriminatory, but serious commentators are talking about where the line is, not that there shouldn’t be a line at all.

      1. There is such a thing as reality and judges needn’t ignore it to protect clear, explicit Constitutional rights.

        But the legislators in North Carolina are affecting people with constitutional rights. Unadmitted and nonresident aliens have no constitutional rights.

        It is debatable how far we should let judges go in considering prior statements by government officials in determining whether a law is unconstitutionally discriminatory, but serious commentators are talking about where the line is, not that there shouldn’t be a line at all.

        No, some serious commentators believe that the Supreme Court will apply the same rule as it did in Mandel, which held that when the Executive, on the basis of a facially legitimate and bona fide reason, exercises its power to deny a visa, the courts will not look behind the exercise of that discretion.

        In Mandel the “real” reason the visa was denied was because the government didn’t like the pro-Communist speech of the alien in question. The “facially legitimate and bona fide reason” it gave was that the applicant had violated prior visas (by advocating Communism during prior visits). If the Court did not “look behind” the reason given in Mandel then why would they do so here?

        The bottom line is that the Supreme Court doesn’t want federal trial courts second-guessing the Executive on national security questions entrusted exclusively to the political branches.

        1. swood1000,

          “Unadmitted and nonresident aliens have no constitutional rights.”

          Neither I nor the Fourth Circuit have said they do. Non sequitur much?

          “If the Court did not ‘look behind’ the reason given in Mandel then why would they do so here?”

          If they do, it will be because of bad faith (part of the bona fide inquiry) which necessarily requires evidence outside the four corners of the legal document at issue.

          I agree that the Court is likely to conclude, probably 5-4 or 6-3, that the EO is facially legitimate and for a bona fide reason, but I am less certain about that outcome than you seem to be.

          Plus, I was responding to ThePublius who appeared to expand his criticism of using officials’ statements beyond immigration to “presidential actions, executive orders, policies, and so forth.” And, below, he directly responded to my point on the NC voter ID case suggesting my interpretation of his comment was correct.

      2. Do you think it’s possible to ever have a voter ID requirement in North Carolina, even one crafter with the intent to protect against voter fraud, without any racist intent? I doubt it. You can’t prove something a circuit court doesn’t want to find. Likewise with Trump. There is an endless supply of partisan federal judges who will stop travel bans of any kind, and always “find” ill intent. This is what I believe amounts to a constitutional crisis.

        1. ThePublius,

          How nice that you answer for me! It’s almost like you don’t even want to have a good faith discussion. But I have my own answer: Yes, it is possible.

          Are you suggesting that the North Carolina election laws at issue in the Fourth Circuit case were not intended to minimize minority voting? Even though the Republican legislature expressly requested race-based data and otherwise indicated that they were using race as a proxy for party affiliation in crafting the election law changes? Please enlighten me.

          1. What a snide, snarky person you are. This is a public forum, is it not? I wasn’t answering for you, I was joining the discussion.

            You miss my point, entirely.

            I’m afraid there is no enlightening of you.

  21. The Establishment Clause does not prohibit the government from disfavoring religion or a religion. That sort of behavior has traditionally been analyzed under the Free Exercise clause. The court simply assumes that disfavoring a religion is an Establishment Clause violation. It cites cases that refer to the Free Exercise Clause which say the government cannot disfavor religion and cases that refer to the Establishment clause which say that the government cannot favor religion, mixes them together, and, voila, we have a No Disfavoring Religion clause which does not, in fact, exist.

    Why does this matter? Well, why did the plaintiffs not simply assert a Free Exercise violation? Because of standing. The Court has been much more generous in according standing for Establishment Clause claims then in general for the simple reason that if we would apply the universal standing requirements to Establishment claims, virtually no one would have standing and the courts would not be able to enforce the clause. Knowing that no plaintiffs here have standing under the regular rules, the plaintiffs pretended there is an Establishment Clause violation anytime the government DISfavors a religion. By doing that, they hoped to get in under the more lenient Establishment Clause standing rules.

    Can someone please explain to me how discriminating against Muslims establishes a religion? And if it does, is every free exercise violation also an establishment cause violation?

  22. What if a president issued an executive order with the intent that it discriminate against muslims, but the implementation of the order did not discriminate against muslims? Would it still violate the 1st Amendment?

    1. Wouldn’t get into court.

      Standing.

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