Monday, June 26, 2017

SCOTUS gets a couple right

National security decisions are back in the hands of the executive branch following the ruling in Donald J. Trump, President of the United States et al v. International Refugee Assistance Project el al:

Today, in a per curiam ruling, the Supreme Court restored the vast majority of the Trump administration’s temporary travel ban — including the temporary ban on refugee entry. The lower courts’ injunctions remain only in the narrowest of categories — where the person seeking entry has a “bona fide relationships with a person or entity in the United States.”

And what is a “bona fide relationship?” The court’s guidelines were strict:

For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2.

In other words, SCOTUS made short work of the claim that a person’s desire to bring their mother-in-law to the U.S. (or a university’s desire to admit a few students or have a lecturer travel for a seminar) granted them the ability to stand in for every single citizen of every affected country:

Denying entry to such [an unconnected] national does not burden any American party by reason of that party’s relationship with the foreign national. And the courts below did not conclude that exclusion in such circumstances would impose any legally relevant hardship on the foreign national himself.


At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are un- doubtedly at their peak when there is no tie between the foreign national and the United States. Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category . . . The interest in preserving national security is “an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U. S. 1, 28 (2010). To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else. 
Even the court's lefties saw the Constitutionality of it. In fact, the dissent came from three righties who wanted a more sweeping decision:

Moreover, the only dissenters from the opinion (justices Gorsuch, Alito, and Thomas) wanted the injunctions vacated in their entirety. They are correct that the court’s ruling will invite further litigation as litigants test the boundaries of the “bona fide relationships,” but the difference between the dissenters and the six remaining justices was only over the proper extent of Trump’s legal victory. For now, the constitutional and statutory primacy of the executive and legislative branches over national security and immigration has been restored.

The judges in the courts below have been celebrated as heroic resistance figures. Yet now even the Supreme Court’s most liberal justices have rejected the lower courts’ overreach. 

In Trinity Lutheran Church of Columbia v. Comer, the court made an important point about the free exercise of religion:

the Supreme Court released a ruling by a 7-2 margin finding that states cannot prohibit public funding to churches simply because they are churches. The case itself surrounds a playground at the Trinity Lutheran Church Child Learning Center; the Center sought public funding for a rubber surface. The Department of Natural Resources denied the petition, citing a blanket rule that it would not fund churches. The Court rightly found that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.”
The ruling was 7-2. In this case, it was lefties who dissented. Here's their rationale, such as it is:

Then we get to the dissent, penned by Justice Sotomayor (and joined by Justice Ginsburg.)  In her dissent, Sotomayor opined that:
“The Court today profoundly changes [the relationship between church and state] by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.”
I haven’t yet had the opportunity to read the entire dissent, but I question Sotomayor’s characterization of the decision. Disallowing the exclusion of a religious organization from a public benefit solely because it is a church profoundly changes the church-state dynamic?!
Shortly after it was handed down, I had the opportunity to speak with Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, and inquired as to her take on Sotomayor’s contention.  She called it “nonsense,” and pointed out that Sotomayor’s own opinion makes it clear that historically, there have been far greater instances of involvement between church and state which have been upheld.
Next up on the free-exercise front is a case of the sort that has been such a threat to our civilizational foundation.


  1. That's the way our system works. And I applaud that. Next up, the wedding cake stuff. Hope it goes your way. Whatever way it goes, it goes and it will be the way. And I applaud that.

  2. Good Court ruling today. Of course the ruling set no new precedents. Is that the one in October?

  3. Is this considered someone's court now or something? I hope not.

  4. Not that I know of. For one thing, all kinds of people do all kinds of "considering."

  5. Hope we do not have to hear about the Trump court for the rest of our lives.

  6. The best news of the term was that Justice Kennedy did not retire, after widespread rumors that he might. Kennedy sits at the Court’s ideological center, and has been the swing vote in politically charged cases ever since Justice Sandra Day O’Connor retired in 2006. He is a Republican and a conservative, and often votes with his more conservative colleagues, but on this Court he has been a moderating influence. He has cast decisive votes to recognize same-sex marriage, to strike down sodomy statutes, to save affirmative action, to uphold the right to choose to terminate a pregnancy, to prohibit punishment of flag-burning, and to end the death penalty and mandatory life without parole for juveniles. He has lamented the harshness of the criminal justice system and invited a constitutional challenge to solitary confinement. If he steps down and is replaced by a hard-right conservative, vetted and approved by the Federalist Society, the Court will shift dramatically to the right—at a time when, given the Oval Office’s current occupant, the judiciary’s check on the executive branch is more essential than ever.

    The travel ban won’t be the only big case before the Court next term. It has already agreed to hear cases concerning the rights of same-sex couples to equal treatment from businessmen who object to serving them on religious grounds, the rights of all of us to preserve the privacy of our whereabouts even when we carry a cellphone, the constitutionality of prolonged detention of immigrants, and whether there are any limits on egregiously partisan gerrymandering. It’s a heady lineup. No wonder Justice Kennedy isn’t retiring.

  7. "There is no such thing as a Republican judge or Democratic judge," he said more than once. "We just have judges." --Neil Gorsuch

  8. The specific votes cast by Kennedy show just why he is an agent of great societal harm. He "found" some kind of "right" to homosexual "marriage" not really by referring directly to anything in the 14th amendment but by just kind of a sentiment of, "Golly, we're excluding this group of people from an institution everybody else takes for granted. "
    And "right to choose to terminate a pregnancy": Would that be anything like murdering a fetal person?
    If I'm not mistaken, you're on record as seeming that to be abhorrent.