# Travel ban: Oh for two **URL:** \ **Category:** Great Debates\ **Created:** [March 16, 2017, 2:26am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281 "2017-03-16T02:26:10Z")\ **Posts on this page:** 20\ **Page:** 12
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 26, 2018, 11:58am UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/223 "2018-04-26T11:58:08Z")
> [@bobot](#): > > I’m just curious why anyone would smile about this. Because MAGA, of course. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 26, 2018, 1:59pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/224 "2018-04-26T13:59:49Z")
> [@Bricker](#): > > It’s not inconsistent with what I would have predicted, but no one actually stepped up to offer a wager, so I didn’t offer up anything exquisitely detailed. Was your prediction based on Travel Ban 1.0, 2.0, or 3.0? ISTM, their likelihood of being upheld went up each time the lawyers got more involved in obscuring the religious animus and in following normal executive review and promulgation procedures. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 26, 2018, 2:13pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/225 "2018-04-26T14:13:20Z")
> [@ElvisL1ves](#): > > Because MAGA, of course. Can you explain what you mean by that? **Richard** : IIRC, version 1 had a provision that would have banned certain permanent residents from entering the US (if they left), so would the court have struck down just that part or the whole thing? If the former, that seems like it would have basically accomplished Trump’s goal. ---
**Author:** ![Slash1972](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/slash1972/32/6461_2.png) [@Slash1972](https://boards.straightdope.com/u/Slash1972)\ **Post date:** [April 26, 2018, 2:15pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/226 "2018-04-26T14:15:31Z")
Because one of the ways to MAGA is to ban Muslims from entering the country. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 26, 2018, 2:28pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/227 "2018-04-26T14:28:13Z")
> [@John\_Mace](#): > > Can you explain what you mean by that? > > **Richard** : IIRC, version 1 had a provision that would have banned certain permanent residents from entering the US (if they left), so would the court have struck down just that part or the whole thing? If the former, that seems like it would have basically accomplished Trump’s goal. There are lots of relevant differences between each version, with more and less vulnerable parts. The thing about version 1 is that it was so sloppy and overbroad that it made it hard to argue that it was some considered response to a national security threat. Even on its face, with its discussion of honor killings and exceptions for Christians, it was just obviously an example of religious animus in action. Version 2 tightened things up, and version 3 tightened them up much further. Among the big legal questions in the case are when should a court look past the justification given for immigration decisions and how should a court evaluate a candidate and then a president’s religious animus. Both questions are affected by the kind of process the generated the executive order, the actual text of the order, whether it explains and justifies who was included/excluded, what kinds of exceptions it makes, etc. Version 3 is basically the version that smarter lawyers would have written if they had the opportunity to write Version 1. IMHO, it is still a violation of the Establishment Clause (and probably the INA statute). But it is a much closer call now than it was in January 2016. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 26, 2018, 2:31pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/228 "2018-04-26T14:31:35Z")
> [@Richard\_Parker](#): > > There are lots of relevant differences between each version, with more and less vulnerable parts. The thing about version 1 is that it was so sloppy and overbroad that it made it hard to argue that it was some considered response to a national security threat. Even on its face, with its discussion of honor killings and exceptions for Christians, it was just obviously an example of religious animus in action. Version 2 tightened things up, and version 3 tightened them up much further. > > Among the big legal questions in the case are when should a court look past the justification given for immigration decisions and how should a court evaluate a candidate and then a president’s religious animus. Both questions are affected by the kind of process the generated the executive order, the actual text of the order, whether it explains and justifies who was included/excluded, what kinds of exceptions it makes, etc. Version 3 is basically the version that smarter lawyers would have written if they had the opportunity to write Version 1. IMHO, it is still a violation of the Establishment Clause (and probably the INA statute). But it is a much closer call now than it was in January 2016. Thanks. I had forgotten about the Christian exemption, which makes the cause for religious motivation pretty strong from the text of order itself. But yeah, the first version was pretty amateurish, which is not surprising since it was written by an amateur. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 26, 2018, 2:56pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/229 "2018-04-26T14:56:22Z")
> [@bobot](#): > > I’m no lawyer and also no Constitutional expert. I can see that there is uncertainty about the constitutionality of this ban among people who are, else this wouldn’t be before the Supreme Court. So I will not call it constitutional or unconstitutional, and I hope the court makes Trump choke on it. I would prefer the Court, and all judges in lower deal courts, consider the issue on its merits. That means they should care only if it’s constitutional or otherwise violative of federal law, NOT that it was promulgated by Trump or that they think it’s bad public policy. So in my ideal judging framework, the constitutionality is a critical concept. As Alfred Tarski once observed: > [@](#): > > If the sky is blue, I desire to believe that the sky is blue. > If the sky is not blue, I desire to believe that the sky is not blue. > Let me not become attached to beliefs I may not want. You seem to want the Court to strike the ban without really having an opinion on whether the ban is constitutional. I suggest you should want the Court to strike the ban if and only if the ban is unconstitutional. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [April 26, 2018, 2:57pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/230 "2018-04-26T14:57:44Z")
> [@John\_Mace](#): > > Thanks. I had forgotten about the Christian exemption, which makes the cause for religious motivation pretty strong from the text of order itself. But yeah, the first version was pretty amateurish, which is not surprising since it was written by an amateur. Does anyone have the actual text of the “Christian exemption” from the first version? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 26, 2018, 2:59pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/231 "2018-04-26T14:59:20Z")
> [@Richard\_Parker](#): > > Was your prediction based on Travel Ban 1.0, 2.0, or 3.0? > > ISTM, their likelihood of being upheld went up each time the lawyers got more involved in obscuring the religious animus and in following normal executive review and promulgation procedures. I thought 1.0 was fatally flawed, 2.0 was defensible and a close question that nonetheless landed on “no,” but that 3.0 was consistent withe the INA and the Establishment Clause constraints. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 26, 2018, 3:10pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/232 "2018-04-26T15:10:44Z")
> [@HurricaneDitka](#): > > Does anyone have the actual text of the “Christian exemption” from the first version? Version 1 required the agency “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality,” which is the provision the President’s advisers later explained (correctly) as a priority for Christians given the sources of refugee flows in 2017 (and today). EDIT: Sorry, faulty memory. It was Trump himself who described it as a priority for Christians. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2018, 3:18pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/233 "2018-06-26T15:18:02Z")
> [@Bricker](#): > > I thought 1.0 was fatally flawed, 2.0 was defensible and a close question that nonetheless landed on “no,” but that 3.0 was consistent withe the INA and the Establishment Clause constraints. And today, the Court says that the ban is consistent with the INA and the Establishment Clause. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 26, 2018, 3:26pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/234 "2018-06-26T15:26:08Z")
Not a shock given the two revisions. But still, hard to conclude that the Supreme Court doesn’t have two different standards for anti-Christian animus and anti-Muslim animus when you hold Masterpiece Cake and Trump v. Hawaii up side-by-side. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2018, 3:33pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/235 "2018-06-26T15:33:40Z")
> [@Richard\_Parker](#): > > Not a shock given the two revisions. > > But still, hard to conclude that the Supreme Court doesn’t have two different standards for anti-Christian animus and anti-Muslim animus when you hold Masterpiece Cake and Trump v. Hawaii up side-by-side. Those two situations are not weighed by the same scale. The full panoply of First Amendment analysis does not reach “a national security directive regulating the entry of aliens abroad.” So your observation is, I think, comparing apple pie and orangeade. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2018, 3:41pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/236 "2018-06-26T15:41:52Z")
As I said [here in 2017](https://boards.straightdope.com/sdmb/showpost.php?p=19978089&postcount=9): > [@Let's talk about the POTUS, "sovereign prerogative" and the constitutional rights of foreigners](https://boards.straightdope.com/t/lets-talk-about-the-potus-sovereign-prerogative-and-the-constitutional-rights-of-foreigners/779053/9): > > However, individuals within the United States have a First Amendment right to “hear, speak, and debate with” a visa applicant. This from the Supreme Court in _Kleindienst v. Mandel_, 408 U.S. 753 (1972). This makes the visa applicant a “symbolic plaintiff.” Id at 762. > > So courts have the power of judicial review when a visa is denied and someone inside the country asserts that this denial affected their First Amendment rights. > > However, the scope of this review is not the Lemon Test. The First Amendment creates standing for judicial inquiry, but does not extend the “excessive entanglement,” Lemon Test to visa decisions. Instead, the rule is that if the exclusion is “on the basis of a facially legitimate and bona fide reason,” then the courts will not further examine the exercise of that discretion. Specifically, the courts may not “test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.” See _Mandel_ at 770. I can only assume Justice Roberts is an SDMB reader: > [@SCOTUS Majorty opinion by CJ Roberts in Trump v Hawaii](#): > > In Kleindienst v. Mandel, the Attorney > General denied admission to a Belgian journalist and selfdescribed > “revolutionary Marxist,” Ernest Mandel, who > had been invited to speak at a conference at Stanford > University. 408 U. S., at 756–757. The professors who > wished to hear Mandel speak challenged that decision > under the First Amendment, and we acknowledged that > their constitutional “right to receive information” was > implicated. Id., at 764–765. But we limited our review to > whether the Executive gave a “facially legitimate and bona > fide” reason for its action. Id., at 769. Given the authority > of the political branches over admission, we held that > “when the Executive exercises this [delegated] power > negatively on the basis of a facially legitimate and bona > fide reason, the courts will neither look behind the exercise > of that discretion, nor test it by balancing its justifica- > tion” against the asserted constitutional interests of U. S. > citizens. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 26, 2018, 3:51pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/237 "2018-06-26T15:51:23Z")
> [@Bricker](#): > > The full panoply of First Amendment analysis does not reach “a national security directive regulating the entry of aliens abroad.” So your observation is, I think, comparing apple pie and orangeade. The whole question is whether the anti-Muslim animus was the actual justification for the policy and not the fig leaf of national security. Now, you can answer that by saying that whenever there is a legitimate justification asserted, then that is enough to override any statements indicating animus. But that is not the same standard that this Court applies to Christians (evidently). ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [June 26, 2018, 3:53pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/238 "2018-06-26T15:53:38Z")
> [@Bricker](#): > > I thought 1.0 was fatally flawed, 2.0 was defensible and a close question that nonetheless landed on “no,” but that 3.0 was consistent withe the INA and the Establishment Clause constraints. Looks like you were wrong mate; reading the majority judgement, it seems that all three versions of the Travel ban would have been upheld. ([https://www.supremecourt.gov/opinions/17pdf/17-965\_h315.pdf](https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf)). They do for some incomprehensible reason overrule _Korematsu_ (at pg 38). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2018, 3:56pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/239 "2018-06-26T15:56:01Z")
> [@Richard\_Parker](#): > > The whole question is whether the anti-Muslim animus was the actual justification for the policy and not the fig leaf of national security. > > Now, you can answer that by saying that whenever there is a legitimate justification asserted, then that is enough to override any statements indicating animus. But that is not the same standard that this Court applies to Christians (evidently). The Court applies a more deferential standard for reviewing entry of aliens, and not for reviewing internal policies. That’s what 1972’s Kleindienst v. Mandel says. It’s not “whenever national security is asserted.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2018, 4:01pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/240 "2018-06-26T16:01:56Z")
Kerry v. Din, “respect for the political branches’ broad power over the creation and administration of the immigration system” meant that the Government need provide only a statutory citation to explain a visa denial. (opinion concurring in judgment) (slip op., at 6). Fiallo v. Bell gave immigration preferences to mothers of illegitimate children, even though the statute created a “categorical” entry classification that discriminated on the basis of sex and legitimacy but “it is not the judicial role in cases of this sort to probe and test the justifications” of immigration policies. You cannot simply compare the weighing used here to the weighing of a citizen inside the United States, one who may rely upon the full breadth of both judicial review and First Amendment protection. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 26, 2018, 4:36pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/241 "2018-06-26T16:36:59Z")
> [@AK84](#): > > Looks like you were wrong mate; reading the majority judgement, it seems that all three versions of the Travel ban would have been upheld. > ([https://www.supremecourt.gov/opinions/17pdf/17-965\_h315.pdf](https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf)). > > They do for some incomprehensible reason overrule _Korematsu_ (at pg 38). Not incomprehensible in the least. Justice Sotomayor’s dissent likened the majority result to _Korematsu_. The majority replies by explaining the distinctions between the results and cases, and taking the opportunity to explicitly confirm that _Korematsu_ is no longer good law. And I don’t agree that today’s reasoning would have upheld Ban 1.0. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 26, 2018, 4:38pm UTC](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281/242 "2018-06-26T16:38:05Z")
Your position is that those immigration precedents inexorably command this result. But I don’t think that is so any more than the standing precedents commanded dismissal. My position is that the choice to extend those precedents to this Establishment Clause challenge is, in part, a reflection of substantially less solicitude with respect to this particular form of animus–in sharp contrast to the way the Court spoke of religious animus in Masterpiece. [Previous page](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281.md?page=11) [Next page](https://boards.straightdope.com/t/travel-ban-oh-for-two/782281.md?page=13)