Take Care Blog has at least a couple posts now on the nuances of continuing the litigation and it seems a tad complicated. But, as someone against the ban and supportive of judicial review that blocked it, not really spoiling for a trip to the Supreme Court quite yet myself. And, if there is any decent reason to declare it moot, it's fairly likely that people like Breyer aren't either.
 

This issue is too important for the Supremes to punt on mootness grounds.

Nearly exclusively Democrat judges are ignoring prior Supreme Court precedent prohibiting them from examining the POTUS's motives for controlling travel into the United States (Kleindienst v. Mandel) to bar President Trump from enforcing a facially legal executive order which these same judges would affirm if entered by a President Clinton.

This awful precedent cannot be allowed to stand and the Supremes should review and reverse these rulings on an expedited basis.
 

A perfect application for "moot but capable of repetition"; The 'animus' reasoning in these rulings is going to keep coming back over and over until the Court deals with it.

We can't have the courts effectively impeaching the President as regards to any topic where they doubt his motives.
 

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It's a bit ironic both sides can cite the repetition angle.

As to dealing, Trump might change the policy to truly address the animus concerns. Ever optimistic.

Ultimately, the concern for Brett is that he disagrees with the courts here. So it seems. If Obama kept on doing something unconstitutionally, being struck down/tweaking/not enough to legalize it/struck down again, not sure if he would be so concerned. Because we can have courts denying the President (or a governor, mayor, police officer etc.) the power to do illegitimate things.

That is part of judicial review. It is not "effectively impeaching" to stop an executive or judicial official from violating the First Amendment while practicing executive or judicial functions. That isn't part of their legitimate power, so there is no "effective impeachment" going on any more than it is an "arrest" for the police to stop me from going on property I am not allowed to go on. My movement might be being "arrested" but it is not a legal arrest since I have no right to do it in the first place.

Ultimately, it's useful for the Supreme Court to decide things in various cases, but the problem here is that if the policy lapses, it's an advisory opinion. They don't tend to do that. When abortion was at stake, it was a matter of someone likely to get pregnant again. Here, the "it" (the policy) will change. Unless the basic rules of animus change, another case can arise, so concern about courts there won't be settled much either. See, e.g., the courts repeatedly used against Obama.
 

"Or, Trump will change the policy to address the animus concerns."

The courts have already conceded that, if a different President had promulgated this exact policy, it probably would have passed scrutiny. It's not the policy they've ruled unconstitutional, it's Trump.

I suppose in theory Trump could adopt a policy the courts approve of, even though it originated with Trump. But that ignores the fact that, as the duly elected President, Trump is actually entitled to make policy, so long as he does so constitutionally and legally.

I think the Supreme court will probably not pass on this case, the implications of allowing the courts to deprive Presidents of vast portions of their lawful authority based on 'animus' are too profound to ignore.
 

Animus on the part of Pres. Trump is much more than doubt regarding Trump's motives. Trump started off with his Chicken Little "The sky is falling" with his EOs after campaigning extensively against Muslims. Note that during Trump's trip to Saudi Arabia he finally stopped using his Muslim descriptives during the campaign as he danced away into the hearts of the nation that produced most of the 9/11 high jackers/terrorists.

By the Bybee [expletives deleted], the sky has not fallen, although Trump's withdrawal yesterday from the Paris Agreement might lead to that. His speech in the Rose Garden was pure animus.
 

The normal standard of rational basis review is that if there's any conceivable basis the policy could have been based on, that's not gibbering madness, it passes review. And never mind whether the proposed basis is factually true, genuinely rational, or the actual basis the law was passed on. It just has to be possible for somebody who's not chewing on the furniture to decide to do it.

It was conceded that rational basis was the appropriate level of scrutiny, and that it would pass rational basis. The court decided not to apply rational basis due to Trump's supposed "animus".

So, yes, they made this about Trump's motives for doing something that was within his power and constitutional to do. I think the Supreme court will not be on board with that.
 

"The 'animus' reasoning in these rulings is going to keep coming back over and over"

You have to give Brett some credit, he knows his man in the White House!
 

"This awful precedent cannot be allowed to stand"

Yes Kleindienst is unbelievably awful and hopefully will be gutted or overturned.
 

"It's not the policy they've ruled unconstitutional, it's Trump."

No, it's the animus. Since an ostensibly neutral policy can be used to favor or disfavor one religion over another the courts rightfully can't close their eyes to repeatedly expressed intentions to do just that. Any policy maker that expressed the animus that Trump did and then created an ostensibly neutral policy that in effect would disfavor only or largely members of the group that was the target of the animus would be violating the Establishment Clause.
 

Brett's view seems to be that Pres. Trump has it within his power and constitutionally to discriminate against a religion. Animus serves as a means of a court determining when the effect of the EOs may be so discriminatory to justify injunctive relief pending further evidentiary hearings. Brett is personally well immersed personally in animus in his colorful ways, but Brett is not government taking actions.
 

Brett, rational basis is for Fifth or 14th Amendment cases, not Establishment Clause cases.
 

"No, it's the animus."

It's not like somebody smeared animus all over the Executive order, and Dee Dee 7 wasn't able to lift the stain. Animus is a property of people, not laws. So, yes, they've made this about Trump, declared that Trump, specifically, is not allowed to engage in actions another President could.

"Brett's view seems to be that Pres. Trump has it within his power and constitutionally to discriminate against a religion."

No, my view is that he discriminated against 7 countries on a list the previous administration created. Do they all happen to be predominantly Muslim countries? Sure. But the list also excluded most predominantly Muslim countries. It was based on their being terrorist hotbeds that didn't cooperate effectively with vetting immigrants. It's not Trump's fault they're all Muslim countries. Does someone want to suggest a predominantly Christian or Hindu country to add to the list?

That was the expressed rationale for the order. It is a rationale that easily passes rational basis review, and another President would be allowed to get away with. The court decided that the President was lying about his reason for the order. An order that wasn't inherently unconstitutional, since a President not supposed to be possessed of "animus" could have gotten away with it.

No, I don't think the judiciary is entitled to bar the executive branch from pursuing otherwise constitutional actions based on their attributing evil motives to the President.


 

Shag: Brett's view seems to be that Pres. Trump has it within his power and constitutionally to discriminate against a religion.

When an enemy is waging a religious war on the nation, by definition any border protection against enemy invasion will discriminate on the basis of religion.

A perfect screening system barring only enemy jihadis will only apply to Muslims and concentrate on Muslim nations where a majority of the enemy are located.

The government's interest in establishing a system barring enemy invasion is not only rational, but compelling. So, even if you accept that the Establishment Clause is a generally enforceable limit on government rather than an individual right which does not extend to foreign citizens, a wartime border control system limited to Muslims should easily pass muster.


 

To be clear, I think the idea of "animus" as a justification for striking down laws is generally questionable. I do not believe the judiciary should be in the business of questioning the motives, as opposed to the actions, of a co-equal branch of government.

If an action is unconstitutional, it is unconstitutional no matter how high minded the motive behind it. If it is constitutional, it is constitutional even if Satan himself dictated the law. The law ought to be abut WHAT you do, not WHY.

I find it hard to believe the Court is going to be ok with judges stripping a President of legitimate authority based on imputed motives. I might be wrong, I frequently am, but that's my expectation.
 

Personally, I'm relieved that the rich are forbidden to sleep under the bridges of the Seine.
 

SPAM might reflect upon Helene Stapinski's OpEd in the NYTimes today with the title ""When America Barred Italians." This was aimed at Italians from southern Italy. If SPAM deigns to read it, he might reconsider his 3:23 PM comment.

If there is a religious war against America, has Congress made a declaration of war in response, particularly addressed to American border protection against enemy invasion? If this is wartime, as SPAM claims, why hasn't Congress acted?

SPAM over the years has played the Chicken Little role at this Blog with his The sky is falling!" claims. SPAM's attempts to justify the EOs clearly focuses on Muslims in certain countries as the targets. But Saudi Arabia, that produced most of the 9/11 high jackers/terrorists is not one of the designated countries.

While SPAM plays the role to Tweedledee, Brett plays the role of Tweedledumb his his 3:37 PM:


"If an action is unconstitutional, it is unconstitutional no matter how high minded the motive behind it. If it is constitutional, it is constitutional even if Satan himself dictated the law. The law ought to be abut WHAT you do, not WHY."

ignoring in particular the 14th A, which may be explained as Brett is not very discriminating about his discrimination.

 

"Animus is a property of people, not laws."

We know that people motivated with animus can then use ostensibly neutral polices to get at the target of their animus. There's a history and current practice of this.

"It's not Trump's fault they're all Muslim countries."

It's to his stated delight, and that's the problem.

"
"Does someone want to suggest a predominantly Christian or Hindu country to add to the list? "

I wouldn't bar exclusively based on national origin. That approach would have doomed German Jews fleeing the Nazis. But let's say I would, I'd say the Philippines. As I've shown you before they've got as or higher amounts of terrorism than some countries on the list.

"I don't think the judiciary is entitled to bar the executive branch from pursuing otherwise constitutional actions based on their attributing evil motives to the President."

Well, you've got a serious moral/intellectual defect to seeing how neutral policies can be used by those with animus to harm the targets of the animus. We've seen that. You were ok with a hypothetical voting requirement that would, with the intent and knowledge of those enacting it, have the effect of disenfranchising an entire group, and only that group, because it's on its face neutral. That's monstrous, or monstrously obtuse. But the color blind can't ask those who aren't to pretend like green and blue don't exist.

 

Shag:

I am well aware of the backlash against Italian immigrants for bringing with them the Mafia and some well-publicized anarchists. My great-grandfather Donato emigrated about that time. Despite the family involvement, I do not see an analogy between that era and barring travel of a wartime enemy into the United States.

Your notation of Saudi Arabia argues for the proposition that Mr. Trump's travel ban is too limited, not that it is unconstitutional.

BTW, the 14A does not apply to national immigration policy.
 

"a wartime border control system limited to Muslims should easily pass muster."

Even accepting the profoundly un-American principles behind this, any policy 'limited to Muslims' would be overinclusive.
 

Is Bart cribbing Korematsu?

Just change a few words...

When an enemy is waging a nationalist war on the nation, by definition any protection against enemy sabotage will discriminate on the basis of national origin....The government's interest in establishing a system barring enemy sabotage is not only rational, but compelling. So a wartime internment system limited to Japanese-Americans should easily pass muster.
 

Mr. W: When an enemy is waging a nationalist war on the nation, by definition any protection against enemy sabotage will discriminate on the basis of national origin....

Dude, during the world wars, we did indeed limit or ban travel from enemy controlled nations and interned enemy nationals residing in the United States for that very reason. That is precisely the very American precedent which should control now.

The problem with Korematsu is it was directed against American citizens. Trump's orders do not affect Muslim Americans.
 

"That is precisely the very American precedent which should control now."

As a legal matter, those wars were very different affairs and occurred before significant seismic shifts in our law re treating groups differently and Eatablishment Clause doctrine. As a moral matter, nation wide policies excluded the German Jew fleeing Germany. Morally monstrous.

"The problem with Korematsu is it was directed against American citizens."

You've changed your ground from 'everything is allowed government when there's a compelling interest' back to 'everything's allowed in its exercise of control over borders.'


 

Mr. W:

Are you really arguing we should have allowed free travel from Axis occupied nations during WWII?

Insanity.
 

There's room between free travel and categorical national bans. That room allows people like the German Jews fleeing the Nazis to get in.
 

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"The problem with Korematsu is it was directed against American citizens."

I don't think putting tens of thousands of loyal non-citizens, who basically were not able to become citizens because of our racist laws at the time, including old people and women in general, in camps was exactly copacetic. OTOH, when Justice Rehnquist wrote a book about civil liberties during wartime -- it was a pretty good book -- he suggested something similar. If one is inclined to agree with William Rehnquist.

 

The article I suggested that SPAM read did not focus on either the mafia or anarchists. Rather, its focus was on a sort of feudal system in southern Italy tethered to working the land of others who could command sex with a workers' spouse. The many that left Italy early in the 20th century left the feudal landowners without enough workers. An Italian medical doctor reported to Congress of his study of the head sizes of Italians suggested they would be prone to crime and other awful things, with the result being the 1924 Immigration Act that limited Italians coming to America.

While Immigration is not controlled by the 14th A, certain discriminations under the 14th A via incorporation of certain of the Bill of Rights, particularly the 1st A, can apply to efforts such as exemplified by Trump's EOs.

By the Bybee [expletives deleted], some measurements of SPAM's cranium might be interesting in evaluating that Italian doctor's study. Calipers at the ready?

And of course SPAM evaded the fact that Congress did not make a declaration of war in response this religious war he talks of. Nor has Congress taken steps on immigration.
 

"Nor has Congress taken steps on immigration."

The majority in the 4CA travel ban case did not rely on it, but one or more concurring judges argued that the ban was not authorized by the relevant statutes. Congressional inaction also leads the executive to be more active, the courts repeatedly needing to determine if s/he is going too far. This is seen in the immigration context and existing law already gives the executive a lot of discretion.

Some think too much. Marco Rubio hoped the make a change of the law there a basic plank of his road to the White House. Cruz helped stopped that though he didn't wind up doing very well either. Meanwhile, one guy who put his neck out was Christie, including when nominating a Muslim judge. He supported Trump early. The only time I see him these days is in PSAs during ball games promoting drug treatment.
 

The majority in the 4CA travel ban case did not rely on it, but one or more concurring judges argued that the ban was not authorized by the relevant statutes. Congressional inaction also leads the executive to be more active, the courts repeatedly needing to determine if s/he is going too far.

And this puts presidential power into the middle category of judicial deference under Youngstown (well, the concurring opinion that seems to control, anyway).

I find it remarkable that anyone post-segregation would attempt to defend facially neutral statutes without consideration of motive at some level.
 

The right wing really baits and switches on racial bigotry and animus. They wouldn't let us have disparate impact, saying we needed to prove intent. Then when we prove intent, they say it's irrelevant.

Whatever rule upholds bigotry at the moment is the one they favor.
 

"I find it remarkable that anyone post-segregation would attempt to defend facially neutral statutes without consideration of motive at some level."

You shouldn't. Movements seldom ever say, "Our work here is done!" and disband. The urge towards institutional survival kicks in, and they keep redefining the problem they arose to solve, so they can claim they're still desperately needed.

So you get voting rights activists pretending that less than 30 days of early voting in a state with at will absentee ballots is the equivalent of siccing dogs on people who try to vote. And you get "disparate impact", a standard for finding discrimination which is guaranteed to ALWAYS find it.

Mark, if a law is facially neutral, the only sort of challenge which is appropriate is as applied. Which has to wait on implementation. Because a law which is facially neutral may very well be neutral in fact. And that's so even if it exhibits "disparate impact", because it's very, very common for perfectly innocent policies to exhibit disparate impact, because we aren't all similarly situated on average. Which implies that the only way to NOT have disparate impact would be to discriminate in fact, resort to quotas. Which are the actual evil we're trying to avoid! (And thus do those who hunt dragons become dragons in time.)

It is impossible to construct a rational response to Islamic terrorism which will not display disparate impact, because the threat is disparate!
 

Brett's response to an observation of Mark:

"You shouldn't. Movements seldom ever say, 'Our work here is done!' and disband. The urge towards institutional survival kicks in, and they keep redefining the problem they arose to solve, so they can claim they're still desperately needed."

illustrates the former slave states opposition to Reconstruction with Jim Crow that continued unimpeded until Brown v. Bd. of Educ. (1954) with remnants still in place today following the civil rights movement with Nixon's Southern Strategy in the 1968 campaign. The Alt-Right White Supremacy movement continues as Brett duly notes later in his comment:

"Which implies that the only way to NOT have disparate impact would be to discriminate in fact, resort to quotas. Which are the actual evil we're trying to avoid! (And thus do those who hunt dragons become dragons in time.)"

Apparently Brett as one of the Forgotten of Trump's voter base looks at the civil rights movement as a losing sum game for his ilk, despite the fact that the playing field has not yet leveled off following Brown. Brett, armed with Scalia's 2nd A (Heller, 5-4, 2008), considers himself as being the hunted? Even though Brett is an engineer, he apparently is not good at math.

 

Brett comes right up to the water, wallows in it, but refuses to drink. He acknowledges that a facially neutral law can have disparate impact because groups aren't similarly situated. But he refuses to see that historically bigots *counted on* this truism to enact facially neutral laws intended to and with the effect of largely hurting minorities. That's why we have to look out for that.
 

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Shag: And of course SPAM evaded the fact that Congress did not make a declaration of war in response this religious war he talks of.

You may want to consult the 2001 AUMF against al Qaeda and its allies.

Nor has Congress taken steps on immigration.

Temporary and often shifting wartime travel bans are generally the purview of the CiC.
 

Mr. W: There's room between free travel and categorical national bans. That room allows people like the German Jews fleeing the Nazis to get in.

Trumps temporary ban followed by enhanced screening resides within your room. Historically, the Trump EO is small beans.
 

"Historically, the Trump EO is small beans."

This is the problem. You keep pointing to history, but it's a terrible history, one in which we turned away German Jews fleeing the same people we were worried about. We don't want to repeat that.
 

To ignore disparate impact in every case is Scholasticism, not science, because it depends on a priori reasoning rather than reality and experience. We know as a historical fact that segregation (and other biased) laws were often facially neutral, yet we're just supposed to pretend that those bad old days are gone -- the NC legislature would never ban Sunday voting out of racial animus, no, that was just a facially neutral law. One of many designed with almost surgical precision to block African Americans from voting, to paraphrase the 4th Circuit.

The example of "Islamic terrorism" perfectly displays the moral blindness involved by the travel ban and its defenders. Start with the whole idea of isolating "Islamic" terrorism from all other forms. That assumes a conclusion. The majority of terrorist incidents in the US since 9/11 have been committed by right wing, home grown extremists. The Trump Regime has no policy offering when it comes to that. Nor is the ban reasonably targeted: victims of violence would be barred equally with the perpetrators (as MW keeps reminding us about the Holocaust). We're also supposed to ignore the repeated lies by Regime spokesmen on this and every other subject. And then on top of that to ignore the repeated expressions of racism and other animus by those who drafted the ban. The whole argument demands that we must be ignorant as judges of what we know as men, to coin a phrase.
 

The discussion going on now is somewhat germane but I want to emphasize that stopping the showdown is something many support. Marty Lederman is another:

https://takecareblog.com/blog/a-simple-reason-to-deny-cert-in-trump-v-irap-because-the-entry-ban-expires-in-12-days-anyways

The "skunks" here are not as unwelcome as that animal usually are.

The judges in the 4CA opinions are actually not clear that the ban is truly "facially neutral," but as a whole assume it for the sake of argument. Still, the suspiciously non-neutral aspects are cited as an extra reaffirmation of their analysis. This is how it works: things are looked at as a whole.

Just like in a non-legal context suspicious actions by those whose past words and actions show ill will (animus) does, without the special concern given (at times) when governmental actors are involved. I cited Justice Thomas in the past. But, the principles here are general.

Mark Field is correct that we should not ignore disparate impact there. That is simply not what people do in real life with cause. Along with trusting those who have shown reason not to trust them less. If by word and deed someone does something particularly troubling (flagging sensitive things, such as your family), in a way that suspiciously specifically impacts them, it is a major red flag. You don't strictly protect things you hold dear. Like a home has a fence, equal protection, religious freedom, voting rights et. al. is protected carefully, not miserly.

The application of the principle here shouldn't confuse. In some other context, perhaps involving Obama or something, or treatment of gun rights or conservatives, facially neutral alone (and there will be pushback, like here, that the policy is truly that) might no longer be enough. Disparate impact will be flagged as suspicious. See, e.g,. opposition to various gun regulations that are facially benign but are flagged as a result of bad motive or really "just a step toward."

The same overall criteria will be cited. Like here, experts will be cited to show that the law or policy isn't really needed, that it is done in such a way that is suspicious, just like here it argued that the ban isn't really compelling, or even advisable, in the minds of experts and some in government itself. The discretion of the executive or legislature (as to gun laws etc.) won't be enough since on the whole it is suspicious and downright unconstitutional really. etc.

People will reply to the conservatives etc. that they are going too far. Sometimes, they are. But, it is a matter of looking at all the evidence. Just saying a red flag might not be conclusive isn't enough. As noted 40 years ago by Justice Powell: "The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports." "Highly relevant."

And, here it was but it wasn't the only factor. Nor would it be in everyday life. But, we should not be ignorant of what we know as people.
 

Kleindienst v. Mandel was cited.

That was a troubling case in the early 1970s in which a foreign national was denied entry, burdening the free speech rights of those who wished to hear and engage with him. His ideas were bad though. Just like the religion of some are deemed to be.

[Note how, like here, the rights of U.S. citizens and residents were affected, not just those of the foreigner being blocked.]

But, a legitimate purpose still had to be offered. As the dissent noted, that weak tea given the First Amendment was at stake. Still, as seen in various cases, that test is not always met. It wasn't here taking everything into consideration.
 

Mr. W: This is the problem. You keep pointing to history, but it's a terrible history, one in which we turned away German Jews fleeing the same people we were worried about. We don't want to repeat that.

We are discussing the general proposition of whether the POTUS enjoys the constitutional power to control foreign travel into the United States to prevent the entry of enemies. What you are referring to was an intentional political decision to turn away refugees.


 

Mark: The example of "Islamic terrorism" perfectly displays the moral blindness involved by the travel ban and its defenders.

Trump is not barring the entry of generic terrorists, but rather members or adherents of an enemy waging war against the United States and its citizens.

The majority of terrorist incidents in the US since 9/11 have been committed by right wing, home grown extremists.

Nonsense. Terrorism is a calculated act of mass murder and injury meant to terrorize a population to advance a cause.

Nor is the ban reasonably targeted: victims of violence would be barred equally with the perpetrators.

The POTUS and Congress have the power to stop some or all travel into the United States. Foreign citizens enjoy no right to enter the United States - period - so there is no need to engage in a narrow tailoring analysis for abridging the non-existent right.

As a practical matter, when a wartime enemy is hiding among civilians to facilitate their attacks and our border control cannot distinguish between the two, a general prophylactic travel ban can make perfect sense.

 

So everyone from those named countries is an adherent of an enemy (ISIL, I guess, though Bart, who gets hard every time he says the word "enemy", never tells us)?

That makes zero sense. The whole problem with these travel bans is they aren't directed towards any "enemy". They just assume if you are from Muslim country X, you are one.
 

Dilan said...So everyone from those named countries is an adherent of an enemy (ISIL, I guess, though Bart, who gets hard every time he says the word "enemy", never tells us)?

When Nazi Germany went to war with the United States, out of necessity, we assumed that all Germans were the enemy unless otherwise proven.

In Islamic fascism's current war against the United States, where the enemy combatants and supporters intentionally disguise themselves as civilians to carry out their attacks, this necessity is doubled.

Such is the nature of a terrorist total war.
 

SPAM references the AUMF passed by Congress shortly after 9/11/01. Pres. Obama asked Congress in 2015 for authorization to support efforts against ISIS. Congress declined. The AUMF was not quite the same as a conventional declaration of war by Congress. Pains were taken to limit AUMF so it would not be open-ended authorization. SPAM might want to consult:
:
https://www.theatlantic.com/politics/archive/2015/04/the-war-against-isis-will-go-undeclared/390618/


SPAM to my point: "Nor has Congress taken steps on immigration." responds:

"Temporary and often shifting wartime travel bans are generally the purview of the CiC."

is weaselly. Is America in wartime in the manner prescribed by the Constitution? "Temporary" - "often shifting" - "generally" - "purview of the CIC" - all weaselly.

 

Bart:

1. ISIL isn't the Nazis. I am amazed at people's desire to inflate their egos by pretending the enemy du jour is the Nazis.

2. As people have pointed out, even when you are fighting the Nazis, there are people you still want to let in, such as refugees and turncoats.
 

"In Islamic fascism's current war against the United States"

It should be noted our chief allies in this war, with more boots on the ground than we, are Muslims-including Muslims from some of the nations on the list.
 

Shag: is weaselly

Flexible.

Wars are temporary, the geography of war constantly changes, and the CiC "generally" exercises power over wartime travel because Congress has concurrent powers in this area.
 

Dilan: ISIL isn't the Nazis.

Nazi Germany is just one of many examples, not an exception.
 

No Bart, the Nazis are sui generis.

This is closer to banning all immigration from Africa and Southern Europe during the Barbary Pirates' time. Stupid overkill caused by right wingers who get a thrill from pretending we are in World War III.
 

But WWIII is what they've been promoting for 30 years. The annihilation of a billion or so Muslims by the pseudo-Christian West.

 

Dilan:

If the Barbary States were sending pirates disguised as civilians into the United States to murder American Christians, Thomas Jefferson would have ordered a halt to immigration from those nations and Marshall would have upheld the order without a second thought.
 

An updated AUMF (the need for it is promoted by Tim Kaine), as long as we are going to be continue to use force (which can be debated on the merits in various respects as applied), is not only advisable on policy grounds, but probably constitutional ones as well. But, like the borderline case of Libya, Congress rather punt.
 

Jefferson would not have used religion as a basis for any federal policy.


 

In response to my claim that SPAM was "weaselly" with his use of certain word, SPAM says he's "Flexible." SPAM is more like constitutional "Play-Doh"
 

Brett, let's imagine that state universities (or other state institutions) attempt to reinstitute affirmative action quotas. However, they do not expressly state that is what they are doing. Instead, they have facially neutral explanations for the outcomes.

Would you claim in this context that courts cannot look behind the actions, into the motives of those making the decisions?
 

Bart:

Nobody's "sending" anything. When is the last time an ISIL attack was successfully conducted by ISIL in the US using recent arrivals?

This isn't happening. We aren't actually in the dire wartime situation you are positing.
 

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If all of a country's citizens are enemies by dint of an enemy's presence in that country, then our government (at least two branches of it) is giving aid and comfort to our enemies in several of the relevant countries.
 

I always welcome PMS's too infrequent comments at this Blog. But I'm having what may be a senior moment with her 7:25 PM comment in attempting to follow the logic. Perhaps an example of one such country might help me understand the thrust of what may be an astute point.
 

OFF TOPIC: Mark Tushnet has put up an interesting post o "working the refs." I would suggest that the tandem originalism movement and the establishment of the Federalist Society in the 1970s was significant in this regard. I hope to read more on this subject not only from Mark but others. Maybe we mere commenters are also working the refs.

Query: Would "Anti-Federalist Society" be a more accurate description of the Federalist Society?
 

Dilan:

San Bernadino.

Multiple Iraqi terrorists entered under the Iraqi refugee program, but the FBI found them. Thus was the basis for the Obama travel restrictions on Iraq.