Roberts calls balls and strikes a lot like Eric Gregg. https://mlb.nbcsports.com/2011/07/22/the-eric-gregg-livan-hernandez-game-explained/
 

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Why would the Chief Justice or anyone else honestly cite to Masterpiece Cake?

Foreign citizens residing overseas have no First Amendment rights and the travel restrictions at issue are not applied based on religion.
 

"decided to pretend"

A lot of that going on in the majority and concurring opinions today.
 

I don't agree with Bart's overbroad characterization, but he's right that given the plenary powers doctrine in immigration cases, Masterpiece Cakeshop is obviously distinguishable.
 

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Fine. Cite it and distinguish it esp. since both dissents referenced it.

I don't support such a broad handwave of the 1A myself, but that isn't even the point here.
 

Count me as another who doesn’t think Masterpiece is a relevant citiation. Overrule or revise Kleindienst vs Mandel and U.S. vs Vedugo-Urquidez. Otherwise you’re just making a mess.
 

The minority never bothered to explain how the citation was at all relevant to the POTUS order at issue. Rather, the citation appears to be a flailing shot at the majority of both cases.
 

"Count me as another who doesn’t think Masterpiece is a relevant citiation. Overrule or revise Kleindienst vs Mandel and U.S. vs Vedugo-Urquidez. Otherwise you’re just making a mess."

Basically.
 

There is no establishment clause claim; Banning entry to the US from particular countries has nothing to do with an establishment of religion.


 

Fishkin: Imagine that the Japanese internment program had applied exclusively to non-citizens—suppose it were framed as a change in immigration status, revoking permission to be in the country and therefore assigning such immigrants to internment/detention camps. Would that turn a “morally repugnant” action, the upholding of which “has no place in law under the Constitution,” into something perfectly constitutional? Nobody would argue this. It is just not plausible to imagine that the only problem with Japanese internment was when the policy was applied to the small number of Japanese-Americans who our law allowed to become citizens (basically, children born in the U.S.—others were barred from naturalizing)

The citizen/non-citizen distinction not only quite plausible, but is the only reason the Japanese internment could violate the Constitution.

During both World Wars, we interned German nationals and, during WWII, Italian and Japanese nationals for the duration of these wars. Detaining enemy nationals is standard war policy under centuries of Anglo American law.

As to the Trump order, POTUSes similarly and routinely restrict entry from enemy or enemy occupied nations during wartime and, No matter how much you pretend otherwise, we are very much at war.


 

The a priori determination that an immigrant or traveler is an enemy combatant should chill the blood, as should attempts to detain and deport people without due process. Due process applies to all persons, not just citizens.
 

Once again SPAM reverts to his Chicken Little "The Sky Is Falling, The Sky Is Falling!" mode with his:

" ... and, No matter how much you pretend otherwise, we are very much at war."

Has Congress declared war? Is SPAM in his rural little mountaintop community riding high [sic] "The Muslims are coming, the Muslims are coming!" to alert his Bund-y-ites to arms? We don't have the Mexican border wall. And Trump's Space Force is not yet in place to defend us from alien invasions from outer space.

And SPAM repeatedly uses the phrase "Anglo American law" which once protected slavery and under Trump seeks to revert to Jim Crow. Based upon SPAM's recent ancestral disclosures, I wonder why SPAM hasn't reverted to Anglo Saxon. But it's no secret who the "others" are for SPAM and Trump.

SPAM claims to be a textualist but construes the Constitution in the manner of Humpty-Dumpty as a convenience in explaining what he means of what he has said. One wonders how SPAM finds time to actually practice law.

 

"The a priori determination that an immigrant or traveler is an enemy combatant should chill the blood"

Indeed it should, but for denial of visa purposes, it's not necessary to determine that the immigrant or traveler IS an enemy combatant, it's sufficient to merely infer that they stand a better chance than somebody else of being one.

Because they're not being denied anything they had a right to in the first place. That's the key point to remember: Unless you're a US citizen or legal resident alien, entry to the US is a privilege, not a right.
 

"The minority never bothered to explain how the citation was at all relevant to the POTUS order at issue"

Actually, the linkage was quite relevant and direct, as Sotomayer wrote: in Masterpiece "the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant. It should find the same here.”
 

"Banning entry to the US from particular countries has nothing to do with an establishment of religion."

I guess so if you ignore all the things the President and his advisers said to the contrary.

From the dissent: The full record paints a far more harrowing picture, from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith.

During his Presidential campaign, then-candidate Donald Trump pledged that, if elected, he would ban Muslims from entering the United States. Specifically, on December 7, 2015, he issued a formal statement “calling for a total and complete shutdown of Muslims entering the United States.” App. 119. That statement, which remained on his campaign website until May 2017 (several months into his Presidency), read in full:

“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing ‘25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad’ and 51% of those polled ‘agreed that Muslims in America should have the choice of being governed according to Shariah.’ Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

“Mr. Trum[p] stated, ‘Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of the horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect of human life. If I win the election for President, we are going to Make America Great Again.’—Donald J. Trump.” Id., at 158; see also id., at 130–131.

 

con'd:
On December 8, 2015, Trump justified his proposal during a television interview by noting that President Franklin D. Roosevelt “did the same thing” with respect to the internment of Japanese Americans during World War II. Id., at 120. In January 2016, during a Republican primary debate, Trump was asked whether he wanted to “rethink [ his] position” on “banning Muslims from entering the country.” Ibid. He answered, “No.” Ibid. A month later, at a rally in South Carolina, Trump told an apocryphal story about United States General John J. Pershing killing a large group of Muslim insurgents in the Philippines with bullets dipped in pigs’ blood in the early 1900’s. Id., at 163–164. In March 2016, he expressed his belief that “Islam hates us. . . . [W]e can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” Id., at 120–121. That same month, Trump asserted that “[w]e’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” Id., at 121. He therefore called for surveillance of mosques in the United States, blaming terrorist attacks on Muslims’ lack of “assimilation” and their commitment to “sharia law.” Ibid.; id., at 164. A day later, he opined that Muslims “do not respect us at all” and “don’t respect a lot of the things that are happening throughout not only our country, but they don’t respect other things.” Ibid.

As Trump’s presidential campaign progressed, he began to describe his policy proposal in slightly different terms. In June 2016, for instance, he characterized the policy proposal as a suspension of immigration from countries “where there’s a proven history of terrorism.” Id., at 121. He also described the proposal as rooted in the need to stop “importing radical Islamic terrorism to the West through a failed immigration system.” Id., at 121–122. Asked in July 2016 whether he was “pull[ing] back from” his pledged Muslim ban, Trump responded, “I actually don’t think it’s a rollback. In fact, you could say it’s an expansion.” Id., at 122–123. He then explained that he used different terminology because “[p]eople were so upset when [he] used the word Muslim.” Id., at 123.

A month before the 2016 election, Trump reiterated that his proposed “Muslim ban” had “morphed into a[n] extreme vetting from certain areas of the world.” Ibid. Then, on December 21, 2016, President-elect Trump was asked whether he would “rethink” his previous “plans to create a Muslim registry or ban Muslim immigration.” Ibid. He replied: “You know my plans. All along, I’ve proven to be right.” Ibid.

On January 27, 2017, one week after taking office, President Trump signed Executive Order No. 13769, 82 Fed. Reg. 8977 (2017) (EO–1), entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” As he signed it, President Trump read the title, looked up, and said “We all know what that means.” App. 124. That same day, President Trump explained to the media that, under EO–1, Christians would be given prior- ity for entry as refugees into the United States. In particu- lar, he bemoaned the fact that in the past, “[i]f you were a Muslim [refugee from Syria] you could come in, but if you were a Christian, it was almost impossible.” Id., at 125. Considering that past policy “very unfair,” President Trump explained that EO–1 was designed “to help” the Christians in Syria. Ibid. The following day, one of President Trump’s key advisers candidly drew the connection between EO–1 and the “Muslim ban” that the President had pledged to implement if elected. Ibid. According to that adviser, “[W]hen [Donald Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’ ” Ibid.
 

"POTUSes similarly and routinely restrict entry from enemy or enemy occupied nations during wartime and, No matter how much you pretend otherwise, we are very much at war."

Bart wants his cake and to eat it too, claiming the fullest extent of traditional war powers. But, we are not at war with the nations listed in the order.
 

"it's sufficient to merely infer that they stand a better chance than somebody else of being one."

It's absurd to make that inference based on the nation a potential asylum seeker is troubled though, because that's kind of the point of asylum.

And let's remember that the initial order didn't even make the inference on the nation but on the religion of the seeker from certain nations, Christians were going to be allowed while all Muslims, including ones from sects with no history of terrorism to speak of (Sufi, Alawite) were to be barred.
 

Take a read of the NYTimes editorial today: "Bigoted and Feckless, the Travel Ban Is Pure Trump" which closes with this (after listing many of Trump's animus screeds):

"On Jan. 27, 2017, as Mr. Trump signed the first version of the travel ban, he read out its official title, 'Protecting the Nation From Foreign Terrorist Entry Into the United States,' then looked up and said, 'We all know what that means.'

"Indeed we do, even if five Supreme Court justices refuse to admit it."

Regarding the Chief Justice's aside on Karamatsu the editorial earlier note:

"It’s no small paradox that the justices chose Tuesday’s ruling to formally overturn, at long last, one of the greatest abominations in the court’s history, Korematsu v. United States, the 1944 decision that upheld President Franklin Roosevelt’s order to lock up thousands of Japanese-Americans for years based on nothing but their ancestry — and based on a fabricated claim that our national security demanded it. The Korematsu ruling was 'morally repugnant,' the court said, and was 'gravely wrong the day it was decided.' That’s surely correct. It’s also easy to say from a distance of 74 years, protected by the warm embrace of history’s consensus. It’s much more important to say it in the moment — as Justice Robert Jackson did in his dissent from the Korematsu decision, which he warned was 'a far more subtle blow to liberty than the promulgation of the order itself.'”

The CJ, Justices Kennedy, Thomas, Alito and Gorsuch will be reminded of their decision Tuesday more frequently than were the majority in Korematsu as Trump becomes emboldened by his concept of their "unanimus" [sic] "WOW" decision. The majority has swallowed the Trump brand of Kool Aid.



 

Prof_Scott said...The a priori determination that an immigrant or traveler is an enemy combatant should chill the blood, as should attempts to detain and deport people without due process. Due process applies to all persons, not just citizens.

Due process applies to persons from whom the government is taking life, liberty or property.

Foreign citizens have no right whatsoever to enter or remain at large in the United States, apart from what Congress grants. Thus, absent a a congressional grant of right, denying entry to or deporting foreign citizens does not require due process.

The prospect of allowing enemy citizens to roam the nation freely during wartime should chill the blood. Such a policy is absolutely nuts.
 

Speaking of Trump's animus, was the Travel Ban #3 majority blind to "judicial notice" of the failures of the Trump Administration concerning post-hurricane Maria's impact on Puerto Rico and its resident US citizens? Perhaps the majority needs a coloring book to understand Trump's animus. Or was Finley Peter Dunne's Mr. Dooley right about the Court following the "illiction returns"? Query: Can Justice Kennedy retire with "dignity"?
 

"The prospect of allowing enemy citizens to roam the nation freely during wartime should chill the blood. Such a policy is absolutely nuts."

This is what they said when the St. Louis was turned away in 39.
 

BD: "The minority never bothered to explain how the citation was at all relevant to the POTUS order at issue"

Mr. W: Actually, the linkage was quite relevant and direct, as Sotomayer wrote: in Masterpiece "the Court recently found less pervasive official expressions of hostility and the failure to disavow them to be constitutionally significant. It should find the same here.”

Foreign citizens living overseas have no rights under our Constitution. Sotomayer does not explain why the Masterpiece decision in any way applies to them or to the POTUS order denying them entry.

On its own terms, Sotomayor's observation is a pretty good shot at Kennedy's hypocrisy in fixating on the Colorado board's comments in Masterpiece, but not Trump's comments here. In doing so, she skewers her own hypocrisy in reverse.

Let's agree they should both retire from the Court after this session.
 

SPAM's closing at 8:58 AM:

"The prospect of allowing enemy citizens to roam the nation freely during wartime should chill the blood. Such a policy is absolutely nuts."

Wartime? Has Congress declared war against a nation/nations of certain "enemy citizens" or just against "enemy citizens"? I suspect SPAM may be chilling out under Ganja's influence. I expect SPAM to sit on his wall and Humpty=Dumpty us regarding what he means in using these words, keeping in mind the Constitution.
 

BD: "POTUSes similarly and routinely restrict entry from enemy or enemy occupied nations during wartime and, No matter how much you pretend otherwise, we are very much at war."

Mr. W: Bart wants his cake and to eat it too, claiming the fullest extent of traditional war powers. But, we are not at war with the nations listed in the order.

I am sure that distinction provides comfort to the families of the thousands of Americans killed in the war you pretend does not exist because the enemy is not a nation state.

Even Obama was not this stupid when he restricted travel from Iraq because Bush administration asylum policy imported enemy combatants.
 

"Sotomayer does not explain why the Masterpiece decision in any way applies to...the POTUS order denying them entry."

The Establishment Clause forbids the federal government from favoring or disfavoring religions. In Masterpiece they noted that evidence of animus motivating an act indicated unconstitutional disfavoring, in this case there was greater evidence of animus by the POTUS and his advisors.
 

"because the enemy is not a nation state."

Bart wants his cake and to eat it too. He invokes the precedent of war powers used to restrict travel generally from nations we are at war with but we are in fact not at war with any of the nation states in the order in question.
 

SPAM responds to Mr. W at 9:14 AM:

"On its own terms, Sotomayor's observation is a pretty good shot at Kennedy's hypocrisy in fixating on the Colorado board's comments in Masterpiece, but not Trump's comments here. In doing so, she skewers her own hypocrisy in reverse."

Trump is President with vast authority under Article II of the Constitution. Compare this to the "power" of one member of the multi-member CO board in Masterpiece. Where is Sotomayor's hypocrisy?

 

Brett: "Banning entry to the US from particular countries has nothing to do with an establishment of religion."

Mr. W: I guess so if you ignore all the things the President and his advisers said to the contrary.

Even if you assume all the statements, banning entry to the US from particular countries still has nothing to do with an establishment of religion.

The underlying argument is absurd.
 

"I guess so if you ignore all the things the President and his advisers said to the contrary."

No, it's got nothing to do with an establishment of religion, if you understand what an establishment of religion IS.

An establishment of religion is like the Anglican Church in England, an officially designated state church, given special privileges not available to other churches.

The establishment clause was intended to both prevent the federal government from establishing an official federal church, or mess with the states having their own established churches. (As several did at the time.) The whole topic was just made off limits to the federal government.

And then to the states after the 14th amendment, of course.

Banning entry into the country from a short list of nations which just happen to be predominantly (But not exclusively!) Islamic nations does not establish a church. It doesn't prohibit establishing a church. It doesn't regulate established churches.

It doesn't have anything at all to do with established churches, either negatively or positively.
 

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BD: "Sotomayer does not explain why the Masterpiece decision in any way applies to...the POTUS order denying them entry."

Mr. W: The Establishment Clause forbids the federal government from favoring or disfavoring religions. In Masterpiece they noted that evidence of animus motivating an act indicated unconstitutional disfavoring, in this case there was greater evidence of animus by the POTUS and his advisors.

In Masterpiece, the Court held: "The Commission’s actions in this case violated the Free Exercise Clause." The commissions actions were fining and threatening to put a Christian baker out of business because he refused to celebrate a SSM contrary to his faith. Kennedy's fixation on the Commission's anti-Christian speech is unnecessary to the decision.

In Trump v. Hawaii, the travel restrictions were well within the POTUS's Article II powers and those granted by the laws of Congress and in no way discriminate based on religion. Trump's comments are similarly unnecessary to arrive at the decision.
 

Brett, your description of the EC is inconsistent with existing SCOTUS precedent. I understand that you've described what you think the clause should be, but that's not the way it's been understood or enforced.
 

No, it's got nothing to do with an establishment of religion, if you understand what an establishment of religion IS.

Translation: if you define it my way. Cf. Mark Field's comment.

An establishment of religion is like the Anglican Church in England, an officially designated state church, given special privileges not available to other churches.

This is too narrow but the argument made by the dissent meets the test -- non-Muslims were given special privileges not available to other "churches."

The establishment clause was intended to both prevent the federal government from establishing an official federal church, or mess with the states having their own established churches. (As several did at the time.) The whole topic was just made off limits to the federal government.

The matter at hand involves "limits to the federal government" and favors certain religions over others. At any rate, religious liberty as a whole is broader than this narrow view.

Banning entry into the country from a short list of nations which just happen to be predominantly (But not exclusively!) Islamic nations does not establish a church. It doesn't prohibit establishing a church. It doesn't regulate established churches.

The full accounting of what happened, as has been spelled out here and in multiple court opinions etc., shows that the process was tainted by religious bias. One religion in particular was favored. The fact that it was not as blatant as it could be (or was) doesn't suddenly make the broad command of the 1A not breached. Likewise, limited violations of the 2A are unconstitutional even if they are alleged to be made for legitimate ends.

It doesn't have anything at all to do with established churches, either negatively or positively.

It has something to do with Islam, quite negatively. The best argument that can be made is that it doesn't have enough to do with it to be unconstitutional though next to Masterpiece Cakeshop, that is a harder case to make.

Anyway, I also think the lower courts etc. that rested on the statutory question that the ban was not crafted and applied correctly holds true beyond the 1A issues.
 

BD: "On its own terms, Sotomayor's observation is a pretty good shot at Kennedy's hypocrisy in fixating on the Colorado board's comments in Masterpiece, but not Trump's comments here. In doing so, she skewers her own hypocrisy in reverse."

Shag: Where is Sotomayor's hypocrisy?

In Masterpiece, Sotomayor joined in a dissent expressly disregarding the Commission's comments.
 

Edit: One religion in particular was [dis]favored.


 

"This is too narrow but the argument made by the dissent meets the test -- non-Muslims were given special privileges not available to other "churches.""

Simply not true. The travel ban does not effect Muslims from countries where 92% of Muslims live, effects non-Muslims from all effected countries, and several of the countries in question have minority to negligible Muslim populations.

It is simply, objectively true that the ban did not hinge on an applicant's religion, even the selection of countries didn't hinge on the religious demographics of a country.

Did it disproportionately effect Muslims? Sure. Disparate impact as a proxy for actual discrimination is dubious enough in its application to Americans. In international relations it's a joke.
 

"banning entry to the US from particular countries still has nothing to do with an establishment of religion."

This is quite simple. The Establishment Clause forbids the favoring or disfavoring of religions. Trump made statements that he wanted to ban one religion (Muslims) and favor another (Christians).
 

"It doesn't have anything at all to do with established churches"

Again, The Establishment Clause forbids the favoring or disfavoring of religions. Trump made statements that he wanted to ban one religion (Muslims) and favor another (Christians).
 

"Kennedy's fixation on the Commission's anti-Christian speech is unnecessary to the decision."

No, he was quite clear animus played a key role.

From Kennedy's opinion: "Phillips was
entitled to the neutral and respectful consideration of his
claims in all the circumstances of the case....The neutral and respectful consideration to which Phillips
was entitled was compromised here, however. The
Civil Rights Commission’s treatment of his case has some
elements of a clear and impermissible hostility toward the
sincere religious beliefs that motivated his objection.
And there's far more evidence of Trump's animus toward Islam than there was of the Commission's to the baker...For the reasons just described, the Commission’s treatment
of Phillips’ case violated the State’s duty under the
First Amendment not to base laws or regulations on hostility
to a religion or religious viewpoint."

"in no way discriminate based on religion. Trump's comments are similarly unnecessary to arrive at the decision"

Lol, yes if you ignore Trump and his advisers many statements indicating animus to a particular religion as their motivation then it does appear to in no way discriminate based on religion!
 

"Sotomayor joined in a dissent expressly disregarding the Commission's comments."

It's not hypocrisy to note another's far greater hypocrisy. In Masterpiece the majority based it's findings on animus from evidence that was downright scant compared to what it ignored in Hawaii.
 

"Disparate impact as a proxy for actual discrimination is dubious enough in its application to Americans. In international relations it's a joke."

Not when it's combined with evidence of discriminatory intent. Given the long history of the practice and common sense recognition of the ability to use laws that are facially neutral but de facto disproportionate in effect to discriminate it would be a joke to ignore this.
 

BD: "Kennedy's fixation on the Commission's anti-Christian speech is unnecessary to the decision."

Mr. W: No, he was quite clear animus played a key role.

You are noting the fixation.

I am noting Kennedy's fixation was unnecessary to arrive at the decision: "The Commission’s actions in this case violated the Free Exercise Clause."


 

"unnecessary to arrive at the decision"

It's a linchpin of Kennedy's decision.

Kennedy leaves the general question of whether the neutral application of the law would have violated the baker's rights ("There were, to be sure, responses to these arguments
that the State could make when it contended for a different
result in seeking the enforcement of its generally
applicable state regulations of businesses that serve the
public. And any decision in favor of the baker would have
to be sufficiently constrained, lest all purveyors of goods
and services who object to gay marriages for moral and
religious reasons in effect be allowed to put up signs saying
“no goods or services will be sold if they will be used
for gay marriages,” something that would impose a serious
stigma on gay persons"). Instead, he bases the decision on the rule "Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case" and finds that "The neutral and respectful consideration to which Phillips
was entitled was compromised here, however. The
Civil Rights Commission’s treatment of his case has some
elements of a clear and impermissible hostility toward the
sincere religious beliefs that motivated his objection." This leads Kennedy directly to the comments in question ("That hostility surfaced at the Commission’s formal,
public hearings, as shown by the record. On May 30,
2014, the seven-member Commission convened publicly to
consider Phillips’ case. At several points during its meeting,
commissioners endorsed the view that religious beliefs
cannot legitimately be carried into the public sphere or
commercial domain, implying that religious beliefs and
persons are less than fully welcome in Colorado’s business
community") leading to Kennedy to conclude: "the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case"


 

The Supreme Court did an outstanding job enforcing the First Amendment against government coerced speech this term.
 

BD: "unnecessary to arrive at the decision"

Mr. W: Kennedy leaves the general question of whether the neutral application of the law would have violated the baker's rights

The Court need not reach that question.

In this case, the Court held the Commission’s actions (not the anti-discrimination law) violated the Free Exercise Clause.
 

Let's not ignore the final opinion of the term ... another 5-4 opinion [Kagan joined the three most conservative justices here] ... the interstate water dispute! Another boundary issue!

Oh, we also have the 5-4 public unions case that libertarian 1A Eugene Volokh scholar thought should have gone the other way. In a slew of cases, conservatives are fine with limits of speech in the public employment context, but as with religious liberty, selective application of that principle can be found in fairly unsurprising fashion.

As of now, doesn't appear any justice will retire yet.
 

"This is quite simple. The Establishment Clause forbids the favoring or disfavoring of religions. Trump made statements that he wanted to ban one religion (Muslims) and favor another (Christians)."

And then did something else, instead.
 

"In this case, the Court held the Commission’s actions (not the anti-discrimination law) violated the Free Exercise Clause."

No, it ruled that the Commission's "clear and impermissible hostility" violated the Clause and the comments were a linchpin of the case that there was such hostility ("That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to
consider Phillips’ case. At several points during its meeting,
commissioners endorsed the view...")
 

"And then did something else, instead."

Did he?

"That same day, President Trump explained to the media that, under EO–1, Christians would be given priority for entry as refugees into the United States."

"one of President Trump’s key advisers candidly drew the connection between EO–1 and the “Muslim ban” that the President had pledged to implement if elected. Ibid. According to that adviser, “[W]hen [Donald Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’"
 

Mr. W: He said, ‘Put a commission together. Show me the right way to do it legally.’"

And the staff provided Trump with with a perfectly legal order, which the POTUS signed.
 

"And the staff provided Trump with with a perfectly legal order"

This begs the question, because a 'perfectly legal order' has to be one not motivated by an animus against religions. Facially neutral laws and regulations with de facto disparate impacts motivated by such an animus are not constitutional.
 

"Did he?

"That same day, President Trump explained to the media that, under EO–1, Christians would be given priority for entry as refugees into the United States.""

Yes, the earlier version of the order actually made provisions for groups subject to campaigns of genocide in their native countries. Perhaps there's religious discrimination involved in the ongoing genocide of middle eastern Christians in Islamic countries, but it's not religious discrimination by our government.

Sadly, Trump's foes succeeded in their case construing offering succor to the victims of a religious genocide, but not to the people committing it, as religious discrimination, so the revised order no longer has that provision.

A great humanitarian triumph, to be sure.
 

The problem with that 'reasoning' is that groups other than Christians (including Muslims) were (and are) also being persecuted. So it was simply a favoring of certain religion over others.
 

Mr. W: This begs the question, because a 'perfectly legal order' has to be one not motivated by an animus against religions.

The Court rejected this specious argument.

Obama and Trump issued nearly identical and perfectly legal travel bans. Trump's campaign rhetoric does not make his order discriminatory or illegal.
 

"offering succor to the victims of a religious genocide, but not to the people committing it"

It's this kind of comment that leads people of good will to think Brett is a bigot. The hallmark of a bigot is lumping all members of a group together with bad actors in the group, ignoring the distinctions with the group. Since some Muslims are committing religious genocide of Christians then Muslims in general are 'the people committing it.' Of course in reality there are different sects of Islam and several sects are in the category 'the victims of a religious genocide' (think of the popular slogan chanted in Syria by Sunni extremists, 'Christians to Beirut, Alawites to their graves'). But the bigot ignores such reality and generalize the bad acts of some in a group to all. This bigotry would just be sad if it weren't for the fact that it, as here, manifests itself for support policy which while ostensibly based on the goal of helping the victim's of religious persecution instead would condemn people in that very class, all because the bigot thinks they are 'all the same.'
 

"Trump's campaign rhetoric does not make his order discriminatory or illegal."

This is just begging the question, as otherwise legal orders can be not so if motivated by animus towards a religion, and an accepted (and common sense) indicator of motivation by animus are the words of those making the order.
 

Yet has come.
 

Well, let the freakout commence: Kennedy has announced his retirement, effective in July.
 

"It's this kind of comment that leads people of good will to think Brett is a bigot. The hallmark of a bigot is lumping all members of a group together with bad actors in the group, ignoring the distinctions with the group."

Indeed, that IS the hallmark of bigotry. And if you're already inclined to view me as a bigot on the basis of my not being a left-winger, I can see how you could easily construe what I said as bigotry on that basis, just by not interpreting it charitably. So I'm not irate about it.

Entry into the US is not a right, save for those who are already citizens or legal resident aliens. For all others it is a mere privilege, which can perfectly legitimately be denied on even the shallowest basis. Yes, including statistical basis.

Just as we can, legitimately, deny entry to everybody from a nation we are at war with, or otherwise have reason to be suspicious of, just on the reasonable suspicion that people of ill intent may otherwise slip through, we can deny entry to members of a group perpetrating a genocide, without individualized proof that a given person is guilty. Because they are not being denied anything they are entitled to, they are simply not being gifted with a privilege they have no right to gain.

Statistical reasoning is perfectly acceptable when used in deciding which non-citizens are the beneficiaries of discretionary privileges.

Now, if we were talking about a denial of a right, our outright punishment? Or the people in question were legal resident aliens or citizens? The matter would be quite different, harm must be much more rigorously justified than denial of gifts, and members of the American people are actually entitled to impartial treatment from our government.

As citizens of other countries, having no membership in our polity, are not.
 

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Mr. W: Since some Muslims are committing religious genocide of Christians then Muslims in general are 'the people committing it.

Yes, actually. You are responsible for the acts of your agents.

Every single German who did not oppose Hiter's genocide was complicit in that mass murder.

Every single Muslim who stands by while their Islamic governments are slaughtering Christians and Jews are complicit. The religious leaders bear special responsibility since the Quran expressly forbids abuse of People of the Book.
 

Brett: Well, let the freakout commence: Kennedy has announced his retirement, effective in July.

Forget about everything else. Trump earned every vote for POTUS for reforming the judiciary.

If Trump nominates another Gorsuch, who the Senate will confirm during the extended August session (which I am certain McConnell called specifically for this purpose), the court will have a relatively solid textualist majority (overlooking Roberts apostasy on Obamacare) for the first time in nearly a century. When Ginsberg retires or dies, that majority should become bulletproof.

Behind the Supremes will be a deep bench of conservative judges in the lower courts.

Finally, there is hope for the rule of law.
 

"You are responsible for the acts of your agents."

This is ridiculous when your 'agents' are tyrants.

"Every single German who did not oppose Hiter's genocide was complicit in that mass murder."

You're hoisted on your own petard again. Every day Muslims are fighting and dying allied with us against ISIS in the very countries where this ban would cover.
 

I know she retired from the DC Circuit last year, but Trump should strongly consider nominating Judge Janice Rogers Brown to replace, if she is willing.

The prospect of a libertarian African American female justice would make progressive heads explode across the nation.
 

Brett, your comments about the rights or lack of them regarding aliens is neither here nor there when we are discussing your bigotry. I think allowing migration is indeed a privilege not a right, but to base a privilege on an overgeneralization is as much the hallmark of bigotry as to base a right on it. It's the overgeneralization that's the problem. The Sufi and the Alawite Muslims are not only not part of what you fear, *they are the victims of it.*

But I am glad to see that you glean that it's the shallowest of bases to ground the grant of a privilege in 'A Sunni is a Shia is a Sufi is an Alawite is a...'
 

"the court will have a relatively solid GOP-hack majority"

FTFY.
 

BD: "You are responsible for the acts of your agents."

Mr W: This is ridiculous when your 'agents' are tyrants.

If a nation's people do not rise up against their own tyrants, who will?

The power to overthrow tyrannical governments noted in our Declaration of Independence brings with it a responsibility to exercise that power when the time comes.

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

Martin Niemöller


 

1. People in a nation aren't required to commit suicide in order to not be complicit in the rule of tyrants there. Do you think that the Jewish victims of the Holocaust who did not actively resist it were complicit in the Holocaust?

2. More importantly, thousands upon thousands of Muslims have not only spoke out against ISIS but fought them, killing more ISIS members than US forces have and suffering more casualties than we have in the fight. Yet you would lump these in with ISIS. It's sheer bigotry.
 

Mr. W: "the court will have a relatively solid GOP-hack majority"

Republican POTUSes appointed Kennedy, O'Connor, Souter and Blackmun.



 

Yes, and all four were independent minded. Roberts is independent minded at times.

Alito and Gorsuch are just GOP hacks.
 

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Mr. W:

1. People in a nation aren't required to commit suicide in order to not be complicit in the rule of tyrants there. Do you think that the Jewish victims of the Holocaust who did not actively resist it were complicit in the Holocaust?

Blaming the victim again? Please stop offering straw men.

2. More importantly, thousands upon thousands of Muslims have not only spoke out against ISIS but fought them, killing more ISIS members than US forces have and suffering more casualties than we have in the fight. Yet you would lump these in with ISIS. It's sheer bigotry.

What makes you think ISIS are the sole perpetrators of the Christian and Jewish genocide? This genocide is occurring across the Islamic world.

The Muslim soldiers battling ISIS are not doing so because these particular jihadis are slaughtering Christians and Jews, but rather because they are oppressing and murdering fellow Muslims.

 

1. No, answer the question. You said "Every single German who did not oppose Hiter's genocide was complicit in that mass murder." Well, many of the Jews eventually killed in the Holocaust did not actively oppose the Nazis, so according to your 'logic' they were complicit in the Holocaust. Don't blame me that what you said here was so silly.

2. "because they are oppressing and murdering fellow Muslims."

And you lump the Muslims that are being oppressed and murdered in with the ones doing the oppressing and murdering. That's the hallmark of bigotry.

3. "This genocide is occurring across the Islamic world"

There is no genocide of Christians at the hands of Sufi or Alawite Muslims, there is no reason to lump them in with those committing genocidal acts other than bigotry.
 

"Yes, including statistical basis."

You seem to misunderstand statistics. Take 2 examples:

1. Most terrorists are members of group X.

2. Most members of group X are terrorists.

Statement #2 is factually false, and it provides no basis for action, statistical or otherwise. Yet it's the argument you're making.

 

I wish facts mattered more these days.
 

Of course statement 2 is factually false.

It's the one poison skittle in the jar question: You've got a large jar of skittles. One of them is deadly poison, otherwise indistinguishable from the rest.

99.99% of the skittles are perfectly safe. Do you eat from the jar?

Of course not, you don't need to take the chance. It would be different if you were starving to death, and this jar was your only source of calories. But we don't need immigrants, and the banned nations aren't the only available source of immigrants if we did need them.

The Muslim immigrants are the skittles. You know that most of them are perfectly safe, only a tiny minority are going to be terrorists. But, you have no need to take the chance.

A racist would think they all were terrorists. A rational person would be perfectly aware most of them were innocent, but just not care, because he doesn't own them anything.

We don't owe people from North Korea or Venezuela entry into the US. They don't have any right to it. So we don't have to take the chance. That's all it's about. It's not racism, it's just knowing the odds, and we don't owe them anything.