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Travel Ban

Thoughts on the Travel Ban Oral Argument

The justices' comments in the oral argument suggest this will be a close case that could easily go either way. The outcome could well turn on the views of that perennial swing voter, Justice Anthony Kennedy.

|The Volokh Conspiracy |

Early analyses of today's Supreme Court oral argument in the travel ban case suggest that the justices are likely to uphold the ban against both constitutional and statutory challenges (e.g.—here and here). This may indeed turn out to be the case. But the statements of Justice Anthony Kennedy—a key swing voter—suggest that things are far more uncertain than that. Based on their questions—the four most conservative justices (Alito, Roberts, Thomas, and Gorsuch) seem likely to side with the administration. Thomas, of course, continued his practice of not speaking during oral argument, but he signaled his support for the legality of the travel ban in his dissent to the Court's partial upholding of the injunction against Travel Ban 2.0, the predecessor to the current version. The four liberal justices seemed to lean against the ban, particularly Ruth Bader Ginsburg and Sonia Sotomayor. If these alignments hold up, Kennedy's vote could well be decisive.

As always, oral argument is only an imperfect indicator of the Court's intentions. The justices could end up focusing on issues that got little or no attention in the argument, and some could even change their minds between now and when a decision is made. But if the oral argument is any indication, this is likely to be a close case.

A crucial question in the case is whether President Donald Trump's repeated advocacy of a "Muslim ban" during the 2016 campaign and numerous statements equating it with the "territorial" exclusion policy he ultimately adopted in his various travel ban orders render the policy a case of unconstitutional religious discrimination. While questioning the administration's lawyer, Soliticitor General Noel Francisco, Justice Kennedy raised a scenario that should give defenders of the travel ban some pause:

Suppose you have a local mayor and, as a candidate, he makes vituperative hate—hateful statements, he's elected, and on day two, he takes acts that are consistent with those hateful statements. That's—whatever he said in the campaign is irrelevant?

This is notable because, of course, Trump did make such "hateful statements" throughout the 2016 campaign, and also indicated that his "territorial" policy of focusing on Muslim-majority nations instead of individual Muslims was intended to implement those statements, not break with them. And, like the mayor in Justice Kennedy's hypothetical, Trump issued his first travel ban order within just a few days of taking office. The latest version, Travel Ban 3.0, is clearly an outgrowth of its predecessors and actuated by similar motives. That is why the government is unlikely to prevail if the Court concludes—as it should—that Trump's campaign statements are indeed relevant.

The administration and its defenders have consistently claimed they must be excluded from consideration, and Francisco reiterated that position at the oral argument. He also contended that Trump's campaign statements don't really indicate the true purpose of the travel ban, because the ban was based on national security considerations developed by agency officials, and because Trump has mitigated his earlier anti-Muslim statements by making various general statements praising Islam and commemorating Muslim holidays.

If Trump's campaign statements are fair game, these other points are unlikely to save the travel ban. Generalized praise for Islam does not vitiate Trump's far more specific statements linking the "territorial" travel ban policy to his "Muslim ban" proposal. In determining whether a seemingly neutral policy is actually motivated by unconstitutional discrimination, Supreme Court precedent requires judges to make "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available," including "[t]he historical background of the decision" and "[t]he specific sequence of events leading up to the challenged decision." The "Muslim ban" statements are part of that "specific sequence of events," whereas later, more general statements about Islam are not. Moreover, as Neal Katyal, counsel for the plaintiffs pointed out in the oral argument, Trump, since taking office, has continued to Tweet a variety of Islamophobic material. And he has never apologized for or retracted his earlier bigoted comments. So even if later statements not directly related to the travel ban policy are relevant, they do not vindicate Trump.

The national security rationales for the travel ban concocted by administration staff also don't do much to allay suspicion, because those rationales are extremely weak. Travel Ban 3.0 does not even consistently apply the information-sharing criteria that are supposedly the main reason for the latest version of the policy.

Francisco also had difficulty with a similar hypothetical raised by Justice Elena Kagan, who asked whether "a President gets elected who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred" could issue a travel ban order barring entrants from Israel, if he solicited the same sort of agency recommendations as Trump got for Travel Ban 3.0, and produced a national security rationale for the Israel travel ban (perhaps to pressure Israel to make concessions to the US on some important national security issue). Francisco actually seemed to concede that, in such a "difficult hypothetical," challengers would have a legitimate claim under the Free Exercise Clause of the First Amendment. Obviously, if the campaign statements of Kagan's hypothetical anti-Semitic president can legitimately be considered by courts, the same goes for Trump's anti-Muslim statements.

Later in the oral argument, Kennedy made some statements that seemed to lean towards the government on the statutory issue, of whether the travel ban violates Congress' prohibition on nationality discrimination in issuing immigrant visas. He suggested that Travel Ban 3.0 is not truly perpetual, because it is supposed to be reevaluated every 180 days. It is not clear how significant Kennedy's statement is, given that even a temporary travel ban might still violate the nationality discrimination provision, if it in fact discriminates on the basis of nationality, as this one explicitly does, by barring nearly all entry by citizens of six Muslim-majority nations (recently reduced to five after Chad was dropped). Moreover, the 180 day reevaluation does not mean that the travel ban will actually end after the expiration of that period. As Katyal pointed out, all that happens after 180 days is that the government will prepare a report on the policy. The travel ban's restrictions on entry continue until the president decides otherwise. Most importantly, this issue has little bearing on the religious discrimination issue. A time limit cannot save the travel ban from invalidation if it otherwise violates the First Amendment.

Most of the other questions raised by the justices canvassed arguments that have already been extensively discussed in the briefs and the ongoing public debate over the case. For example, Chief Justice John Roberts asked whether Trump's anti-Muslim statements can also be used to invalidate such actions as launching air strikes against Muslim terrorists. I addressed such arguments here. Alito raised the point that the travel ban does not even come close to excluding all the Muslims in the world, but only covers a few countries. As Neal Katyal noted in response, that ignores the reality that the vast majority of those excluded are Muslim, and they seem to have been targeted for precisely that reason, not because of any genuine national security rationale. Several justices also discussed the potential significance of claims that it would have been legally permissible for a different president to adopt the same policy, if only he had not made the same types of anti-Muslim statements as Trump (I discussed this issue in detail here).

Stephen Breyer questioned both sides' lawyers on whether the travel ban's provisions for waivers in hardship cases are meaningful, or mere "window dressing." He did not seem very satisfied with Francisco's answers. As Katyal noted, the administration has denied waivers even in such extreme cases as that of a "10-year-old with cerebral palsy who wants to come to the United States to save her life and she can't move or talk." State Department data suggests that travel ban waivers are extraordinarily rare. It is not clear exactly significance this issue has to Breyer's thinking about the case. But perhaps the availability of wide-ranging waivers might have led him to conclude that the policy does not qualify as categorical exclusion based on nationality. If so, he did not seem to find Francisco's answers very reassuring.

At this point, I honestly think the case could easily go either way. Justice Kennedy is likely to be a key swing voter, and I find it extremely difficult to predict what he will do in close constitutional cases like this one—so much so that I have sworn off doing so after he did the exact opposite of what I expected in the Fisher II affirmative action case. All that can be safely said is that much may hinge on his decision.

UPDATE: Adam Liptak and Michael Shear of the New York Times interpret Kennedy as leaning more toward the administration than I do, while Josh Gerstein and Ted Hesson of Politico suggest he is more on the fence. Ilya Shapiro of the Cato Institute thinks Chief Justice Roberts might find some way to get rid of the case on "technical" grounds that obviate the need to address the merits. I am skeptical that this is likely. But we shall see.

NEXT: College Official on Why We Must Believe Alleged Crime Victims: It May Not Be the Truth, 'But It Is That Person's Truth'

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175 responses to “Thoughts on the Travel Ban Oral Argument

  1. “All that can be safely said is that much may hinge on his decision.”

    Way to go out on a limb.

    “The team with the most points will win this game.”

    1. There will be weather tomorrow. And the next day.

  2. Several justices also discussed the potential significance of claims that it would have been legally permissible for a different president to adopt the same policy, if only he had not made the same types of anti-Muslim statements as Trump.

    With all due respect to your detailed discussion linked in the text, I’m not sure I’ve heard a convincing answer to that question. Clearly, I don’t like the potential for abuse, but why should something be unacceptable if passed for bad motive but perfectly acceptable if passed for noble motives? (I believe one of you bloggers once stated an opinion that if it is legal for a person to do something, that person should be allowed to do it for money).

    1. I’m not going to argue policy but in law it does matter. The EPC for instance only invalidates laws that have a disparate impact if there was intent to discriminate. If a law is passed purely to prevent a religion from performing a ritual then it violates the 1st Amendment. And as you said statutorily you can have sex but not sex for money.

      There can be arguments about whether this is good policy or even legally correct, but right now it is legally binding.

      1. ” If a law is passed purely to prevent a religion from performing a ritual then it violates the 1st Amendment.”

        We’re going to be in trouble, then, as the worship of Moloch picks up popularity.

    2. @mse326 I don’t dispute your explanation of the state of the law — my point was aimed more at the wisdom of the policy. The implications are especially concerning given the proliferation of academic fields devoted to demonstrating that discriminatory intent, whether the actors know the are acting intentionally or not, drives pretty much everything.

  3. Would the travel ban be “legal” had someone else won the election and put forth the exact order?

    1. Yes, that is the insane position taken here.

      1. No more insane than the position that it’s illegal to refuse to hire someone because they’re black.

        Motives matter in law, particularly when the motive, religious discrimination, is one explicitly forbidden by the constitution.

        1. The difference is The ban is because of the behaviour not because of the religion

          1. Employer: I’m going to fire all the black people! Bill, George, Frank, Phil, and all those other black people will be gone!

            Courts: That’s illegal!

            Employer: Fine, I’m firing Bill, George, Frank, and… Carl… who is not black! And I’m firing them for under-performing so I’m definitely not firing them for being black!

            Do you really expect the courts to play along with that?

            1. Aluchko – your analogy is not even remotely addressing the point I made. Try again

              1. You mean the point that your substitution of behaviour for religion is as disingenuous as the hypothetical employer’s substitution of under-performance for race?

                1. aluchko – Still not addressing the point I made – Try a third time

            2. What if there were 100 blacks there and only 7 blacks and 1 white were fired?

              1. If there’s evidence he’s targeting blacks, that still not permissible.

                1. Clearly if there are 92 blacks still working there he wasn’t targeting blacks.

                  1. Not even if he said “I’m going to fire all the blacks!!! What? I’m not allowed?? Fine, I’ll only fire 7!!”

                    Whether or not he fired all the blacks he was still firing them for being black.

                    1. Oh, that Sam.

                      That was pretty funny.

      2. I don’t think it’s insane. If another President doesn’t indicate this law is a pretext to target Muslims, the law won’t take it as a pretext.

        Like how one guy will go down for murder 1 and another for manslaughter on the same forensics, depending on their previous interactions.

      3. Bull Cow is digging deep into the dung heap to try to salvage his credibility and his globalist, open borders agenda.

        1. Hello, Bigoted And Backward Right-Wing Mini-Me.

          Thanks for joining us today. I know there are many other things you could be doing — they are plenty of black votes to be suppressed, narc raids to be conducted, gays to be bashed, brown people to be tortured, medical facilities to be micromanaged, superstition to be injected into reasoned debate, women to be hectored, undocumented families to be imprisoned or separated by force — and yet you spend your time with us, impersonating me.

          Carry on, clinger.

    2. No, technically, if somebody else had won the election, and promulgated exactly the same order, it would just be illegal for a different reason.

      The starting point for Ilya is that not having open borders is illegal, remember.

  4. Neal Katyal for the plaintiffs challenging the travel ban conceded that in general, you don’t consider campaign statements and the like: “you shouldn’t look to campaign statements in general or stuff like that, statements of a private citizen.” He then stated that this case was different, because Trump reiterated discriminatory statements as president. So Trump’s campaign statements are only tangentially relevant, and regardless of how the case comes out, it seems that, as some of us argued, as a general rule campaign statements made before someone has taken the oath of office are of slim relevance to equal protection considerations. At most, it seems that such statements would require a president to present a mere “rational basis” for policies with a discriminatory impact.

    Also, as I read the argument, Katyal wanted to focus on the issue of whether Trump exceeded his statutory authority, which suggests Katyal doesn’t think he has five votes on equal protection or establishment clause.

    1. Here’s my confusion – lets say they overturn it based on his statements (those made before or after he became president). In 2020 we have a president elected that has made statements against another constitutionally guaranteed right – say gun ownership/gun control. Then they craft a executive order/rule which restricts these rights (aren’t many of the rules concerning sale of guns/gun dealers done by the executive branch).Some will disagree as to whether there is a “rational basis” for these restrictions but are the motives now in play as the basis to toss it out? How does this play out with state gun regulations? Would the words/motives of every government employee (particularly political appointees) who touches a rule also be fair game?

      1. No because the the constitution requires the motive be religious/discriminatory for these 1st or EPC questions. Second amendment doesn’t require a motive. It either infringes or it doesn’t. This isn’t new and hardly a point that anyone argues.

        1. No because the the constitution requires the motive be religious/discriminatory for these 1st or EPC questions

          It does?

    2. Prof. Bernstein’s change of tune when this issue involves Israel rather than Muslim countries will be hilarious and predictable.

  5. ” policy of focusing on Muslim-majority nations ”

    If it was focused on Muslim-majority nations, it sure missed a lot of them.

    The fundamental problem with characterizing the policy as focused on Muslim-majority nations, is that given the realities, if would basically be impossible to craft a rational list of nations to bar immigration from, that wouldn’t be mostly Muslim-majority. And, indeed, the original list of nations dated from the Obama administration, which is not usually accused of anti-Muslim bias.

    1. I wasn’t aware that Obama had imposed a travel ban.

      He did sign a bill, passed by Congress, that made visitors from those countries ineligible for visa waivers. Doesn’t seem like quite the same thing but hey, I guess Stormy Daniels is Obama’s fault too.

      1. This is the first that I heard about Obama’s travel ban being authorized by Congress, specifically. Sauce?

        How about the one that Carter put in, via executive order, against Iran, which went even further, and required Iranian students in the US to visit an immigration office. Not equivalent somehow?

        1. http://www.politifact.com/wisc…..ravel-ban/

          My information comes from Politifact.

          The travel part of Trump’s order does target the same seven countries that were singled out with a law Obama signed in December 2015.

          The Obama-signed law contains provisions that restrict travel to the United States for people who lived in or visited Iran, Iraq, Sudan, or Syria since March 2011. They must have a visa to enter the United States; they can’t use what is known as the Visa Waiver Program, which allows 90-day U.S. visits to other foreign visitors.

          The law was soon expanded by Obama’s Department of Homeland Security to cover Libya, Somalia, and Yemen. They were identified in the agency’s announcement as “countries of concern,” a phrase used in the law.

          My bolding.

          The additions were authorized by the law – an appropriations bill – which gave HHS 60 days to identify additional countries of concern.

          So all the talk about “Obama’s list” is more than a touch misleading, not that that gets it off anyone’s talking points.

          1. Thanks for the clarification. I concede the point that the Obama ban was passed by Congress, even if part one of these massive appropriations bills that nobody reads and knows what the heck is actually in it. Not quite the same as Congress passing a single issue bill giving Obama the green light. Moreover, the Obama admin expanded the list to other countries and nobody cared.

            So you’re kinda making the opposite point than you intended too, which is that case is against Trump taking these actions than anything else.

            Thoughts on Carter’s actions?

            1. Expanding the list was written into the law, mk!

              Also note how much it’s not a ban.

              1. The point is that it is difficult to assert that the list of countries was chosen by Trump out of religious bias, when the list actually originated with the prior administration, and all he did was conclude that “extreme vetting” wasn’t really feasible, so a ban was appropriate.

            2. As Sarcastro says, it wasn’t a ban to begin with. It just said visitors from those countries were not eligible for visa waivers. Further, again to echo Sarcastro, the Obama administration actions were authorized by the law.

              Finally, of course, there is no evidence at all that Obama wanted to ban Muslims from coming to the US, nor did these actions ban anyone.

              As for Carter, here is Snopes on the matter.

              1. What about Obama’s 2011 travel ban – a presidential proclamation:

                Presidential Proclamation–Suspension of Entry of Aliens Subject to United Nations Security Council Travel Bans and International Emergency Economic Powers Act Sanctions
                SUSPENSION OF ENTRY OF ALIENS SUBJECT TO UNITED NATIONS SECURITY COUNCIL TRAVEL BANS AND INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT SANCTIONS

                BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

                A PROCLAMATION

                1. I don’t see any countries or religions mentioned there. Did you just pull up a list of individual persons and think it was relevant?

      2. And using that list for this other purpose does fit very neatly into the pretext narrative.

        1. Even Politfact calls it Half-True……..

          1. Because they did use the list, it’s just not a list for a ban,
            Picking some Visa-related list that had a bunch of Muslim countries on it for plausible deniability?

            That doesn’t make a lot of sense for the purpose people are putting forth for Trump, but it does if you want a pretext to ban some Muslims at least.

  6. that ignores the reality that the vast majority of those excluded are Muslim, and they seem to have been targeted for precisely that reason

    Didn’t the list of countries come from an Obama administration effort?

    1. Obama famously rejected the Islam of his father and embraced Christianity…if that is not “animus” towards Islam then I don’t know what is?!? Obama also likes to tell brown foreign people how to “properly” practice Islam.

      1. Faith is a personal choice, not a global one, ya yutz.

        1. Obama chose Christianity over his father’s Islam because it is the superior religion! Oh wait, you are one of those Birthers that believes he lied about his religion…he just said he was a Christian to win votes from middle America.

          1. Sebastian,

            Your comment is moronic. WTF are you talking about, aside from your severe ODS?

            1. Let me guess, you had a copy of “Dreams from my Father” prominently displayed in your dorm room but you never actually read the book?? Obama was raised with more Muslim influences than Christian influences and yet as an adult he chose to reject Islam and embrace Christ…that shows he believes Christianity is superior to Islam. Now from a Muslim’s perspective it actually shows animus for Islam which is why infidels like Obama are held in the lowest esteem.

              1. They’re specifically called renegades or apostates, not simply infidels.

              2. If I choose to convert from one religion to another that doesn’t mean I hold “animus” toward my previous religion. You don’t know what animus is.

          2. Superior for him doesn’t mean superior for everyone, SC.

      2. Obama famously chose the religion most likely to help his political prospects. That’s not animus, that’s ambition.

        1. The effect is the same?Obama sent a message to the world that Islam is inferior to Christianity and he stood by it even as president.

          1. Weird how no one in the world got that message other than you, then.

      3. Many people believe this is a false narrative that Obama adopted for political gain. His “church,” Jeremiah Wright’s black liberation theology church, is hardly mainstream “Christian;” and in an interview, Obama slipped and referred to his muslim faith. I believe that in his heart, he’s a muslim.

        1. Many people believe
          Many people looking for a reason why Obama isn’t legitimate.

          I believe that in his heart, he’s a muslim.
          And the mask comes off. You have no idea, you took him speaking in the hypothetical in an interview and jumped on it. Because you can’t allow that Obama could be an American more like you than not.

          Not a great look.

          1. He is Birther just like you! You guys should exchange email addresses!

        2. Your words are those of an old-timey bigot, ThePublius. A disaffected right-wing loser.

          It is fortunate for you that in America even stale-thinking bigots have rights, too.

          I agree that “many people” are half-educated, intolerant, economically irrelevant, backwaters-inhabiting goobers gullible enough to believe that former Pres. Obama is a Kenyan Muslim sent by Satan to plague the “regular Americans” (downscale whites). I also know those yahoos are outnumbered by decent Americans, who will continue to shove progress down conservatives’ throats for the remainder of my lifetime, just as has occurred since the 1950s or ’60s.

  7. Professor Somin, the natural and logical result of your argument is that the legality of a given executive policy depends entirely upon who is occupying the White House and what that person, or even his supporters, might have said on the campaign trail. In other words, President Trump must operate under a wholly different set of legal standards than those which might have constrained President Obama. And, while I am no fan of Donald Trump, I am a fan of the rule of law, and your argument does violence to the basic notion that the law applies with equal force and in the same manner to all.

    1. They’ve been working on this angle for awhile now. If the policy is motivated by animus, well then it’s unconstitutional.

      Guess what liberals say about every Republican policy position?

    2. Animus would be a standard that applies to all Presidents equally.

      1. Wow, so we can have a national religion as long as it comes from positive feelings and not animus!! You are really good at this Constitutional interpretation thing!

      2. If that were true, then the Obamacare requirement for all employers to provide birth control would have been stricken down on the basis that it demonstrated an animus against Christian belief in the sanctity of life. The problem with using animus as a standard is that judging whether or not a particular animus, such as animus agaist gays versus animus against fundamentalist Christians, is a “bad” animus which justifies striking down a particular policy, is an entirely subjective decision.

        1. Great comment. Kennedy’s Obergefell opinion is dripping with animus for not only people of faith that don’t support SSM but also those that support polygamy as a matter of their religion. America has a much nastier history with respect to polygamy than SSM including both candidates for president in 2012 having family members exiled over polygamy.

        2. You are conflating animus the doctrine and animus the definition.

          1. No I am not.

  8. Travel Ban authority:

    8 U.S. Code ? 1182 (f) Suspension of entry or imposition of restrictions by President

    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

    http://www.law.cornell.edu/uscode/text/8/1182

    1. Sounds pretty simple. Have you tried calling Mr. Francisco to impart this insight?

      1. Actually it is simple on it’s face, which makes the circumlocutions of logic to avoid the plain language so interesting.

      2. Sounds pretty simple. Have you tried calling Mr. Francisco to impart this insight?

        This insight was not lost on Mr. Franscisco. It was his opponent who had to argue that ? 1182(f) doesn’t mean what it says.

        GENERAL FRANCISCO: Right. The answer to my — your question, Your Honor, is, no, I don’t want you to consider the proclamation on the — on the hypothetical situation that it is what it isn’t, but I do think that the proclamation as written and as applied falls well within the President’s authority under 1182(f).

  9. Hypothetically,

    if the adherents of one religion are, as a matter of religious doctrine, required to kill or enslave non-believers, can adherents to this religion of genocide/slavery be excluded from America?

    Part 2 – all of the residents of Country X are required to be believers in the religion of genocide/slavery. Can the President disallow people from Country X from coming to America?

    1. Thank you.

      And moreover,

      Islam is not just a religion. It is a political ideology at odds with what the USA is all about. I’ll not make obvious analogies or comparison’s here because of the gestapo type monitors of political correctness who lurk on this site.

  10. As Katyal noted, the administration has denied waivers even in such extreme cases as that of a “10-year-old with cerebral palsy who wants to come to the United States to save her life and she can’t move or talk.

    This is why Republicans can’t have nice things, like an electoral future in America, unless they change in fundamental ways, perhaps even moving back toward tolerance, limited government, education, progress, competence, and reason.

    1. Liberals would have killed that baby in the womb!

      1. Correct. They are sooo compassionate.

        1. Hey, you guys bringing up abortion, you uh, seem to have forgotten about the 10-year-old somewhere back there…

          1. The ban permits waivers. Trump did not deny the visa for her personally.

            Her situation says nothing about the legality of the policy.

            In fact, how do we know she could have gotten a visa prior to the ban? She is just a very convenient sob story.

            1. No argument this is a sob story Bob, but it does reflect a policy problem if you can’t make such an exception.

    2. Some judge the UK would’ve ruled that baby should die in the name of Socialist Healthcare.

      We’ve seen that repeatedly.

      1. That’s just a really late term abortion after all.

        1. The amount of ‘hey look over here!’ in this thread is a helluva thing. Now it’s extending to fictional facts about the NHS.

          1. It’s not fictional that some UK NHS Death Panel judge just commanded some “herioic boy” be put to death when his parents wanted to try and save him.

            1. It’s a miracle?no Downs Syndrome babies in Iceland!

              1. SC, in your abortion-rage about Iceland, you’re wandering quite far afield from the needless, petty, cruelty America put that 10-year-old with cerebral palsy through.

            2. I can’t seem to find the story – all the searches for NHS heroic measures or heroic boy turn up stories of NHS staff acting heroically.

              So I will assume you’re outraged at a baby who is not going to survive not being kept alive by all means necessary for another month.

              1. I can’t recall exactly what that Socialist Healthcare Death Panel Judge called Alfie when he sentenced him to death.

                So I will assume you’re outraged at a baby who is not going to survive not being kept alive by all means necessary for another month.

                Did you know that Italy had lined up transportation and the Vatican Hospital was ready to receive him and that he hadn’t even be diagnosed with anything?

                Socialism kills. Literally. Especially children and babies. I don’t know what it is about the Left, but they just love murdering babies and little children.

                1. Venezuela’s children don’t have the obesity problem American children have…so there’s that.

                  1. Yeah, it’s either allow Trump’s travel ban or we become Venezuela.

                    Sam, your mixture of begging the question about abortion and confirmation bias has created a pretty bang-up villain for you to hate, congrats.

                    1. Dismissing a point isn’t really addressing it is it?

                      I’d hate to have you think about something, for once.

                    2. Because your arguments are old.

                      1) Allowing women the option of abortion isn’t killing babies.
                      2) I don’t know what political BS has England not agreeing to this Vatican citizenship grant, but it doesn’t prove jack about liberalism or socialism generally.
                      3) NHS saves a lot of lives as well, arguably more than the America, given how many poor die due to poor care over here.

                      So your thesis that socialists love killing children and babies is unsupported. As a liberal who wants kids one day, I’d be insulted, but it’s too cartoonish an accusation to be more than amusing.

    3. The dark cloud of oppression is always descending upon Republicans but it always turns out to be composed of progressives and Democrats. Why are liberal Democrat cities so dangerous and oppressive to minorities?

      Chicago Is Trying to Pay Down Its Debt by Impounding Innocent People’s Cars

      Quote:
      Police released Byrd after a short stint in an interrogation room without charging him with a crime. But when Byrd went to retrieve his car, he found out the Chicago Police Department had seized and impounded it.

      Byrd had run afoul of Chicago’s aggressive vehicle impound program, which seizes cars and fines owners thousands of dollars for dozens of different offenses. The program impounds cars when the owner beats a criminal case or isn’t charged with a crime in the first place. It impounds cars even when the owner isn’t even driving, like when a child is borrowing a parent’s car.

      1. I can’t help but think when I read that article, that (most likely) all Byrd had to do was pay a couple grand to his local city council member’s re-election fund, and that would help clear up any paperwork.

        1. Chicago has loads of examples of legit corruption, no need to ‘most likely’ yourself into an imaginary one.

    4. Probability of becoming a public charge is actually one of the explicit criteria for admission to the country; How was the treatment to be paid for?

  11. Somin is being very shortsighted. Establishment Clause works both ways?so if a candidate makes positive remarks about Jews and then a few months laters Nazis retake Germany then giving German Jews refugee status would violate the BoR.

    1. “Establishment Clause works both ways?so if a candidate makes positive remarks about Jews and then a few months laters Nazis retake Germany then giving German Jews refugee status would violate the BoR.”

      This is “They can’t arrest a husband and wife for the same crime” levels of legal ignorance.

  12. Here’s the point that EVERYONE is missing:

    This is NOT a “religious discrimination” issue. At all.

    Americans are so immersed in the First Amendment concept of the separation of “church” and “state,” that we can’t wrap our minds around the fact that in most other parts of the world, especially the Middle East, such a separation or distinction simply does not exist.

    This ban may very well be against *some* “Muslim” countries. So what. It’s not the religion that we are concerned about. It’s the fact that their GOVERNMENTS are non-functioning when it comes to properly vetting the terrorists who live under their protection.

    I have yet to see anyone frame this question in that proper context.

    1. I agree, foreigners don’t have free speech rights in that if they make anti-American remarks immigration officials can take those into account. The Establishment Clause and Free Exercise Clause are unworkable with respect to immigration.

    2. We’re not missing anything.

      The motive was a Muslim ban from the beginning, only when it became obvious that a Muslim ban was unconstitutional did they start looking for ways to reframe it in terms of national security.

      But a Muslim ban with a different motive papered over top is still a Muslim ban.

      1. ISIS believes they are properly practicing Islam, so by your logic we cannot discriminate against ISIS pursuant the BoR.

        1. Only if your only objection to ISIS is that they’re Muslim.

          Most people have a few more beefs with them.

          1. Wrong, killing infidels is an important part of their religion. Just as opposing LGBT rights is an important part of Islam for all Muslims.

            1. It seems you missed your calling as an ISIS preacher trying to convince the world’s Muslims that they’re practising their religion wrong.

              1. That is what Obama does?he tells brown foreigners how to “properly” practice their religion.

      2. And you confirm that you ARE missing my point. We are banning immigrants from non-functional Muslim GOVERNMENTS. We couldn’t care less about their religion.

        There is no valid reason to not discriminate against non-functional governments who cannot assure us that their immigrants do not pose serious security risks.

        1. Yes!

          We should totally believe what you claim to be your motive today and totally forget about what you claimed to be your motive yesterday until we told you that was an invalid motive!!

          1. We should totally believe what you claim to be your motive today and totally forget about what you claimed to be your motive yesterday until we told you that was an invalid motive!!

            But the attorney for the Respondents said during oral argument that all the President would have to do is make a statement disavowing his prior statements.

            CHIEF JUSTICE ROBERTS: So, if tomorrow he issues a proclamation saying he’s disavowing all those statements, then the next day he can reenter this proclamation?

            MR. KATYAL: That’s exactly what this Court said in McCreary.

      3. The motive was a Muslim ban from the beginning, only when it became obvious that a Muslim ban was unconstitutional did they start looking for ways to reframe it in terms of national security.

        Are you saying that Trump’s principal concern was not with the threat of terrorism but rather had to do with religious issues? If it was a Muslim ban then why did it only ban 8 percent of the world’s Muslims?

        1. If it was a terrorism ban why the crappy correlation to the countries that actually export terrorists?

          On the other hand if it was a Muslim ban… he might have taken Gulianni’s advice to reframe it as a security measure.

          1. So you think that Trump was primarily motivated by religious issues and not terrorism?

            1. Problem is that the terrorism is a religious issue, as the terrorists in question are Muslims from these countries.

              1. So are we still ignoring the fact that Muslim Terrorists are overwhelmingly Sunni and only 4-6% of Iranians are Sunni?

                1. Whew, are we missing the forest for the trees or what. Moreover, Iran is the world’s biggest state sponsor of terrorism, I am not sure where you’re going with that. Is it that Iran outsources its terrorism, or that most Iranians themselves aren’t killing people (in other countries at least) in the name of political Islam, that we should give them a pass?

                  1. The problem is all the yahoos on the thread intimating with greater or lesser subtlety that Islam and terrorism are the same thing.

                    1. Thank you Lawrence of Arabia for telling ISIS they are practicing Islam wrong. Brown people need white Americans to tell them how to do things like that! Thank god white Americans exist or else the world would fall apart! 😉

            2. Sarcastr0,

              I fully agree with this, even a devout Wahhabist is extremely unlikely to be a terrorist and his or her religion should not be conflated with terrorism. But I think it’s helpful to also point out the absurdity of Iran’s inclusion in the ban.

              mad_kalak,

              Forest and trees indeed. What do the actions of the government of Iran have to do with whether it’s citizens are terrorism risks when they travel to the US? ie, the supposed purpose of the ban.

              1. “What do the actions of the government of Iran have to do with whether it’s citizens are terrorism risks when they travel to the US”

                I can’t believe that you’re asking that question with any intellectual honesty. You think the government of Iran is going to let us know that person X is not a jihadist when we ask them nicely if they would be a good fit for our liberal western society? It’s not like we can vet them fully ourselves.

            3. Absolutely.

              Are you claiming Trump is some sort of thinker? He’s not.

  13. It wouldn’t surprise me if this case went 6-3 or even 7-2 for the Travel Ban. If SCOTUS rules against the Travel Ban then they would be setting bad precedent; basically setting up a Minority Report scenario where courts are divining the intent of the US government based on one official’s words and besmirching the entire departments involved.

    1. I think the courts can draw a distinction between “one official’s words” and one of the POTUS’s main campaign promises.

      1. Obama said he was going to cause coal companies to lose money.

        …yet his regulations on coal weren’t found unconstitutional based on his clear bias against coal.

        Odd.

        1. Odd how you conflate the statement of an unintentional (though probably permissible) side effect of a policy with the statement of the primary and unconstitutional objective of a policy.

          It’s like arguing for the legality of murder based on the fact that doctors’ include death as a potential complication from a surgical procedure.

        2. Are coal companies a protected class?

  14. My concern is that too many of the votes will be based on the justice’s preferred policy and not based on a constitutional basis or statutory basis. This result is far too frequent.
    Ginsburg’s concurring opinion in ACA – health care reform is good – therefore ACA is constitutional
    Ginsburg’s dissent in Ecinino motors – service advisors should be overtime,
    etc.

    1. But that is almost always what happens at SCOTUS and the district courts. With a simple metric of looking at who appointed the judge (GOP or Dem), then coding a decision “conservative” or “liberal.” If you want some sleeping pill equivalent reading on it, check it out here.

      http://www.cambridge.org/us/ca…..0521789710

      Things like Robert’s switch on the ACA or Gorsuch defending criminal defendants are out of the ordinary.

      There is even a great database where you can play social scientist and check it out for yourself.

      http://scdb.wustl.edu/analysis.php

      1. Mad – “Gorsuch defending criminal defendants are out of the ordinary.”

        Both Thomas and Scalia are/were far more defendant friendly than they are given credit for.

        I find Gorsuch’s concurring opinion in Sessions v. Dimaya quite encouraging.

        The four liberal justices seemed to be opposed to any deportation and found the vagueness an easy escape route for their opinion – ie an window dressing opinion demonstrating an objection any deportation with the excuse of “vagueness”

        The four conservative justices seemed to believe burglar offense was more than enough to reach the “crime of violence” standard.
        Gorsuch did not argue that the crime was or was not a crime of violence, (at least not the I saw in the first few pages his concurring opinion,) but that the statute did not properly define the “crime of violence”.

        1. I’m not saying I disagree with Gorsuch’s vote, I’m just saying it’s out of the ordinary. Certainly it is out of the ordinary enough that it was commented on in a post on this very blog. If it wasn’t, nobody would notice or care.

          I acknowledge that the Attitudinal Model (what the theory is called where justices’ votes are predicted by who appointed them) is somewhat spartan as theories go, but it’s also mostly correct. While most cars have four wheels, some do have three, or even four, and are still cars. However, it is easier to have a theory on cars that says that “cars have four wheels” when deciding on “what is a car,” and then speak about the few exceptions separately.

          1. Mad_Kalak – we are likely saying the same thing, just in different ways.

            I agree that the justices often vote based on policy preferences (whether it is based on the attitudinal model or simply their party affiliation – steven/souter being quite liberal).

            My point both sides tend to vote based on policy preferences, though my observation is that the conservative justices crossover much more frequently based on constitutional principles whereas the 4 liberal justices seemed to be very high propensity to let policy preferences be the primary basis for the opinions.

            1. That latter paragraph I will agree with, in that there is limited evidence that when we have a chance to “look under the hood” of judicial decision-making, principal is more important to conservatives than liberals. Meaning that liberal precedents get upheld more frequently by conservative judges because they care more about stare decisis, and conservatives are also less likely to backwash legal reasoning for a policy preference they choose at the outset of a case then liberals are. These are at the margins though.

              1. Encinio motors is one example of policy preferences. Ginsburg opens up her opinion by misconstruing the statute and mischaracterizing the job service advisors perform in order for job to neatly fall into the misconstrued statute. That 3 other liberal justices had no objection to mischaracterizing the statute or the job description doesnt speak highly of their impartiality.

            2. My point both sides tend to vote based on policy preferences, though my observation is that the conservative justices crossover much more frequently based on constitutional principles whereas the 4 liberal justices seemed to be very high propensity to let policy preferences be the primary basis for the opinions.

              I heard something similar about the refs last time I was at a hockey game.

              1. And I heard that all the football refs love Tom Brady too, what’s your point?

                I am making the qualifying point that when you can “look under the hood” (which is rarely) by looking at a justices papers posthumous, or rarely with interviews, that principles matter more to conservatives, and that’s at the margins.

                1. I’d agree that Liberal justices default to rulings they consider empathetic (or just) while conservatives would favour principal (I’ve tried to phrase that neutrally).

                  But I’m not sufficiently convinced that ruling based on principal over empathy or justice leads to a greater adherence to constitutional principals since that relies on the judge’s underlying “principals” being constitutional one.

                  For both liberal and conservative judges I’d expect them to develop a judicial philosophy that makes roughly the same compromise between the constitution and their personal beliefs.

                  If I were to put on my partisan hat I’d question the mechanism behind Conservative justices growing more liberal once appointed to the SC.

              2. Aluchko – maybe you should actually read the opinions and the dissents

                Stevens – Mcdonald dissent – the government can pick and chose which BOR’s to incorporate
                Sotomayer – shutte v bamn – The government should retain the right to discriminate if we like the type of discrimination
                Encinio motors – lets mischaracterize the statute because service advisors should get overtime

                1. The amount none of you are even thinking of going to the stats says a lot about how much you’re pushing how you feel versus what you know.

                  Spoilers – it’s all pretty similar and very marginal.

                    1. The disagreement rates in 5-4 cases in your own chart suggests that you’re really wrong about that, Sarc. Specifically, the *0%* for Sotomayor x Kagan, x Ginsberg, and x Breyer. And the *0%* Kagan x Breyer and x Ginsberg, and the 0% Ginsberg x Breyer.

                      The 4 liberal justices on the court have literally *never* disagreed on a 5-4 case, it’s always been a conservative justice stepping over to their side, never the other way around.

                    2. Suddenly Kennedy is a conservative?

                      It’s a miracle!

                    3. “Suddenly Kennedy is a conservative?”

                      Mr. Gay Marriage is no conservative but the old perception of him as one is still floating around.

                    4. GS: “The 4 liberal justices on the court have literally *never* disagreed on a 5-4 case, ”

                      While that is correct, there are only seven (count ’em) cases in the sample, so it’s hard to draw really firm conclusions.

                      I’m more interested in the fact that Sotomayor completely disagrees with Gorsuch in 41% of /all/ cases (which includes unanimous ones), and Breyer, Ginsberg, and Kagan do so 35% of the time.

                      Gorsuch may well be staking out Scalia’s property. Though Ginsberg was close to Scalia and seems to loathe Gorsuch.

                    5. She came to like Scalia in a time when you were actually allowed to like people you disagreed with. That time is over, now she’s obligated to hate anyone she agrees with, or she will be presumed by her allies to secretly agree with them.

                    6. Your narrative that Ginsberg has changed who she sides with is completely made up. It also doesn’t comport with your other thesis about liberals being in lockstep.

  15. Ilya Shapiro of the Cato Institute thinks Chief Justice Roberts might find some way to get rid of the case on “technical” grounds that obviate the need to address the merits. I am skeptical that this is likely.

    Prof. Somin feels it is unlikely that the Chief, who almost always tries to split the baby whenever something controversial comes across his desk, will not try to do so here.

  16. Is the national security rational basis for the ban actually weak as claimed here? The policy will most likely not be very effective, but that’s different (it’s a policy assessment) from what the Court needs to assess. Is the U.S. fighting a defensive war against radical Islam? Yes. Does the Executive branch have a legitimate national security goal of implementing a screening process that vets for Islamic radicalism? Yes. Does such a ban in a Muslim-majority country have some hope of screening out radical jihadists? Again, yes. The Executive branch has determined that these countries are not cooperative in vetting visa applications and are antagonistic to U.S. interests…so there appears to be a rational basis. Is the ban over inclusive, excluding many people who are “obviously” not terrorists? At a policy level, probably. But it is also very difficult to determine who is practicing Sharia and who may be radicalizable….so this is a judgment call. We don’t need to Court substituting its national security opinions for the branch of government that is actually answerable to the people. The Court shouldn’t be in the business of fixing every bad Executive decision.

  17. In determining whether a seemingly neutral policy is actually motivated by unconstitutional discrimination, Supreme Court precedent requires judges to make “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” including “[t]he historical background of the decision” and “[t]he specific sequence of events leading up to the challenged decision.”

    The precedent Ilya cited concerned a situation in which those discriminated against had constitutional rights. However here if the aliens have no connection to this country then there are no constitutional rights.

    Furthermore, the cited precedent didn’t deal with the authority of the President and Congress over international relations, and certainly doesn’t stand as an exception to the Mandel holding that if the executive officer makes his decision on the basis of a “facially legitimate and bona fide reason,” courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the constitutional interests of citizens the visa denial might implicate.

  18. Your desperate lobbying is in vain, Bull Cow. Kennedy doesn’t pay attention to your little blog.

  19. The more I read the more I question how The Court can say one way or the other. There is a significant question of fact about what the motivating factor is. That mean it can’t just be determined by a judge it has to go through a jury (unless waived). I think the answer is to reverse and remand with instructions to hold a trial.

  20. Hey, Pathetic Bull Cow, why did you leave out SCOTUS Blog? http://www.scotusblog.com/2018…..ore-269569

    As far-left and as pro-open borders as they are over there, even they see the writing on the wall on this one.

    I know that you think you can sway Kennedy with your REEEEEEEEEEEEEEEEs, but I don’t think you can.

    1. Hello again, Bigoted Right-Wing Mini-Me.

      You are an apt representative of right-wing bigots on this one.

      Please keep talking.

      Some young people might not have had enough exposure to right-wing thinking to have concluded yet that conservatives are intolerant and backward to a point that disqualifies them among educated, decent voters.

      1. conservatives are intolerant and backward to a point that disqualifies them among educated, decent voters

        Dartmouth Study Finds Democrats Are The Least Tolerant Students On Campus

        Quote:
        In the campus-wide field survey, students of all political stripes were asked how comfortable they would be about living with a roommate who holds opposing political views. Of the 432 students surveyed, only 39 percent of students who identified as Democrats said they would feel comfortable living with a Republican, 16 percent said they felt neutral about the proposed arrangement, while 45 percent, a plurality, said they felt uncomfortable.
        A majority of students who identified as Republicans (69 percent) said they were comfortable living with someone of opposing political views, 19 percent said they felt neutral about it, and only 12 percent said they felt uncomfortable. Among Independent students, 61 percent said they felt comfortable living with someone with opposite views, 22 percent were neutral about it, and 16 percent were uncomfortable.

      2. You keep on with your pathetic, soros sucking, broken record shtick. You aren’t even “highly educated.” It’s hilarious.

        Your REEEEEEEEEEEEEEEEEEEEEEEEEEs echo into the night as YOUR PRESIDENT Trump lives rent free in your head.

  21. “Suppose you have a local mayor and, as a candidate, he makes vituperative hate — hateful statements, he’s elected, and on day two, he takes acts that are consistent with those hateful statements. That’s — whatever he said in the campaign is irrelevant?”

    Here’s a counter hypothetical:

    Suppose a local mayor, as a candidate, supports a $15/hr minimum wage for his city ? but says repeatedly that he supports it because he wants to drive the “spic immigrants” out of work. The local public sector unions endorse him because of the $15/hr minimum wage. He wins election and, on day two, issues an executive order imposing s $15/hr minimum wage for all city employees. Does the executive order get struck down because of the mayor’s “hateful statements?” Or do Ginsburg and the Wise Latina Woman decide that in this case, the hateful comments are meaningless?

    1. Nice counterhypo. Somehow I don’t think you care about the answer, just your speculative double standard.

    2. That was the original purpose of davis-bacon act

  22. Muslims from other countries are not banned.

    Non-Muslims from the countries on the list are banned.

    How can it be a “muslim ban”?

  23. Why is there such outrage that the courts may consider campaign statements for this or any other issue? Isn’t the ostensible purpose of campaigns to communicate to voters what a candidate will do when elected? Why should President Trump or any other politician be free from the legal and/or constitutional consequences of his or her own words? Not a rhetorical question, I really don’t understand that argument.

    1. I am a #neverTrumper and I support the travel ban and I blame Obama for heating up the rhetoric when he started trolling Trump with the comments about Trump fearing women and children refugees. Guess what happened a few weeks after Obama’s irresponsible comments that contributed to Trump’s irresponsible comments??? A Muslim immigrant with a vagina committed terrorist acts in San Bernardino CA.

      1. Is Pakistan on the list of banned countries?

    2. If you really don’t understand the argument, hang around this blog: learn how the law works.
      The short-ish answer to why the outrage is: what now becomes fair game? College papers? Articles written for one’s HS newspaper? Remarks made over cigars and brandy?
      How are the Justices supposed to evaluate the intensity and staying power of sentiments like that?
      (This factor often arises when people argue over the extent to which a court should look at the “legislative history” behind a statute, rather than just at the language of the statute itself))

      1. Campaign statements can be distinguished from the other things you mentioned since they were made with the specific intent of expressing what the politician will do in that office. Thus the moment a politician declares himself a candidate would be the bright line for me. I’m not sure what you mean by intensity, but as for staying power, they remain as valid indicators of intent and motive until they are refuted by the politician himself. I’m not sure why that would be difficult for judges to evaluate.

        For instance, if President Trump were to say something like “I said during the campaign we need to stop all Muslim immigration to this country. I now realize that this would be unconstitutional, so I will not be doing this, but instead will be focusing on blah blah blah.” I believe Katyal conceded this point during oral argument.

  24. Agree that Hawaii is very unlikely to win on Free Exercise or Equal Protection Grounds. There was very little discussion on the case law regarding application of constitutional rights to non-citizens on non-U.S. soil. Throw in that it would require overturning Madel (Kagan and the 4th circuit’s claims to the contrary notwithstanding,) that path looks tough.

    Really, it comes down to how do you reconcile 1152 and 1182(f). It sure seems to be that the hypotheticals conceded by Katyal would still violate 1152 as written. Once you concede that 1152 can’t possibly mean what it says, you’re looking at a very messy result that will be based on vague standards and an atextual reading of 1152. Drawing Kennedy’s vote will be mean an even more amorphous and unmanageable ruling, regardless of outcome.

  25. What a way to bury the lede! Shouldn’t the headline be “US can now cure Cerebral Palsy”?

    1. Cerebral Palsy isn’t a disease. It’s a disagnosis for when the person has messed up motor functions or brain activity and doctors don’t know specifically what is wrong.

      1. Yet the lawyer quoted in the article claims otherwise. Katyal is the one you should be arguing with.

    2. The headline should be, “some people aren’t aware the US isn’t a charity hospital”.

  26. What’s interesting here is that the plaintiffs had a plausible statutory and separation-of-powers argument – firstly, that the constitution places immigration squarely in Congress’ hands, so the administration cannot contradict a statute, and second, that Congress explicitly provided for how to deal with countries that sponsor terrorism and refuse to provide information to the United States, so the President is not free to impose a different solution (except perhaps temporarily in an emergency).

    By going for a maximalist position – (the Establishment clause applies abroad, and claims of religious animus trump national security claims [and courts have power to determine how serious a national security threat is] Professor Somin may have underplayed positions that, if further explored, might plausibly win.

    1. 8 U.S. Code ? 1182 (f) Suspension of entry or imposition of restrictions by President:

      “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

      The President’s actions would seem to be well within the powers delegated to him by Congress under the statute.

    2. What’s interesting here is that the plaintiffs had a plausible statutory and separation-of-powers argument – firstly, that the constitution places immigration squarely in Congress’ hands, so the administration cannot contradict a statute?

      What is the contradiction?

      8 U.S. Code ? 1182 (f) Suspension of entry or imposition of restrictions by President

      Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

    3. “…the Establishment clause applies abroad…”

      Is the argument that the Establishment clause applies abroad, or that the clause limits the actions of US Government in whatever sphere they happen to be operating?

  27. I’m not sure why everyone keeps harping on the fact that it’s not a Muslim ban, because even if ti was, it’s constitutional. The 1st Amendment does not prohibit the government enacting any immigration policy it wants.

    1. I have substantially more respect for those who contend ‘yeah, Trump and the ban are bigoted, but a bigoted ban can be lawful’ than I have for the yahoos who are limply pretending to believe that there is no bigotry to be found here.

      1. Bigotry by definition has to be irrational. There’s nothing irrational about not wanting outsiders in your society.

        1. Our society has withstood (and benefited from) the introduction of lasagne, General Tso’s chicken, bagels, Jameson, collard greens, sushi, tacos, pierogies, Friday fish fries, pad thai, chimichurri, gumbo, and lutefisk, indicating that it is irrational to believe that change and diversity are a threat to American society.

  28. “The administration and its defenders have consistently claimed they must be excluded from consideration, and Francisco reiterated that position at the oral argument.”

    Respondents also made that claim: “we think, absolutely, my friend is right, you shouldn’t look to campaign statements in general or stuff like that, statements of a private citizen.”

  29. Ilya’s primary argument has always been the Travel Ban is unlawful discrimination because of Trump’s campaign statements. Whaaa….

    Correct me if I’m wrong, but when asked directly if Trump’s campaign statements were, or even should be, relevant, Katyal RAN AWAY from that argument and said he wasn’t arguing that. Why? Because even he knows that’s a losing argument.

    I’ll come back when the Court upholds the Travel Ban just to laugh at Ilya and all the judges and courts who’ve gotten this wrong from the beginning.

  30. I continue to be disappointed that a respected professor at my favorite legal analysis website continues to support a view that in effect, violates the free speech rights of Presidential (and presumably other) candidates.

    One can dislike the President, and can disagree with his policies, but claiming that constitutionally protected expression places limits on the (otherwise legal) policies that the President can later implement marks someone as part of the delusional #Resistance.

    To quote our President, “Sad!”.

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