I already covered this in my previous post, but just to elaborate a bit more: The point is that the action in this case may or may not be constitutional depending on the intent. So, no, it is not that if they wanted to do something unconstitutional then they can’t do something constitutional. Whether or not what they do is constitutional in the case of discrimination is necessarily based on their intent, just like my example of not hiring a Black person.
And, I imagine there is in fact a lot of case law bearing on this because I am sure that there are a lot of people who have invented ways to try to make it look like they are not discriminating on the basis of race, sex, or what have you when their original intent (and lack of compelling logic for their basis of doing what they did) clearly shows that they are discriminating. In the present case, Trump and his merry band of idiots have done an excellent job in laying a clear public trail of what their intentions were and that is rightly coming home to bite them in the ass.
The opinions also state that they’re not convinced of the basis for the bans. In other words, stopping immigration from those six countries doesn’t achieve the theoretically intended purpose, and incurs humanitarian costs for no good reason other than that Trump and co. are a hateful bunch.
That applies to domestic legislation related to employment decisions. It has (until recently) no bearing on immigration policy.
A declaration of war against Mongolia would certainly have a disparate impact against Asian people, but would not be proper for judicial review.
Further, courts are ill-equipped to try to determine “intent” and it leads to silly results where an identical law can be constitutional if a nice Congress passed it, but unconstitutional if a mean Congress passed it.
It’s completely subjective. I could say that Trump’s intent is to protect American citizens, and you might say it is to persecute Muslims. Why does the label we attach determine whether a particular EO is constitutional?
All it boils down to is judges acting as legislators, all the while ignoring clearly established law related to the President’s plenary power regarding immigration.
It’s morally outrageous that Trump is trying to ban Muslim immigrants. That goes against America’s values, like bombing half a dozen Muslim countries and overthrowing their governments through proxy terrorist groups ran through Saudi Arabia and Qatar which helps cause the refugee problem in the first place. Where’s Trump’s Peace Prize?
The treaty wasn’t “forced upon them”. The debate over the validity of the treaty was never over coercion; it was over whether the Cherokee had properly ratified it. In the greater sense, the Cherokee didn’t have a lot of cards to play, because Georgia was putting a bunch of pressure on them, and the federal government wasn’t willing to help them, but there wasn’t actual coersion…the feds didn’t say “You must sign this treaty or we’ll kill you all” or anything.
But they didn’t really sign the treaty and they all still got shoved on to a death march away from their land. So ok, let’s pretend they didn’t fake sign the treaty. What do you imagine would have happened next? The whole point was “get off your …er… I mean our land”.
Well, it would also be true that it could be hard to determine if a certain employment policy at a company was promulgated with the innocent intent or an intent to discriminate, e.g., on the basis of sex or race. That doesn’t mean the courts shouldn’t make any attempt to do it. It may not be easy, but it is clearly necessary.
No…It is judges acting as judges and doing what judges do. In this case, they are trying to determine if Trump’s order which he claims to be motivated by national security issues is really motivated by bigotry (or, at least, political posturing to bigots). And, frankly, although I could imagine that there may be cases in which this would be a hard call, this isn’t one of them, as is becoming clear as more and more judges weigh in on the issue.
We’re sorry that the fact that the President does not have the absolute power to engage in discrimination and bigotry…and the stoking of such passions in the populous, while claiming it to be a matter of national security, is upsetting to you.
As I noted in my post, I think the biggest problem that Trump and his defenders are dealing with is running up against the fact that judges are not as stupid as a large segment of the general public is and his “alternative facts” and other mumbo-jumbo doesn’t impress them.
I’m not sure if you’re asking if the rulings that rest on existing case law are as binding and valid as those that rest on Constitutional and/or legislative law. If that’s the question, then yes.
If your question is whether the rulings are considered binding to be used and cited as case law in the future, then the answer is yes and no. It depends on the ultimate resolution of the appeals in these cases. The rulings are binding, meaning the courts found the arguments that rested on the case law presented to be persuasive. But obviously they remain subject to appellate review. If upheld, they will continue to be cited in future cases.
The rulings will stand unless and until a higher court (ultimately SCOTUS) hears the cases and either affirms the lower court’s rulings, vacates them and issues its own ruling or remands the cases to the lower court for a rehearing for clarification and/or to correct its errors. SCOTUS can also decline to hear a case, which automatically allows the ruling by the lower court to stand. (Won’t happen in these cases.)
At this time, Trump has appealed the second EO to the Federal District Court in Maryland. Washington State has stayed further proceedings in EO #1 until the Maryland court has ruled, so as to not duplicate work.
Thanks for saying that way better than I did. It’s what I was trying to get at by saying the bans must solve an actual problem, not just a fantasy one.
Also to jshore, I agree with Monty – your posts are eloquent on the matter.
The rulings in one Circuit Court are binding on only that Circuit Court until the Supreme Court rules on the case, which then makes the ruling applicable to all Circuit Courts. Despite their lack of binding in other Circuit Courts, these nonreviewed and nonoverturned rulings may be cited by those arguing in front of other Circuit courts as evidence that their arguments have been found persuasive by other parties.
As a point of education to cure my ignorance: I thought politicians were the ones who determined if a law will accomplish something while judges can determine if it is a legal? Otherwise, why not just dispense with politicians and have judges make the laws?
I don’t believe I’m confused. First, issues of discrimination do not necessary hinge on intent, legally or otherwise. A law with a stated (and real) neutral purpose can be found to be illegally discriminatory based on the outcome of the law.
In this case, the EO has a stated neutral purpose (in the text) and a stated discriminatory purpose (in Trump’s other statements).
It can often be tricky to pull the salient comparison out of an analogy, but, no, I’m not suggesting that gun control is discriminatory. The point is that if someone takes an action and is rightly stopped by a court, I don’t think it’s reasonable to then block every other action in the same vein because what they’re really trying to do is the first, unconstitutional thing.
The first EO was on its face discriminatory. It satisfies the standard that it should be disallowed regardless of who signed it. I’m not familiar enough with the second to know whether it also does, but I’m uncomfortable with the idea that courts could reasonably block nearly any immigration limits that Trump might sign.
After all, the populations of countries are not randomly distributed. Nearly any limits are discriminating against some class or another.
Or what about other areas? Is the precedent we’re going for that Trump cannot create any policy, because whatever his stated purpose, we know that he’s a racist asshole? I tend to agree with the latter part, but as a whole it seems like a recipe for a Constitutional crisis.
Agreed. Unfortunate that it’s such a low bar.
Presumably the temporary nature of both EOs was nothing more than a pretense, right? It’s just that much more bullshit.