I think your reasoning is sound there, but if you want to resist and get ahead of that, letting the Muslim ban slide is really not a good way to start.
The question has already been answered upthread, but consider that all the specified countries are majority Muslim. Then consider that Trump has already floated the idea of a Christian exemption. If that’s true, then by definition Muslims are overwhelmingly affected. It may not be a complete Muslim ban, but it is designed as a Muslim ban.
As to the game theoretic part of your post, consider Trump’s courses of action:
Enact an actual explicit Muslim ban. Outcome: Likely fatal overreach.
Enact a deniable Muslim ban. Result: The people either buy it, paving the way for more overreach, or they reject it and get distracted.
Don’t enact any kind of Muslim ban. Result: Loss of credibility among his base.
Being that door #2 is obviously the best-case, lowest risk political scenario for Team Trump, it’s inconceivable that he would do otherwise. That doesn’t mean your scenario is wrong - you are probably right. But it is also a thinly veiled Muslim ban crafted to enable the kind of scenario you’re talking about.
And if the ban does fail legally, he can complain to his reality-challenged base that it’s all part of the vast left-wing conspiracy to sabotage him, just like his statement on firing the Acting Attorney General who couldn’t possibly have been standing on her principles as a longtime legal expert and employee of the DOJ but instead ‘betrayed’ it and was working hand-in-hand with Democratic Senators slowing the approval of Sessions.
Trump had nothing to do with the selection of the countries included under 8 U.S.C. 1187(a)(12).
That list was assembled by the 2015 Congress and the Obama DHS in early 2016.
I have no reason to believe that either the 2015 Congress or Secretary Johnson either believed that Trump would become president or wanted to make him happy. Do you?
I don’t understand your point. The list of countries under 8 U.S.C. 1187(a)(12) is not Trump’s list. He didn’t pick the countries. He didn’t appoint the people who picked the countries.
So, we have an existing list of countries deemed to post a threat to the United States for immigration purposes. Leave aside whether that’s a good list for the moment. And leave aside whether you agree with the policy. The argument is that the use of the list under Section 1187(a)(12) is a sham to cover for the corrupt advancement of Trump’s business purposes.
I have trouble believing that argument. We’ve already established that Trump did not create the list. So the next question is: why did he pick this list? On the surface, it seems like a logical list to apply to immigration issues (it’s in the immigration laws after all). But if there was a different (better) list that was overlooked; and if there was some reason to believe that that list was less favorable to Trump’s business enterprises; then I might be convinced. Do you know of such a list?
(None of this has to do with whether or not the application of the Section 1187(a)(12) list makes sense here. There seems to be some credible evidence that foreign nationals that visit those countries are more likely to be terrorists. But I’m not aware of evidence that nationals of those countries are more likely to be terrorists.).
As much as this order was IMO horrible policy, the list makes a lot of sense if you are trying to protect the US from the most significant terror threat. Every country on the list is either a state sponsor of terror (based on the list left by Obama’s State Dept.),has a strong IS/IS affiliate or both. Failing or failed states that can’t help us in routine vetting is a pretty common shared characteristic as well.
IS is the major transnational terror threat at the moment. They have a strong and sophisticated information operations capability to recruit, encourage and inspire terror attacks. They’ve been successful at doing just that:
It doesn’t take a more convoluted theory that this must just be about business interests to explain the list. It is where the dominant terror threat to the US and our allies is today. It’s not 2001 anymore.
Are you being deliberately obtuse? He (or more precisely his lackeys) wrote the executive orders. He could have picked any countries he wanted to put on the list or not on the list. He could have included Saudi Arabia, deleted Libya, or added Loompaland. It’s his executive order. He was not bound by any list or anything else, except to the extent he wanted to try and pretend what he was doing was what Obama did.
I think the easiest way this is going to fall is due to the religious test, true he didn’t select the countries but the criteria for selecting was stated to help “Christians” and of the countries listed this is the only party that really matches.
As this is attached to only this PO and because I think that this will bump the scrutiny level up this will be very hard for any court to affirm.
While I think it does violate the establishment clause this will be an easier kill.
As they will need to show a compelling government interest and the only really permanent part is the refuge ban this will be hard to show. In the 40 years from 1975-2015 there were only 3 deaths in terrorist attacks from people on immigration visas. This puts the personal chance of being killed in a terrorist attack from a refugee at 1 in 3,640,000,000.
As in our country all immigrants tend to be more law abiding than the general population Trump will have a tough time.
Also in the lower courts he may have problems because he fired the AG, while this is not a matter of law I do wonder if some of the judges will view this as an attempt to remove power from their branch.
Do you think a court would interpret this as a “Muslim Ban”?
You and I know it is (or it’s as close as Trump thought he could get to one right now), but wouldn’t a court say the president has broad authority in this area and can designate countries for such action at his discretion?
What court? This Supreme Court? Likely not. Courts are very reluctant to find illegal discrimination, even if a person says they’re going to discriminate on the basis of religion and the act has the impact of discriminating on the basis of religion. Guiliani’s statement is pretty damn good evidence, but that’s not really going to persuade someone like Scalia, Alito, Thomas or Roberts.
I don’t think it’s necessarily a discretion thing, it’s more of a “no standing” (non US citizens in foreign countries don’t necessarily have rights under the Constitution, so they’re screwed) and “textualism” (it doesn’t come out and SAY that it only applies to Muslims, so it’s all good). I think the better argument (off the top of my head, of course, I haven’t done much research at all) is that it violates the federal prohibition Congress enacted in 1965 outlawing discrimination on the basis of national origin. But that may fall when the Republican Congress toes the party line. I don’t have much hope for the Establishment Clause argument either, but who knows.
It might, I have some doubts about that because I do think that the ACLU or the city and states lawyers will show the video of Trump and then the “spill the beans” Gulliani one in court and that is a thing that exists: courts indeed do take a look at evidence pointing at the original intent of the ones proposing a new law or regulation.
IIRC what took place there is that the ones opposed to the new voter law found too many smoking guns (emails, recordings, testimony) showing that the ones crafting the law had the intention all along to suppress the vote of minorities.
I’m not pointing here at voter law BTW, only that IMHO that part about the original “intent”; it is not so easy to sweep under the rug.
OK, thanks. I was thinking it might go to a federal court, be denied (for whatever reason) and that would be the end of it. I doubt it would reach the SCOTUS.
I think there are enough jurisdictions involved that there will be multiple federal appellate level court opinions that could need SCOTUS involvement. But I think the bigger problem, which always crops up in executive power over-reach cases, is finding someone with standing. Once the detainees are no longer detainees, once the green card holders are allowed in, once the foreigners who are on US soil are all dealt with, there may not be anyone who will be found to have standing to challenge it.
I wouldn’t expect it to be that soon. Remember, technically all those illegal aliens he promised to eject from the country fit under the ‘foreigners on US soil’ definition.
I don’t think it’ll be hard to find someone with standing. How many grad students are in the US from one of those countries? Googling “Iranian graduate student association” shows ~50 at Michigan alone.
Would they not have standing? Can’t go home and visit family. I’ve been getting multiple emails about the impacts to graduate students at my school.
It leaves though the issue of lost wages or other harm to be taken care of. I can see lawsuits and demands that Trump will not care to get into because, as usual, he will not need to pay a dime.
Here in Arizona we saw this movie already. Trump’s mini-me, Sheriff Joe Arpaio, made a sport of enforcing regulations (laws made by the bigots in the Arizona congress) in the most draconian ways but enough voters did like how he was sticking it to the immigrants, the undocumented and even the citizens or legal residents…
Whoops, did I say legal residents? Yep, a good number of legal residents were indeed detained or their rights abused during his reign too. While the people affected were released the ACLU still could point at the harm caused and the judges did agree. It led to eventually finding Arpaio to be a racial profiler and then to be in contempt of court as a bonus. But what really toppled him were the voters that finally learned how damaging he was for all when he also decided to make moves to intimidate the very federal judge overseeing his case.
It took decades and hundreds of millions (in some estimates) in state money for many in Arizona to learn that lesson.
How long for most Americans in battleground states will it take to learn that lesson? (A plurality of Americans already knows) And how much will it cost to the American Taxpayer the reign of Trump? Remember, we are talking federal and world levels, not state level “chump change”.