The courts, in general, want presidents to have the power to restrict refugees and inflow as they see fit.

They do not, however, want Donald Trump to be able to do this.

Therefore, their reasoning in striking down whatever they can of Trump’s executive order will involve things specific to him such as comments made about it being a Muslim Ban.


Category: Espresso

About the Author

Will Truman (trumwill) is a southern transplant in the mountain east with an IT background who bides his time taking care of their daughter while his wife brings home the bacon. You will probably be relieved to know that he does not generally refer to himself in the third-person except when he's writing short bios on his web page.

6 Responses to A Theory About The Muslim Ban & The Courts

  1. RTod says:

    Are comments like it being a Muslim ban not sufficient on their own weight, without a dislike of the person who made them needed as the explanatory feature?

    • trumwill says:

      I’m honestly not sure, but Eugene Kontorovich makes a case that it’s usually to use that as a rationale.

      The slipshod manners described by Kolohe below, though, are almost certainly more commonly a factor (especially the very poor defense of it). I am sort of expecting the administration to get its act together by the time it goes to SCOTUS.

      My main point, though, is that they’re likely going to tailor this around Trump specifically. Not because they don’t like him on a personal level, but because they don’t believe he gets the benefit of the doubt even when it comes to authorities they’d more likely defer for another president.

      In other words, they’re not going to say “You can’t pick a list of countries and ban people from them” or apply some disproportionate impact standard. They’re going to say this pretty much only applies here and to this president until or unless he retakes the course and takes the test again.

  2. Kolohe says:

    I disagree. The courts are willing to give Donald a gentlemen’s C, but he needs to do at least a minimum of the assigned work

    The only thing the Rehnquist-Roberts court got Bush on was when the administration just made things up on the fly. The essence of most of the Gitmo decisions was “look, we don’t really care what sort of rules you set up for Gitmo, but you *gotta* have rules”

    The courts really dislike the slipshod manner in which in the EO was drafted, the slipshod manner in which the EO has been implemented, and the slipshod manner in which the EO has been defended in court.

  3. Oscar Gordon says:

    Alternate theory: Trump doesn’t actually care about an immigration ban, but he needed to keep a campaign promise.

    So his staff crafted an EO that would satisfy the low information voter, but that a high school debate team could drive a truck through. If the order stood, awesome, he kept the promise and can move on to other things. If it gets beat in court, awesome, the order gets tossed, his staff rewrites it to survive a court challenge, and he can blame the activist judges for the watered down EO.

    Either way, he wins.

  4. I think Oscar and Kolohe both got it right. I also think while it’s a “Muslim ban” in spirit, it’s not one by the letter. By the letter, it’s a “nationality ban,” which of itself isn’t really unconstitutional, as far as I know (viz, National Origins Act of 1924). But it might be unconstitutional if current statutory laws and or the powers delegated to the president don’t permit such unilaterally imposed bans.

    However, the 9th Circuit’s statement that “in light of the Government’s shifting interpretations of the Executive Order,” it won’t accept the White House counsel’s interpretation of the EO (hat tip Francis Over There, I haven’t read the actual decision yet) lends support to Will’s proposition, too. Trump is the type of president, the judges seem to be saying, who makes things up on the fly. Ergo, maybe there is some not giving Trump the benefit of the doubt other presidents might have gotten.

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