So I just read the whole Muslim ban decision

[The Velveteen Ocelot]

and it's not quite as bad as one might think. It was narrowly decided, as so many of these cases are. It addressed the authority of the president under a specific statute, 8 USC 1182 sec. (f), which says:

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.

The majority interpreted this language literally as giving the executive broad authority to exclude certain classes of entrants. Since the statute is neutral on its face, the court held that excluding entrants from some majority-Muslim countries was within the president's authority under the statute.

The not-so-bad things about the decision, I think, are these: First, the president's authority is based on an act of Congress. Acts of Congress can be changed. If enough Democrats are elected this statute could be amended to narrow the scope of that authority, maybe to include some language requiring the president to justify a decision limiting entrants on the basis of ethnicity or religion.

Second, the court held that the ban was reviewable by the courts, rejecting the government's argument that the court had no jurisdiction to even consider the validity of the ban. This is also a good thing because it means the executive does not have unreviewable authority in these matters.

Third, the court held that the plaintiffs had standing to sue - something else the government argued against (having standing means a plaintiff has to show a specific injury or effect on himself, personally, and not just an interest in a case).

I note also that the court slammed the old Korematsu case (internment of Japanese-Americans in WWII) as "morally repugnant" but said it had nothing to do with this case: "The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission." But I don't think citing this comment will help much with respect to the current immigration mess because of the reference to U.S. citizens.

Clarence Thomas wrote a concurring opinion consisting of a weird rant against district courts granting "universal" injunctions. As far as this case is concerned that wouldn't have any effect as precedent because it wasn't part of the court's holding.

Kennedy's concurring opinion is interesting - I think it's a clear criticism of Trump's anti-Muslim remarks:

The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From these safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.

The dissenters' arguments are basically that the complex system of waivers, as well as Trump's frequently-stated bias against Muslims, should have been taken into consideration and that the court should not have relied on the facially-neutral language of the statute.

In any event, while the decision itself was unfavorable and disappointing (and I'm sure Spanky will crow about it all day), it is both narrow and at least theoretically fixable. Trump is dumb enough to double down and do something that will exceed the limits of this decision, since he won't understand a bit of it.

Here's the whole thing: https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf

[Phoenix61]

1. Thanks for posting this

Slogging through legalese makes my head hurt.

[zipplewrath]

2. And it can be vetoed

The not-so-bad things about the decision, I think, are these: First, the president's authority is based on an act of Congress. Acts of Congress can be changed. If enough Democrats are elected this statute could be amended to narrow the scope of that authority, maybe to include some language requiring the president to justify a decision limiting entrants on the basis of ethnicity or religion.

And such a thing can be vetoed. It could be several election cycles before the democrats are in a position to pass any such legislation. And even then, a democratic president is going to resist having his power reduced.

Until such time that democrats and republicans agree the the president has amassed too much power and work to retrieve their constitutional authority, these kinds of abuses will continue.

[The Velveteen Ocelot]

3. That's true; none of these changes will be quick or easy.

But amending that statute could probably be done in a sneaky, subtle way that Spanky's tiny brain is incapable of processing. It would need only a few words.

[zipplewrath]

5. Trade for a wall?

Actually, I know what you mean. These things are often accomplished by attaching them to much larger issues.

[Starseer]

4. Thank you...

... for this analysis.

I am in agreement that Trump will almost certainly attempt to do something that exceeds this decision's scope, and the lower courts will then act to counter that, relying on the language that such bans are judicially reviewable.

Got to run to class, or would opine further. While this is not the way I would have decided the case if I were sitting, it is, as you rightly point out, bad -- but not as bad as it could have been. Does it mean that I'm happy with it? No. But I am glad that it was decided narrowly.

I have the feeling we are going to see a great many decisions narrowly decided in this way in the coming years.

[lunatica]

21. Welcome to DU

Good observation. I too believe Trump will keep pushing the boundaries. He wants complete power.

I hope a massive stroke that leaves him fully aware is in his future. A complete loss of control would be karmic.

[bettyellen]

6. Thanks VO. I feel slightly less bummed out.

[bdtrppr6]

7. still terrible for the country of the free

but your words helped a little, thank you

[uponit7771]

8. K&R, the third version of the ban isn't as racist as first two so they let it slide

[Equinox Moon]

9. Thanks for your hard work on this, Velveteen!

It is so great when people on DU share their expertise to benefit us all.

[lunatica]

22. That's why I'm here!

[Kind of Blue]

10. Thanks very much for breaking the decision down.

[elleng]

11. THANKS for the work and analysis.

I went for a while, so haven't read any details today. This does sound 'good.'


BOOKMARKING!

[elmac]

12. we must remember

the rightwing fascist racist the gop installed under tRump is as bad as they get and this court is as nothing more then fox news with a robe.

[lame54]

13. Details details...

It's a YUGE win for Trump as we roll into the election
He's gonna get his mileage regardless of those pesky facts
And it definitely doesn't help those kids in cages

[WyLoochka]

14. Thank you for the overview Velveteen

Very helpful start to checking it out myself.

[elmac]

15. the court slammed the old Korematsu case

that was just to sugar coat the big dump they just took on human rights. It had nothing to do with them "having a heart, doing the right thing. They are fascist pigs to the core.

[BadGimp]

16. Thank you for taking the time to read the opinion and sharing your insights!

[7962]

17. I heard someone on the radio saying something similar. You were MUCH easier to understand!!

it seems as though the main thing was that it looked like they didnt consider trumps words prior to becoming president. Because what would be the time limit?

[tavernier]

20. Yes, same on The View.

And it might make some sense if if was implemented under a sane president. Sadly though...

[snacker]

18. Thank you for this explanation.

[Thekaspervote]

19. Thank you.. succinct, easy to read and understand

[treestar]

23. I agree; the only thing I thought off was they believed Spanky

though they might have had some data to back it up. The issues about the country's having security systems that were not up to our standards made it sound neutral and the minions of the Maladministration had enough there; which is unusual. Usually, they just have bluster. We know why Spanky did it, but there was enough to show plausibly it was about national security rather than a strike at Muslims. Maybe adding in NK and Venezuela helped there.

[uponit7771]

27. Yes, that's what I thought ...adding NK and Venezuela tipped the scales away from his

... Muslim ban just being against Muslims which is a slippery slope in and of itself seeing someone has to add a class of people outside of a narrow scope and say "see, no racism here".

But its can be reviewed and congress has ruling, we just need a congress that works.

[The Velveteen Ocelot]

24. When reading Supreme Court opinions it's important to consider not only who won,

but why. The basic difference between conservative judges and liberal ones is that conservative judges tend to look narrowly at a statute or a provision of the Constitution and apply it according to its literal words without considering any outside influences, while liberal judges are more inclined to take note of external matters, such as changes in society since the original law was written, or possible consequences - intended or otherwise. In this case the conservative majority looked only at the statute granting the president the authority to exclude certain people from the country on the basis of national security. Since the statute is facially neutral the court didn't think it was necessary or even appropriate to consider Trump's frequent expressions of hostility toward Muslims, while the liberal dissenters argued that these expressions were relevant to prove unconstitutional discrimination against a particular religion.

Under any other president this decision would not have been especially earth-shattering (and, of course, the case probably wouldn't have existed in the first place); it would have been a typically conservative, scholastic decision in Antonin Scalia's originalist vacuum. The problem isn't just the decision itself; it's the likely consequence of this president almost certainly assuming that the decision gives him completely unbridled authority over all matters relating to immigration. The majority of the court either didn't think it mattered who the president was, or didn't care that Trump would take it as a huge victory and continue to push the envelope. Fortunately there's some mitigating language in the majority opinion, but it might not be enough.

[Persondem]

25. Thank you for taking the time to slog through it. Nice to hear that ...

... there are a few rays of sunshine therein. K & R

[no_hypocrisy]

26. Provided that a Democrat will occupy the WH again, the Executive Order is temporary.

Until then, court cases will try to dilute the effects.

[bluestarone]

28. TYVM! After your review it is easier to swallow!!!

Good thing people like you and others here are around to kinda explain things in legal terms!!!! Again my THANKS goes out to ALL the legal persons on this site!!!!

[Stuart G]

29. Thank You for posting this...k and r...outstanding...nt