I’m concerned about the standing holding of today’s opinion. The Court holds that a relative of an alien who is denied entry based upon the alien’s religion has standing to assert that denial.
Why only a relative? And, again, what is a relative? Third cousin, twice removed? Why not a really good friend or a college professor? This could open the door to every person in the world having standing to challenge the denial of their admission in U.S. courts merely by associating with someone in the United States, even under a pretext.
Although I have no idea how Merrick Garland would have voted in this case or on all the other recent 5-4 decisions (e.g., the Texas gerrymandering case, the Ohio voter id case, the California pregnancy center case), the decision to block his nomination sure looms large. I wish I had more optimism that the Democrats could retake the Senate in this year’s elections.
Your position fails to acknowledge that there was never a precedent that extended searching Establishment Clause inquiry to immigration visa decisions, and there was plenty of precedent that extended it to cases involving religious exercise of citizens within the US.
In essence, you try to cast this as a “choice,” not to extend these protection to those seeking immigrant visas and a “choice,” to continue to extend them to domestic cases of religious exercise.
But each alternative would have involved a departure from precedent.
You may, of course, absolutely defend the idea that the Court SHOULD have departed from precedent. But don’t try to suggest that the reason they applied two different standards is anything other than a mechanical application of past precedents.
(Of course, I suppose you could argue that the existence of those past precedents is itself an expression of preferential treatment of the dominant Christian faith domestically and the parallel non-preferential treatment of foreign travelers is also a result of, inter alia, non-preference towards non-Christian faiths – on this proposition I express no opinion).
I figure the interesting question is: what if they don’t “in this year’s elections”, and then Trump gets the chance to pick another nominee in, oh, say, July of 2020?
If the Democrats control the Senate, I have little doubt they would (quite understandably) refuse to confirm such a nominee.
If the Republicans control the Senate, they will discover some important justification for ignoring the important justification they previously found when considering Garland.
To me the problem with this ruling is it defers completely to the president. As long as he says the magic words, “national security” that is enough for him to restrict entry to any person/group he wants to.
So here we are with abundant evidence that the order is motivated by animus towards Muslims and no evidence of a security threat. Indeed in the dissent it was noted that:
Congress did not mean to give the president a blank check to ban whomever he wanted. They tell us the reason in the INA that he can ban people if it, “would be detrimental to the interests of the United States.” (8 U. S. C. §1182(f)).
Apparently he is the only one who can make that determination and there is no need show that it is so to anyone. Say the magic words and it is a done deal.
Congress can fix that, if they wish – they delegated the authority.
But since the 1972 Mandel ruling I have mentioned, the Court has held that when the Executive branch supplies a facially valid justification for an immigration decision, the courts must accept it.
So if you don’t wish to grant the President this power, the Constitution vests Congress with the power to legislate immigration rules. All they have to do is write a new one.
But I sense that your next objection will be that Congress won’t accede to your wish.
No. My objection is this is not even facially valid and the law as it stands is not meant to be read as, “if the president says so then it’s good enough for us”.
We have seen that Trump’s claims are not facially valid. He has expressed plenty of animus towards Muslims and made no showing of danger. Hell, the administration even worked to hide evidence of this supposed danger (as mentioned in the dissent). So there is plenty of “indicia of being invalid” here.
Unless “facially valid” only means, “the president said so”. Maybe it does but then it means despite the words in the law (as already written) what congress really meant to do was give the president a blank check on this.
I don’t disagree with that at all, but it seems inconsistent with the entire rest of the standing doctrine. In the gerrymandering cases this term, the Court held that a voter only has an interest in electing his or her own representative, not standing to see that the Legislature is controlled by a particular party. I would think that every poster on this board thinks that there are “particular qualities inherent” in seeing your favored party control the Legislature.
Further, are there not “particular qualities inherent” in preserving endangered species? See Lujan v. Defenders of Wildlife, or as a taxpayer, don’t I have the same interest in making sure my funds are spent in accordance with the law?
And (I never thought I would say this) but I agree with Whack-a-Mole. It’s an odd standing doctrine to say that a person has standing, but we will defer to the person who has allegedly harmed you almost absolutely. (Again, except Kennedy).
In that scenario I strongly suspect that the Senate Republicans would suddenly feel that all their past arguments about waiting for the election no longer apply, and in fact would insist that they’re just following the principle the “hypocritical Democrats” had previously espoused (and conveniently ignoring the fact that the Democrats never asked for that principle to be applied inconsistently, to the benefit of one party).
But if the Democrats take control of the Senate, they can justifiably argue for not filling a Supreme Court vacancy until after January 2021, based on the legal principal of “quod est bonum anseri feminae bonum anseri masculo est”.
It is. The “symbolic plaintiff,” (Mandel at 762) doesn’t appear in standing jurisprudence (so far as I know) apart from immigration cases.
(As an aside: does anyone care these days about a cite like “Mandel at 762?” I checked the page number by searching for the term, and it just now occurred to me that no one is reading this on paper; anyone wanting to find the phrase would be hitting Cntrl-F just like I did, so who cares what page its on? Old habits die hard, I guess.)
Your habit of strategic semantic precision arouses my suspicion. Are the courts otherwise *forbidden *to consider motives? Do they require express permission to do so, and from whom?
I’m not sure how to answer that question. I was quoting the language from Kleindienst v. Mandel, 408 U.S. 753 (1972), which held that the Immigration and Nationality Act gave the Executive Branch the power to permit or deny immigration and set forth the very limited standard under which the judiciary could review such decisions.
So, yes, lower courts are forbidden to consider motives, because the Supreme Court said so. Any notion that the Supreme Court was fixin’ to say otherwise has now been dispelled.
However, next term the Supreme Court could take up the matter again and decide to overrule Mandel and Trump v Hawaii, I suppose, so I think the answer to your question is: a future Supreme Court.
But wait! The court here was not examining the President’s Article II powers. They didn’t make a decision based on the Constitution; they interpreted 8 USC §§1182(f) and 1185(a), laws passed by Congress. So a future Congress could most certainly pass a law that says, “When a determination is made by the President under §1182(f), it shall not be motivated by religious animus.”
Then the courts would certainly be able to review motive.
So I think the other answer to your question is: “…or Congress.”
This is what the court has ruled but I’ll be damned if I can make sense of it.
The INA says the president can ban certain people/groups if they “would be detrimental to the interests of the United States.”
So why can’t a court consider that? On what basis is the supreme court saying reality is whatever the president says it is and a court cannot consider if the president’s actions conform to the law congress passed?
Trump: I ban all people from Africa because I hate black people!
Supreme Court: You can’t do that because they are black.
Trump: Oh, ok. In that case I ban all people from Africa because they are a security threat!
Supreme Court: That’ll work. You had us worried for a moment but it’s all good now. Carry on!
Well, son of a gun! Being a boor of little brain, I had thought they had covered that already, so that policy and/or law would not be based on religious animus! But no, turns out I’m naive, and that sort of thing is entirely kosher, until they decide otherwise!
They must have been in a hurry to wrap it up, and get to Al Hamilton’s toga party.
(You know, sometimes its worth being condescended upon to get that sort of education. Sometimes.)
I am far more upset about the gerrymandering and crisis pregnancy center rulings - and we haven’t even gotten to the union ruling yet - but given that each of these decisions have to do with the illegitimate Gorsuch just being on SCOTUS, all I have to say is that the Court-packing fight of 2022 is gonna be lit af.
Maybe I’m wrong and the Dems are more desperate than I realized, but I suspect you’re going to be disappointed if you expect court-packing to happen in the next 4.5 years. It seems like no one but the fringiest lefties are talking about it with any degree of seriousness. I would be surprised if all the current SCOTUS justices, including the liberal ones, did not oppose it. Also, it doesn’t really solve anything because the next time Republicans are in control they’ll just court-pack even more to win back control.
It frankly doesn’t matter how the Justices personally feel about Court-packing; the number of seats isn’t constitutionally mandated and it easily can be expanded or retracted legislatively. It isn’t even unheard of to do that, such as when the Congress of 1866 shrunk the number of SCOTUS seats to prevent Andrew Johnson from filling a vacancy.
I fully expect the Dems to pursue Court-packing if and when an obviously bullshit decision comes out of SCOTUS; the example I’ve used in other threads is a decision that rules Medicare-for-All unconstitutional, but we could just as easily reach that point during the Trump administration if, say, the Justices side with the government on the latest bullshit argument against the ACA.
If the GOP just Court-packs in response, eh, whatever. The way out of this mess is a constitutional amendment that eliminates lifetime tenure, sets the number of seats at a prescribed amount, and swaps Gorsuch for Garland. Maybe Court-packing would get us closer to that in the long run.
