Discussion: Travel Ban Case Will Be SCOTUS' First Deep Dive Into Trump Admin Policy

The fact that the court allowed the ban to go into effect in December suggests that there was not then a majority of justices willing to overturn it. So, did the briefing, and/or developments since then change the minds of at least one member of the court? Stay tuned.

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The 9th Circuit Court of Appeals made a clever argument which I think the SCOTUS will have a hard time overturning: that Trump’s authority here is delegated by Congress under the Immigration and Nationality Act. The Court ruled against Travel Ban 3.0 because it said that Trump exceeded his authority under the INA. They didn’t even consider the constitutional questions because the Court argued that the plaintiffs were likely to prevail on the statutory claims. So, this isn’t a case about the President’s National Security powers vs. constitutional rights of aliens and immigrants. That’s a case that conservatives would win with a conservative court. It’s a case about separation of powers, and whether the President exceeded his statutory authority dictated by Congress. That’s a case liberals and moderates win even in a conservative court.

For the conservative majority on the SCOTUS to rule for the gov’t, they will have to somehow dismiss the basis of the 9th Circuit ruling and recast the case as national security vs. constitutional rights for individuals. Guys like Alito and Thomas won’t have any problem doing that, but I think it’s a tougher sell than one might think for Kennedy and Roberts.

I’m not predicting anything here, but if the Court is to deal with the case in an intellectually honest way and in accordance with traditional standards of SCOTUS review, it would have to uphold the 9th Circuit Court of Appeal’s decision unless it could show that the 9th Circuit got the case completely wrong. But if the court pulls a Bush v Gore and says ‘f**k it’ we want Trump to win this one, then they can probably do what they want.

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I like this approach a lot, but alas I very much doubt that the SC will worry too much about the 9th Circuit rationale. The starting point for judicial reasoning (conservative and liberal alike, to be fair) is an intuitive response to the political values at stake in the appeal, and to deploy whatever logic sustains the original intuition. Intellectual honesty displaces the intuition only in rare cases. It would be a pretty big deal for the GOP hacks on the SC bench to deprive a Republican President of the power to exercise his geopolitical executive discretion in the realm of immigration simply because his discretion is apparently tainted by hateful considerations. I would be very surprised if this ban isn’t upheld.

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Already been established in court, that Trump’s tweets are admissible.

Even the White House admits it:

Translation: He’s fucked.

Whoa Kagan

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Francisco said the Chad decision shows that the restrictions are premised only on national security concerns.

Terrorism related conditions on the ground in Chad vis a vis the US haven’t changed in the last year.
This simply the opportunistic recasting of a corrected decision. That the original decision was made in disregard of US policy interests and in the absence of any threat from Chad did nothing if not support the plaintiff’s contention that the list was a product of uninformed bias.
Then again, we all know that the uptick in Chavezista terror, like the bombing at Bowling Green, provides a firm rational for Venezuela’s inclusion on the list.
This is a wish list from small people seeking protection from imagined dangers. Not surprisingly, it’s kinda like Scott Pruitt, really.

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