Patterico's Pontifications

6/26/2018

Supreme Court Upholds Travel Ban 5-4

Filed under: General — Patterico @ 7:19 am

The opinion is here.

Analysis as I can manage it.

UPDATE: I went straight to the language analyzing what I have discussed here at length: the interplay between 1182 and 1152. Here is the relevant part of the Court’s analysis:

Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once § 1182 sets the boundaries of admissibility into the United States, § 1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility — to which § 1152(a)(1)(A) does not apply — and visa issuance — to which it does — is apparent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry. Had Congress instead intended in § 1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end.

In all the debates over this, I don’t remember anyone making this point, which the Court makes clearly and succinctly, in quite this way. If someone made this simple point, either it was not made clearly, it was buried inside a mass of bad arguments, or (this is possible) I just missed it. (I’d have to be shown clear evidence of that, with a link and a quote, before I believe it.) I don’t understand the nuts and bolts of how immigrants actually enter the country and never pretended to; I deferred to people with greater expertise than I had. And based on the arguments I saw, I always operated under the assumption — which was obviously incorrect — that visa issuance was central to the initial admission of immigrants (i.e. how can they get in without a visa?). Thus, I believed, the two provisions operated in the same sphere. (Recall that I said, over and over, that I am not an immigration law expert and my opinion on the statutory construction could be wrong.) If the two operated in the same sphere, it would be clear that Congress had limited the President’s authority under 1182. Since, as the Court explains today, they operate in different spheres, Congress didn’t.

Breezing through the dissent, I don’t see any significant argument against the Court’s position in this area. (Again, I could be missing it.) I assume it’s right.

That’s good. All I was ever concerned about was the President usurping the authority of Congress. It appears he didn’t. In that case, I revert to what was always my support for the executive order on policy grounds — that support no longer being undermined by concern that it is a power grab from Congress.

UPDATE x2: A quick glance suggests the reasoning behind the rejection of all Trump’s bigoted anti-Muslim statements as a basis to strike down the ban: “we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” That makes perfect sense, and once you realize that is the standard, the answer is clear.

Looks like a good decision at first glance — but again, I have had time only for a glance.

UPDATE x3: This interesting dictum, announced with a flourish, will get some attention once the experts have told the reporters about it:

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and -— to be clear -— “has no place in law under the Constitution.” 323 U.S., at 248 (Jackson, J., dissenting).

Golf clap. As Dan Rather would say: “Courage!”

Prediction: you’ll probably see a debate about whether Korematsu has been “overruled,” with clueless reporters saying it has been, and other people correcting them. (As far as I can tell, it has not been overruled, but I have not had a chance to read the whole opinion so I will refrain from making a pronouncement.)

UPDATE x4: My memory in UPDATE number one may not have been entirely accurate. I was far more steeped in all this at the time and probably should not be writing about this in a hurry. Take literally everything I say in this hastily constructed post with bushfuls of salt. A quick glance (again, glances are all I have time for this morning) at old posts suggests that the distinction between entry and visa did come up, and I quoted one of the experts as making this response, which made sense to me at the time:

Here’s the Goverment’s initial argument on that issue:

Washington argued in district court that the President’s authority under § 1182(f) is limited by 8 U.S.C. § 1152(a)(1)(A), which provides, with certain exceptions, that “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.” But this restriction does not address the President’s authority under § 1182(f) to “suspend the entry” of aliens, which is an entirely different act under the immigration laws. An immigrant visa does not entitle an alien to admission to the United States, and even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010). There is no inconsistency between § 1152(a)(1)(A) and the President’s issuance of the Order under § 1182(f).

I thought Bier disposed of that pretty well in his original op-ed:

Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between “the issuance of a visa” and the “entry” of the immigrant. But this is nonsense. Immigrants cannot legally be issued a visa if they are barred from entry. Thus, all orders under the 1952 law apply equally to entry and visa issuance, as his executive order acknowledges.

As far as the two statutes being “entirely different” acts, I think the point I made in an update to this post and fleshed out in this post has never been rebutted to my satisfaction. Namely:

I have shown that: 1) the two provisions are indeed in conflict when a President issues an order discriminating against immigrants on the basis of nationality or place of residence; 2) the only way to resolve this conflict is to view the President’s power to suspend entry under section 1182(f) as an exception to section 1152(a); and 3) Congress foreclosed the possibility that section 1182(f) functions as such an exception, by listing other exceptions but pointedly refusing to list 1182(f) as one.

This makes sense to me again, as a non-expert. This is why I thought the two were related. I now officially throw up my hands in confusion.

Again: what I say in haste this morning should not be viewed as anything but the opening of a discussion. I don’t have the luxury of reading the whole opinion, going back and looking at my old posts, and coming to a considered decision in this morning post. I have to go to work — right now.

[Cross-posted at The Jury Talks Back.]

Comments (327)

327 Responses to “Supreme Court Upholds Travel Ban 5-4”

Five to four. Do you thank Gorsuch or Trump?
AZ Bob (9a6ada) — 6/26/2018 @ 7:34 am
but

trashcan Sally Yates said it was unconstitutional
happyfeet (28a91b) — 6/26/2018 @ 7:34 am
The rest of the day will be a back and forth between Trump and media (i.e. Dems).
AZ Bob (9a6ada) — 6/26/2018 @ 7:35 am
#1 — It’s Dems vs Repubs

ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
THOMAS, ALITO, and GORSUCH, JJ., joined. KENNEDY, J., and THOMAS,
J., filed concurring opinions.
Appalled (96665e) — 6/26/2018 @ 7:42 am
UPDATE: I went straight to the language analyzing what I have discussed here at length: the interplay between 1182 and 1152. Here is the relevant part of the Court’s analysis:

Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once § 1182 sets the boundaries of admissibility into the United States, § 1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility — to which § 1152(a)(1)(A) does not apply — and visa issuance — to which it does — is apparent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry. Had Congress instead intended in § 1152(a)(1)(A) to constrain the President’s power to determine who may enter the country, it could easily have chosen language directed to that end.

In all the debates over this, I don’t remember anyone making this point, which the Court makes clearly and succinctly, in quite this way. If someone made this simple point, either it was not made clearly, it was buried inside a mass of bad arguments, or (this is possible) I just missed it. (I’d have to be shown clear evidence of that, with a link and a quote, before I believe it.) I don’t understand the nuts and bolts of how immigrants actually enter the country and never pretended to; I deferred to people with greater expertise than I had. And based on the arguments I saw, I always operated under the assumption — which was obviously incorrect — that visa issuance was central to the initial admission of immigrants (i.e. how can they get in without a visa?). Thus, I believed, the two provisions operated in the same sphere. (Recall that I said, over and over, that I am not an immigration law expert and my opinion on the statutory construction could be wrong.) If the two operated in the same sphere, it would be clear that Congress had limited the President’s authority under 1182. Since, as the Court explains today, they operate in different spheres, Congress didn’t.

Breezing through the dissent, I don’t see any significant argument against the Court’s position in this area. (Again, I could be missing it.) I assume it’s right.

That’s good. All I was ever concerned about was the President usurping the authority of Congress. It appears he didn’t. In that case, I revert to what was always my support for the executive order on policy grounds — that support no longer being undermined by concern that it is a power grab from Congress.
Patterico (115b1f) — 6/26/2018 @ 7:43 am
From SCOTUS Blog on National Institute of Family and Life Advocates v. Becerra:

“SCOTUS also held that California law requiring licensed anti-abortion nonprofits to inform pregnant patients about availability of free or low-cost abortions elsewhere likely violates First Amendment; provision requiring unlicensed nonprofits to disclose inability to provide medical help unduly burdens free speech ….”

CA AB Becerra lost.
AZ Bob (9a6ada) — 6/26/2018 @ 7:44 am
I’m glad that they addressed the religious discrimination argument. I’ll need to read it again for the discussion on standing. (I caught that they found standing in relatives but what about the plaintiff State?)
nk (dbc370) — 6/26/2018 @ 7:44 am
I cited a powerline post a couple of days ago that states that illegal entry means you never step foot on American soil. So immediate dismissal isn’t a violation of due process.
NJRob (b00189) — 6/26/2018 @ 7:50 am
UPDATE x2: A quick glance suggests the reasoning behind the rejection of all Trump’s bigoted anti-Muslim statements as a basis to strike down the ban: “we may consider plaintiffs’ extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” That makes perfect sense, and once you realize that is the standard, the answer is clear.

Looks like a good decision at first glance — but again, I have had time only for a glance.
Patterico (115b1f) — 6/26/2018 @ 7:51 am
UPDATE x3: This interesting dictum, announced with a flourish, will get some attention once the experts have told the reporters about it:

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and -— to be clear -— “has no place in law under the Constitution.” 323 U.S., at 248 (Jackson, J., dissenting).

Golf clap. As Dan Rather would say: “Courage!”

Prediction: you’ll probably see a debate about whether Korematsu has been “overruled,” with clueless reporters saying it has been, and other people correcting them. (As far as I can tell, it has not been overruled, but I have not had a chance to read the whole opinion so I will refrain from making a pronouncement.)
Patterico (115b1f) — 6/26/2018 @ 7:57 am
“SCOTUS also held that California law requiring licensed anti-abortion nonprofits to inform pregnant patients about availability of free or low-cost abortions elsewhere likely violates First Amendment; provision requiring unlicensed nonprofits to disclose inability to provide medical help unduly burdens free speech.”

CA fascist law knocked down. This is a more significant ruling about the power of government than the Travel Ban case, which is only about the Resist Movement.
AZ Bob (9a6ada) — 6/26/2018 @ 7:58 am
President Trump’s statements about muslims are a lot less bigoted (measurably less bigoted) than how George W. Bush set in motion the wholesale slaughter of hundreds of thousands of them (including thousands of women and children)

just a useful little compare and contrast exercise there
happyfeet (28a91b) — 6/26/2018 @ 7:58 am
So, now we celebrate 5-4 decision.
Steve57 (0b1dac) — 6/26/2018 @ 8:03 am
UPDATE: At the risk of making a long post even longer and harder to get through, I think that the best argument for the legality of the executive order is the argument (made by my commenter shipwreckedcrew) that the 1965 non-discrimination provision (section 1152(a)) did not explicitly amend the language of the 1952 broad grant of authority to suspend entry pursuant to section 1182(f). Bier argues that, because the 1965 provision came later, it limits the broad grant of authority given in 1952, and did not have to do so explicitly.

I think Bier’s argument is even more persuasive when you note that the non-discrimination provision in section 1152(a) says it applies “[e]xcept as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title.” In other words, Congress carved out specific exceptions to the general nondiscrimination rule, and section 1182(f) was not one of the listed exceptions. That analysis strongly indicates that the rule of section 1182(f) is not an exception to the nondiscrimination rule in section 1152(a).

The counterargument is that if Congress wanted to change the broad grant of authority in section 1182(f), they would have rewritten section 1182(f). I think this is wrong, because lawmakers enact broad principles all the time without specifically rewriting every other previous law to which the broad provision might apply.

https://patterico.com/2017/01/29/responding-to-andrew-mccarthy-on-the-legality-of-trumps-immigration-order/

BuDuh (fc15db) — 6/26/2018 @ 8:07 am
UPDATE x4: My memory in UPDATE number one may not have been entirely accurate. I was far more steeped in all this at the time and probably should not be writing about this in a hurry. Take literally everything I say in this hastily constructed post with bushfuls of salt. A quick glance (again, glances are all I have time for this morning) at old posts suggests that the distinction between entry and visa did come up, and I quoted one of the experts as making this response, which made sense to me at the time:

Here’s the Goverment’s initial argument on that issue:

Washington argued in district court that the President’s authority under § 1182(f) is limited by 8 U.S.C. § 1152(a)(1)(A), which provides, with certain exceptions, that “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.” But this restriction does not address the President’s authority under § 1182(f) to “suspend the entry” of aliens, which is an entirely different act under the immigration laws. An immigrant visa does not entitle an alien to admission to the United States, and even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010). There is no inconsistency between § 1152(a)(1)(A) and the President’s issuance of the Order under § 1182(f).

I thought Bier disposed of that pretty well in his original op-ed:

Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between “the issuance of a visa” and the “entry” of the immigrant. But this is nonsense. Immigrants cannot legally be issued a visa if they are barred from entry. Thus, all orders under the 1952 law apply equally to entry and visa issuance, as his executive order acknowledges.

As far as the two statutes being “entirely different” acts, I think the point I made in an update to this post and fleshed out in this post has never been rebutted to my satisfaction. Namely:

I have shown that: 1) the two provisions are indeed in conflict when a President issues an order discriminating against immigrants on the basis of nationality or place of residence; 2) the only way to resolve this conflict is to view the President’s power to suspend entry under section 1182(f) as an exception to section 1152(a); and 3) Congress foreclosed the possibility that section 1182(f) functions as such an exception, by listing other exceptions but pointedly refusing to list 1182(f) as one.

This makes sense to me again, as a non-expert. This is why I thought the two were related. I now officially throw up my hands in confusion.

Again: what I say in haste this morning should not be viewed as anything but the opening of a discussion. I don’t have the luxury of reading the whole opinion, going back and looking at my old posts, and coming to a considered decision in this morning post. I have to go to work — right now.
Patterico (115b1f) — 6/26/2018 @ 8:08 am
But the Muslim world toward the US and muslim diaspora within the US in the past 17 months has responded to the strong horse, even if it it may be of the flavor of “let’s behave while he tilts at MS-13 and at black sports stars”. In that sense, HF, yes the Trump rhetoric against them has subsided.
urbanleftbehind (cdf37a) — 6/26/2018 @ 8:09 am
Look, you can think entirely differently from me. But the idea we need to ask the permission
of nine judges who we let into country should scare us all.
Steve57 (0b1dac) — 6/26/2018 @ 8:13 am
Thanfully 5 of the nine judges said no you don’t. What should scare us if four said yes.
Steve57 (0b1dac) — 6/26/2018 @ 8:17 am
yes yes Mr. 57 did the opinion show that even one of these corrupt berobed ivy league trash sluts raised even a partial eyebrow at the obscene judicial over-reach of the lower courts?
happyfeet (28a91b) — 6/26/2018 @ 8:20 am
Artifacts. I leave artifacts. Missing letters. Nothing words. I leave them all.
Steve57 (0b1dac) — 6/26/2018 @ 8:22 am
Some interesting comments from The Jury version:

https://patterico.com/jury/2017/01/29/responding-to-andrew-mccarthy-on-the-legality-of-trumps-immigration-order/

Looks like Trump never trampled The Constitution as was bemoaned so much. Maybe this ruling will be a new beginning for all of us.
BuDuh (fc15db) — 6/26/2018 @ 8:24 am
Where is swc?
BuDuh (fc15db) — 6/26/2018 @ 8:29 am
I thought Bier’s piece was persuasive regarding the 1965 Immigration & Nationality Act. Oh well. I always thought the anti-Muslim bias charges were bulls**t. There were 40-some other Muslim-majority nations not on the ban list.
Paul Montagu (00b59c) — 6/26/2018 @ 8:30 am
yes yes in fact President Trump did us a great service by forcing the sleazy supremes to clarify the law in this sphere

so now if pervy Mitt Romney’s boy toy Paul Ryan wants to re-do the law for so terrorists can flood into the country he knows precisely what changes he would need to make
happyfeet (28a91b) — 6/26/2018 @ 8:31 am
actually as seth frantzman, pointed out the seven countries selected came from the statutory language that the 2016 omnibus included, now one might quibble re the elongated period of the pause, but seeing as judge Reinhardt then, judge gee, dispenses with the reading of the law, the 2002 and 2008 statutes in a different case, that may be a moot point, in that way ‘fire and flatulence’ soon to be a 10 part jay roach miniseries, yes he was also behind ‘game change’ the issue is moot
‘
narciso (d1f714) — 6/26/2018 @ 8:35 am
yes, they did address the statutory language, in many places including pg 36, of the decision, hallelujah
narciso (d1f714) — 6/26/2018 @ 8:40 am
correction pg 34, to pretend these classifications materialized out of thin air, well that has been the default sentiment for much commentary,
narciso (d1f714) — 6/26/2018 @ 8:47 am
breyer and Sotomayor’s dissents are entirely nongermain to the substance of the matter, quelle surprise,
narciso (d1f714) — 6/26/2018 @ 8:50 am
Where is swc?

BuDuh (fc15db) — 6/26/2018 @ 8:29 am

He’s in Hawaii, man. Either having fun or dodging lava flows.
Colonel Haiku (59ae41) — 6/26/2018 @ 8:50 am
I couldn’t count the number of times I heard “Trump’s unconstitutional travel ban”.

Now that SCOTUS has ruled it legal would the overturned HI ruling and the objection be unconstitutional or just an overturned argument?
Nate Ogden (9981d4) — 6/26/2018 @ 8:56 am
What Trump promised:

“Donald J. Trump is calling for 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.”

What Trump delivered: pathetic weaksauce, 18 months late

Still no progress on his promises to punish suspected terrorists with brutal forms of torture, and to have the US military summarily execute their wives, mothers and children, either.

Trump: soft on terrorism.

Sad!
Dave (445e97) — 6/26/2018 @ 8:59 am
This, cake ruling, and San Francisco global warming case dismissed; bad week in the courts for the progressive agenda.
Nate Ogden (9981d4) — 6/26/2018 @ 8:59 am
Dave, he’s not been tested to the extent Europe has been tested during his Presidency. It may be calculated by global jihadists that Europe is far easier prey. As of know, one could argue the 7 nation ban might contract into 5 given recent developments.
urbanleftbehind (cdf37a) — 6/26/2018 @ 9:06 am
The local Fox News came on right after soccer was over. They were discussing the decision and the stock footage they were playing was of what I imagine must have been the first day of the Court’s term when the justices all pose together for a group photograph. The camera panned from Roberts smiling, to Gorsuch smiling, to Sotomayor smiling, to Kagan smiling, and then to Justice Ruth Bader Ginsburg — who had a look of absolute bewilderment and terror on her face. It’s as if she is completely senile and had no idea why all these people were taking pictures of her. It’s kind of hard to believe that she is in possession of all her faculties at this point in her life.
JVW (42615e) — 6/26/2018 @ 9:09 am
now we can expand the categories of countries if we see a need for,
narciso (d1f714) — 6/26/2018 @ 9:13 am
Sad!

Dave (445e97) — 6/26/2018 @ 8:59 am

Dave cheers Trump’s bigoted rhetoric.
random viking (6a54c2) — 6/26/2018 @ 9:14 am
Dave cheers Trump’s bigoted rhetoric.

MAGA!
Dave (445e97) — 6/26/2018 @ 9:19 am
Professional grandstander Ted Lieu Tweets that one day the Supreme Court will apologize for this ruling just as they did for Korematsu. But Taxing Ted of Torrance ought to consider that a future Court is far more likely to find itself apologizing for Roe vs. Wade or Grutter vs. Bollinger than it is for pointing out that the President can invoke national security reasons for limiting immigration from certain countries.
JVW (42615e) — 6/26/2018 @ 9:20 am
Meanwhile, Europe is waking up to reality of progressive policy:

“Data made public earlier this year in a German Federal Criminal Police Office report said “39,096 German victims of immigrant crime were registered in 2017, a new high. The number is 23.7 percent higher than in the previous year (31,597),” according to Voice of Europe (VOE).

“This means that every single day around 107 German citizens were and will become victims of crimes with at least one migrant as a suspect, and the trend is rising,” VOE said.

As a result, Dietmar Bartsch of Germany’s leftwing party Die Linke claimed election results that saw long-established parties across the ideological spectrum, including Merkel’s, lose seats were a signal from voters, saying “Berlin, we have a problem … the sense of insecurity in our country has never been so great.”“

https://www.lifezette.com/polizette/angela-merkel-meet-angela-merkel/

….and

“Paying some of the world’s highest income-tax rates has been the cornerstone of Scandinavia’s social contract, with the political consensus in Sweden to save money for when the economy is less healthy. Yet the country is showing strains all too familiar in other parts of Europe with nationalists gaining support and Swedes increasingly questioning the sustainability of their fabled cradle-to-grave welfare system.
Resentment has built over the influx of more than 600,000 immigrants over the past five years, many from war-ravaged countries like Afghanistan and Syria, a huge number for a country of 10 million people.

There are also soaring crime rates, gang violence, complaints about education and pregnant mothers even being turned away from maternity wards due to a lack of capacity. The number of people waiting longer than 90 days for an operation or specialist treatment has tripled over the past four years.
“The Swedish social contract needs to be reformed,” a dozen entrepreneurs including Nordea Bank AB Chairman Bjorn Wahlroos and Kreab Founder Peje Emilsson wrote in an op-ed in the Dagens Industri newspaper on May 31. “Despite high taxes, politics isn’t delivering its part of the contract in important areas. We get poor value for money.”“

https://www.bloombergquint.com/politics/2018/06/26/now-even-swedes-are-questioning-the-welfare-state

No matter where it’s tried, socialism destroys proven cultural norms as well as it depletes individual wealth and independence.
harkin (e5c973) — 6/26/2018 @ 9:24 am
BuDuh,

It was the Trump Administration’s job to provide the legal framework for its Executive Order and to defend it in the various courts. Instead, over the course of several months, the Administration stumbled onto a win.

I’m glad it did win since I support most of its immigration goals, but this is par for the course when it comes to Trump and many of his Administration’s actions. They seem to have no clue about the law or the implementation, so the responses come across as muddled and inconsistent. (The zero tolerance policy on illegal entry had a clear legal basis — thanks to Sessions — but Trump waffled on its implementation so it is another example of Trump’s muddled, inconsistent approach.)

For some, it is enough that Trump says things they like. They aren’t concerned about the legal issues or the implementation of policies because, like Trump himself, they are technicalities to them. I will never be one of those people and I wish Trump wasn’t one, either. I care about the legal issues and how policies are implemented.
DRJ (15874d) — 6/26/2018 @ 9:25 am
Media pushing Korematsu overturned as the main result ignoring the actual ruling.
NJRob (8265a6) — 6/26/2018 @ 9:26 am
well everyone rides their own squirrel, this court gravely erred in boumedienne, a decade ago, even though there was clear evidence, that quirin and eisentrager were relevant
narciso (d1f714) — 6/26/2018 @ 9:29 am
Instead, over the course of several months, the Administration stumbled onto a win.

I look at it as the opposition stumbled into a loss.
BuDuh (fc15db) — 6/26/2018 @ 9:31 am
Winning
WOOP WOOP
mg (9e54f8) — 6/26/2018 @ 9:33 am
I’m here. Doing a bit of reading before I start writing.

IIRC, I pretty much ripped Bier as an pseudo-expert who was pretty much way out of his depth in the arguments he was making based on a very thin resume of having been a junior staffer to one House member of a committee that I cannot even recall.

And, while I don’t think my defense of the Travel Ban was precisely within the four corners of the Sup. Ct.’s opinion, I think it was pretty close as I was the only person here who was convinced that 1152(a)(1)(A) was not a basis to deprive POTUS of the authority conferred by 1182(f).

After I read the opinion, I’m going to go back and look through the old arguments that were made.
shipwreckedcrew (56b591) — 6/26/2018 @ 9:38 am
@40: We need more lawyers to consider a career in politics.
random viking (6a54c2) — 6/26/2018 @ 9:39 am
“cake ruling”

It’s almost like the members of the msm are in a contest in who can portray the cake situation with the least amount of accuracy, especially lately to equate it with the RedHen incident.

The CO baker did not deny service to gays or ask gays to leave his establishment. He sells cakes and cupcakes to gay customers every day. A few of these gay customers who understand the constitution and/or understand he’s a good guy even came to his defense.

What he DID do is decline to decorate a cake in the theme of gay marriage because he feels it is against his faith. Despite this simple fact, news services from CNN to the New York Times (and disingenuous liberals everywhere) continue to portray the situation as refused to bake a cake for gay customers.

For exercising his freedom of religion he was subjected to harassment by not only SJWs but also the state court.

And remember, if Hillary had been elected this baker would have been ruined.
harkin (e5c973) — 6/26/2018 @ 9:40 am
I’m guessing you view the law as a technicality, random viking, but don’t you you like shipwreckedcrew’s opinions? He is a lawyer and he cares about the law.
DRJ (15874d) — 6/26/2018 @ 9:43 am
a future Court is far more likely to find itself apologizing for Roe vs. Wade or Grutter vs. Bollinger

But Grutter contains its own, remarkable, built-in apology:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

This implies that in 10 years from now (Grutter was decided in 2003) racial preferences will become unconstitutional.

Thomas’s dissent is a thing of beauty, demolishing the whole, nasty business in four short sentences:

No one would argue that a university could set up a lower general admissions standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admissions standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.
Dave (445e97) — 6/26/2018 @ 9:45 am
From 2013 to 2015, Mr. Bier drafted immigration legislation as senior policy advisor for Congressman Raúl Labrador, a member and current chairman of the House Judiciary Committee’s Subcommittee on Immigration and Border Security. Previously, he worked as the immigration policy analyst at the Competitive Enterprise Institute and most recently as the director of immigration policy at the Niskanen Center.

That’s — and I went back and looked at my comments about Bier in the Jury thread that the Host linked above.

I pretty much called him a nitwit, non-lawyer, staffer for a GOP back-bencher (Labrador was in his 2nd term when Bier worked for him), whose Op Ed really didn’t deserve to be taken seriously.
shipwreckedcrew (56b591) — 6/26/2018 @ 9:49 am
And I reviewed bier body of work, re the huffington post, and other places, and for characterizing his opposition to any workable screening system I was called ad hominem, I expect it.
Narciso (8e3c50) — 6/26/2018 @ 10:00 am
It’s almost like the members of the msm are in a contest in who can portray the cake situation with the least amount of accuracy, especially lately to equate it with the RedHen incident.

To be fair though, harkin, fellow conservatives aren’t doing us any favors by also portraying this as an issue of cake-baking. For instance, one of the go-to conservative responses to the RedHen incident was “Sarah Huckabee should have asked them to bake a cake.” The sooner we remind everyone this was about decorating, not baking, the easier it will be for us to push forward an ideologically consistent message.
JVW (42615e) — 6/26/2018 @ 10:02 am
I agree with your last sentence but to be honest of all the social media I saw regarding the Red Hen, this was not common at all. Most were fairly clear on the facts.

I saw a lot more pushback with the difference than I did the example you cite.

But I did see a whole lot of stuff like “from the same people who refuse to bake cakes”.
harkin (e5c973) — 6/26/2018 @ 10:06 am
The first and final two sentences from Volokh:

The U.S. has nearly unlimited power to decide when foreigners are admitted to the country, even based on factors (such as ideology, religion, and likely race and sex) that would be unconstitutional as to people already in the country.
[…]
But the Court declined these invitations, and basically reaffirmed the plenary power doctrine, at least when it comes to admission of aliens: All that was needed was a facially plausible reason for the governmental decision, and one was provided here (whether or not it’s the true reason, or a reason to which the policy is narrowly tailored).
Congress — and the President, to the extent Congress delegates some such power to the President (as historically it often has) — gets to decide who comes into the country, with no substantial scrutiny under the Bill of Rights by the courts. One can of course agree or disagree with this, but that’s the heart of the majority’s position.
Paul Montagu (00b59c) — 6/26/2018 @ 10:07 am
I’m guessing you view the law as a technicality, random viking, but don’t you you like shipwreckedcrew’s opinions? He is a lawyer and he cares about the law.

DRJ (15874d) — 6/26/2018 @ 9:43 am

If all lawyers were like swc, we’d have little to worry about. That has nothing to do with what I took (or mistook, possibly) as the gist of your comment which was that a lack of legal knowledge by Trump was a problem.
random viking (6a54c2) — 6/26/2018 @ 10:09 am
“Finally, the dissent invokes Korematsu v. United States, 323 U. S. 214 (1944). Whatever rhetorical advantage the dissent may see in doing so, Korematsu has 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. See post, at 26–28. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation. The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).“

Paint Trump’s order as racist and they say “No, that would be FDR.”

They’re having a bad day.
harkin (e5c973) — 6/26/2018 @ 10:14 am
Furthermore why did they attack miss Nielsen, besides the obvious she made the most cogent argument.
Narciso (2ce53b) — 6/26/2018 @ 10:17 am
I don’t care about Trump’s knowledge. I care that he tries to understand the legal basis and practical impact of what he does, instead of deciding that he is President so he gets to do whatever he wants. I would hope everyone cares about this for every President.
DRJ (15874d) — 6/26/2018 @ 10:26 am
With all the trashing and berating of Trump, for whom I held my nose and voted, whom I’ve applauded whenever he has done the right thing, which has been more often than anyone since perhaps Reagan, and with respect to whom I often cringe, and with all the tsk tsking and finger-wagging at how could I vote for someone like that (I voted for third party candidates in 1976 and 1980 and realized sometime by 1984 that third party votes are generally wasted votes) – EVEN when he was running against Hillary – well, this week with all the 5-4 votes BUT GORSUCH!!!!!! is more than enough justification. I don’t feel great that the decisions were 5-4 but I certainly feel great about the result. And ALL of them would have gone the other way with a Hillary appointee.
Lazlo Toth (18c6f7) — 6/26/2018 @ 10:31 am
Gorsuch is GREAT but Clarence Thomas’s concurrence is the real tour-de-force of powerful reasoning and a STRONG smackdown of lower courts attempting to legislate from the bench.
Dysphoria Sam (312848) — 6/26/2018 @ 10:40 am
The problem with the whole animus argument (at least as presented in this case) is one glaring fact: Politicians Lie.

Trump promised a Muslim ban. But political realities are such that he cannot deliver.

So he ordered what is a fairly reasonable ban based on political instability in certain countries — which was based on determinations made by the Obama Administration. As even Ilya Somin conceded, the same ban enacted by the Obama Administration would have been beyond challenge.

Then Trump brags to his base that he enacted a “Muslim ban” when he did no such thing.

If the Court had gone the other way, that would open the door to judicial scrutiny of political speech. You promised X but delivered Y, well Y has animus because X is bigoted. Especially if you lie and say that you really delivered X. IMO, this is a can of worms the Court did not want to open.
Bored Lawyer (998177) — 6/26/2018 @ 10:42 am
Then Trump brags to his base that he enacted a “Muslim ban” when he did no such thing.

Where do I find quotes of him doing this?
BuDuh (fc15db) — 6/26/2018 @ 10:46 am
In any case, the real scandal is that this decision isn’t 9-0 based on cases like Kleindinst v. Mandel, a good reminder that all liberal Supreme Court justices WILL wipe their butts with the constitution if their party demands it, please wedgie any Merrick Garland supporters in your social circle while if you find the time.
Dysphoria Sam (312848) — 6/26/2018 @ 10:50 am
BUT GORSUCH!!!!!! is more than enough justification.

Trump promised to appoint “pro-life” judges who would overturn Roe v Wade.

Gorsuch may be a fine judge, but he denied being pro-life, and said he accepted Roe v Wade:

Sen. Dick Durbin (D.-Ill.): “And I quote, ‘The intentional taking of human life by private persons is always wrong.’ That was a statement that you included in your book, correct?”

Judge Neil Gorsuch: “I believe so.”

Durbin: “I believe so too. How could you square that statement with legal abortion?”

Gorsuch: “Senator, the book explains the Supreme Court of the United States has held in Roe vs. Wade that a fetus is not a person for purposes of the 14th Amendment. And the book explains that.

Durbin: Do you accept that?

Gorsuch: That’s the law of the land. I accept the law of the land, senator, yes.

Gorsuch insisted, under oath, that Trump didn’t even ask him how he would rule on Roe!

Another flagrantly broken Trump promise.
Dave (445e97) — 6/26/2018 @ 10:50 am
Dave is really butthurt that we have Justice Gorsuch on the bench. So severely conservative, right ConDave.
NJRob (b00189) — 6/26/2018 @ 11:01 am
40 DRJ, do you think Trump is any worse than any president before him or is it the way the establishment and media attack them.

For example when ACA and CLASS Act passed there were major flaws and things that would never work. You seldom heard any of them reported, they just cleaned it up in rule making, even ifor it required rewriting what the law actually said. In regards to the CLASS Act it was so bad they just repealed it. The media never reported on those failures like they do Trump.
Nate Ogden (223c65) — 6/26/2018 @ 11:17 am
Specific example would be what we did with minimum value health plans. We could comply with the law as written and not cover any hospital services or brand name drugs, completely circumventing what they were trying to accomplish with the law. We came up with that work around before the ink was dry. They just went back to rule making and changed the “rules” to require those services. It was never reported as a failure of Obama or the law writers, instead they demonized the industry for circumventing the desired outcome Obama wanted. How dare we try to offer an affordable solution within the law.
Nate Ogden (223c65) — 6/26/2018 @ 11:23 am
That would be logical, why don’t we do such a thing.
Narciso (684c45) — 6/26/2018 @ 11:30 am
Good response to this on Inside Higher Ed. John Banzhaf has a lengthy reply to the article explaining, with cites, a kind of judicial activity which some have called “Trumplaw”. It’s judicial decisions based not on the law, or perhaps in opposition to it, but with the goal of hobbling Trump, results and legality be damned.
Richard Aubrey (10ef71) — 6/26/2018 @ 11:37 am
As clearly as I could tell by reading it, the Court said, in effect, that as long as the President follows proper procedure and makes a reasonable case that isn’t unconstitutional, outside perception of his reasoning isn’t sufficient grounds to overturn it. Nor does the President have to explain every step taken in his decision.

His reasons might be ‘deplorable,’ but that doesn’t matter.
The Dana who isn't an attorney (5ce6d1) — 6/26/2018 @ 11:38 am
JVW wrote:

But Taxing Ted of Torrance ought to consider that a future Court is far more likely to find itself apologizing for Roe vs. Wade or Grutter vs. Bollinger than it is for pointing out that the President can invoke national security reasons for limiting immigration from certain countries.

In Grutter, the Court stated that any such sidestepping of equal protection had to have an end date, and in that decision the Court specified 25 years. Grutter was decided on June 23, 2003, which means that we have but ten years, minus three days, left before it ‘expires.’
The Dana who can count (5ce6d1) — 6/26/2018 @ 11:42 am
Big winners: Swedes and Norwegians, eh, Captain, sir!
DCSCA (797bc0) — 6/26/2018 @ 11:42 am
DCSCA wrote:

Big winners: Swedes and Norwegians, eh, Captain, sir!

Given what Middle Eastern/Muslim immigration has been doing to Sweden, we just might see an increase in Swedes coming to America.

And, really, can having more natural blondes coming here be a bad thing? 🙂
The practical Dana (5ce6d1) — 6/26/2018 @ 11:53 am
And redheads! Gotta have more redheads!
The very practical Dana (5ce6d1) — 6/26/2018 @ 11:54 am
@73/@74. Dana: “Well, as long as the collar and cuffs match.” – James Bond, 007 [Sean Connery] ‘Diamonds Are Forever’ 1971 😉
DCSCA (797bc0) — 6/26/2018 @ 12:00 pm
DCSCA noted:

“Well, as long as the collar and cuffs match.” – James Bond, 007 [Sean Connery] ‘Diamonds Are Forever’ 1971

The old expression was ‘as long as the carpet matches the drapes,’ but I s’pose that the recent popularity of hardwood flooring has impacted that.
The snarky Dana (5ce6d1) — 6/26/2018 @ 12:34 pm
@76. Who’s to argue w/Bond. James Bond. 😉
DCSCA (797bc0) — 6/26/2018 @ 12:37 pm
You can kind of see why they went hi-tech, and brought in a Howard Hughes masque in the movie:
https://supposedlyfun.com/2016/02/08/book-review-diamonds-are-forever-by-ian-fleming/

Is this narrow quotidian pause, caused all this hubbub?
narciso (d1f714) — 6/26/2018 @ 12:49 pm
Another day, which means another day of ConDave’s highly focused dyspeptic outrage.

Go get ‘em, tiger!
Colonel Haiku (59ae41) — 6/26/2018 @ 12:51 pm
Otto’s more clueless than usual, as for disco, he doesn’t come within a parsec of the issue, I marveled the decision actually did this, I doff my cap to justice roberts
narciso (d1f714) — 6/26/2018 @ 12:54 pm
Now on to the next circus:

https://www.realclearinvestigations.com/articles/2018/06/25/the_mysterious_seven_preludes_of_the_fbis_trump-russia_probe.html
narciso (d1f714) — 6/26/2018 @ 12:56 pm
“When President Trump tweeted “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!” the media quickly went ballistic.

Wolf Blitzer, speaking on behalf of CNN, replied: “A lot of his supporters believe that we are the enemy of the American people, and that is really an awful situation. We are not the enemy of the American people. We love the American people.”

The media loves the American people?

The media may love some Americans, but certainly not Trump voters. How else to explain the increasing frequency with which Republicans, and Trump voters specifically, are described on air as racist, Nazis, and undeserving of common courtesy (such as eating a dinner without being harassed)?

During the most recent controversy over family separation at the border, CNN and MSNBC have become a platform such hyperbolic attacks. And while these criticisms often come from guests on these programs, an anchor has yet to step in to try and temper the rhetoric.

MSNBC’s Donny Deutsch said Trump supporters are the “bad guy” in America and are akin to Nazis.

“If we are working towards November, we can no longer say Trump’s the bad guy,” Deutsch said during a recent appearance on Morning Joe. “If you vote for Trump, you’re the bad guy. If you vote for Trump, you are ripping children from parents’ arms. He continued: “If you vote for Trump, then you, the voter, you, not Donald Trump, are standing at the border, like Nazis going, ‘You here, you here.’ I think we now have to flip it and it’s a given, the evilness of Donald Trump. But if you vote, you can no longer separate yourself.”

….”All” Trump supporters are racist, CNN contributor Michaela Angela Davis, recently said: “Tens of millions of people voted for him after he showed his cards for years.” When the anchor, John Berman, asked her to clarify if she’s calling all Trump voters racist, she replied, “Yes, yes.” Labeling almost half the country bigoted did not earn her a rebuke from the hosts or other panelist.

Read it all and watch the montage:

https://news.grabien.com/story-montage-media-turning-trump-voters-public-enemy-no-1
harkin (e5c973) — 6/26/2018 @ 1:01 pm
@80. Oh narcissy, chocolate mousse is too rich, but the lime jello be too green to envy so stay with Oreos and milk but do try the Mississippi mudpie.
DCSCA (797bc0) — 6/26/2018 @ 1:02 pm
so the slutty hawaiian judge and others ended up creating a simple bulletproof roadmap for how you ban people from poophole terror countries
happyfeet (28a91b) — 6/26/2018 @ 1:11 pm
In listening to my local radio pundit this morning. One of the things the pundit jumped on wasn’t so much the ruling and the tightness of the ruling. Rather it was the warning to the district courts in the majority ruling that they can’t place a nationwide injunction against a federal policy and that they need to only rule on the jurisdiction that the courts are authorized to rule in. That the courts said this was something like the 5th or 6th time in as many years the districts have over stepped their judicial bounds and that if it happens again the SCOTUS will step in to reign in the district courts. That language seemed like a serious shot across the bow and no one, at least at 8am PST, seemed to have noticed that little statement and that warning from SCOTUS.

I would ask our fine host what he thinks of that language and does that hurt or help the 3rd branch by the SCOTUS making a comment like that.
Charles (8ffdf1) — 6/26/2018 @ 1:12 pm
thank you Mr. Charles I been wondering about that aspect i was worried they hadn’t addressed the overreach

that’s very heartening, and of course we have President Trump to thank for this
happyfeet (28a91b) — 6/26/2018 @ 1:20 pm
So we can’t have sharia law here now? keith ellison.
no tall heads (376cef) — 6/26/2018 @ 1:23 pm
That language seemed like a serious shot across the bow and no one, at least at 8am PST, seemed to have noticed that little statement and that warning from SCOTUS.

I think that language comes from the concurring opinion from Thomas, not the actual holding from SCOTUS.
BuDuh (fc15db) — 6/26/2018 @ 1:27 pm
White chocolate is a chocolate derivative. It commonly consists of cocoa butter, sugar and milk solids and is characterized by a pale yellow or ivory appearance; vanilla is a common additive.

And it’s Swiss! Sweet, eh, Captain, sir?!!
DCSCA (797bc0) — 6/26/2018 @ 1:32 pm
Well you win three, if one includes the allsup decision

https://mobile.twitter.com/hsu_spencer/status/1011708066545459200/photo/1
narciso (d1f714) — 6/26/2018 @ 1:38 pm
Charles wrote:

In listening to my local radio pundit this morning. One of the things the pundit jumped on wasn’t so much the ruling and the tightness of the ruling. Rather it was the warning to the district courts in the majority ruling that they can’t place a nationwide injunction against a federal policy and that they need to only rule on the jurisdiction that the courts are authorized to rule in. That the courts said this was something like the 5th or 6th time in as many years the districts have over stepped their judicial bounds and that if it happens again the SCOTUS will step in to reign in the district courts. That language seemed like a serious shot across the bow and no one, at least at 8am PST, seemed to have noticed that little statement and that warning from SCOTUS.

That was virtually the entire point of Justice Thomas concurring opinion.

I’ve always wondered how any court can make a ruling that extends beyond its jurisdiction.
The hopeful Dana (5ce6d1) — 6/26/2018 @ 1:38 pm
I was wondering how this decision conforms to the 3rd district, decision, which got the law entirely right.
narciso (d1f714) — 6/26/2018 @ 1:41 pm
Big take-aways from the decision:

(1) Congress could turn all of this upside down tomorrow with new legislation, should it so choose.

(2) In the meantime, though, based on the extremely broad powers Congress has granted the POTUS to address national security concerns, and based further on the extremely broad discretion Congress has given the POTUS in the exercise of those powers, the Court would be satisfied with any facially neutral (non-discriminatory) explanation for what otherwise might look like an unconstitutional purpose to discriminate on the basis of religion. (This thus doesn’t necessarily prevent some future SCOTUS, in a different context not so much the creation of Congress, won’t consider extrinsic evidence like a political candidate’s campaign claims; but they wouldn’t do so in this context, based, says the majority, on its interpretation of the Congressional intention that it not engage in that degree of second-guessing.)

(3) This doesn’t, then, signal any permanent, constitutionally based refusal to consider a POTUS’ subjective intentions and the circumstantial evidence related thereto. Its lasting precedential effect, and its effect in any context other than presidential decisions about immigration visas based on national security grounds, is extremely limited. It is therefore largely a situational victory (relating to only a comparatively small number of potential legal immigrants) whose most important consequence is temporary and mostly political — not a broad constitutional ruling that will empower this or other POTUSes in other contexts.

Within those narrow confines, however, it is a clear win for the Administration.

Trump will doubtless treat it as a full-throated endorsement of him and all his other policies by this five-member majority the SCOTUS, and that’s probably how he actually sees it. He’ll probably claim by tomorrow that this opinion proves there is no collusion with Russia. It’s not that. And the political consequences of the ruling — both Trump’s triumphal spin and the Dems’ apocalyptic hysteria — are indeed likely to be much, much bigger than its actual effect on keeping any particular terrorists from committing any acts detrimental to national security.
Beldar (fa637a) — 6/26/2018 @ 1:48 pm
It is an absolutely classic example of Chief Justice Roberts’ brand of jurisprudence, whose defining feature is a self-imposed judicial modesty — that is, reluctance to make broader rulings than need be — combined with a constant and quite deferential view of the respective roles of the other two branches of constitutional government. This is him being exactly the kind of SCOTUS CJ he promised to be in his confirmation hearings.
Beldar (fa637a) — 6/26/2018 @ 1:51 pm
we can’t rely on the hot and horny men and women of the corrupt fbi to keep us safe from terrorism that’s for sure

so this is an important ruling
happyfeet (28a91b) — 6/26/2018 @ 1:51 pm
Beldam, they already wrote the legislation and its acknowledged in pg 34, ymmv, judge gorton saw it clear in the appeals court decision that was orphaned of course there is conflicts between 1152 and 1182 a there are between the establishment and exercise clauses of the first amendmemt
narciso (d1f714) — 6/26/2018 @ 1:54 pm
Patterico:

I don’t remember anyone making this point, which the Court makes clearly and succinctly, in quite this way. If someone made this simple point, either it was not made clearly, it was buried inside a mass of bad arguments, or (this is possible) I just missed it.

That’s why they’re on the Supreme Court.

Besides every other consideration, there is technical expertise, which maybe is a more important factor in non-constitutional law.

The question is was this missed by everyone, or just the popularizers?

One question is, why was § 1152(a)(1)(A) even needed?
Sammy Finkelman (02a146) — 6/26/2018 @ 1:57 pm
Regarding enjoining the government’s activities outside the judicial district in which suit is brought:

This case’s facts don’t directly raise that question. That’s why C.J. Roberts’ majority opinion doesn’t deal with it, and why it’s only in Thomas’ concurrence (which doesn’t bind anyone to anything or have any precedential effect whatsoever).

Suppose instead that based on this same proclamation, the government had — in defiance of the legal precedent set by the Hawaii district judge’s ruling — taken some action that affected an individual in, say, Minnesota, resulting in the Hawaii plaintiffs and the Minnesota plaintiff jointly asking for government officials to be held in contempt for violating the Hawaii judge’s temporary injunction. That might have raised the question of the permissible extra-judicial district application of a purportedly nationwide injunction. And some day, in some other context, that’s probably going to come up. But it wasn’t the facts here, and the players seeking relief in this particular case didn’t include anyone complaining about the extra-judicial district effect of this preliminary injunction.

All Thomas’ concurrence means, then, is that when and if, in such a case with the right sort of facts and parties, the Court directly takes up this question, the side arguing for the extra-judicial district effect of the injunction will start off with one likely SCOTUS vote in conference against them. And even that’s dependent on Thomas remaining on the Court and not changing his mind. He’s not known for changing his mind, but he is growing quite old.
Beldar (fa637a) — 6/26/2018 @ 1:59 pm
@Dana

The way I was hearing discussion this morning. It seemed to go was that the SCOTUS was tired of folks “court shopping” to find courts and judges sympathetic to the emotional and not the merits. With wondering if Thomas was pushing back at using the courts to legislate and make folks recognize that there are 3 branches and one is just to make the other 2 exact and execute constitutional laws.
Charles (811108) — 6/26/2018 @ 1:59 pm
All I was ever concerned about was the President usurping the authority of Congress

But the thing is, in reality he did, because he did this in circumstances where Congress didn’t imagine.

It was actually within his power but he was not supposed to do that on a whim or for political reasons

By the third iteration, of course, it made more sense.

Justice Kennedy said something about not wanting to overrule the president on national security.
Sammy Finkelman (02a146) — 6/26/2018 @ 2:02 pm
If all lawyers were like swc, we’d have little to worry about.

I’m sure that’s music to swc’s ears.

Maybe we only need one lawyer’s opinion on any subject. I bet a lot of people here would agree with that, too, as long as they agreed with the opinion.
DRJ (15874d) — 6/26/2018 @ 2:05 pm
A wider pause might not pass strict scrutiny, then again it might actually accomplish the goal set forth.
narciso (d1f714) — 6/26/2018 @ 2:06 pm
97 — Actually, Millhouse did make a very similar argument after the first decision that came out of the Washington District Court, and I challenged the Op Ed by Bier in which he waved off the idea that there was any meaningful distinction between limits on admissibility authorized by 1182, and the visa application process to which 1152(a)(1)(A) applied.
shipwreckedcrew (56b591) — 6/26/2018 @ 2:12 pm
The Russian pop star who offered to send prostitutes to Trump’s Moscow hotel room in 2013, and who set up the infamous June 2016 Trump Tower collusion meeting between Manafort, Kushner, Junior and Russian intelligence operatives has released a new video trolling, well, pretty much everyone.

Never-before-seen hidden camera footage from inside Trump’s hotel suite is included!

Recommended for a good laugh….
Dave (445e97) — 6/26/2018 @ 2:15 pm
Are you talking about this comment, swc?

Mr. Trump may want to revive discrimination based on national origin by asserting a distinction between “the issuance of a visa” and the “entry” of the immigrant. But this is nonsense. Immigrants cannot legally be issued a visa if they are barred from entry. Thus, all orders under the 1952 law apply equally to entry and visa issuance, as his executive order acknowledges.

Don’t he and you have that backwards? The law bars discrimination in issuing visas, not in admission to the country. If the law says (as he claims) that someone who is not going to be admitted can’t be issued a visa, that doesn’t turn lawful discrimination in admission into unlawful discrimination in visa issuance. It just means that as a result of this lawful discrimination there is now a non-discriminatory reason why they must be denied visas. I don’t see the problem with that.

Here’s a forinstance. Suppose the following completely hypothetical laws: (1) It is lawful to discriminate on the basis of sex in employment but unlawful to do so in banking; (2) Unemployed people may not have bank accounts. Would you say that as a result of law #2 firing someone because she’s a woman now constitutes unlawful discrimination in banking?! Or that if the bank complies with law #2 by canceling her account it’s violating law #1 by discriminating against her? I don’t think so. Her boss fired her lawfully because he’s not discriminating in banking, and the bank’s reason for canceling her account is completely non-discriminatory. Nor do I see how it would make any difference if the bank is the employer; it’s still entitled to fire her and then cancel her account, even though it can’t cancel the account without firing her. I hope the analogy is clear.

Milhouse (40ca7b) — 2/3/2017 @ 12:59 pm
DRJ (15874d) — 6/26/2018 @ 2:17 pm
“I’m sure that’s music to swc’s ears.

Maybe we only need one lawyer’s opinion on any subject. I bet a lot of people here would agree with that, too, as long as they agreed with the opinion.”

That’s really how you read that? I read it as a commendation of fairness.

I’ve been coming to this board for many years and I don’t think I’ve ever seen one commenter say that they wished one person’s opinion was the end of discussion.

Your analogy hits much closer when applied to the nutbags getting violent over free speech at universities and calling for the ultimate power of Groupthink, which IMHO is the opposite of swc’s philosophy.
harkin (e5c973) — 6/26/2018 @ 2:28 pm
An immigrant visa does not entitle an alien to admission to the United States,

It’s the other way around. A person is not entitled to an immigrant visa unless they are also admissible. Admissibility comes first.

The reason the immigrant (or other)visa was placed first here in that senetnce is that this EO was issued after people already had visas. Even were on the plane.
Sammy Finkelman (02a146) — 6/26/2018 @ 2:28 pm
it goes without saying:

http://thefederalist.com/2018/06/26/dear-judd-and-kumail-you-have-no-idea-what-a-nazi-really-was/#.WzJs8Sqj4AA.twitter
narciso (d1f714) — 6/26/2018 @ 2:37 pm
I’m confused. I thought we were talking about how people feel about lawyers. I don’t think many non-lawyer folks here like lawyers, other than some like swc.
DRJ (15874d) — 6/26/2018 @ 2:38 pm
Am I wrong?
DRJ (15874d) — 6/26/2018 @ 2:39 pm
@101. Maybe we only need one lawyer’s opinion on any subject.

Or no lawyer’s opinion on every subject; one of the great annual joys at Thanksgiving, DRJ, is to place the salt shaker in the center of the table, ask to have it passed and watch private practice lawyer brother argue with his government-employed lawyer spouse on who is closer to it to make the move. Sometimes, it’s a whole billable hour. Thankfully, the gravy remains hot.
DCSCA (797bc0) — 6/26/2018 @ 2:40 pm
I think he makes certain unwarranted assertions, but compare the decision:

https://reason.com/blog/2017/02/06/despite-the-tro-the-legal-arguments-agai
narciso (d1f714) — 6/26/2018 @ 2:40 pm
I had forgotten that North Korea was on the list. I guess we still don’t get many visa applicants from North Korea, but I’d not have been surprised if Trump had directed that it be taken off the list as part of his nose-rubbing and pretend-diplomacy with Little Rocket Man.

*****

Regarding Thomas’ concurrence, on what he refers to as “universal injunctions” (not a phrase I’d have picked): His concluding paragraph essentially concedes that he’s giving a non-binding advisory opinion, no different from, say, a law review article, and definitely not a precedential holding:

In sum, universal injunctions are legally and historically dubious. If federal courts continue to issue them, this Court is duty[-]bound to adjudicate their authority to do so.

This is, in essence, a threat from the parent in the front seat: “Don’t make me stop this car and come back there! Knock it off!” It’s judicial activism in a conservative direction, though, and hence, not CJ Roberts’ style — most of the time.

CJ Roberts, by contrast (with joinders from Kennedy, Alito, Gorsuch, and yes, even Thomas) deals with the question extremely briefly:

Our disposition of the case makes it unnecessary to consider the propriety of the nationwide scope of the injunction issued by the District Court.

As in: We’ve dissolved the damned injunction, so this is not a case in which we’re inclined to worry about whether it could be applied outside Hawaii or the Ninth Circuit. Let’s wait for a case in which the injunction is upheld before we decide whether it applies to Minnesota and Texas too, or not.

*****

And yet:

As Chief Justice, Roberts is also keenly aware, and frequently shows his awareness, of his special job as head of the entire national federal judiciary, not just the SCOTUS. And thus we see these two remarkably inconsistent paragraphs back to back (citations & internal cross-references omitted):

Finally, the dissent invokes Korematsu v. United States. Whatever rhetorical advantage the dissent may see in doing so, Korematsu has 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. The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).

I literally laughed out loud when I read these two juxtaposed paragraphs! If this is indeed a case which Korematsu has nothing to do with, then this is not a case in which Korematsu may properly be formally overruled — that is, declared to be bad law that no longer binds the SCOTUS or any lower federal or state courts.

Yet in the next paragraph, Roberts goes out of his way to say: It’s wrong! That’s just as much of an advisory opinion as anything Thomas wrote about “universal jurisdiction,” then — but it’s for a purpose of rehabilitating the SCOTUS from what Roberts and virtually everyone else concedes was one of its very worst failures to read and apply the Constitution as written.

Were I one of Roberts’ law clerks, I’d tease him about this — provided that I was already in the last month of my tenure as one of his law clerks.
Beldar (169151) — 6/26/2018 @ 2:44 pm
DRJ, you specifically asked me about swc @48:

“but don’t you you like shipwreckedcrew’s opinions?“

I answered your direct question, which I guess was a bad idea since now you twist it @101.

Not being a lawyer myself, I appreciate the legal analysis here from many sources. Did I make that clear? And, lawyers are great at lawyering— beyond that, all bets are off.
random viking (6a54c2) — 6/26/2018 @ 2:46 pm
the general who heads the north Korean security services, was probably given a waiver,
narciso (d1f714) — 6/26/2018 @ 2:52 pm
In the past, lawyers and non-lawyers alike enjoyed talking about legal topics here. No longer, I guess.

It’s interesting to me because I rarely find blogs where doctors and non-doctors talk about medical issues, and I’ve looked. Doctors don’t seem to have any interest in serious discussions about medical issues (as opposed to public policy issues) with laymen. I always thought it was a good sign that lawyers didn’t think everyone needs to be a lawyer to be able to talk about these issues.
DRJ (15874d) — 6/26/2018 @ 2:53 pm
I didn’t twist anything. I said what I thought. You know what? I have no desire to talk to someone who would accuse me of that. Goodbye, sir.
DRJ (15874d) — 6/26/2018 @ 2:55 pm
Dave, you definitely needed to provide trigger warnings for that video (#104). TRIGGER WARNING: Hillary is in it, too!

(Note: Speaking only for myself, I require no trigger warnings for video that includes bikini-clad models jumping on a bed. I will freely assume all such risks, including the risk of their implied micro-aggressions.)
Beldar (fa637a) — 6/26/2018 @ 3:03 pm
In response to BuDuh’s #62 above, which read:

Then Trump brags to his base that he enacted a “Muslim ban” when he did no such thing.

Where do I find quotes of him doing this?

BuDuh (fc15db) — 6/26/2018 @ 10:46 am

Chief Justice Roberts, who is intellectually honest (and therefore scrupulous in describing evidence in the light most favorable to the side arguing its relevance), answered your question in his opinion (slip op. at 27-28, citations omitted):

At the heart of plaintiffs’ case is a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. For example, while a candidate on the campaign trail, the President published a “Statement on Preventing Muslim Immigration” that called for a “total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” That statement remained on his campaign website until May 2017. Then-candidate Trump also stated that “Islam hates us” and asserted that the United States was “having problems with Muslims coming into the country.” Shortly after being elected, when asked whether violence in Europe had affected his plans to “ban Muslim immigration,” the President replied, “You know my plans. All along, I’ve been proven to be right.”

One week after his inauguration, the President issued EO–1. In a television interview, one of the President’s campaign advisers explained that 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.’” The adviser said he assembled a group of Members of Congress and lawyers that “focused on, instead of religion, danger…. [The order] is based on places where there [is] substantial evidence that people are sending terrorists into our country.”

Plaintiffs also note that after issuing EO–2 to replace EO–1, the President expressed regret that his prior order had been “watered down” and called for a “much tougher version” of his “Travel Ban.” Shortly before the release of the Proclamation, he stated that the “travel ban … should be far larger, tougher, and more specific,” but “stupidly that would not be politically correct.” More recently, on November 29, 2017, the President retweeted links to three anti-Muslim propaganda videos. In response to questions about those videos, the President’s deputy press secretary denied that the President thinks Muslims are a threat to the United States, explaining that “the President has been talking about these security issues for years now, from the campaign trail to the White House” and “has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.”

Perhaps you’ve been led to believe otherwise by people who are intellectually dishonest.
Beldar (fa637a) — 6/26/2018 @ 3:13 pm
Maxine waters says when we get the presidency back thanks to all my chillin and ponchos too we just impeach them off the court. if that fails they will just die in office like scalia. As stalin says no man no problem!
no tall heads (051d43) — 6/26/2018 @ 3:18 pm
None of that represents “bragging to his base that he enacted a ‘Muslim Ban'”, Beldar.

Bored lawyer took the time to put “Muslim ban” in quotes, so it must exist somewhere.

Where?

Perhaps you’ve been led to believe otherwise by people who are intellectually dishonest.

Can we search for the answer without you injecting this tripe? Thanks in advance.
BuDuh (fc15db) — 6/26/2018 @ 3:19 pm
Mr. Finkelman wrote (#97) in part:

One question is, why was § 1152(a)(1)(A) even needed?

From the official syllabus, describing Chief Justice Roberts’ opinion on this point:

Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once § 1182 sets the boundaries of admissibility, § 1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality
and other traits.
Beldar (fa637a) — 6/26/2018 @ 3:24 pm
CTRL-F, BuDuh.
Beldar (fa637a) — 6/26/2018 @ 3:24 pm
it’s not pertinent to the law, Korematsu was bad law, because it didn’t make distinctions, between Japanese nationals and 2nd generation americans of Japanese descent,
narciso (d1f714) — 6/26/2018 @ 3:25 pm
At a bare minimum, anyone who is intellectually honest will admit that Trump’s statements about Muslims and immigration are read by people who are genuinely bigots as support for their own positions. That’s not the say thing as saying that Trump is a bigot. It’s not even the same thing as saying that Trump intends for bigots to so read his statements (although I believe that to be the case, as an inference based on circumstantial evidence).

But denying that genuine bigots do indeed take his statements as supportive of their bigoted position is common, and it’s intellectually dishonest. Whether Trump’s a bigot, or intends to appea to bigots, no one who’s intellectually honest can reasonably doubt that real, undisputable bigots celebrate his statements. Are you one such person, BuDuh? I’m not pointing a finger, I’m asking.
Beldar (fa637a) — 6/26/2018 @ 3:29 pm
Why, Beldar? I read the quote. Control F may help cherry pick, but there is nothing in there that backs up what Bored Lawyer claimed happened.

I welcome you to dice out the exact thing that I must be glossing over.
BuDuh (fc15db) — 6/26/2018 @ 3:29 pm
*”… not the same [not “say”] thing as saying that Trump is a bigot,” I meant to write in #125.
Beldar (fa637a) — 6/26/2018 @ 3:29 pm
CTRL-F will find in Chief Justice Roberts’ summary the exact phrase used in quotes by Bored Lawyer.
Beldar (fa637a) — 6/26/2018 @ 3:30 pm
62. Bored Lawyer (998177) — 6/26/2018 @ 10:42 am

The problem with the whole animus argument (at least as presented in this case) is one glaring fact: Politicians Lie.

Trump promised a Muslim ban. But political realities are such that he cannot deliver.

he pulled back from that within days.

It was long gone by the time of the election.

https://www.nytimes.com/2016/10/10/us/politics/transcript-second-debate.html?_r=0

RADDATZ: Thank you, Secretary Clinton.

Mr. Trump, in December, you said this. “Donald J. Trump is calling for 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. We have no choice. We have no choice.” Your running mate said this week that the Muslim ban is no longer your position. Is that correct? And if it is, was it a mistake to have a religious test?

TRUMP: First of all, Captain Khan is an American hero….

…. The Muslim ban is something that in some form has morphed into a extreme vetting from certain areas of the world. Hillary Clinton wants to allow hundreds of thousands — excuse me. Excuse me..

RADDATZ: And why did it morph into that? No, did you — no, answer the question. Do you still believe…

TRUMP: Why don’t you interrupt her? You interrupt me all the time.

RADDATZ: I do.

TRUMP: Why don’t you interrupt her?

RADDATZ: Would you please explain whether or not the Muslim ban still stands?

TRUMP: It’s called extreme vetting. We are going to areas like Syria where they’re coming in by the tens of thousands because of Barack Obama. And Hillary Clinton wants to allow a 550 percent increase over Obama. People are coming into our country like we have no idea who they are, where they are from, what their feelings about our country is, and she wants 550 percent more. This is going to be the great Trojan horse of all time.

We have enough problems in this country. I believe in building safe zones. I believe in having other people pay for them, as an example, the Gulf states, who are not carrying their weight, but they have nothing but money, and take care of people. But I don’t want to have, with all the problems this country has and all of the problems that you see going on, hundreds of thousands of people coming in from Syria when we know nothing about them. We know nothing about their values and we know nothing about their love for our country.

The fact that Trump’s original proposal remaiend on his web site probably doesn’t mean anything. trump maybe occasionally would hint at it, but that wasn’t his position. What he said in a debate should count for more than the archives of his web site.

Trump could be better accused of having done what he did for political reasons – to appear to be fulfilling a campaign promise.

And the thing is, such an accusation would be true, while saying he wanted a Muslim ban would both not be true, and constitutional (if maybe not legal) to do because the first amendment does not apply here. Now a “Muslim ban” would also be very impractical because what do you mean by that?

The court basically ruled that a president could do something for cynical political reasons, so long as it had some plausible basis, because they didn’t want to remove the possibility of Congress granting to a president general discretion to do things to protect the country, because it might actually be necessary one day.

So he ordered what is a fairly reasonable ban based on political instability in certain countries — which was based on determinations made by the Obama Administration. As even Ilya Somin conceded, the same ban enacted by the Obama Administration would have been beyond challenge.

Then Trump brags to his base that he enacted a “Muslim ban” when he did no such thing.

If the Court had gone the other way, that would open the door to judicial scrutiny of political speech. You promised X but delivered Y, well Y has animus because X is bigoted. Especially if you lie and say that you really delivered X. IMO, this is a can of worms the Court did not want to open.
Sammy Finkelman (02a146) — 6/26/2018 @ 3:31 pm
Are you one such person, BuDuh? I’m not pointing a finger, I’m asking.

WTF?

I am asking if a quote is supported and you go to a modified Godwin’s law??

Incredible.
BuDuh (fc15db) — 6/26/2018 @ 3:31 pm
CTRL-F will find in Chief Justice Roberts’ summary the exact phrase used in quotes by Bored Lawyer.

No, it doesn’t.

Please give me a bit of intellectually honest help and cut and paste the quote that you find persuasive. Thanks again.
BuDuh (fc15db) — 6/26/2018 @ 3:33 pm
Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa).

Beldar, you are my savior.
Steve57 (0b1dac) — 6/26/2018 @ 3:33 pm
it was an overbroad characterization, now as pointed out before if he had banned from Indonesia, which is the most populous majority country, or india, that would be something else again, if you banned all travel from Saudi arabia, that would be considered a ban on Islam’s cradle. now can we address what actually is going on, instead of the fever dreams of the ninth circus, judge gorton had no problem, neither did judge kozinski, in large part,
narciso (d1f714) — 6/26/2018 @ 3:34 pm
I have already given you the quotes. You pretending that I haven’t isn’t just intellectually dishonest, it’s plain old garden-variety dishonest, BuDuh. I’m not going to argue further with you; it’s a waste of my time.
Beldar (fa637a) — 6/26/2018 @ 3:35 pm
So he ordered what is a fairly reasonable ban based on political instability in certain countries — which was based on determinations made by the Obama Administration.

The problem was, the Obama Administration listed countries that terrorists (from visa waiver countries) travelled TO – where in some cases theer wouldn’t even be arecord of it, and not countries taht terrorists came FROM It confounded two very different thinmngs.

The opther problem was that the vetting mostly relied on the person’s country of citizenship (not necessariuly the country of residence) telling the United States there was a problem. In most cases they wouldn’t necessarily know. Now there were certain countires you absolutely could not trust, but that doesn’t mean that’s the only way or the best way to find out if somebody is amember of a terrrosist group. For one thing, if somebody is, and they got training, they are not leading any kind of normal life.

As even Ilya Somin conceded, the same ban enacted by the Obama Administration would have been beyond challenge.

Maybe the lawyers wouldn’t have sued, but the Obama Administration wouldn’t have done it. For one thing, it misued a list of countries.

Then Trump brags to his base that he enacted a “Muslim ban” when he did no such thing.

I don’t think he said that, and what he said he did, he didn’t do either.

This was not focused on danger because it didn’t distinguish between countries, like Syria, where terrorists came TO and countries they came FROM
Sammy Finkelman (02a146) — 6/26/2018 @ 3:40 pm
Beldar: trump said he

“focused on, instead of religion, danger…. [The order] is based on places where there [is] substantial evidence that people are sending terrorists into our country.”

It didn’t do that either. No terrorists were being sent from Syria. or from anywhere really at that point.

Pakistan was a place that maybe could qualify.
Sammy Finkelman (02a146) — 6/26/2018 @ 3:43 pm
Beldar, you are something else.

If Patterico is able to rejoin this conversation I hope he points out how many times be and I have debated each other in good faith and left the conversations with zero ill will.

The fact that you have no response to my argument, other than “bigot”(Control-f it), is all anyone needs to know.
BuDuh (fc15db) — 6/26/2018 @ 3:43 pm
The more extended summary of evidence supporting the argument that this was intended by Trump to be a “Muslim ban” appears at pp. 1-6 of Justice Breyer’s dissent, which is filled with further circumstantial support regarding Trump’s underlying intentions. I think it’s actually less, rather than more, convincing than the summary I quoted from CJ Roberts’ opinion above, but it ends with:

Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial factfindings. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assurance that the Proclamation does not rest upon a “Muslim ban,” and the assistance in deciding the issue that answers to the “exemption and waiver” questions may provide, I would send this case back to the District Court for further proceedings.

Fairly read, CJ Roberts’ opinion gives Trump the benefit of the doubt, on grounds that Congress intended for every POTUS to have that benefit. But Roberts’ opinion at least acknowledges — as intellectual integrity requires — that Trump’s comments (himself and through authorized proxies) and his administration’s actions can, at a minimum, be interpreted to be consistent with anti-Muslim bias.
Beldar (fa637a) — 6/26/2018 @ 3:43 pm
at a minimum, be interpreted to be consistent with anti-Muslim bias.

Still doesn’t save Bored Lawyers statement.
BuDuh (fc15db) — 6/26/2018 @ 3:45 pm
Four wheel drive doesn’t mean you won’t get stuck. I just means you’ll get s7uck in worse places.
Steve57 (0b1dac) — 6/26/2018 @ 3:46 pm
*It
Steve57 (0b1dac) — 6/26/2018 @ 3:47 pm
*stuck

Oh the h2ll with it.
Steve57 (0b1dac) — 6/26/2018 @ 3:49 pm
BuDuh, I didn’t call you a bigot. I asked a question in #125, which you still haven’t answered. It was:

Whether Trump’s a bigot, or intends to appea[l] to bigots, no one who’s intellectually honest can reasonably doubt that real, [i]ndisputable bigots celebrate his statements. Are you one such person, BuDuh? I’m not pointing a finger, I’m asking.

You’ve chosen not to answer whether you’re one of those people who doubts that real, indisputable bigots celebrate Trump’s statements. You’ve chosen to pretend that I called you a bigot. That isn’t honest. But I really no longer care about your answer to the question, or frankly, about anything else pertaining to you. I’ll stand on what I’ve written.
Beldar (fa637a) — 6/26/2018 @ 3:53 pm
Beldar, you are something else.

If Patterico is able to rejoin this conversation I hope he points out how many times be and I have debated each other in good faith and left the conversations with zero ill will.

BuDuh, I fully understand your frustration, but Beldar could shoot someone on 5th Avenue, and the host….

Oh, never mind.
random viking (6a54c2) — 6/26/2018 @ 3:55 pm
I’ll stand on what I’ve written.

Wear your hip waders.
BuDuh (fc15db) — 6/26/2018 @ 3:55 pm
it’s strikes me instead of wasting a year, debating angels on a pin, from robart’s concussion:

http://d279m997dpfwgl.cloudfront.net/wp/2017/02/Gorton-order.pdf
narciso (d1f714) — 6/26/2018 @ 3:57 pm
I don’t know it that is true anymore, rv. Beldar’s pseudo doxing of Hoagie foreshadowed something Pat doesn’t want to see on his blog. I think it left an impression.
BuDuh (fc15db) — 6/26/2018 @ 3:58 pm
Donald Trump campaigned on a complete Muslim ban, and 63 million Americans voted for him, and, by extension, that. I agree with the notion that his prejudices led to his decision, but big deal: he is whom the voters chose! If his decisions are based on ‘deplorable’ motives, well the voters have a perfect right to vote for ‘deplorable’ things. It was Mr Trump’s contention that Muslims were a national security threat, per se. It seems that the voters agreed.

The President — his lawyers, really — couched everything in national security terms, and thus everything passed. I have no problem with that whatsoever.
The coldly realistic Dana (5ce6d1) — 6/26/2018 @ 3:58 pm
Mr 57 wrote:

Four wheel drive doesn’t mean you won’t get stuck. I just means you’ll get s7uck in worse places.

That’s why you have a winch and cable mounted on the front.

And a cute little wench in the passenger seat!
The Dana who doesn't own a Jeep (5ce6d1) — 6/26/2018 @ 4:01 pm
Even in his original proposal in 2015, Donald ZTrump indicated that his “muslim ban” was intended to be temporary, and probably wouldn’t be done by the time he was inaugurated president, because he said it should be put in place until we understand what is going on.

So anyone reading it on his web site could reasonably conclude that he wouldn’t do that exactly.

What Trump did was do something cynical, not anti-Muslim, but if it has been anti-Muslim that should not have affected its legality. We can imagine, after all, a death cult.
Sammy Finkelman (02a146) — 6/26/2018 @ 4:02 pm
Re-reading my own question from #143: If you ignore the fact that we were already engaged in a discussion of intellectual honesty, you might have misinterpreted my “one such person” to refer to “real, indisputable bigots.” It didn’t; it referred to the people who are intellectually dishonest by doubting whether real, indisputable bigots celebrate Trump’s statements (like those summarized in the quoted portion from CJ Roberts’ majority opinion).

Regardless, I’ve accused you of nothing. I didn’t bother to ask if you’re a real, indisputable bigot, even if you ignored the context and thought my “one such person” referred to bigots. I did ask if you doubt that real, indisputable bigots celebrate Trump’s statements (like those summarized in the quoted portion from CJ Roberts’ majority opinion). And then I withdrew even that question:

I don’t care about you.
Beldar (fa637a) — 6/26/2018 @ 4:05 pm
Dave, you definitely needed to provide trigger warnings for that video (#104). TRIGGER WARNING: Hillary is in it, too!

SPOILER ALERT
Dave (445e97) — 6/26/2018 @ 4:05 pm
Am I wrong?

Yes.

/hug

🙂
Dave (445e97) — 6/26/2018 @ 4:07 pm
I don’t care about you

That happens when you get stumped.
BuDuh (fc15db) — 6/26/2018 @ 4:08 pm
@144: …would immediately call 911.
random viking (6a54c2) — 6/26/2018 @ 4:10 pm
148. The coldly realistic Dana (5ce6d1) — 6/26/2018 @ 3:58 pm

Donald Trump campaigned on a complete Muslim ban,

No, he didn’t. That was quickly dropped, and later became “extreme vetting”

The lawyers suing went back to those old statements 9and soemtimes some equivical statements later) because they thought it would help them win the case.

But what Trump campaigned on was:

https://www.nytimes.com/2016/10/10/us/politics/transcript-second-debate.html?_r=0

RADDATZ: …..

Mr. Trump, in December, you said this. “Donald J. Trump is calling for 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. We have no choice. We have no choice.” Your running mate said this week that the Muslim ban is no longer your position. Is that correct? And if it is, was it a mistake to have a religious test?

TRUMP: ….The Muslim ban is something that in some form has morphed into a extreme vetting from certain areas of the world….

RADDATZ: And why did it morph into that?

…..

RADDATZ: Would you please explain whether or not the Muslim ban still stands?

TRUMP: It’s called extreme vetting. We are going to areas like Syria where they’re coming in by the tens of thousands because of Barack Obama.

trump also campaigned on safe zones in syria, which he hasn’t done, although some zones are still safe so far.

The only safe zones are places that the U.S. government, or others, are prepared to defend from the Syrian government, and the only places like that are outside of Syria.

If his decisions are based on ‘deplorable’ motives…

they are an abuse of the discretion granted to him by Congress, but the Supreme Court doesn’t want to get into that very much.

It was Mr Trump’s contention that Muslims were a national security threat, per se.

He didn’t say that. He didn’t even say that in his original proposal.
Sammy Finkelman (02a146) — 6/26/2018 @ 4:10 pm
Beldar wrote:

You’ve chosen not to answer whether you’re (BuDuh) one of those people who doubts that real, indisputable bigots celebrate Trump’s statements. You’ve chosen to pretend that I called you a bigot. That isn’t honest. But I really no longer care about your answer to the question, or frankly, about anything else pertaining to you. I’ll stand on what I’ve written.

I will answer that question: of course there are “real, indisputable bigots (who) celebrate Trump’s statements,” just as there are “real, indisputable bigots (who) celebrate” Barack Obama’s or Hillary Clinton’s or Chuck Schumer’s “statements.”

People have an absolute right to take any decisions, and any positions, they want, regardless of their reasoning, and regardless of whether someone else’s notion of bigotry is involved. You might not like that, but do you disagree?
The Dana who lives in the real world (5ce6d1) — 6/26/2018 @ 4:10 pm
Trump was maybe trying to fool bigots, but the actions themselves weren’t exactly bigotry – they were nonsense.
Sammy Finkelman (02a146) — 6/26/2018 @ 4:12 pm
Thank you, real world Dana. That needed to be said.
Colonel Haiku (59ae41) — 6/26/2018 @ 4:12 pm
Now at the time, the statutory language was laid out apriori, one might quibble with some modifications.

To ignore the actual like judge gorton didn’t see any need, to do so, like basing nfib on Obama’s public statements
narciso (d1f714) — 6/26/2018 @ 4:13 pm
Lost in what is posing here as legal “analysis” is the nature of the question as to what was before the Court. And, IMO, the issues were only taken up by the Court at this juncture because of the complete hash that the lower courts had made out of the case in their rush to reach politically charged “conclusions” to undercut what was then a newly elected administration.

The issue before the Court was whether the Prelim Injunction against enforcement of the EO — PENDING TRIAL — was warranted under the facts and arguments presented to the District Court in Hawaii.

What the Court in Hawaii did — following similar folly by the Court in Washington — was to basically conduct “trial by affidavit” in order to reach a conclusion on the issue of “likelihood of success on the merits” as required in the 4 part test for issuing a preliminary injunction.

To accomplish this limited purpose, the district Courts pretty much allowed the parties and amici a “free for all” with regard to affidavits and extra-judicial fact-finding by third parties, presenting the Court a smorgasboard of choices with which to justify what was pretty much a pre-ordained outcome based on political considerations.

The 9th Cir. then took up the circus as a “record”, and allowed dozens of more amici to file briefs, piling on even more dubious information.

So what ultimately made it’s way to the SCOTUS was a mess.

I think Beldar properly cleaned it all up in a manner consistent with his usual approach – decide what needs to be decided, and flush the rest into the Potomac. The opinion ignores for the most part millions of dollars worth of legal analysis presented by dozens of companion briefs because they mostly advanced political agendas under the guise of legal arguments. Roberts correctly noted that the “policy” issues belong to other branches, so those efforts were wasted on SCOTUS.

I disagree with the notice that it’s a decision of little lasting import however. I think it is a bit of a beacon for the current Court sending out a message to the lower courts that they are not an arena for settling policy disputes between the tribes doing battle with each other.
shipwreckedcrew (56b591) — 6/26/2018 @ 4:13 pm
Were I one of Roberts’ law clerks, I’d tease him about this — provided that I was already in the last month of my tenure as one of his law clerks.

May the ghost of Scalia haunt him with visions of drowning in applesauce!
Dave (445e97) — 6/26/2018 @ 4:15 pm
“I think Beldar property credited Roberts with having cleaned it all up in a manner consistent with his usual approach….” is how that sentence should have read.
shipwreckedcrew (56b591) — 6/26/2018 @ 4:15 pm
“I don’t care about you.”

Good Lord! Someone needs a timeout… or a hug 🤗?
Colonel Haiku (59ae41) — 6/26/2018 @ 4:17 pm
“…be interpreted to be consistent with anti-Muslim bias.”

Despite the fact there were how many other predominantly Muslim countries on the restricted list?
Colonel Haiku (59ae41) — 6/26/2018 @ 4:21 pm
@ swc (#163): 😉
Beldar (fa637a) — 6/26/2018 @ 4:28 pm
Where is swc?

BuDuh (fc15db) — 6/26/2018 @ 8:29 am

He’s in Hawaii, man. Either having fun or dodging lava flows.

Colonel Haiku (59ae41) — 6/26/2018 @ 8:50 am

I’m 100% certain he’s not scoping out where Judge Loser is having dinner tonight.
Pinandpuller (e47689) — 6/26/2018 @ 4:29 pm
Who was it here that doubted Sanders story about her family being followed from the RedHen by folks organized by the RH owner to another restaurant, where they were then harassed? Was it Doubting ConDave?

Well, I just watched the proprietor of that other restaurant – one Justin Peery, owner of Good Place Farms Bed and Breakfast – verify the veracity of that claim.
Colonel Haiku (59ae41) — 6/26/2018 @ 4:33 pm
I had forgotten that North Korea was on the list.

Me too, not that visa applicants would exist, so it seems like Trump included NK to defend against being labeled a Muslim bigot, not that it actually stopped his accusers. I’m guessing Trump would let defectors in, thus bypassing the whole process.
Regarding Korematsu, once Roberts said that it had nothing to do with this case, I figured that everything he said afterward was dicta.
Paul Montagu (3b3395) — 6/26/2018 @ 4:34 pm
Despite the fact there were how many other predominantly Muslim countries NOT on the restricted list?
Colonel Haiku (59ae41) — 6/26/2018 @ 4:35 pm
A 57 Islamic nation army couldn’t hold Trump back YMMV
Pinandpuller (e47689) — 6/26/2018 @ 4:36 pm
North Korea, I think, was included as of version 3.0
Sammy Finkelman (02a146) — 6/26/2018 @ 4:36 pm
Despite the fact there were how many other predominantly Muslim countries NOT on the restricted list?

Trump’s fake ban leaves us at the mercy of over 92% of the world’s Muslims!
Dave (445e97) — 6/26/2018 @ 4:36 pm
Regarding Korematsu, what’s going on here that the Supreme Court doesn’t want to officially overrule it? (of course it’s long not been good law)
Sammy Finkelman (02a146) — 6/26/2018 @ 4:37 pm
@ Dana Who (#157): Responding to your closing question, I don’t disagree, and indeed agree. I likewise agree with your previous assertion that there are real, indisputable bigots (or anarchists or other enemies of American constitutional government) who celebrate statements from Obama or either Clinton or (especially) Bernie Sanders for implications beyond that which any of those candidates will admit to having intended. Bernie embraced among his supporters the entire “occupy Wall Street” crowd, even though they’re considerably more radical than he (as part of a top one-percent couple) admits to being.

A hallmark of intellectual honesty is the ability to concisely but fairly summarize someone else’s stated positions, without necessarily thereby agreeing with those positions. The paragraphs I quoted from CJ Roberts’ opinion are his concise summary of why some people infer from Trump’s statements and history that he intended a “Muslim ban,” rather than a “travel ban limited to certain dangerous individuals regardless of their religion,” and they’re stated in a way that even those people would admit is fair.

When someone insists that Trump’s never called for a “travel ban,” though — when he and his authorized proxies have indeed used that exact phrase, and have elsewhere used phrasing which is entirely consistent with that concept — that’s not being intellectually honest.
Beldar (fa637a) — 6/26/2018 @ 4:38 pm
Bah. In #175, I meant to write, “When someone insists that Trump’s never called for a ‘Muslim ban,'” not “‘travel ban.'” Sorry for the confusion.
Beldar (fa637a) — 6/26/2018 @ 4:39 pm
PDF of the case (via althouse)

https://www.supremecourt.gov/opinions/17pdf/17-965_h315.pdf
Sammy Finkelman (02a146) — 6/26/2018 @ 4:40 pm
When someone insists that Trump’s never called for a “travel ban,”

Who did this?
BuDuh (fc15db) — 6/26/2018 @ 4:40 pm
Some people in Venezuela are also in version 3.0
Sammy Finkelman (02a146) — 6/26/2018 @ 4:41 pm
Regarding Korematsu, what’s going on here that the Supreme Court doesn’t want to officially overrule it? (of course it’s long not been good law)

IANAL, but as I understand it, courts only take up cases where someone can claim actual harm.

Does anyone have standing to challenge Korematsu today?
Dave (445e97) — 6/26/2018 @ 4:41 pm
I missed that as well, Beldar. Wasn’t trying to be snarky.

When someone insists that Trump’s never called for a “[Muslim] ban,”

Who did this?
BuDuh (fc15db) — 6/26/2018 @ 4:42 pm
The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).

Pfft. And in another oops, those-dead-guys-got-it-wrong-story…

After 350 Years, Vatican Says Galileo Was Right: It Moves

https://www.nytimes.com/1992/10/31/world/after-350-years-vatican-says-galileo-was-right-it-moves.html

______

124.it’s not pertinent to the law, Korematsu was bad law, because it didn’t make distinctions, between Japanese nationals and 2nd generation americans of Japanese descent,

Meh. That’s easy to assert in the America of 2018. Real life isn’t that cut and dried.

You’d likely get a pretty strong argument in any business or bar across America in ’44 or from second shifters at Lockheed in the years after PH, Wake and Bataan as that bloody war was still raging and Japanese attrocites revealed. Look up the history of the U.S. Army’s 442nd; there’s a reason they fought so hard for the United States– with distinction; for redemption– and were highly decorated and rightly rewarded.

It’s hard for most of us today to really grasp the actualities of day to day life through those terrible times. Roberts has the luxury of 75 years of hindsight and the good fortune to born in 1955. My late grandmother steadfastly refused to purchase anything ‘made in Japan’ well into the late 1960’s. Nothing in her home was from there until her TV set finally went. As youngsters we thought it odd but in time, understood. She was a first generation American w/German ancestry, too, her father- a German-born barber, settled in Pittsburgh- having endured the wrath of racial slurs and had his business trashed by patriotic ‘Americans’ during WW1 and in his later years, his ‘loyalty’ questioned again in WW2–even as other family members were toiling at J&L Steel to make the metal for American ships, tanks and planes.

You can say the interment camps were wrong now but understand the motives behind them in the context of the times.
DCSCA (797bc0) — 6/26/2018 @ 4:42 pm
Trump reversed himself, and even when he first proposed it, he said it should last only “until our country’s representatives can figure out what the hell is going on.”

It was a travel ban but it was no Muslim ban long befre Election Day.
Sammy Finkelman (02a146) — 6/26/2018 @ 4:43 pm
The Japanese in the USA had mostly arrived before 1907.
Sammy Finkelman (02a146) — 6/26/2018 @ 4:44 pm
Trump’s grandfather changed his name
Sammy Finkelman (02a146) — 6/26/2018 @ 4:44 pm
Mr Montagu wrote:

had forgotten that North Korea was on the list.

Me too, not that visa applicants would exist, so it seems like Trump included NK to defend against being labeled a Muslim bigot, not that it actually stopped his accusers. I’m guessing Trump would let defectors in, thus bypassing the whole process.

Venezuela was on the list as well, though in more restricted terms, to ban socialist government people.
The diplomatic Dana (5ce6d1) — 6/26/2018 @ 4:47 pm
BuDuh, I fully understand your frustration, but Beldar could shoot someone on 5th Avenue, and the host….

How many “confirmed kills” do you have again, Beldar?

I can never remember.

🙂
Dave (445e97) — 6/26/2018 @ 4:48 pm
ConDave’s concern for national security is duly noted.
Colonel Haiku (59ae41) — 6/26/2018 @ 4:52 pm
Here is the progression of intellectual honesty.

Bored Lawyer writes:

Then Trump brags to his base that he enacted a “Muslim ban” when he did no such thing.

I ask:

Where do I find quotes of him doing this?

And Beldar goes hog wild trying to prove that “Muslim ban” was said.

This is a comprehension problem at best and dishonesty at worst.
BuDuh (fc15db) — 6/26/2018 @ 4:54 pm
Beldar wrote:

I likewise agree with your previous assertion that there are real, indisputable bigots (or anarchists or other enemies of American constitutional government) who celebrate statements from Obama or either Clinton or (especially) Bernie Sanders for implications beyond that which any of those candidates will admit to having intended.

You are being too kind, sir. The lovely Mrs Clinton admitted that she expected bigotry to work in her favor, when she declared that white women who voted against her had ‘disrespected themselves.’ She anticipated that more women would voter for her simply because she was (purportedly) a woman, and Mr Trump was (indisputably) a man.

It has to be stated, clearly: the expectation that various demographic groups simply owe their votes to Democrats is just another form of bigotry.
The not very diplomatic Dana (5ce6d1) — 6/26/2018 @ 4:55 pm
Yes, and that’s still not right on the law, disco, now Dr had a longstanding anti Japanese animus that went back to the 20s, general Hewitt wee a jackals and earl warren as governor, exhibited the same results based jurispridence.
narciso (d1f714) — 6/26/2018 @ 5:00 pm
High threat levels and poor vetting process are the qualifications to be placed on that list.
Colonel Haiku (59ae41) — 6/26/2018 @ 5:01 pm
It has to be stated, clearly: the expectation that various demographic groups simply owe their votes to Democrats is just another form of bigotry.

I don’t think that’s correct. “Bigotry” implies intolerance, not merely disagreement or stereotyped assumptions.
Dave (445e97) — 6/26/2018 @ 5:04 pm
DRJ (15874d) — 6/26/2018 @ 2:39 pm

Speaking for myself alone, I regard lawyers as being no different from other educated persons in that they have vices and virtues, and tend to use and abuse mental capacity – just like non-lawyers. I have never bought into the vulgar concepts associated with lawyers.

I do note that most lawyers can be identified as “different” by their tendency to employ their hard-won vocabulary and mental acuity effortlessly in conversation, which can sometimes seem adversarial or even hostile to those unfamiliar with trial lawyers in specific, and to a lesser degree, with the other types of lawyers. YMMV.
felipe (023cc9) — 6/26/2018 @ 5:04 pm
Dave

I thought I might take a little time today and drop off some spicy facts to go in your Hate Trump Stew (feeds 40-50 million):

“The treatment of children in Mexico is appalling…Louis Garcia from the National Human Rights Commission explained that in 2012 5 out of 10 children suffered some form of violence, and in 2013 the rate was 7 out of 10. And he asked, “What will happen where there are 10 out of 10?”

The maelstrom of sexual violence against children has grown relentlessly in family and school environments, he warned. For experts the lack of a national reporting on cases on violations of children is a serious omission…

In the first quarter of 2014 allegations of sexual abuse against minors in Mexico increased 73% compared to 2013. This is according to data from 24 states.

According to the Organization for Economic Development Mexico ranks first in rates of physical violence, sexual abuse and homicide of children younger than 14. Mexico ranks second in money generated through sex-trafficking of minors, reporting US $24 Billion per year…Thailand ranks first in child pornography while Mexico ranks second…

A lot of Mexicans beat, abuse sexually assault and rape their children. So the question is, well can’t they stop? Well if they can stop, and they don’t stop, then they have agency and they’re morally culpable, and it seems to me hard to say, sort of hard to make the case as to why the US taxpayer should be forced to pay for the effects of voluntary child abuse enacted in Mexico.

Stefan Molyneaux Freedomain Radio episode #4123
Pinandpuller (e47689) — 6/26/2018 @ 5:05 pm
“Korematsu was bad law, because it didn’t make distinctions, between Japanese nationals and 2nd generation americans of Japanese descent”

The next big tiff may be on whether the US can make distinctions between actual Chinese agents and Americans of Chinese descent who may be acted upon by those agents due to a sense of national/racial pride, threats to family remaining in-country, threats to cut their businesses out of the motherland if they don’t pull the intelligence they want them to, etc.

Declaiming Korematsu as ‘overruled in the court of history’ is silly, as the court of war, which deals with operational possibilities and impossibilities over legal balancing acts, will always rule against you no matter how much you voice your disgust afterwards.
Dysphoria Sam (312848) — 6/26/2018 @ 5:09 pm
For exercising his freedom of religion he was subjected to harassment by not only SJWs but also the state court.

And remember, if Hillary had been elected this baker would have been ruined.

harkin (e5c973) — 6/26/2018 @ 9:40 am

It’s like SHS went to The Red Hen on her birthday and asked the staff to sing God Bless the USA.
Pinandpuller (e47689) — 6/26/2018 @ 5:10 pm
You might want to hold off on Korematsu as long as America is Dar al Harb. There’s a federal judge behind every blade of grass.
Pinandpuller (e47689) — 6/26/2018 @ 5:11 pm
@191. Pfft. Try pitching that woo in a Honolulu bar in ’44 or to the families of the 2,403 dead Americans at Pearl Harbor from the ’41 attack. Then watch your azz handed to you. War shaped the context of the times.
DCSCA (797bc0) — 6/26/2018 @ 5:14 pm
Gorsuch insisted, under oath, that Trump didn’t even ask him how he would rule on Roe!

Another flagrantly broken Trump promise.

Dave (445e97) — 6/26/2018 @ 10:50 am

A 3/5 compromise.
Pinandpuller (e47689) — 6/26/2018 @ 5:17 pm
Its the law, disco, to assume apriori that every Japanes American was disloyal is truly prejudice, to assume that no American of Muslim descent is capable of such is also prejudging.
narciso (d1f714) — 6/26/2018 @ 5:22 pm
Roberts has finally ruled right
Thank God he has now seen the light!
The Muzzies are banned
Ain’t that just grand?
It’s about time that our might made right!
The Limerick Avenger (5ce6d1) — 6/26/2018 @ 5:27 pm
Hey Dave, do you “like” immigrants or “like like” immigrants?

Calais aid workers volunteering in the Jungle have been accused of having sex with migrants, some of whom are believed to be underage, according to a whistle blower.

The revelations have caused a furious row on Facebook, with some volunteers claiming the allegations should have remained secret and criticised the whistle blower for expressing his concerns.

According to the whistle blower, some volunteers avail of the service of the Jungle camp prostitutes, while others have multiple partners in one day

Dailymail
Pinandpuller (e47689) — 6/26/2018 @ 5:27 pm
OT, but Trumpy: [Virginia U.S. District] Judge [who earlier voiced doubts about Mueller’s authority] denies Manafort’s motion to dismiss indictment. The judge in the D.C. case had already denied Mueller’s parallel motion there.

This proves once again that it is unwise to predict results based on questions asked by a judge during oral argument.

“Manafort, Andy McCarthy, most impacted” should be the sub-head.
Beldar (fa637a) — 6/26/2018 @ 5:29 pm
Dave is personally ineffectual but, like Maxine Waters, loves it when he hears stories of his New Nation Of Immigrants prevents the people he hates from acting like a Nation of Natives.
Dysphoria Sam (312848) — 6/26/2018 @ 5:29 pm
@191. Pfft. Try pitching that woo in a Honolulu bar in ’44 or to the families of the 2,403 dead Americans at Pearl Harbor from the ’41 attack. Then watch your azz handed to you. War shaped the context of the times.

DCSCA (797bc0) — 6/26/2018 @ 5:14 pm

Seizing their land and property and not returning it isn’t what I would call cricket though.
Pinandpuller (e47689) — 6/26/2018 @ 5:30 pm
OT

Beldar (fa637a) — 6/26/2018 @ 5:29 pm

HOW DARE YOU, SIR!!!
Pinandpuller (e47689) — 6/26/2018 @ 5:31 pm
Further to #204, here’s the opinion, to save you the PACER fees I know you were all willing, even eager, to incur just to read it.
Beldar (fa637a) — 6/26/2018 @ 5:33 pm
your inherent rights
which Americans cherish
are under attack
Colonel Haiku (2601c0) — 6/26/2018 @ 5:34 pm
204 — Beldar, can you point out where McCarthy predicted that Judge Ellis would dismiss the indictment of Manafort?
shipwreckedcrew (56b591) — 6/26/2018 @ 5:38 pm
activist Left says
others are not free to move
or associate
Colonel Haiku (2601c0) — 6/26/2018 @ 5:38 pm
No justice impacted, Beldar and the worst of it, was thiae vultures Friedman and sugar were a party to it.

Well see if justice matters in the flynn case in three days.
narciso (d1f714) — 6/26/2018 @ 5:38 pm
@ swc (#210): No, I can’t, and I didn’t say that he did. Did I?

But I can point to, and have linked, one opinion from this second U.S. District Judge who has disagreed with McCarthy that the original appointment of Mueller was legally inadequate to justify Mueller’s authority to indict Manafort.
Beldar (fa637a) — 6/26/2018 @ 5:41 pm
I thought I might take a little time today and drop off some spicy facts to go in your Hate Trump Stew (feeds 40-50 million)

Not sure what point you’re trying to make, but significant areas of Mexico are effectively combat-zones where war rages between drug cartels and the government, and the law has no purchase.

The fact that the police and government are unequal to the challenges is likely a very important factor. Rapes, for instance, are almost never prosecuted; thus the law has little deterrent effect as it would in a better-governed/policed country.

If the suggestion is that Mexicans are intrinsically more prone to commit crime, I would say you have not even begun to control for other highly significant variables.
Dave (445e97) — 6/26/2018 @ 5:45 pm
@201. Narcissy, there was a world war raging; a war emergency; blood, death, destruction, spies, sabotage… telegrams fo mthe War Department… real world stuff. So your assertions are easy to make from the safe perch of 2018 w/o any consideration of the context of the times. If you said that in 1944 with Japanese-Americans safe and sound in a California interment camp while kids were fighting and dying on Tarawa, Kwajalein and Saipan you’d have had your head handed to you. Understand your POV from 2018 but try to grasp the POV in 1944 WW2 America.
DCSCA (797bc0) — 6/26/2018 @ 5:45 pm
My greater disappointment with Mr. McCarthy, which has led me to now discount almost everything he writes, stems from his repeated argument — which I believed — that the way Loretta Lynch effectively ensured that the “fix would be in” on the Clinton emails investigation was by assigning it to the EDNY, which was run by Lynch’s Obama-appointed successor as U.S. Attorney and populated by highly politicized prosecutors whom she had hired. The IG’s report confirmed none of that, and is inconsistent with it. My opinion of Mr. McCarthy has, accordingly, dropped, and I now take everything he writes with considerable skepticism.
Beldar (fa637a) — 6/26/2018 @ 5:46 pm
Seizing their land and property and not returning it isn’t what I would call cricket though.

War is hell, PP.
DCSCA (797bc0) — 6/26/2018 @ 5:46 pm
You don’t share their opinions or politics, you aren’t protected by the Bill of Rights. Their views are protected by the First Amendment. Your views are “hate speech”. The Second Amendment covers their security details. You can’t be trusted to have a gun at home. They say people who disagree with them no longer have freedom of movement or association. You just try it and happen to be known to the public, you are subject to being surrounded by mobs, hounded and threatened.

There are those who scoff at these attempts to force the new rules on people. Just wait until they are used on them and listen for teh squeeeee that results.
Colonel Haiku (2601c0) — 6/26/2018 @ 5:49 pm
Something the IG’s report did confirm is that the FBI will not release the Lynch files to members of Congress, even those with top security clearances.
Colonel Haiku (2601c0) — 6/26/2018 @ 5:52 pm
I think McCarthy has been largely consistent, and I agree with him, that Rosenstein’s appointment in May 2017, was deficient under the requirements of the regulation.

But the regulations expressly provide no rights to third parties, so the violation of the regulation isn’t a basis upon which an indicted defendant can seek to basis a claim for relief.

I must say that I initially agreed with your view that because the regulation does not require the AG/AAG to publicize the crime being investigated, and because I — like you — assumed that there was in existence a criminal investigation of Flynn in May 2017 related to his contacts with Russian government officials, that was a sufficient basis upon which to appoint a SC to investigate both the criminality and the counter-intelligence investigation identified by Comey.

But the revelations of the past few months about whether or not the FBI agents who interviewed Flynn were of the view that he had lied to them, calls that earlier conclusion of your’s — which I accepted — into question.

We don’t know right now if there was a criminal investigation of Flynn open in May 2017 when Comey was fired. Right now I think its open to debate whether or not the view on Flynn’s interview changed only after the SC was appointed, and his more “aggressive” prosecutors took over in search of potential cooperators.

If the view of the FBI in May of 2017 was that Flynn had not committed a 1001 violation in his interview, then what was the “criminal” basis for the appointment of a SC?

I think Judge Ellis light a path on this question, with some of the questions that he posed in the hearing, and I don’t think the issue is necessarily concluded just yet.

I have a conspiratorial thought kicking around in my head that the events surrounding Comey’s firing and the appointment of Mueller by Rosenstein were much more orchestrated in advance that is now publicly known. I think after March 17, 2017, Comey, Rosenstein and McCabe “game-planned” out a set of possible eventualities that might lead to Comey’s firing, and what the plan of action would be in the event that happened.

I think the closed Manafort investigation was viewed by them as a vehicle to be used to jump-start a SC counsel investigation — giving them an immediate basis to make use of the GJ once Mueller had a couple of members of his team in place.
shipwreckedcrew (56b591) — 6/26/2018 @ 5:55 pm
“Here’s One Unverified File the Feds Won’t Leak: About Loretta Lynch. “The FBI had little problem leaking ‘unverified’ dirt from Russian sources on Donald Trump and his campaign aides – and even basing FISA wiretaps on it. But according to the Justice Department’s inspector general, the bureau is refusing to allow even members of Congress with top security clearance to see intercepted material alleging political interference by President Obama’s attorney general, Loretta Lynch.”

https://www.realclearinvestigations.com/articles/2018/06/25/heres_one_unverified_leak_the_feds_wont_make_about_loretta_lynch_.html
Colonel Haiku (2601c0) — 6/26/2018 @ 5:55 pm
The FBI had little problem leaking ‘unverified’ dirt from Russian sources on Donald Trump and his campaign aides

The Steele dossier was not a government document, and the FBI did not “leak” it.
Dave (445e97) — 6/26/2018 @ 6:00 pm
Steele dossier.

Yes,
Steve57 (0b1dac) — 6/26/2018 @ 6:07 pm
“And before Election Day, the F.B.I. reached an agreement to pay Mr. Steele to continue his research, though that plan was scrapped after the dossier was published. During the presidential transition, senior American intelligence officials briefed Mr. Trump and President Barack Obama on the dossier.”

Source: ConDave’s go-to dog trainer… https://www.nytimes.com/2017/10/25/us/politics/steele-dossier-trump-expained.html
Colonel Haiku (2601c0) — 6/26/2018 @ 6:10 pm
@ swc (#220): I agree with you that the issue is not yet concluded: Manafort’s motions to dismiss have now been denied in both EDVA and DDC, by two different district judges, and Manafort will go to trial in both venues. If convicted in either, he can again make these arguments on appeal, and if the appellate court(s) agree with the district court(s), he can seek certiorari. But Manafort is 0 for 2 in the district court, including before one district judge who made a series of (what I thought and think were wildly intemperate) comments at the oral hearing on the motion to dismiss about the supposed political nature of this prosecution.

Judge Ellis’ concluding paragraph in today’s opinion contains more grumbling, and a ridiculous footnote addressed, one supposes, to Congress, suggesting the creation of an independent commission with subpoena power:

In sum, dismissal of the Superseding Indictment on the grounds urged by defendant is not warranted here. But that conclusion should not be read as approval of the practice of appointing Special Counsel to prosecute cases of alleged high-level misconduct. Here, we have a prosecution of a campaign official, not a government official, for acts that occurred well before the Presidential election. To be sure, it is plausible, indeed ultimately persuasive here, to argue that the investigation and prosecution has some relevance to the election which occurred months if not years after the alleged misconduct. But in the end, that fact does not warrant dismissal of the Superseding Indictment. The Constitution’s system of checks and balances, reflected to some extent in the regulations at issue, are designed to ensure that no single individual or branch of government has plenary or absolute power. The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance.27 This case is a reminder that ultimately, our system of checks and balances and limitations on each branch’s powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law. Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people. Although this case will continue, those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecutions.

But whatever Judge Ellis’ instincts at the oral hearing may have been, when it came time for him (assisted, no doubt, by one or more law clerks) to write up the decision, he wasn’t willing to distort the law to reach the result Manafort wanted. He ended up instead reaching the same result, largely using the same reasoning, as DDC Judge Amy Berman Jackson reached in mid-May on the parallel motion to dismiss there. We’ll see if he restrains himself from further grumbling in front of the jury; I suspect he will.
Beldar (fa637a) — 6/26/2018 @ 6:11 pm
I’m thinking of buying an x1/9 corenello, Are they all equally bad or can you recommend a year?

http://www.fazaabarth.info/FAZA1.html
Steve57 (0b1dac) — 6/26/2018 @ 6:16 pm
“And before Election Day, the F.B.I. reached an agreement to pay Mr. Steele to continue his research, though that plan was scrapped after the dossier was published. During the presidential transition, senior American intelligence officials briefed Mr. Trump and President Barack Obama on the dossier.”

None of which in any way refutes my statement:

The Steele dossier was not a government document, and the FBI did not “leak” it.
Dave (c6fdae) — 6/26/2018 @ 6:16 pm
The Steele dossier was incorporated into not one but two official documents the for a warrant and the intelligence estimate.
Narciso (bcb83f) — 6/26/2018 @ 6:17 pm
Of course they did, and Steele used some of the same sources like Waldman who Warner used to negotiate with assuange,

https://bigleaguepolitics.com/lef
Narciso (bcb83f) — 6/26/2018 @ 6:25 pm
‘Twould seem that our hard working host
Seeking talent that this site could boast
Ignores what is here
Beldar it’s clear
Has contributions which would be the most!
The Limerick Avenger (5ce6d1) — 6/26/2018 @ 6:25 pm
https://2.bp.blogspot.com/_FoXyvaPSnVk/SO6h5d4QURI/AAAAAAAA-ak/bSR9cR0GQVE/w1200-h628-p-nu/Fiat-X19-0.JPG

I would never do this, coronello, Still, I find it funny.
Steve57 (0b1dac) — 6/26/2018 @ 6:26 pm
The bible was incorporated into the Scopes Trial, does that make the bible a government document?
Davethulhu (aa7e8c) — 6/26/2018 @ 6:26 pm
OK, maybe I would.
Steve57 (0b1dac) — 6/26/2018 @ 6:29 pm
It’s not a crazy theory, shipwrecked seeing as Yates and Eisenstein were part of the insurance project, now mind you this is months before Horowitz is appointed and strzok relocated.
Narciso (bcb83f) — 6/26/2018 @ 6:31 pm
The bible was incorporated into the Scopes Trial, does that make the bible a government document?

Davethulhu (aa7e8c) — 6/26/2018 @ 6:26 pm

Dave sets up straw man. Davethulhu deftly knocks it down.

Who asserted the Steele dossier (or the Bible) was a government document?
random viking (6a54c2) — 6/26/2018 @ 6:35 pm
The voices in his fillings, unverifiable grade d material is not for distribution.
Narciso (bcb83f) — 6/26/2018 @ 6:43 pm
“I’m thinking of buying an x1/9 corenello, Are they all equally bad or can you recommend a year?”

My first new car – and still one of my faves – was a 1974 X1/9… I’ve also owned an ’86 – bought after I got the sports car bug again as a result of buying our oldest son a Miata – which I followed up on by buying #2 son a ’76 X from a 75 year old guy over in Santa Cruz a few months later. I now own an ’81 that I bought off a friend up in Oregon – the late Mark Plaia – that has been described thusly… “As it’s current owner will attest, Mark’s meticulous attention to detail made that one of the best streetable fuel injected X1/9s ever. ”

“Bad”? If by that you mean prone to rust, not more than the majority of other cars made in the 70s and 80s…

“As the X1/9 moto myths live on in the minds of moto heads that have never owned an x1/9 for any significant amount of time or wrenched on and x1/9 with any depth or proper technical understanding of the engineering and design that makes an X1/9 what it is.

*Most common mis-conception of the X1/9, Rust. Fact is all cars built and designed from this era has rust and corrosion problems. This is due to the rust and corrosion prevention technology-methods common to ALL pressed steel steel production cars and low volume tube frame speciality cars. Take any production car designed-built from that era, have a good look under skin to discover extensive rust-corrosion unless a particular vintage vehicle has been cared for and stored with great consideration to rust-corrosion prevention. Not mentioned is the fact Bertone continued to improve rust-corrosion protection of X1/9 bodies over it’s production life. When Bertone took over total production of the X1/9 about 1979-80, Bertone began using the identical rust-corrosion protection systems they were using for low volume production of BMW, Volvo, VW, Lambo and many other speciality cars.
BTW, the “Legendary” Lancia Stratos which is made in the same Bertone plant with the same presses and same rust-corrosion protection methods rust much the same as the X1/9. Only difference here is the moto folks perception of the Stratos being “Special” thus deserves special attention and discounting of the fact the Stratos and many similar special vehicles suffer from rust-corrosion as the X1/9… and Do not think or believe German cars like Porsche, Mercedes, BMW are immune from the ravages of rust-corroson as they have the same rust-corrosion problems.

*Cog timing belt used in the legendary Lamprei designed SOHC engine was among the very first high volume production engines to use this then new technology. There are many millions of these FIAT cog timing belt engines built and many more millions of then on the road today. Timing belt failures in this FIAT engine is directly due to owner-driver neglect and abuse of NOT following recommended timing belt changes about 50,000 miles. The Ferrari V8 from this era used the same cog belt drive system for it’s cam drive. Soon after many other car brands from AUDI to Volvo began using timing belts which also failed in the identical way due to lack of proper maintenance by owner-driver.”

As for “Un-reliable” Fiat…

“Ponder for a moment why there are still many, many millions of these FIAT power trains still on the roads today in some of the worst maintenance and driver-owner abused conditions on the planet?

As for why the Lampredi designed SOHC engine is so excellent, consider it’s bore diameter, stroke and connection rod to stroke ratio. Then consider the thin wall cast iron block with Siamesed cylinders and extremely rigid crank support design. The cylinder head and have surprisingly good gas flow allowing this mid 1960’s design to produce nee one Bhp per cubic inch normally aspirated with little difficulty.

The rear suspension of the 1500cc, 5speed X1/9 can accept nee 1000 Bhp with NO modifications. This is due to the grafting of the Lancia Montecarlo rear suspension that was intended for a V6 on to the X1/9. Majority of cars moto folks modify by upping the output of the power train usually results in major strengthening modifications to the chassis-body and overall structure of the target vehicle. For the X1/9, few if any major chassis-body modifications are needed for absurd increases in power train output.

Do not believe this, there is a drag racing X1/9 in Isreal that has precisely this much power from a turbocharged Fiat-Lancia based twin cam with associated gear box.

Most common power train modification today is the Honda K20-K24 engine with Honda gear box. With a properly set up suspension and upgraded brakes, the results are quite remarkable and what the X1/9 should have been allowed to be since it’s design intended…”

https://bringatrailer.com/2018/03/28/why-we-love-them-fiat-bertone-x1-9/
Colonel Haiku (2601c0) — 6/26/2018 @ 7:16 pm
Judge Ellis: ‘Do not read my endorsement of the law in this particular case as an endorsement of the prosecution.’

Beldar:

“Judge Ellis’ concluding paragraph in today’s opinion contains more grumbling”

“We’ll see if he restrains himself from further grumbling in front of the jury; I suspect he will.”

‘YEAH, GRUMBLE-BOY, YOU GONNA GRUMBLE ALL DAY, YOU LOST! ALL THAT MATTERS IS THAT YOU SIGN THE OPINION ON THE LINE THAT IS DOTTED! YOU HEAR ME, YOU FU…’

After all this time in the comment section playing Kevin Spacey’s character in Glengarry Glenn Ross, it’s nice to know that Beldar is fully capable of playing Alec Baldwin’s character in Glengarry Glen Ross when he actually think’s he’s going to win…and that both attitudes are just as much a work as any of his previous schtick.
Dysphoria Sam (312848) — 6/26/2018 @ 7:26 pm
I’m confused. I thought we were talking about how people feel about lawyers. I don’t think many non-lawyer folks here like lawyers, other than some like swc.

DRJ (15874d) — 6/26/2018 @ 2:38 pm

I think it’s just fine to dislike the lawyer class if you treat individual lawyers fairly on an, um, case by case basis.
Pinandpuller (e47689) — 6/26/2018 @ 7:28 pm
“The bible was incorporated into the Scopes Trial, does that make the bible a government document?”

I’m pretty sure Clarence Darrow didn’t pay God to write it up.
harkin (e5c973) — 6/26/2018 @ 7:28 pm
Or no lawyer’s opinion on every subject; one of the great annual joys at Thanksgiving, DRJ, is to place the salt shaker in the center of the table, ask to have it passed and watch private practice lawyer brother argue with his government-employed lawyer spouse on who is closer to it to make the move. Sometimes, it’s a whole billable hour. Thankfully, the gravy remains hot.

DCSCA (797bc0) — 6/26/2018 @ 2:40 pm

Do non familial aliens have standing to ask for the salt?
Pinandpuller (e47689) — 6/26/2018 @ 7:31 pm
The Warren Commission won’t release The Bible until 2050!
Pinandpuller (e47689) — 6/26/2018 @ 7:32 pm
@235 Who asserted the Steele dossier (or the Bible) was a government document?

Haiku @221, Narcisso @228
Davethulhu (aa7e8c) — 6/26/2018 @ 7:32 pm
Who asserted the Steele dossier (or the Bible) was a government document?

Haiku did, by suggesting the FBI “leaked” its contents:

The FBI had little problem leaking ‘unverified’ dirt from Russian sources on Donald Trump and his campaign aides – and even basing FISA wiretaps on it.

The Steele report was neither classified, nor of government origin; “leaking” would require it to be at least one of those things.
Dave (c6fdae) — 6/26/2018 @ 7:33 pm
Were I one of Roberts’ law clerks, I’d tease him about this — provided that I was already in the last month of my tenure as one of his law clerks.

Beldar (169151) — 6/26/2018 @ 2:44 pm

I have a buddy in a NH congressional office who will yell “F*ck you, Chief Justice Roberts!” for a case of beer.
Pinandpuller (e47689) — 6/26/2018 @ 7:35 pm
Haiku did, by suggesting the FBI “leaked” its contents:

Bullschiff… no where did I say it was a “government document”… the FBI had access to it, as the articles I linked mentioned
Colonel Haiku (2601c0) — 6/26/2018 @ 7:37 pm
Not being a lawyer myself, I appreciate the legal analysis here from many sources. Did I make that clear? And, lawyers are great at lawyering— beyond that, all bets are off.

random viking (6a54c2) — 6/26/2018 @ 2:46 pm

If we don’t keep importing lawyers who will file our briefs and sue our children?
Pinandpuller (e47689) — 6/26/2018 @ 7:37 pm
Queens decided to send a real socialist to Congress
https://mobile.twitter.com/ShaneGoldmacher/status/1011784732584136705/photo/1
kishnevi (9052c0) — 6/26/2018 @ 7:38 pm
@235

I think you can add Harkin @240, since he seems to think that the FBI paid for it.
Davethulhu (aa7e8c) — 6/26/2018 @ 7:40 pm
But denying that genuine bigots do indeed take his statements as supportive of their bigoted position is common, and it’s intellectually dishonest. Whether Trump’s a bigot, or intends to appea to bigots, no one who’s intellectually honest can reasonably doubt that real, undisputable bigots celebrate his statements. Are you one such person, BuDuh? I’m not pointing a finger, I’m asking.

Beldar (fa637a) — 6/26/2018 @ 3:29 pm

Isn’t the art of Forensics based on the assumption that one may argue both sides of the same facts?
Pinandpuller (e47689) — 6/26/2018 @ 7:42 pm
Once it was handed over the bureau, they put a top secret stamp on it, hence clapper leaking it had the allure of secret info, it became part of the fisa warrant, also with a narrow distribution list, this is why sally Yates could play the game of telegram. It became part of the national intelligence estimate, recall what happened when Cheney declassified a part
narciso (d1f714) — 6/26/2018 @ 7:46 pm
@241. There’s always an objection of some sort, PP.
DCSCA (797bc0) — 6/26/2018 @ 7:47 pm
Donald Trump campaigned on a complete Muslim ban, and 63 million Americans voted for him, and, by extension, that. I agree with the notion that his prejudices led to his decision, but big deal: he is whom the voters chose! If his decisions are based on ‘deplorable’ motives, well the voters have a perfect right to vote for ‘deplorable’ things. It was Mr Trump’s contention that Muslims were a national security threat, per se. It seems that the voters agreed.

The President — his lawyers, really — couched everything in national security terms, and thus everything passed. I have no problem with that whatsoever.

The coldly realistic Dana (5ce6d1) — 6/26/2018 @ 3:58 pm

Chancellor Angela Merkel’s Christian Democratic Union (CDU) took 33 per cent of the vote, down 8.5 points from the last election, and its former coalition partners the Social Democratic Party (SPD) only nabbed 20 per cent – meaning both parties saw their worst results since since 1949.

Source
Pinandpuller (e47689) — 6/26/2018 @ 7:54 pm
Gee that old la sal passed great…
Pinandpuller (e47689) — 6/26/2018 @ 7:55 pm
Once it was handed over the bureau, they put a top secret stamp on it

oh really?
Davethulhu (aa7e8c) — 6/26/2018 @ 7:55 pm
249. “I think you can add The Washington Post and CNN, since they seem to think that the FBI paid for it.”

Fyp

“Washington (CNN)The FBI reimbursed some expenses of the former British intelligence operative who produced a dossier containing allegations of President Donald Trump’s ties to Russia, people familiar with the matter said.

The short-lived arrangement before the US election ended abruptly in part because of the frustration of Christopher Steele, the former MI6 spy, that the FBI wasn’t doing enough to investigate the Trump-Russia ties.
The Washington Post first reported Tuesday that the FBI and Steele had sought to reach a payment arrangement.

An official familiar with the discussions said the FBI didn’t hire Steele as an informant, but that the arrangement instead allowed for expenses to be paid. It couldn’t be learned how much he was paid and for how long.”
harkin (e5c973) — 6/26/2018 @ 7:56 pm
244 Dave, it was evidence in an investigation, evidence can be leaked.
Nate Ogden (223c65) — 6/26/2018 @ 7:58 pm
Does anyone have standing to challenge Korematsu today?

Dave (445e97) — 6/26/2018 @ 4:41 pm

Kubota can knock it down.
Pinandpuller (e47689) — 6/26/2018 @ 8:03 pm
ConDave’s notions of ownership are out of whack. Teh guy didn’t understand the FBI owned documents/memos that the fired-for-cause James Comey had no legal right to.
Colonel Haiku (2601c0) — 6/26/2018 @ 8:04 pm
My opinion of Mr. McCarthy has, accordingly, dropped, and I now take everything he writes with considerable skepticism.

The same, because he’s becoming about as one-sided in favor of Trump as Jennifer Rubin is on the anti side.
Paul Montagu (00b59c) — 6/26/2018 @ 8:04 pm
her father- a German-born barber, settled in Pittsburgh- having endured the wrath of racial slurs…

DCSCA (797bc0) — 6/26/2018 @ 4:42 pm

Get out of America, white guy! You don’t belong here! Or is “honkey” a really old word?
Pinandpuller (e47689) — 6/26/2018 @ 8:08 pm
ConDave’s notions of ownership are out of whack. Teh guy didn’t understand the FBI owned documents/memos that the fired-for-cause James Comey had no legal right to.

Colonel Haiku (2601c0) — 6/26/2018 @ 8:04 pm

Zee government owns zee Means aff Corruption und zee means aff Disruption.
Pinandpuller (e47689) — 6/26/2018 @ 8:09 pm
@256

So you’re saying they didn’t pay for it. I’m glad we agree.
Davethulhu (aa7e8c) — 6/26/2018 @ 8:10 pm
And trump is half German, like John Kerry who is about one quarter, his grandfather was krohn
Narciso (0da37e) — 6/26/2018 @ 8:12 pm
@261 “Get out of America, white guy! You don’t belong here! Or is “honkey” a really old word?”

Who do you think was throwing the slurs?
Davethulhu (aa7e8c) — 6/26/2018 @ 8:16 pm
activist Left says
others are not free to move
or associate

Colonel Haiku (2601c0) — 6/26/2018 @ 5:38 pm

Sarah Huckabee

Let me show you to the door

No justice, no peas
Pinandpuller (e47689) — 6/26/2018 @ 8:18 pm
Who do you think was throwing the slurs?

Davethulhu (aa7e8c) — 6/26/2018 @ 8:16 pm

He said racial slurs.
Pinandpuller (e47689) — 6/26/2018 @ 8:19 pm
“My opinion of Mr. McCarthy has, accordingly, dropped, and I now take everything he writes with considerable skepticism.”

Beldar’ beginning to remind one of Obama… nearly everyone disappoints him, they don’t measure up.
Colonel Haiku (2601c0) — 6/26/2018 @ 8:21 pm
In the long run, Justice Thomas’ opinion for a five-justice majority (the Republican appointees again) in NIFLA v. Becerra will be a bigger deal than the opinion on the travel ban. In it, the majority struck down, as violative of the First Amendment, California’s “FACT Act,” which required clinics that primarily serve pregnant women (including those which are pro-life oriented) to provide state-mandated “disclosures,” including advertisements for state-provided abortion services. The Ninth ~~Circus~~ Circuit had refused to apply strict scrutiny First Amendment analysis, astonishingly, under the ridiculous theory that the state was only regulating “professional speech.” Justice Thomas’ opinion rejected that and holds that professionals don’t lose their First Amendment rights against compelled speech antithetical to their own beliefs simply by being professionals, and that under strict scrutiny, the CA statute couldn’t come remotely close to demonstrating the required “compelling state interest” necessary to overcome the clinics’ First Amendment rights.

This is an excellent decision, notable only for the fact that all four Dem appointees dissented. Do not believe that any of those four justices actually believe in free speech or the First Amendment: They do not.
Beldar (fa637a) — 6/26/2018 @ 8:27 pm
@267 Yes, and? Your comment implies that you think that black people were the ones doing it.
Davethulhu (aa7e8c) — 6/26/2018 @ 8:29 pm
Ack. Lemme try that last sentence again.

This is an excellent decision. The dissent is notable only ….
Beldar (fa637a) — 6/26/2018 @ 8:29 pm
No thats mr. Montagu,
Narciso (9ee94d) — 6/26/2018 @ 8:29 pm
I’m a howlee, Pinandpuller. Whitey on a island.
mg (9e54f8) — 6/26/2018 @ 8:29 pm
The bible was incorporated into the Scopes Trial, does that make the bible a government document?
Davethulhu (aa7e8c) — 6/26/2018 @ 6:26 pm

I don’t see where I inmpied silimar. Please provude exanples,
Steve57 (0b1dac) — 6/26/2018 @ 8:33 pm
*similar
Steve57 (0b1dac) — 6/26/2018 @ 8:34 pm
Old squid thinks that kind of argument, the irony was the evolution tough in scopes had a social component.
Narciso (9ee94d) — 6/26/2018 @ 8:39 pm
…With all the trashing and berating of Trump, for whom I held my nose and voted, whom I’ve applauded whenever he has done the right thing…

Lazlo Toth (18c6f7) — 6/26/2018 @ 10:31 am

Is it right to elect elect the wrong man? I say yes,
Steve57 (0b1dac) — 6/26/2018 @ 8:42 pm
If the suggestion is that Mexicans are intrinsically more prone to commit crime, I would say you have not even begun to control for other highly significant variables.

Dave (445e97) — 6/26/2018 @ 5:45 pm

You’ve got a girl with 99 problems and you want to bring her here, all up in it.

I’d say you subscribe to the “Magic Dirt” theory.

magic dirt theory
The idea that someone immigrating to a country automatically and magically becomes the same as the native population.
Someone moves from Sudan to Sweden and becomes a citizen of Sweden. The magic dirt theory holds that just being on Swedish soil will transform them into someone who is ethnically and culturally Swedish.
by jbr1249 March 30, 2017
Pinandpuller (e47689) — 6/26/2018 @ 8:43 pm
Why would I want to bring her anywhere
Steve57 (0b1dac) — 6/26/2018 @ 8:46 pm
@261. In his case it was kraut, PP.
DCSCA (797bc0) — 6/26/2018 @ 8:46 pm
@267 Yes, and? Your comment implies that you think that black people were the ones doing it.

Davethulhu (aa7e8c) — 6/26/2018 @ 8:29 pm

What is a racist term for a white person? Dude, I’m saying that Mr DCSCA’s characterization of “slurs” against immigrants of German origin, of which I have in my family, are not racist.

Kraut, Nip, Wop etc are ethnic slurs.
Pinandpuller (e47689) — 6/26/2018 @ 8:49 pm
If you said that in 1944 with Japanese-Americans safe and sound in a California interment camp while kids were fighting and dying on Tarawa, Kwajalein and Saipan you’d have had your head handed to you. Understand your POV from 2018 but try to grasp the POV in 1944 WW2 America.

DCSCA (797bc0) — 6/26/2018 @ 5:45 pm

Turns out they like sleeping on mats.
Pinandpuller (e47689) — 6/26/2018 @ 8:56 pm
In the long run, we are only in it for the short run.
Steve57 (0b1dac) — 6/26/2018 @ 9:00 pm
@281 What is a racist term for a white person?

Ah I see the confusion. you were being pedantic.
Davethulhu (aa7e8c) — 6/26/2018 @ 9:01 pm
I’m pretty sure Clarence Darrow didn’t pay God to write it up.

harkin (e5c973) — 6/26/2018 @ 7:28 pm

Judean goat herders have higher standards than MI6.
Pinandpuller (e47689) — 6/26/2018 @ 9:02 pm
Ah I see the confusion. you were being pedantic.

Davethulhu (aa7e8c) — 6/26/2018 @ 9:01 pm

Yeah, me and Mr DCSCA have this Sunshine Boys thing going.
Pinandpuller (e47689) — 6/26/2018 @ 9:03 pm
@ Dave, who asked (#180):

Does anyone have standing to challenge Korematsu today?

That’s an interesting question. I think the answer is: No, and let’s hope no one ever does in the future.

One of the real problems with the opinion, jurisprudentially, is that it’s very hard to identify the actual holding of the majority — that is to say, any statement of legal principle that might be applicable to other, similar cases. I don’t think there is one.

Clearly for the same arguable degree of government necessity to recur, we’d again need to be at war, and looking at something like the Exclusion Order incurred by a future POTUS using authority purportedly granted to him by authority to create “Exclusion Zones.” The future plaintiff would have to be one of the people whose rights were abridged by such an order and consequential round-up and internment, presumably based upon the identity of America’s opponent in that war and his own connection to that enemy. Certainly short of imminent wartime peril comparable to that asserted (albeit mostly fantasized) by the FDR Adminstration, the government couldn’t even get remotely close to the sort of sliding-scale balancing test that Justice Black concluded Mr. Korematsu had lost, when his asserted liberty interests were put against the government’s purported interests.

Despite the left’s hysteria that Trump = Hitler and that today’s decision = Korematsu, we’re not at war with any nation right now (although it’s very unclear who else, if anyone, we’re actually at war with), Congress hasn’t authorized Trump to create any Exclusion Zones, and Trump hasn’t tried to sweep such areas to round up the Whomevers. Given the improbability of that set of circumstances recurring, I can’t imagine any circumstance in which the government might actually affirmatively rely on Korematsu as justification for something it’s done, nor any reason for a court to hold that Korematsu appears to apply — and thus no court is likely to reach the further question of whether it should be explicitly overruled.

I think Chief Justice Roberts groks all that. He knew what he was doing in his very short paragraph, and it wasn’t just responding to the dissent (which the first of his two paragraphs was adequate to do). As he wrote, this was an opportunity for him and the other four justices joining in his opinion to do some deliberate, crystal-clear, and righteous proclaiming of dicta — an assertion having no precedential effect, but that he really, really wanted to take this opportunity to proclaim anyway.
Beldar (fa637a) — 6/26/2018 @ 9:05 pm
To be clear: I don’t fault CJ Roberts for it, nor do I disagree with his dicta. I just think it’s uncharacteristic of him to be engaging so obviously in dicta.
Beldar (fa637a) — 6/26/2018 @ 9:07 pm
I’m a howlee, Pinandpuller. Whitey on a island.

mg (9e54f8) — 6/26/2018 @ 8:29 pm

I hear you, braddah!
Pinandpuller (e47689) — 6/26/2018 @ 9:08 pm
Because it was a very narrow classification of seven countries and still the left went bananas, its as simple as that.
Narciso (9ee94d) — 6/26/2018 @ 9:09 pm
Why would I want to bring her anywhere

Steve57 (0b1dac) — 6/26/2018 @ 8:46 pm

Exactly! Like a moped: fun to ride but you don’t want your friends to see you.
Pinandpuller (e47689) — 6/26/2018 @ 9:10 pm
The Left can’t figure out that if today’s decision = Korematsu, that makes Trump into FDR, not Hitler. Trump being FDR (an egotistical NY-reared big-government statist tethered only loosely to the Constitution) seems entirely plausible to me, but it would make their heads explode.

Along the same lines, in an argument about this travel ban with a dear friend who’s Jewish some months ago, he ended by saying, passionately, “You may be right, but I’m enough of a Jew to still be alarmed at the idea of the American government rounding up people to put them into camps!”

To which I replied: “I’m not a Jew, but I’m equally alarmed by that prospect, when and if it recurs, and I’m enough of a Republican to recall that the two American presidents who’ve done that in the past have both been Democrats!”

To which he said, “touche,” and we parted, as always, best friends despite our political differences.
Beldar (fa637a) — 6/26/2018 @ 9:20 pm
The allsup decision was good as was the 7th circuit stay of an injunction.
Narciso (9ee94d) — 6/26/2018 @ 9:26 pm
Korematsu was an American citizen who had his liberty taken from him. Trump’s order addresses the entry of foreign nationals into the US. I don’t see the connection.
AZ Bob (9a6ada) — 6/26/2018 @ 10:18 pm
Re-reading this thread, I return to my friend Adjectival Dana’s #157, which includes (italics mine):

People have an absolute right to take any decisions, and any positions, they want, regardless of their reasoning, and regardless of whether someone else’s notion of bigotry is involved. You might not like that, but do you disagree?

Why did you write the phrase I’ve italicized?

People have the right to draw their own conclusions about whether, for example, Trump is a bigot.

People do not have the right to draw their own conclusions as to whether the excerpt from Chief Justice Roberts’ opinion above (in #119) includes the two-word phrase “Muslim ban.” It does, and CTRL+F makes that easy to spotlight if one searches on that term, as I suggested that BuDuh do. He claims otherwise. He is wrong. Do you disagree?
Beldar (fa637a) — 6/26/2018 @ 10:19 pm
Yes Held at mention it and move on, has justice Roberts been on diligent with obamacare.
Narciso (9ee94d) — 6/26/2018 @ 10:27 pm
@282. Beats sleeping six feet under one on Saipan forever.
DCSCA (797bc0) — 6/26/2018 @ 11:00 pm
Dave, it was evidence in an investigation, evidence can be leaked.

I do not believe it was ever classified, much less top secret.

I fail to see how you can “leak” something that did not originate inside the government, is not classified, and is already being widely circulated.
Dave (c6fdae) — 6/26/2018 @ 11:26 pm
I finally found the elusive Muslim Baker:

Remona Aly
That an Asian Muslim woman in a headscarf can win a thoroughly British competition proves that ‘Britishness’ is broader than some would like to think

It’s difficult to escape the current national obsession with the Luton-born 30-year-old – it feels as if nearly everyone wants a slice of her. Nadiyamania includes a Tumblr site called The Many Faces of Nadiya Appreciation, an image mimicking the Barack Obama “Hope” poster from his 2008 presidential campaign, and 55,300 Twitter followers – which rises with every pinch of her baking powder.

Nadiya’s appeal is quite simple. She is the quietly brilliant girl next door, and someone you want to be mates with. As wholesome as GBBO itself, she is what we might define as “quintessentially British”. Deeply humble – tick. Self-deprecating – tick. Unintentionally funny – tick. Good at Victoria sponge – mega tick. Or as one fan simply tweeted, “She’s just so flipping lovely.”

While Nadiya admitted she was slightly nervous that “perhaps people would look at me, a Muslim in a headscarf, and wonder if I could bake”, she seems to have united, and charmed, public opinion. Well almost. Amid the waves of loyal fans, there were some less than savoury members of our society who wanted to turn up the temperature on prejudice and division. A Daily Mail columnist, Amanda Platell, accused the Bake Off team for being too politically correct, saying that one white contestant, Flora Shedden, didn’t have a hope with her chocolate carousel and that “if she’d made a chocolate mosque, she’d have stood a better chance”.

The Guardian
Pinandpuller (66fc0c) — 6/26/2018 @ 11:30 pm
@282. Beats sleeping six feet under one on Saipan forever.

DCSCA (797bc0) — 6/26/2018 @ 11:00 pm

Did you ride a futon in college?
Pinandpuller (66fc0c) — 6/26/2018 @ 11:31 pm
@300. Just co-eds in bunkbeds, PP.
DCSCA (797bc0) — 6/26/2018 @ 11:37 pm
https://www.youtube.com/watch?v=HVrWheezx7Y

Hilarious.
DCSCA (797bc0) — 6/27/2018 @ 12:11 am
Mr Colbert can look his grand-kids in the eyes if they don’t get murdered or raped by illegals. He would still blame Trump though.
Pinandpuller (66fc0c) — 6/27/2018 @ 12:50 am
Davethulhu wrote:

The bible was incorporated into the Scopes Trial, does that make the bible a government document?

The King James translation, also known as the Authorized Version, was ordered by His Majesty the King, and is part of the English common law; the common law has been used in the United States, so yeah, the Authorized Version should be a government document! 🙂
The Dana who isn't an attorney (5ce6d1) — 6/27/2018 @ 4:26 am
The King James translation, also known as the Authorized Version, was ordered by His Majesty the King, and is part of the English common law; the common law has been used in the United States, so yeah, the Authorized Version should be a government document!

*head asplodes*
Dave (445e97) — 6/27/2018 @ 4:29 am
Mr Puller asked:

What is a racist term for a white person?

In the 1970s, there was an attempt to coin a derisive term for whites which was s’posed to be as offensive as the ‘n’ word is for blacks, and the result was “honky“. Whatever the intent behind it, it had no real history behind it, was commonly used on such television shows as All in the Family, and wound up just a laugh line rather than an offensive term.
The etymologist Dana (5ce6d1) — 6/27/2018 @ 4:34 am
mg wrote:

I’m a howlee, Pinandpuller. Whitey on a island.

Then you ought to know that it’s spelled haole. 🙂
The snarky Dana (5ce6d1) — 6/27/2018 @ 4:38 am
What is a racist term for a white person?

Melanin-deprived.
Dave (445e97) — 6/27/2018 @ 5:00 am
My good friend Beldar wrote:

Re-reading this thread, I return to my friend Adjectival Dana’s #157, which includes (italics mine):

People have an absolute right to take any decisions, and any positions, they want, regardless of their reasoning, and regardless of whether someone else’s notion of bigotry is involved. You might not like that, but do you disagree?

Why did you write the phrase I’ve italicized?

Your several times written formulation that the campaign of Donald Trump inspired bigots to vote for him, specifically “You’ve chosen not to answer whether you’re (BuDuh) one of those people who doubts that real, indisputable bigots celebrate Trump’s statements,” appeared to me to be a condemnation of the reasons that some people have for supporting President Trump and his statements. While such may not have been your intention, I saw it as similar to Hillary Clinton’s “basket of deplorables” comment.

You know, to just be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. (Laughter/applause) Right? (Laughter/applause) They’re racist, sexist, homophobic, xenophobic — Islamophobic — you name it. And unfortunately, there are people like that. And he has lifted them up. He has given voice to their websites that used to only have 11,000 people — now have 11 million. He tweets and retweets their offensive hateful mean-spirited rhetoric. Now, some of those folks — they are irredeemable, but thankfully, they are not America.

The lovely Mrs Clinton was attempting to tell us that those who are part of her ‘basket of deplorables’ aren’t really Americans, and that, somehow, their votes shouldn’t count.
The cordial Dana (5ce6d1) — 6/27/2018 @ 5:05 am
It does, and CTRL+F makes that easy to spotlight if one searches on that term, as I suggested that BuDuh do. He claims otherwise. He is wrong.

Still being intellectually dishonest? I am not surprised. I already explained where you went astray.
BuDuh (fc15db) — 6/27/2018 @ 5:16 am
I’ll let the world see your obfuscation again, Beldar.

Bored Lawyer writes:

Then Trump brags to his base that he enacted a “Muslim ban” when he did no such thing.

I ask:

Where do I find quotes of him doing this?

How does a Control F of “Muslim ban” from a SCOTUS opinion resolve my question and validate Bored Lawyer’s assertion?

You not so cleverly switched the objective and I didn’t bite. Tough on you.
BuDuh (fc15db) — 6/27/2018 @ 5:21 am
Donald J. Trump Statement on Preventing Muslim Immigration dated December 7, 2015. It’s on Twitter. The original press release has been deleted.
DRJ (46c88f) — 6/27/2018 @ 6:17 am
And then, after he was President:

President Trump said Monday he won’t apologize for his past comments about Muslims and suggestions of a Muslim ban, saying he doubts it would make a difference to the courts that are deciding the legality of his travel ban policy.

“I think if I apologize it wouldn’t make 10 cents worth of difference. There’s nothing to apologize for,” Mr. Trump told The Washington Times at a press conference at the White House with the Nigerian president.
DRJ (46c88f) — 6/27/2018 @ 6:20 am
And Nigeria is a majority Moslem country, which was barred from receiving military support by the Obama administration.
Narciso (1dffc8) — 6/27/2018 @ 6:31 am
But the point, is the classifications were already in statute.
Narciso (1dffc8) — 6/27/2018 @ 6:31 am
DRJ,

so the President didn’t say it and the presidential candidate changed his words and policy as was shown up the thread.
NJRob (b00189) — 6/27/2018 @ 6:32 am
The question is Drj it’s not germane to the discussion, in the spring of 2016, they already had the law but the administration sought not to enforce It, then trump comes along later, and people lose their minds.
Narciso (1dffc8) — 6/27/2018 @ 6:54 am
And Nigeria is a majority Moslem country

Depending on your source, it’s either slightly Muslim-majority or slightly Christian-majority. The easy answer is that it’s roughly 50-50. But they do have this Boko Haram problem.
Paul Montagu (00b59c) — 6/27/2018 @ 6:55 am
Reversal of Janus the left is coming up snakeyes this week.
Narciso (1dffc8) — 6/27/2018 @ 7:05 am
Are 312 and 313 meant as answers to my question to Bored Lawyer?
BuDuh (fc15db) — 6/27/2018 @ 8:10 am
@ Adjectival Dana: I think you read into my question things that weren’t there.
Beldar (fa637a) — 6/27/2018 @ 10:10 am
Pot meet kettle.
BuDuh (fc15db) — 6/27/2018 @ 10:12 am
@303. He’ll find a Carson clip all the same.
DCSCA (797bc0) — 6/27/2018 @ 10:19 am
The local Fox News came on right after soccer was over. They were discussing the decision and the stock footage they were playing was of what I imagine must have been the first day of the Court’s term when the justices all pose together for a group photograph. The camera panned from Roberts smiling, to Gorsuch smiling, to Sotomayor smiling, to Kagan smiling, and then to Justice Ruth Bader Ginsburg — who had a look of absolute bewilderment and terror on her face. It’s as if she is completely senile and had no idea why all these people were taking pictures of her. It’s kind of hard to believe that she is in possession of all her faculties at this point in her life.
JVW (42615e) — 6/26/2018 @ 9:09 am

Wait. Soccer?
Steve57 (0b1dac) — 6/27/2018 @ 9:08 pm
This is on TV now?
Steve57 (0b1dac) — 6/27/2018 @ 9:11 pm
I don’t know. I cancelled my cable in 2005.
Steve57 (0b1dac) — 6/27/2018 @ 9:15 pm
I think you read into my question things that weren’t there. The easy answer is that it’s roughly 50-50. But they do have this Boko Haram problem.
happy room (4f289f) — 7/19/2018 @ 12:27 am

6/26/2018

Supreme Court Upholds Travel Ban 5-4

327 Responses to “Supreme Court Upholds Travel Ban 5-4”

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