Post by cjm on May 26, 2017 6:59:11 GMT
Travel Ban Blocked Again, Possible Supreme Court Showdown
In broad outline this is similar to the decision not to prosecute Zuma: A bad intent somewhere along the line (in Zuma's case the decision to postpone the prosecution), tarnishing everything legal about it. In the US case one has to assume that Trump has not changed his intentions or that the campaign rhetoric is an accurate reflection of his intent. It has the further implication that campaign utterances have the potential of destroying the legal basis of an entire administration.
The 10-3 majority, in a 67-page opinion, affirmed the decision of the United States District Court for the District of Maryland, in essence holding that even an executive order that makes no mention of Islam in its text can be invalidated for violating the First Amendment’s Establishment Clause because of comments Trump and his associates made during and after the 2016 presidential election.
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the court decided that the administration’s proffered purpose of keeping Americans safe from terrorism was a mere pretext for disfavoring the Islamic faith.
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The court dismisses the national security rationale for the order, conducting its own inquiry into the efficacy of the travel ban in protecting Americans. The majority cites “former National Security Officials” saying the order serves “no legitimate national security purpose” and that “there is no evidence of any new security risks emanating from these countries.”
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Each of the three dissenting Judges filed separate dissenting opinions and joined in each others’. Judge Paul Niemeyer, relying on precedent that holds that the foreign affairs context in which the executive order operates is the apex of executive power, chatised the majority for its refusal to limit its inquiry to the text of the order itself:
In looking behind the face of the government’s action for facts to show the alleged bad faith, rather than looking for bad faith on the face of the executive action itself, the majority grants itself the power to conduct an extratextual search for evidence suggesting bad faith, which is exactly what three Supreme Court opinions have prohibited.
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the court decided that the administration’s proffered purpose of keeping Americans safe from terrorism was a mere pretext for disfavoring the Islamic faith.
...
The court dismisses the national security rationale for the order, conducting its own inquiry into the efficacy of the travel ban in protecting Americans. The majority cites “former National Security Officials” saying the order serves “no legitimate national security purpose” and that “there is no evidence of any new security risks emanating from these countries.”
...
Each of the three dissenting Judges filed separate dissenting opinions and joined in each others’. Judge Paul Niemeyer, relying on precedent that holds that the foreign affairs context in which the executive order operates is the apex of executive power, chatised the majority for its refusal to limit its inquiry to the text of the order itself:
In looking behind the face of the government’s action for facts to show the alleged bad faith, rather than looking for bad faith on the face of the executive action itself, the majority grants itself the power to conduct an extratextual search for evidence suggesting bad faith, which is exactly what three Supreme Court opinions have prohibited.
In broad outline this is similar to the decision not to prosecute Zuma: A bad intent somewhere along the line (in Zuma's case the decision to postpone the prosecution), tarnishing everything legal about it. In the US case one has to assume that Trump has not changed his intentions or that the campaign rhetoric is an accurate reflection of his intent. It has the further implication that campaign utterances have the potential of destroying the legal basis of an entire administration.