Trump made a very poor choice in blocking everyone from seven nations, including legal residents. But does a poor choice mean unconstitutional?
I asked an legal acquaintance whose opinion I hold in extremely high regard what he made of this setup. He replied …
Nothing is certain in law, but the portions of the executive order that relate to people who live here should be unconstitutional on a variety of grounds. I don’t know which arguments the 9th Circuit will select.
The portions of the executive order that relate to people abroad are difficult because they have no right to assert the constitution. The court will need to decide whether the US citizens are sufficiently affected. I believe the Court will conclude they are, but it would be a respectable opinion to go the other way.
Surely the President cannot issue an order to keep out all Muslims and have it stand that way. However, Trump’s order does not actually bar Muslims. The Massachusetts court focused on this, and it is a respectable legal position. The establishment argument is a bit suspect, though. I expect the court to give close scrutiny to the government’s establishment rationale.
Incidentally, a 9th Circuit win for Washington State leaves us in a strange spot. We’d have a national order with a Massachusetts federal court deciding the other way. The current Supreme Court would likely uphold a 9th Circuit ruling no worse than 4 to 4.
Finally, the ACLU is not appealing its Massachusetts loss, hoping to use the 9th Circuit.
The above makes perfect sense to me from every angle.
Trump’s arguments that we need the ruling to keep out the “bad guys” does not stand up to even a modicum of scrutiny. The legal residents are already here except a small number trapped overseas by his blanket ban.
Trump could have easily reissued the order without affecting legal residents. Instead, Trump chose to attack the court in a series of tweets.
One might even wonder if Trump’s arrogant, childish attitude towards the court might sway a justice to lean the other way, just to stick it to Trump.
Judges are supposed to rule on the merits of cases, but they are human.
Mike “Mish” Shedlock