“Pay No Attention To That Man Behind the Curtain”

This is the basic question that the Court will confront when the “travel ban” case is heard later this week. If the Justices focus on only the formal aspects of the case, then the President’s executive order could well be upheld. If they think that presidential tweets or campaign statements are relevant proof of discriminatory intent, then invalidation is more likely. (The Executive Order could be invalidated even if the tweets are ignored, but that’s a harder claim.)

Just a sidenote. The famous line from The Wizard if Oz is not in the book written by L. Frank Baum. In the book there’s a screen (not a curtain) that just gets knocked over to expose the Wizard. (He doesn’t try to hide again.)

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5 Responses

  1. Joe says:

    He reaffirmed what he said before he was in office afterwards. And, yes, such statements as a whole should be weighed under long held precedent, including specifically Establishment Clause precedent. The policy should be struck down regardless, including on statutory grounds, but it is dubious not to take everything into consideration in discrimination claims. This includes not only “the man” but all that he stands for in relevant part on this matter. He didn’t merely support this because of personal sentiment.

  2. Brett Bellmore says:

    The fundamental distinction which has to be upheld here, which we’re fighting over, is the distinction between the role of the judiciary in evaluating whether acts comport with the law, and the role of the legislature in ruling on whether the people who hold office are fit to hold it.

    To strike down an act by an office holder, which would have been upheld if another had held the office, is not to rule on the law. It is to rule on the fitness of the one holding office.

    It is an act of impeachment.

    And that’s a power reserved for the legislature, not the judiciary.

    As long as Congress does not impeach and convict Trump, he is as entitled to exercise the powers of his office as anybody who might be elected to it.

    The judiciary gets to judge the actions of the elected branches. Not the people who were elected.

  3. Joe says:

    “To strike down an act by an office holder, which would have been upheld if another had held the office, is not to rule on the law. It is to rule on the fitness of the one holding office. ”

    If some other office holder did the same things here (including signs of animus), it should be struck down too.

    Breaking the law, including constitutional demands, are not “powers of office.”

    • Brett Bellmore says:

      “Including signs of animus”; All you’re doing is proposing that they might similarly declare some other President unfit.

      Motive is not action. If the executive order actually does “break the law”, it matters not at all why it was issued. Good motives do not redeem illegal/unconstitutional acts, bad motives do not invalidate them.

      It is the act, itself, which is either legal or illegal.

      I don’t believe the courts should be in the business of judging the moral fitness of office holders, whether their motives are pure or impure. Stick to evaluating whether they’re legal.

      And I suspect the Court is going to agree with me on this point, because they don’t want the courts below them second guessing every act the President undertakes. If they uphold the injunction, they will rule it would be illegal if any President undertook it. Animus will not enter into their ruling.

      • Joe says:

        “All you’re doing is proposing that they might similarly declare some other President unfit.”

        It isn’t some broad “unfitness” argument even of the sort argued by Sandy Levinson on GM’s other blog. It is that this specific action violates the law applying various legal rules.

        It is not “moral fitness.” Your disagreement with decades of discrimination law is duly noted. There is a conservative majority on the Court, like you are, so they might as applied agree with you. But, don’t think they are going to overturn decades of discrimination law in the process, which is your bigger game.

        At any rate, moving beyond discriminatory motive, which is a thing under long held precedent, the travel ban can be struck down based on statutory rule or discriminatory action — the effect prong of long held Establishment Clause law — too. You disagree on the merits there; duly noted.

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