(no subject)
Jun. 28th, 2018 10:17 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
seekingferretGeneral thoughts on Trump v. Hawaii,
I'm broadly more sympathetic to the majority's legal arguments than I am to the minority's, yet I nonetheless feel it was decided wrong. That's a weird place to be.
My sense is that this sort of executive order is well within Presidential authority on immigration, and that the way to stop it legally is through Congressional intervention, not Court intervention. And yet... I think EO-1 had Establishment Clause problems sufficient that it would have failed muster to Justice Roberts and Justice Kennedy and maybe even Justice Thomas at the Supreme Court, and there isn't all that much to distinguish EO-1 and EO-2 besides a little bit of process and the removal of the explicit references to religion. So one is stuck with a messy conflict between proceduralism and one's intuitive sense of moral right. [And look, it's more than just empty proceduralism that puts this power in the president's hand. The balance of powers is finely balanced, though not perfect, and we don't want the courts to be able to have indefinite power to analyze the reasoning behind the President's decisions and conclude that some other order would have accomplished the same policy end in a way the justices prefer.]
Because of my jurisprudential intuitions here, I think there's more to like in Justice Breyer's dissent than Justice Sotomayor's. Sotomayor's dissent is basically "Trump hates Muslims, and said so publicly numerous times, so any law he passes that affects Muslims even if not specifically targeted at Muslims is tainted by this animus and thus is an Establishment Clause violation." I think that's a hard position to accept. There has to be some room for a president to operate, some space where even though he has an expressed animus, the orders he issues are perfectly legal because they would have been perfectly legal if any other president had issued them. Otherwise our legal system is unnavigable, whether a law is viable is dependent on who issued it. But Breyer's dissent makes a clear circumstantial case that the notion of discretionary waivers is a fiction designed to allow the law to look like it's within the norms of acceptable presidential action, and that in practice by mandating that almost no waivers be issued, the administration will make discriminatory animus the unwritten guiding principle of the executive order. Even Breyer admits his case is purely circumstantial, though, and all he asks for in his dissent is a remand to the lower court for further judicial fact-finding.
So this is where I am, with an unhappy sense that the Court is right and a lurking fear that the ruling will lead to great evil and harm. And a deep and futile wish that Congress would get their moral act together and fix this.
I'm broadly more sympathetic to the majority's legal arguments than I am to the minority's, yet I nonetheless feel it was decided wrong. That's a weird place to be.
My sense is that this sort of executive order is well within Presidential authority on immigration, and that the way to stop it legally is through Congressional intervention, not Court intervention. And yet... I think EO-1 had Establishment Clause problems sufficient that it would have failed muster to Justice Roberts and Justice Kennedy and maybe even Justice Thomas at the Supreme Court, and there isn't all that much to distinguish EO-1 and EO-2 besides a little bit of process and the removal of the explicit references to religion. So one is stuck with a messy conflict between proceduralism and one's intuitive sense of moral right. [And look, it's more than just empty proceduralism that puts this power in the president's hand. The balance of powers is finely balanced, though not perfect, and we don't want the courts to be able to have indefinite power to analyze the reasoning behind the President's decisions and conclude that some other order would have accomplished the same policy end in a way the justices prefer.]
Because of my jurisprudential intuitions here, I think there's more to like in Justice Breyer's dissent than Justice Sotomayor's. Sotomayor's dissent is basically "Trump hates Muslims, and said so publicly numerous times, so any law he passes that affects Muslims even if not specifically targeted at Muslims is tainted by this animus and thus is an Establishment Clause violation." I think that's a hard position to accept. There has to be some room for a president to operate, some space where even though he has an expressed animus, the orders he issues are perfectly legal because they would have been perfectly legal if any other president had issued them. Otherwise our legal system is unnavigable, whether a law is viable is dependent on who issued it. But Breyer's dissent makes a clear circumstantial case that the notion of discretionary waivers is a fiction designed to allow the law to look like it's within the norms of acceptable presidential action, and that in practice by mandating that almost no waivers be issued, the administration will make discriminatory animus the unwritten guiding principle of the executive order. Even Breyer admits his case is purely circumstantial, though, and all he asks for in his dissent is a remand to the lower court for further judicial fact-finding.
So this is where I am, with an unhappy sense that the Court is right and a lurking fear that the ruling will lead to great evil and harm. And a deep and futile wish that Congress would get their moral act together and fix this.
(no subject)
Date: 2018-06-28 11:30 pm (UTC)(no subject)
Date: 2018-06-30 02:48 am (UTC)(no subject)
Date: 2018-07-05 02:20 pm (UTC)Ginsburg interprets "when the President first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’" as meaning "Come up with a way for me to create a pretextually legal Muslim ban, but "the right way to do it legally" just as easily suggests "Create a legitimate, legal policy that has the same political effect for me as a Muslim ban would." I think Trump meant the former, and Justice Breyer makes a good circumstantial case for the mechanism by which they intend to enact it, but I think it's hard to ask the Court to interpret it that way on such little evidence. Come back in six months with the proof.