A Roundup of My Volokh Conspiracy Posts on the Travel Ban

On the eve of the of Supreme Court oral argument in the travel ban case, here are links to some of my more notable VC posts on the subject.

Tomorrow, the Supreme Court will hear oral arguments in the travel ban case, Trump v. Hawaii. Since Donald Trump issued his first travel ban order in January 2017, I have written numerous Volokh Conspiracy posts on various iterations of the travel ban policy, and the legal challenges to them. Here are links to what I think are some of the more notable ones:

Making America Cruel Again - Trump's Executive Order on Refugees (My initial critique of the very first travel ban order (focusing mostly on moral and policy issues rather than legal ones).

Why Trump's Refugee Order is Unconstitutional (explanation of why the original Travel Ban was unconstitutional).

Thoughts on the Appellate Court Ruling Against Trump's Immigration Order (my analysis of the Ninth Circuit ruling against Travel Ban 1.0 - including an explanation of why it is both appropriate and necessary for courts to consider Trump's campaign statements as evidence of unconstitutional discriminatory motive).

So What if Trump's Travel Ban Order Might be Constitutional if Another President Issued it? (my critique of a common defense of the travel ban).

Trump's Revised Travel Ban is Still Cruel and Still Unconstitutional (my initial critique of Travel Ban 2.0).

Trump's Newest Travel Ban Order Has Many of the Same Flaws as the Old (explanation of why Travel Ban 3.0 is illegal for most the same reasons as its predecessors).

Supreme Court Issues Mixed Ruling on Trump's Travel Ban (my analysis of the Supreme Court's partial upholding and partial rejection of the lower court preliminary injunctions against Travel Ban 2.0).

Constitutional Law Scholars' Amicus Brief in Travel Ban 3.0 Case Explains why the Bill of Rights Restricts Federal Power Over Immigration (highlights of the amicus brief I coauthored on behalf of myself and a cross-ideological group of legal scholars).

Don't Let Trump's Travel Ban Become a Road Map for Discriminatory Policies (the dangers of a potential Supreme Court ruling holding that courts are not permitted to consider Trump's campaign statements as evidence of discriminatory motivation).

Appeals Court Rules that Trump's Travel Ban 3.0 is Unconstitutional (my thoughts on the Fourth Circuit ruling holding that Travel Ban 3.0 is unconstitutional because it is qualifies as religious discrimination against Muslims).

Appeals Court Rules Against Trump's Travel Ban 3.0 (thoughts on the Ninth Circuit decision ruling that Travel Ban 3.0 violates immigration laws enacted by Congress).

Supreme Court Dismisses Travel Ban Case as Moot - But the Legal Fight Over the Issue Will Continue (My analysis of the Court's dismissal of the cases against Travel Ban 2.0, and prediction that the issue would soon return to the Court because Travel Ban 3.0 has most of the same flaws as its predecessors - a prediction soon vindicated by events).

Supreme Court Lifts Temporary Injunctions Blocking Trump's Travel Ban 3.0 (what to make of the Supreme Court's decision to let Travel Ban 3.0 go into effect until the Court reaches a final decision on its legality).

UPDATE: Earlier today, The Hill published an op ed I wrote on the Bill of Rights and travel ban, coauthored with Michael Mannheimer (who also coauthored the amicus brief on which the op ed is largely based).

Comments

[Bob from Ohio]

"notable"

[Sarcastr0]

These have been fun comment threads. Lots of political scrimmaging, but also some interesting novel questions about separation of powers, animus, what a right even is. Some political prognosticating.

My only issue is perhaps a bit repetitive, but it still is something to look forward to when another of these posts land.

[Rev. Arthur L. Kirkland]

I believe that precipitating voluntary self-identification of bigots, and regular association of old-timey intolerance with conservatives and Republicans, is generally good. I consequently hope Prof. Somin continues to revive the conversation, and that the Volokh Conspiracy's conservative commenters continue to expose Americans to unvarnished right-wing thinking.

[VinniUSMC]

As long as you remain here to show everybody what it means to be a "educated idiot".

[Sarcastr0]

Agreed - part of the charm is the contempt Prof. Somins's very person evokes in a certain segment when it comes to his writings on immigration.

[Eidde]

If it turns out that Trump was seeking an excuse to discriminate against Muslims, under the guise of national security, by all means strike down his travel ban. If he was genuinely trying (mistakenly or not) to protect national security, and happened to focus on countries which tend to produce radical Islamist terrorists, then by all means say the ban in constitutional.

The courts will have to look into the Presidential mind, a daunting prospect.

[Rev. Arthur L. Kirkland]

What if it were both -- he intended to advance or appease bigotry and he figured banning Muslims or people from certain Muslim countries would make America safer?

[Eidde]

Are you allowing for the possibility that he might actually have concerns about national security?

[Rev. Arthur L. Kirkland]

Yes.

[Sarcastr0]

Courts have acted as finders of fact about intent for a long time.
The threshold question of pretext strikes me as a particularly hard one to get over, and therefore a rather easy factual question as these things go.

[Eidde]

I haven't been following the details of the successive travel bans - if it's just a bunch of excuses to act out an irrational prejudice against Muslims then it would be unconstitutional.

There is a bit of an elephant in the room in the form of a violent minority version of Islam which preaches war against the U. S. (and against countries with which America is at peace) as a religious duty. This version of Islam doesn't strike me as protected by the 1st Amendment, at least not when it comes to the rights of adherents to enter this country.

So the problem is whether Trump's intent is to also target the majority of Muslims who are willing to respect U. S. institutions and not wage war against America (or countries with which America is at peace). If he's painting with that broad a brush I'd say it's unconstitutional.

[Sarcastr0]

It's a bit more complicated than that, because of course it is. So there are two legal theories I'm seeing (probably more, but there are two main ones)

The first is Establishment Clause means you can't target a religion. IMO that's pretty weak, due to the inclusion of non-Muslims in revised bans.

The second, though...Equal Protection. Which brings in animus. No one is yet sure exactly how animus works (thanks, Kennedy!), but from my reading it stems from pretext - animus is a law that's made to be formally legal, but passed as a pretext to do something not permitted.

Thus if Trump wants to target Muslims, and this entire travel ban is a pretext to ban as many as he can, that would be animus against Muslims, and thus fail EPC analysis.

There are two counterarguments I've seen.
The first is one you've touched on, though not quite in the right context - the idea that banning Muslims actually passes equal protection due to the association of Islam with international terrorism. But religiously targeted regulations are analyzed under strict scrutiny, and targeting Muslims would fail.
The second is that animus doesn't work like that, or that Trump's campaign (and subsequent) rhetoric either cannot be taken for truth, or for prudential reasons should not be included in animus analysis at all.

[Eidde]

"The first is one you've touched on, though not quite in the right context - the idea that banning Muslims actually passes equal protection due to the association of Islam with international terrorism.

"But religiously targeted regulations are analyzed under strict scrutiny, and targeting Muslims would fail."

I specifically spoke of targeting a specific subgroup of Muslims.

I was talking about a motive of keeping out of the U. S. those who believe they have an Islamic duty to wage war against the U. S. (or against friendly powers). That's targeting a specific subgroup of Muslims, and I'd say there's a high compelling interest - protecting this country and upholding our obligations of neutrality under the law of nations.

[Sarcastr0]

I thought you were sketching a Establishment Clause position not an Equal Protection Clause one. macht nix.

Targeting a nation or set of nations isn't narrowly tailored to that purpose.

[Sebastian Cremmington]

This is not really about that. This is about Trump being an idiot and making bombastic statements and then it is also about liberal animus towards white Christians and so liberals believe the homophobic and misogynistic enemy (Muslims) of my merely homophobic enemy (white Christians) is my friend. A somewhat related story is the Joy-Ann Reid story in which a black Christian was homophobic and to make more money "evolved" and she will get a pass because liberals have animus only for white Christians that don't fully embrace LGBT rights.

Note that I don't believe the Conspiracists are motivated by animus for white Christians but their liberal allies have no respect for any religion although they might give Muslim bakers a pass for not baking a gay wedding cake just as they give Joy-Ann Reid a pass.

[Brightly]

"The courts will have to look into the Presidential mind, a daunting prospect."

IIRC, this is exactly what they are not supposed to do and what the Courts have been doing. The problem is that they have enabled themselves to play part psychiatrist and part fortune teller. While in the case of Trump, it may be argued it's more apparent than most, they have set the precedent of Judges looking into a politicians past statements, even campaign statements to derive what 'mischief' they reeeeeealllllly intended instead of looking at the text of or mechanics the law for legality. The legal standards for this approach seem to be completely ad-hoc.

These judges are applying similar rules in their decisions that left wing scholars use to mischaracterize originalism.

[AustinRoth]

At least we know if Ilya tires of being a lawyer he has a waiting job as a legal analyst at any news organization except Fox.

[Rev. Arthur L. Kirkland]

What about Breitbart, Instapundit, Newsmax, Stormfront, or NRA TV?

Do you reject Prof. Volokh's 'the press means everybody' argument, or do you figure Breitbart would engage Prof. Somin?

[TWW]

Does anyone in the conspiracy willing to express a counter view?

[divisionchief]

Sure. If the Supreme Court follows established law, the President wins.

[TWW]

Does anyone in the vast conspiracy have a different view? Apparently not.

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