April 25, 2018

Today's oral argument in Trump v. Hawaii — the "Muslim ban" case we now (pretty much) know Trump will win.

Here's Mark Walsh at SCOTUSblog reporting on the big oral argument on the last day of the 2017 Term — Trump v. Hawaii. I haven't read this yet, but from the short article I have read (at the NYT), I think everyone knows Trump is going to win.  I'll live-blog my reading, giving you snippets and comments.

Walsh begins with the weather — "warm but drizzly day" — and observations of who's in the gallery — Orrin Hatch and "a touch of true celebrity and talent when Lin-Manuel Miranda, the author (and original player of the title role) of the Broadway hit 'Hamilton'" and Josh Blackman (who tweets a photo of the autograph he got from Miranda on his pocket copy of the U.S. Constitution) — so this is chronological and grandiosely whimsical.

Walsh calls the argument a "fast-moving, hard-hitting hour" and clues me in that there's another post at SCOTUSblog that's the "main account" of the substance of the argument. I'll get to that. I continue with Walsh.

U.S. Solicitor General Noel Francisco argues passionately... “This is not a so-called Muslim ban,” Francisco says. “If it were, it would be the most ineffective Muslim ban that one could possibly imagine since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan.”

Justice Elena Kagan presses him with a hypothetical involving a president “who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency” before ending up with “a proclamation that says no one shall enter from Israel.”

“This is an out-of-the-box president in my hypothetical,” Kagan says, to laughter in the courtroom.

Francisco responds that it is a “very tough hypothetical,” but “if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act, I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”
Neal Katyal, arguing for Hawaii, stressed that Congress should have to legislate, and why hasn't it?
“Well,” the chief justice replies, “Imagine, if you can, that Congress is unable to act when the president asked for legislation.” 
Sarcasm. It gets laughs from the gallery.

Here's the Amy Howe analysis, the other SCOTUSblog post, which I'm also live-blogging my reading of. Notice that Walsh never mentioned Justice Kennedy, and I know from reading the NYT that Kennedy said something that I think deflated all hope that he might join the liberals and squelch Trump.

Indeed, Howe begins by observing that a majority "appeared ready to rule for the government."
... Chief Justice John Roberts and Justice Samuel Alito – were clearly worried that a ruling for the challengers might entangle courts in second-guessing the president’s national-security determinations. Roberts led the way, asking attorney Neal Katyal, who represented the challengers, to imagine a scenario in which U.S. intelligence agencies tell the president that 20 Syrian nationals are planning to come to the United States with chemical weapons. Could the president ban all Syrians from coming to the United States, Roberts asked?...

Katyal responded that such a ban would pass muster. He reasoned that it wouldn’t be discrimination based on nationality, which immigration laws prohibit, but instead would be an effort to address a fast-moving emergency...

Is there any situation, [Alito] queried, in which the threat of terrorism could be so severe that the scheme that Congress enacted would be inadequate to deal with the problem? Katyal agreed that there could be, but that response got him into hot water with Justice Anthony Kennedy. So the courts need to determine whether there is an emergency? Kennedy asked.

Kagan echoed Kennedy’s concern, observing to Katyal that the September 2017 order points to the important national-security issues at stake. How is the Supreme Court supposed to determine the legality of the president’s order, she asked, without evaluating whether those national-security interests are real?
Oh! Might Kagan vote to uphold the ban? That would lend heft to Trump's victory. And this isn't just about Trump. This is about all future Presidents and the future of vexatious litigation in the courts.
Justice Stephen Breyer seemed to have a different concern. The September 2017 order leaves open the possibility that citizens of the countries included on the order could still come to the United States if they fall within one of the exceptions to the order or qualify for a case-by-case waiver. Although it was not entirely clear, Breyer seemed to be suggesting that, if the possibility of an exception or waiver is a real one, rather than simply “window dressing,” he might be willing to uphold the order.
So Breyer too may vote with the majority.
In the end, the government may not get the votes of either Breyer or Kagan.... Although it’s always risky to make predictions based on the oral argument, it’s difficult to see how Hawaii can pick up the five votes that it needs to strike down the president’s order.
And there you have it.

I've referred to it a few times, so let me also link to Adam Liptak and Michael D. Shear at the NYT, "Key Justices Seem Skeptical of Challenge to Trump’s Travel Ban":
Immigrant rights groups had hoped that Chief Justice John G. Roberts Jr. or Justice Anthony M. Kennedy would join the court’s four-member liberal wing to oppose the ban. But their questioning was almost uniformly hostile to the challengers....

Justice Kennedy pressed Mr. Katyal about whether judges should second-guess a president’s national security judgments. “That’s for the courts to do, not the president?” he asked, skeptically.

Mr. Katyal responded that presidents ordinarily deserve substantial deference. But he said the travel ban was so extreme that the Supreme Court should step in.

Justice Kennedy noted that the latest travel ban was longer and more detailed than proclamations issued by earlier presidents. He also appeared to speak approvingly of a part of the proclamation that called for periodic reports....

125 comments:

Drago said...

All Barack Obama needed was a phone and pen and the lefties and LLR's swooned....

Sebastian said...

"Mr. Katyal responded that presidents ordinarily deserve substantial deference." But Trump is not ordinary. Because.

"But he said the travel ban was so extreme that the Supreme Court should step in." On the basis of the extremeness provision in the Constitution.

Did Katyal blush at all or did he peddle his BS unashamed?

Jeff Roth said...

I have predicted to my incredulous Left-leaning friends from the beginning that when SCOTUS go around to ruling on the travel bans, 6-3 or 7-2 were very real possibilities, and there was a 0% chance of Trump losing. They, of course, said I was crazy.

I feel the same way about the DACA silliness going on in the lower courts.

BTW - neither article mentioned the questioning towards the end (I read the transcript) about the concerns SCOTUS voiced about lower courts making nationwide injunctions. It is not clear if they feel this is the case to make a ruling, but there is no doubt based on the questioning that when they do they are going to come down hard against that practice.

Chuck said...

I don't know about you, Althouse, but as you predict that Trump is going to win, I think that the President should win this case. Should win, easily. And part of my own reasoning is, as the Solicitor General stated, when this Executive Order was re-re-re-crafted, it wasn't anything like a total and complete shutdown of Muslims, entering the United States, until our country's representatives can figure out what the hell is going on."

Trump was never going to get an order like that through any judicial scrutiny; the statement was only going to make it hard and complicated to defend more-carefully drafted legal orders. He's the nightmare legal client.

This wasn't a "Muslim ban." Trump was never going to get a "Muslim ban."

Trump should win, because the actual order wasn't anything like any of his stupid statements.

The opinion-writing might be a lot of fun. Looking forward to June.

Bay Area Guy said...

Great analysis, Althouse.

There's been so many starts and stops with the so-called, Muslim Travel Ban, that's it hard keep track.

Lost in the muck, was a very thoughtful decision by a Federal Judge in Virginia, who upheld the ban as a proper exercise of Executive Authority, cemented by a specific statute passed by Congress, validating such authority. Congress passed the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1101-1537, which stated:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

In my simple mind, you have Executive Authority + Congressional approval of wide discretion by the Prez = Constitutionally permissible Executive Order.

What more would one need?

MadisonMan said...

Why does Kagan's hypothetical make me think of Obama?

hombre said...

Given the clear language of the statutes, the precise language of the orders, the exceptions and the national security interests, the case provides the best opportunity yet for the liberals to declare themselves as pimps for the seditious DNC/leftmedia consortium.

FIDO said...

Kagan is a real judge with that much animus? She can't even pretend to be objective?

First off, let's just cross Giddy Ginsburg off the List. Ol'Giddy will do whatever she wants to without caring a fuck about 'rules' or 'precedents'. if she doesn't like American law, well, she'll shop until she finds a law she likes...or a rule...or even an opinion.

Sotomayor is in the can for Obamaism.

That being said: if it doesn't go to a 7-2 split, with such black letter law, and ONLY basedon the Odiousness of Trump, the Court will strongly discredit itself.

You can't help senile or blatant racist, but the rest of them need to at least pretend to be lawyers and judges or the whole system crashes down and it will be 'death by lawsuit' from here on out.

tola'at sfarim said...

Curious what Neil katyal thinks abt recent rulings regarding daca.

FIDO said...

It is not clear if they feel this is the case to make a ruling, but there is no doubt based on the questioning that when they do they are going to come down hard against that practice.

How can they not? You can't let one loopy partisan Federal judge stop ALL executive orders they don't like. The only recourse SHOULD be at the SC level, though I will take a unanimous opinion (or at least 2/3 majority) of ALL the justices at the Appellate Level (though the Ninth should never get this power since they are Wing Bats)

Just remember boys and girls (and Inga), Trump is appointing a LOT of judges. They will do a Hawaii against your next Obama if the Supremes allow this to stand.

Leland said...

Sotomayor is in the can for Obamaism.

But here's the thing, Obama signed this law. You would think this would be something to be judged a bit more on objectivity.

I don't know if Trump wins or not, but I think he should. The question in my mind if the court agrees with my understanding of the law; how much of a slap do they give the lower courts?

Mattman26 said...

In the old days, I believe there was some tradition of trying to draft a narrowly worded ruling that could attract unanimous or near-unanimous support on the Court. Hold the Court together, reach a proper legal conclusion, and no reaching for the sky as to wide-ranging precedential value. And in a case like this, not allowing a ruling or dissents to turn on potential animus for a particular president.

Wonder if they might pull that together here.

Achilles said...

Most of the members of the court have to know they shouldn't even be involved in this case.

The supreme court has no business being involved in this case outside of slapping down some treasonous shitheads pretending to be judges.

Richard Dolan said...

Terrific oral argument, both attorneys at the top of their game. The audio of the argument is well worth a listen. The only surprising moment (for me, anyway) was at the end of Katyal's argument for Hawaii, where CJ Roberts offered him an extra 5 minutes and he didn't use it.

As in the Obamacare cases, I'd expect CJ Roberts to write the main opinion, and I think it will be basically along Mandel lines saying that, where as here, the executive order is supported by facially reasonable grounds, the courts will not second guess the president's national security and foreign policy judgments.

David Begley said...

After I got Oil States wrong (7-2), I would be hard pressed to see Trump lose this case. I do, however, want to read the sophistry in the dissent.

And why hasn't RBG recused herself? She said Trump was an idiot or racist or something.

The bigger issue is that the trial court judge and 9th Circuit were dead wrong. When are the federal courts stop being part of the Resistance?

Christopher said...

Walsh begins with the weather — "warm but drizzly day" — and observations of who's in the gallery — Orrin Hatch and "a touch of true celebrity and talent when Lin-Manuel Miranda, the author (and original player of the title role) of the Broadway hit 'Hamilton'

Oh yeah, I know Miranda, he's the guy who worships and glorifies Puerto Rican terrorist Oscar Lopez Rivera.

Drago said...

"When are the federal courts stop being part of the Resistance?"

There are far too many leftist and LLR loons willing to trash the constitution to remain members in good standing of the resistance.

Chuck said...

David Begley said...
...
The bigger issue is that the trial court judge and 9th Circuit were dead wrong. When are the federal courts stop being part of the Resistance?


It's a very good point. Beyond, "Reversed, and remanded for further proceedings consistent with this order," there is only the opinion in which to make that displeasure known.


Richard Dolan said...
Terrific oral argument, both attorneys at the top of their game.

Glad you like Noel Francisco (one of the modern heroes of the Federalist Society); he could be the guy to decide on the Special Counsel investigation if Trump were to dismiss Rod Rosenstein.

YoungHegelian said...

I am, by the grace of God, not a lawyer, but it strikes me that in any country where Korematsu is still law, however unpopular, that Trump's travel band could not but stand.

Korematsu allows the Executive in time of national emergency, to round up members of the public, including citizens, & lock them away. If the Executive can put folks away without trial in a national emergency, how can it be that the Executive cannot, for reasons of national security, keep out a specific population when they are neither citizens nor on American soil? Does e.g. Mr. Agola in a Kenyan village have the protection of the American Constitution because he'd like to have them?

If I'm wrong here, & Korematsu isn't settled law, please let me know. I'd rather be wrong & live in a country without K. than be right & live in a country with it.

Comanche Voter said...

Ah it ain't over until the Fat Lady (aka The Wise Latina) is outvoted.

Sydney said...

Walsh begins with the weather — "warm but drizzly day" — and observations of who's in the gallery — Orrin Hatch and "a touch of true celebrity and talent when Lin-Manuel Miranda, the author (and original player of the title role) of the Broadway hit 'Hamilton'

Slightly off topic, but one of the things that bugged me about that play was its portrayal of Hamilton as an immigrant. I don't think anyone at the time would have thought of him as an immigrant. All of the characters in that play at the time of the Revolution were British citizens, whether they were born in Virginia or a small Caribbean island, and that's what they considered themselves. He had other social disadvantages but being an "immigrant" wasn't one of them.

Mark said...

"Trump will win"

The problem with this is that IT'S NOT ABOUT TRUMP.

It is about the power of the President. Any president. Would this be a valid executive order if issued by anyone else? Yes. Everyone agrees. That being so, end of case.

The fact that Trump is president is irrelevant to the law or the Constitution.

Chuck said...

YoungHegelian said...
I am, by the grace of God, not a lawyer, but it strikes me that in any country where Korematsu is still law, however unpopular, that Trump's travel band could not but stand.
...


While Korematsu hasn't been reversed (probably because we haven't had a declaration of war since December of 1941), it isn't "settled law." Articles have been written on why it isn't precedent; I remember the case being in my Con Law textbook, almost standing for the proposition that, "This decision, which has never been reversed, isn't good law at all."

rcocean said...

"If I'm wrong here, & Korematsu isn't settled law, please let me know. I'd rather be wrong & live in a country without K. than be right & live in a country with it."

What a piece of ignorant Left-wing poseur shit. Every country in the world rounds up - or can round up - enemy aliens or potentially traitorous citizens during WAR TIME.

Notice - WAR TIME or National emergency.

We leave that decision up to Congress, and if it delegates the authority - to the President. The "Constitution" and the SCOTUS doesn't get to decide EVERYTHING.

rcocean said...

When are all the non-lawyers going to STOP worshiping these Kings in black robes.

We have 3 branches of Government, and the Judges don't get to rule over the other 3.

But I get it. You're a Dumbo American, so you like it. But I don't.

Kevin said...

Roberts led the way, asking attorney Neal Katyal, who represented the challengers, to imagine a scenario in which U.S. intelligence agencies tell the president that 20 Syrian nationals are planning to come to the United States with chemical weapons. Could the president ban all Syrians from coming to the United States, Roberts asked?...

Katyal responded that such a ban would pass muster.


Roberts: THEN WHAT -- THE FUCK -- ARE WE DOING HERE??????

Seriously, I would have liked to see that kind of a response.

tim maguire said...

If every member of the Supreme Court deserves to be there, it will be 9-0 for Trump. That said, the ban was supposed to be for 90 days while immigration officials crafted a better screening process. The ban, however, was never necessary for them to do their jobs, it was to protect the country while they did their jobs.

It has now been more than a year. How's that new screening process coming?

rcocean said...

Kennedy will probably vote for Trump, so he can write a wishy-washy, "good for one trip only" opinion.

YoungHegelian said...

@Chuck,

"This decision, which has never been reversed, isn't good law at all."

For 20+ years I had a subscription to The New Republic. At least once a year, some fine legal scholar would write an article on what a crock of shit Roe V Wade was from the standpoint of legal scholarship. Now, TNR was pro-choice, but it was also full of nit-picky lawyer types who knew a legal stinker when they saw one.

In spite of TNR's hyperventilating, Roe v Wade is still the law of the land. It is, by now, settled law, I'm afraid. I think the same for Korematsu. It's embarrassing, and so legal scholars don't want to own up to it. But, it didn't just squeak by. If it isn't precedent, what the hell is?

Ralph L said...

The whole point of the temporary ban was to prevent mass murderers from slipping into the country before better vetting could be put in place.

So good job, liberal judges. The terrorists win!

Michael K said...

Rush Limbaugh had a long discussion on it as we were driving. I finally figured what this was.

The leftist federal judges should be slapped down hard for this crap.

The DACA opinion was interesting, though.

Maybe Ann should about the theory that DOJ lawyers sabotaged the case.

Judge Bates gave a roadmap to the administration Tuesday for how it could justify its phaseout. He said the government could offer a “coherent” argument for how DACA conflicts with immigration law, or that it violates the president’s constitutional duty to “take Care that the Laws be faithfully executed.”

One prominent law professor, Josh Blackman, has repeatedly urged the Justice Department to make both of those arguments to the courts, but the government’s lawyers have yet to do so. Judge Bates noted Mr. Blackman’s stance in his ruling, but pointedly said the government failed to raise that defense, and it wasn’t his place to make those arguments for the government.

Mr. Blackman, on Twitter, said Judge Bates may have helped the administration by pointing out those issues.

“This is a huge victory for DOJ. By providing a modified justification, this can save the case on appeal,” said Mr. Blackman, a professor at South Texas College of Law.

YoungHegelian said...

@rcocean,

What a piece of ignorant Left-wing poseur shit.

You mean left wing poseur like Justice Renquist? He thought in his book on K. that the decision was correct in terms of non-citizens, but rounding up American citizens without trial was a bridge too far.

What the rest of the world does is its business. They don't have the US Constitution. I'd say that in defense of the 2nd A. & I'll say it about my criticisms of K., too.

tim maguire said...

Blogger rcocean said.... Every country in the world rounds up - or can round up - enemy aliens or potentially traitorous citizens during WAR TIME.

The United States was founded quite intentionally to be different from every other country in the world. Most of us are happy with it that way.

Ken B said...

“Now” know? Didn’t we know from the get-go? Isn’t this transparently bogus lawfare?

traditionalguy said...

No mention was made that Muslims are commited to replacing our laws...all of them since we won’t be around anymore if we’re Christians.

rhhardin said...

There shouldn't even be a court case, and 4 liberal justices support it.

Rule by morons.

Virgil Hilts said...

I love the crazy jewish hypo.
At a press conference, President Roosevelt repeated the unproven claims from his advisers that some Jewish refugees had been coerced to spy for the Nazis. “Not all of them are voluntary spies,” Roosevelt said. “It is rather a horrible story, but in some of the other countries that refugees out of Germany have gone to, especially Jewish refugees, they found a number of definitely proven spies.
https://www.smithsonianmag.com/history/us-government-turned-away-thousands-jewish-refugees-fearing-they-were-nazi-spies-180957324/

Dr Weevil said...

I hope to live long enough to see a Supreme Court decision that includes words along these lines: "Judge X's decision is so obviously defective in every way - legally, constitutionally, stylistically, grammatically, and in relation to ordinary human decency - that we can only suggest that s/he immediately resign, retire, or be impeached and removed by the state legislature. S/he is entirely unqualified to judge the cases that come before his/her court." I'm pretty sure we've already had some judges who have earned such a (what should I call it?) summary judgment.

Ken B said...

Michael K: “ Ann”
We discussed this earlier. Toots, blondie, Althouse, Hot lips, or Darling but not Ann.

rhhardin said...

Maybe we'll get the DACA-aloha act.

rcocean said...

"The United States was founded quite intentionally to be different from every other country in the world. Most of us are happy with it that way."

What a Lame response. Mr. Emo.

Oso Negro said...

@ rhhardin - Moronocracy

Biff said...

The idea that a president's real or assumed deeply held personal views (like those of a hypothetical anti-Semitic president) should be factored into the legality of executive action reminds me of the old questions about whether a Catholic or a Jew should be disqualified from running for president because their religious views might interfere with their ability to execute the laws of the United States. It was a weak idea then, and it's a weak idea now.

Is there a likely scenario where we would be better off trying to place more weight on pop-psychological inferences about presidential motivations than we would be placing it on the actual text of a law, regulation, or order?

Michael K said...

Aside from using the term "Ann" I also omitted the word "blog."

It is an interesting theory, even with the informal form of address to the hostess.

Chuck said...

Dr Weevil said...
I hope to live long enough to see a Supreme Court decision that includes words along these lines: "Judge X's decision is so obviously defective in every way - legally, constitutionally, stylistically, grammatically, and in relation to ordinary human decency - that we can only suggest that s/he immediately resign, retire, or be impeached and removed by the state legislature. S/he is entirely unqualified to judge the cases that come before his/her court." I'm pretty sure we've already had some judges who have earned such a (what should I call it?) summary judgment.


Federal judges CAN be impeached. In the U.S. Senate.

But short of criminal conduct, I'm a little nervous about your suggestion. I wouldn't want a liberal SCOTUS to be able to recommend purging conservative District and Circuit judges.

MikeR said...

Somin at Volokh seems much more unsure about the result.

Anonymous said...

I am thinking Gorsuch will write this opinion. I hope that the court also deals a blow to the overreaching judges who think they can issue a national injunction.

Dr Weevil said...

If we ever have a SCOTUS so far left that it would try to remove lower-court judges for making well-argued and constitutional rulings that would benefit the conservative cause, the American experiment will already be far beyond the point of no return.

Ken B said...

Mike R
Somin lives in a fog of Trump hatred so impenetrable he cannot even tell if it’s day or night.

MikeR said...

"I hope that the court also deals a blow to the overreaching judges who think they can issue a national injunction." I would hope so too, it's become a plague and a political tool, but what would be the grounds? Are lower courts indeed never allowed to do that?

The Godfather said...

What's most important to me is whether more than 5 justices join in an opinion that unequivocally supports the power of the President (ANY President, including THIS ONE) to impose limits on immigration in accordance with statutory law. Judges put a lot of stock in being respected. Up until now, if you're a liberal judge, you get respect from those you care about by blocking Trump. But even liberal judges want to be respected by the Supreme Court. If only the "conservative" Justices vote in favor of the President's order, some/many liberal judges will be able to say that the ruling is not worthy of respect and they can continue to play their role in "The Resistance". But if one or more liberal justices sign on, then the message to the lower levels of the federal judiciary will be that the respectable position is to treat THIS President like ANY President.

Jupiter said...

"Katyal responded that such a ban would pass muster. He reasoned that it wouldn’t be discrimination based on nationality, which immigration laws prohibit, but instead would be an effort to address a fast-moving emergency..."

Did this lying little weasel happen to mention precisely which "immigration laws" "prohibit" the President of the United States from carrying out the duties of his office?

YoungHegelian said...

He reasoned that it wouldn’t be discrimination based on nationality, which immigration laws prohibit

Yes, echoing Jupiter above, what are these laws?

Browndog said...

I used to have ultimate respect for the Law. Then I came to realize that the Law is nothing more than what a judge chooses it to be--plain language/intent be damned.

Inevitable outcome I guess, after judges chose to interpret Marbury v Madison as they having have the ultimate power..."Constitutionally".

Bill said...

Chuck said... While Korematsu hasn't been reversed (probably because we haven't had a declaration of war since December of 1941), it isn't "settled law."

Nitpick: The last declarations of war were in June of 1942.
https://www.senate.gov/pagelayout/history/h_multi_sections_and_teasers/WarDeclarationsbyCongress.htm

Mark said...

I'd expect CJ Roberts to write the main opinion, and I think it will be basically along Mandel lines saying that, where as here, the executive order is supported by facially reasonable grounds, the courts will not second guess the president's national security and foreign policy judgments.

While that might seem like a win, it would be a loss for the office of the president. The proper ruling is that where the president acts in the area of national security and foreign policy, the courts have no jurisdiction to entertain the case at all, and the court will not even examine the grounds to see if they are facially reasonable or not.

Separation of powers means that the judiciary stay out. Period. And if anyone tries to bring an action, to sanction them for filing a frivolous suit.

Chuck said...

Khesanh 0802 said...
I am thinking Gorsuch will write this opinion. I hope that the court also deals a blow to the overreaching judges who think they can issue a national injunction.


Why? That -- "Trump's judge writing the pro-Trump opinion" -- seems like the sort of football-spiking stunt that the Court seeks to avoid.

SCOTUS opinions are generally assigned by the Chief Justice when he is in the majority, or by the most senior Associate Justice when the Chief is in the minority. With some exceptions, as when another Associate Justice says in a close case, "You'll only get my vote if I can write the opinion." There is a wide understanding that Kennedy did something like that in the gay rights cases, although in Windsor and Obergefell Kennedy was in fact the senior most Associate Justice. What's interesting about those cases is that there were no concurrences. Kennedy alone, re-wrote the federal law of gay rights. I have always suspected that Kennedy insisted on it.

Mark said...

Yes, Korematsu offends all sensibility.

That said --

If a government may constitutionally compel a man to be detained in a military camp, made to engage in various labors, eating and sleeping only when allowed, and compelled to go into combat on the field of battle at risk of being maimed or killed, while it also being demanded that he kill the enemy -- is it then wrong to compel that same man to be held in a peaceful detention camp where he is kept safe and alive?

Chuck said...

Bill said...
Chuck said... While Korematsu hasn't been reversed (probably because we haven't had a declaration of war since December of 1941), it isn't "settled law."

Nitpick: The last declarations of war were in June of 1942.
https://www.senate.gov/pagelayout/history/h_multi_sections_and_teasers/WarDeclarationsbyCongress.htm


Thank you. I love stuff like that. Thanks especially for the link.

Goddam Rumanians had it coming for sure!

Mark said...

Roe v Wade is still the law of the land. It is, by now, settled law, I'm afraid. I think the same for Korematsu.

So is Dred Scott, which has never been reversed.

readering said...

In speculating about the author of the majority opinion, keep in mind that Roberts tries to see that all the justices have the same number of majority opinions, give or take one. Since this was in the last batch of argued cases (with two others yesterday), when the court meets to vote and take assignments Friday, things will depend on which three justices have been given fewer assignments than their colleagues.

Mark said...

Yes, Korematsu was disgusting. But if we look at the whole picture, while also condemning it as thoroughly racist, then the rule we end up with is this --

If you are Japanese, then you get a barracks in a detention camp.

If you are white, you get the beaches of Normandy.

Now -- which is worse?

grumpygramps said...

Educate me on DACA: President Obama stated that the Presidency did not give him the authority to authorize the implementation of DACA, yet he issued the proclamation which is used as the genesis of DACA. Thus, if his lack of authority is real, all agencies which implement DACA are acting on their own authority, including the courts which accept suits based upon DACA. How can anyone have standing in any court re DACA, unless the court is acting upon its own authority?? And if the court is acting upon its own authority upon a matter for which it has no basis, it does not represent the constitutional law and need not be honored or, more emphatically, should be demonized.
Where am I wrong...something just does not feel right. Again, educate me.

Mark said...

How can anyone have standing in any court re DACA

Look up "estoppel" and "detrimental reliance."

Gospace said...

Ken B said...
Mike R
Somin lives in a fog of Trump hatred so impenetrable he cannot even tell if it’s day or night.


Said it better than I was going to.

Bay Area Guy said...

Re Korematsu

1. Democrat hero FDR did it. He does not face nearly enough criticism for it.

2. In 1942, after Pearl Harbor, there was legitimate fear that Japan would bomb/invade the West Coast. In hindsight, it's an overreach, but at the time, who knew what was going to happen?

3. The problem with Korematsu was the failure to distinguish between Americans citizens of Japanese descent and Japanese folks who weren't citizens. The former deserved due Constitutional rights; the latter much less so.

4. J. Edgar Hoover opposed it; Governor Earl Warren supported it.

5. Korematsu is mostly dead letter law now, and is moot, so, legally, who cares?

6. As a country, we should pick and choose who visits our country, who gets to stay, how long they stay, and whether they get to become citizens. The Left has distorted this by trying to open up the illegal immigrant floodgates and to thwart enforcement of our immigration laws.

langford peel said...

What is pathetic is that arguments are the only oral that the elitists on this court are ever going to get in their sad nerdy lives.

I post my shit here.

robother said...

I assume SCOTUS will strike down the State of Hawaii's attempt to nullify Trump's immigration order. But any Trump win which is less than 7-2 SCOTUS vote will be spun as a moral defeat.

FIDO said...

So is Dred Scott, which has never been reversed.

Didn't we have a war and an Amendment which put a stake through the heart of that one?

themightypuck said...

How you know you are really at WAR is that the Military doesn't listen to the judges and the judges know not to force the issue.

Molly said...

When Obama utilized "phone and pen" strategy, I believed that he had overstepped exec authority. I was also concerned that this would never be restrained by courts. My most optimistic hope from a Trump presidency is that, as Trump uses this same kind of exec authority it will be restrained, and be restrained, not just by the courts, but by the court of popular opinion. But now I think my most optimistic hope was naive: instead what we are getting is a judicially well defined (and expansive) notion of executive authority. For generations, we relied on "commonsense self-restraint" by Presidents; then with an arc from Clinton-Bush-Obama- Trump) we have executives who deliberately decided to press the boundaries of executive authority and where we have ended up is with a constitutional interpretation (with SC imprimatur) that gives the executive enormous power.

Birkel said...

Nobody can detrimentally rely on an unconstitutional act.

That concept is horse shit on stilts.

What the fucking fuck? Get your head out of your ass.

Birkel said...

Detrimental reliance requires reasonableness. One CANNOT reasonably rely on an unconstitutional act.

Why the fuck does anybody need that fucking explained to them? Damn it!

PackerBronco said...

I'd expect CJ Roberts to write the main opinion, and I think it will be basically along Mandel lines saying that, where as here, the executive order is supported by facially reasonable grounds, the courts will not second guess the president's national security and foreign policy judgments.

If the court is making a determination of whether or not the executive order is on facially reasonable grounds, they ARE second guessing the president even if they decide to uphold him.

buwaya said...

In 1942 it was well known that Japanese residents all over Southeast Asia worked in large numbers for Japanese intelligence or enthusiastically cooperated with invading Japanese forces.

It was a universal observation in the "war stories" of Filipinos and residents of the country - the Japanese servant/driver/photographer shows up after the takeover and he turns out to have been a naval intelligence officer or was now the functionary in charge of civilian rationing. Every wartime memoir, literally every single one, has some variation of this story.

Its not usually known that the Philippines had a largish Japanese population in 1941 - over 30,000 people, the largest number of them in Davao (Duterte's city), at that time it was a center of Japanese settlement. many of these people had been in-country for three decades or more, not unlike their compatriots in the US. The fate of these people is not often discussed. For the most part, it seems they shared the fate of the Japanese garrisons in 1945. My guess is about half survived, mainly in Mindanao.

There were far, far worse things that happened in WWII, a great many perpetrated by US and allied forces, than how the US treated the West Coast Japanese.

Birkel said...
This comment has been removed by the author.
Michael K said...


In 1942 it was well known that Japanese residents all over Southeast Asia worked in large numbers for Japanese intelligence or enthusiastically cooperated with invading Japanese forces.


The Niihau Incident may have had a lot to do with the American suspicion of Japanese aliens and even citizens.

One of the island residents, Hawaiian Howard Kaleohano, watched the plane crash, and being unaware of the nearby attack on the neighboring island, rushed out to help. The pilot emerged rather beaten and groggy. Kaleohano took the pilot’s papers and sidearm, and hefted him away from the wreck. Kaleohano was one of the few island residents to speak English, but Nishikaichi’s English was very rudimentary. A neighbor who’d been born in Japan was summoned to help. This first translator traded only a few words with the pilot before his face was cast in a pallor—like he’d received a terrible shock—and he refused to be part of the strange events.

Next called was Yoshio Harada. He’d been born in the Hawaiian Islands, and was thus a United States citizen. He and his wife, Irene, spoke both Japanese and English. Nichikaichi told the couple about the attack on Oahu, and demanded the return of his weapon and papers. His demands were refused. The Haradas didn’t share the news of the newly started war with the other islanders.


How widely this was reported within the military, I don't know.

cubanbob said...

I'm an immigrant. I never knew I had a constitutional right to immigrate. This whole thing is absurd. If a person is not subject to US authority the whole idea of good reasons or bad reasons from being prevented into the US unless it is in contravention of a US law is absurd. Kagan's hypothetical is silly. It is in my opinion a morally flawed reason for banning entry into the US but FDR did just that in the late 30's. YH nailed it. Korematsu maybe generally considered bad law but it still is the law. Congress should ought to overturn it.

Left Bank of the Charles said...

Where is Gorsuch in all this analysis? Maybe Gorsuch will have another Scalia moment and decide the statute is too badly written to grant the President the authority it purports to grant.

John Pickering said...

From the prog libtard perspective, a verdict for Trump would show the system is working adequately. The first order was badly written, it attracted enough attention to be rewritten, well enough to satisfy judges who wish to preserve the executive prerogative in foreign affairs. That spells rule of law for us libtards and fuckheads, whose care for the Constitution appears alien to some of Ann's readers.


Birkel said...

Left Bank,
Guess what, sad sack Leftist. You lost the election. And this particular statute is exceedingly plain. The language is not difficult.

Maybe you will be able to replace the electorate with new voters. But it won't be happening these next few years.

Gahrie said...

So is Dred Scott, which has never been reversed.

Didn't we have a war and an Amendment which put a stake through the heart of that one?


Yes. The main purpose of the much abused 14th Amendment was to over turn Dred Scott, not to create birthright citizenship or a right to privacy that includes a right to an abortion.

Birkel said...

Yeah, John Pickering, you are a real paragon of constitutional analysis and probity. You think SCOUTS has the authority to inject itself here but that Chevron deference is the right answer.

Let me be clear:
1) Leftist Collectivists think the Court must defer to the unelected bureaucracy that is not constitutionally mandated
-AND-
2) Leftist Collectivists think the Court should inject itself on the enumerated constitutional prerogatives of the other two co-equal branches.

Your arguments amount to "whatever gives my side the most power" and I reject your imposition.

Gahrie said...

If you are Japanese, then you get a barracks in a detention camp.

Japanese Americans fought with distinction and honor in Europe.

If you are white, you get the beaches of Normandy.

Relatively very few.

Murph said...

Did this lying little weasel happen to mention precisely which "immigration laws" "prohibit" the President of the United States from carrying out the duties of his office?

8 U.S.C. 1152(a)(1) provides:
(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.


See here for Josh Blackman's take:
http://joshblackman.com/blog/2017/02/06/the-statutory-legality-of-trumps-executive-order-on-immigration-part-iii/

Gahrie said...

I used to have ultimate respect for the Law. Then I came to realize that the Law is nothing more than what a judge chooses it to be--plain language/intent be damned.

True. And even some who claim to support "the letter of the law" support some of the worst judicial legislation because it favors their beliefs.

Inevitable outcome I guess, after judges chose to interpret Marbury v Madison as they having have the ultimate power..."Constitutionally".

What is worse is that Marbury is a travesty born deliberately of a conflict of interest. It was Marshall's own actions that created the controversy that allowed him to create judicial review.

Michael K said...

Japanese Americans fought with distinction and honor in Europe.

They did and, after 1942 when invasion hysteria subsided, the Japanese Americans were allowed to return. A friend's father had a produce stall in the LA Central Market and the white stall owners kept his stuff for him.

The British evacuated German Jews to Canada as they were afraid that the Jews would support Hitler. That was an even more ridiculous theory,

Max Perutz, father of molecular biology was one.

Gahrie said...

Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title,

So there are exceptions...including the exception that Congress created and that both Obama and Trump used.

Roughcoat said...
This comment has been removed by the author.
Roughcoat said...

The United States was obliged by the protocols of the Geneva Convention, as well as by U.S. law, to intern civilian foreign nationals of an enemy nation resident in the United State. It was thus entirely proper to intern civilian Japanese citizens upon the outbreak and formal declaration of war with Japan. The problem arose with Japanese citizens who were parents of minor children who had been born in the United States and were thus American citizens. These American children had to accompany their parents to the internment camp because it was against the law to separate minors from their parents.

However, the internment of adult Japanese American citizens was a great injustice, for the most part (there were some spies among them, but not many).

The internment of civilian foreign nationals of hostile enemy powers was standard operating procedure for all belligerent nations in WW2. J.G. Ballard wrote a great autobiographical novel about his boyhood experience of internment in China under Japanese occupation: "Empire of the Sun." It was made in a pretty good movie too.

Birkel said...

Murph,

Where is religion mentioned in your excerpt.

Did I miss it?

cubanbob said...

Gahrie said...
If you are Japanese, then you get a barracks in a detention camp.

Japanese Americans fought with distinction and honor in Europe.

If you are white, you get the beaches of Normandy.

Relatively very few."

I knew an old gentleman who passed away a couple of years ago who joined the Army in 1940 and was a medic. He happened to be in Hawaii ( I belive at Schofield Barracks) on December 7th and then had the pleasure of arriving in at France at Normandy. Whenever I feel unlucky, all I have to do is think of him.

cubanbob said...

Blogger Murph said...
Did this lying little weasel happen to mention precisely which "immigration laws" "prohibit" the President of the United States from carrying out the duties of his office?

8 U.S.C. 1152(a)(1) provides:
(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.
(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed."

You may have missed the fact that the executive branch which includes the State Department is invested in the President. The SoS is an arm of the President, not independent of the President. The President sets policy.

Murph said...

Birkel, 8 U.S.C. 1152(a)(1) is not about religion. However, discrimination on the basis of nationality is one of the claims in the case, I believe. Please correct me if I'm wrong.

As Jupiter quoted in an earlier comment:
"Katyal responded that such a ban would pass muster. He reasoned that it wouldn’t be discrimination based on nationality, which immigration laws prohibit, but instead would be an effort to address a fast-moving emergency..." (italics added)

Birkel said...

Murph,
Good, so you are unwilling to make the "Muslim ban" argument. Nice that you acknowledge that issue is settled,

Would you care to continue? Or would you like a gentleman's draw?

Gahrie said...

He happened to be in Hawaii ( I belive at Schofield Barracks) on December 7th and then had the pleasure of arriving in at France at Normandy. Whenever I feel unlucky, all I have to do is think of him.

That's bad..but I can top that. There is a Japanese man that survived both atomic bombings. He was at Hiroshima the day the bomb dropped and survived. He went home to Nagasaki to escape the devastation, only to have the second bomb dropped on him. He lived until 2010.

Murph said...

Hey, cubanbob. Calm down. I'm not arguing for or against. Someone wanted to know what Katyal was referring to. So I provided the cite.

Oh, but since you brought it up & if I understood your comment correctly, please note that your quoted Para. B states, "...to determine the procedures for the processing of immigrant visa applications...." Procedures are not policy. Procedures are administrative.
State can determine the procedures it will use for processing immigrant visa applications pursuant to whatever policy(ies) the President sets.
If that is what you intended to say, my apologies for being so slow on the uptake.

Unknown said...

That there are "justices" who might rule against the president on this makes me very sad for the country.

Birkel said...

I knew a man who landed on June 6th in France, fought his way to the Bulge and marched into Germany. He would never have argued that others had it worse because he wouldn't have mentioned his own service. He would never have mentioned how badly he or others had it through that year plus. You'd have been lucky to get him to say a single word about his military service.

You lot sound morbid.

Murph said...

Birkel, all I have done is quote a statute.

I believe that one of the claims in this case is that the President's policy, if implemented, would in effect be a "Muslim ban," e.g., discrimination on the basis of religion.
There is also, I believe, an alternative claim that its effect would be to discriminate on the basis of nationality, which is prohibited by statute.

I don't see that I've expressed my personal opinion on either of these issues in any of my comments. Please point out where you believe I've done so?

Birkel said...

The position Katyal takes cannot be supported. The law discriminates between countries already. Nationality has always been a basis for discrimination so the statute is willfully misinterpreted and CANNOT mean what Katyal argues it means.

How many immigrants are allowed under current law from each country? QED.

narciso said...

Are we going to address the issue that the statutory language re these seven countries were in the 2016 omnibus, Seth frantzman was one of the few that noticed it.

Michael K said...

"There is a Japanese man that survived both atomic bombings."

I saw an article about him many years ago.

Michael K said...

I knew an old gentleman who passed away a couple of years ago who joined the Army in 1940 and was a medic. He happened to be in Hawaii ( I belive at Schofield Barracks) on December 7th

I had dinner last Thursday with a guy who was a child on Oahu December 7 and who lived near the beach on the windward side.
He was on the beach that morning about 8 AM and saw the Japanese planes come over. He said he could see the pilots' faces they were so low. He was about 5 at the time.

He later had an interesting career in NSA and was in the White House during the Cuban Missile crisis. He said he feels like Forrest Gump sometimes. He was in Berlin when the Wall went up. A colleague of his was kidnapped by the Soviets and never seen again.

narciso said...

Another inconvenient factoid:


https://www.algemeiner.com/2018/04/25/us-diplomat-leading-negotiations-with-europe-on-future-of-iran-deal-jcpoa-is-not-a-treaty-and-has-no-legal-status/

narciso said...

Latyal along with sultan atty Charles swift, was the one that got ubls driver and body guard acquitted.

Char Char Binks said...

A "warm but drizzly day".

Why do reporters still write like they're 19th century novelists, or James Comey? Just give us the relevant facts.

MikeD said...

When did a fabric become a religion? https://www.joann.com/fabric/utility-fabric/muslin/

narciso said...

You assume they know the facts or even are interested in finding them out.

Michael The Magnificent said...

Excuse me while I wait for the pudding to gel before popping the champaign cork.

Seeing Red said...

2. In 1942, after Pearl Harbor, there was legitimate fear that Japan would bomb/invade the West Coast. In hindsight, it's an overreach, but at the time, who knew what was going to happen?



Well, I thought it was found that Japanese saboteurs were setting up safe houses in Mexico.

narciso said...

There was certainly some activity among Japanese nationals so the magic intercepts. But not the is citizens.

Lewis Wetzel said...

Can't we do something about the 9th circuit? It's findings are routinely overruled by the SC. There is something seriously wrong with a court in a nation that is a republic if it believes un-elected judges are empowered to make law.

Gahrie said...

Can't we do something about the 9th circuit?

Trump is about to. There are 7 vacancies now, and another later this year. Putting 8 Gorsuch types on the 9th would be huge.

Joshua Barker said...

Correct me if I'm wrong, but didn't the USSC already rule on this type of issue previously, when they re-affirmed the original law passed by Congress giving the President this power?

Bruce Hayden said...

My reading of the tea leaves, after having perused the transcripts is that the vote right now is likely 5-2, with Breyer and Kagan possibilities on either side. I saw no indication that either Roberts nor Kennedy were thinking about not supporting the President here.

A lot of the time, the rebuttal by Petitioners is fairly pro forma. This time, I thought that it was devastating to the Respondant (Hawaii). The state had argued that Trump's Muslim bias from the campaign had not been explicitly rejected. The SG refuted that - by pointing to him calling it one of the great religions of the world, etc. (I think that Kennedy's previous point that only 8% of the Muslims in the world were affected to be more persuasive). Probably more importantly was his point that Hawaii was arguing that 8 USC 1152 banned visa discrimination by, among other things, national origin (or, more accurately, place of birth). But the US was arguing that the President did have the power under 8 USC 1182. The critical point here is that 1182 comes before 1152. 1182 impacts who gets in the country at all (or, more accurate, and 1152 controls who can stay, and get a resident visa. Hawaii was essentially arguing that the President couldn't exclude entry of any aliens, under a statute that applied only to who could get resident visas.

tim maguire said...

rcocean said...
"The United States was founded quite intentionally to be different from every other country in the world. Most of us are happy with it that way."

What a Lame response. Mr. Emo.


If you had a better response, you would have made it. As it is, you would have been better off keeping quite. Before, I recognized your name. Now I recognize your name as that of an idiot.

Kevin said...

Korematsu maybe generally considered bad law but it still is the law. Congress should ought to overturn it.

They're not going to overturn it. They know in the future they're going to need it again.

How else are they going to justify rounding up the deplorables, however they're defined at the time?

PB said...

It seems well-established the president has the authority to do as he did.. That the ruling won't be 9-0 should be the shocking thing.

Hagar said...

The Japanese internment, etc. happened in wartime. Lots of things happen in wartime that is not tolerated in peacetime.
Perhaps we need to recognize that radical Islam has declared war on us, even though "radical Islam" is not a "state."?

Chuck said...

Birkel said...
Left Bank,
Guess what, sad sack Leftist. You lost the election. And this particular statute is exceedingly plain. The language is not difficult.

Maybe you will be able to replace the electorate with new voters. But it won't be happening these next few years.


It isn't a statute. It's a Presidential Proclamation, following two essentially failed/expired Executive Orders.

The Wikipedia page is short, and clear and very readable:

https://en.wikipedia.org/wiki/Trump_travel_ban

It was the third attempt, with each attempt getting farther and farther away from Trump's own goofball statement about calling for a complete and total shutdown of Muslims entering the United States. In the end, it was a kind of a pointless gesture, security-wise; and completely stripped of anything like a "Muslim ban." It was pure theater. And legally speaking, only made more difficult and complicated (to the extent that it was anything like a serious policy) by Trump's stupid comments.

Birkel said...

Chuck, you dumb fopdoodle piece of shit, the statute in question is the one Congress wrote to give the president power that he exercised. It has been in the news. The Supreme Court of the United States discussed it in oral arguments. Maybe if you weren't such a dumb shit trying to score stupid points on the internet you could quit beclowning yourself.

Go twist an old lady by the arm.

Birkel said...

A good rule of thumb:
Just because somebody else is not commenting about what you think important does not make them wrong.

deepelemblues said...

If this is the new normal where every president's executive authority is relentlessly badgered and even restricted via endless lawsuits, it might be worth it in the end.

But no, what this really is is the attempt to set a precedent that Republican presidents cannot reverse executive policies instituted by Democratic presidents. No more, no less. Republicans are basically second-class citizens anyway, might as well start making it legally official.

President-Mom-Jeans said...

Be a Chad, not a Chuck.