25 May 2017

Doing It Yourself

The United States Court of Appeals for the Fourth Circuit gave the Executive Orders concerning them daaaaangerous Muslims trying to enter the United States exactly what the orders deserved: Strict scrutiny followed by incredulity.

The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation. Therefore, for the reasons that follow, we affirm in substantial part the district court’s issuance of a nationwide preliminary injunction as to Section 2(c) of the challenged Executive Order.

International Refugee Assistance Proj. v. Trump, No. [20]17–1351 (PDF) (4th Cir. en banc 25 May 2017), slip op. at 12.

A few items leap out on initial reading (sorry, guys, I've only had this 205-page monstrosity for a couple of hours):

  • The one bit of reversal is that the injunction cannot issue against the President himself (see slip op. at 78–79). What that means, I suppose, is that Mr. Trump can, himself, stand at Customs and Immigration at JFK and impose his Executive Order. He can't have any help, though: The injunction does stand against everyone in the Executive Branch, except the President himself.
  • A majority of the en banc court held Trump's campaign statements against him, specifically holding that those statements constituted sufficient evidence of improper religious purpose (even if the Orders were treated as facially neutral… which they're not, any more than a proclamation that no book cover may appear in crimson, ruby, or amaranth, but regulates no other color, doesn't inherently express animus against red). One concurring opinion went farther by discounting the campaign statements… but reaching the same conclusion based just on public statements made since the inauguration.
  • There are many citations to Korematsu in the controlling, majority opinion — specifically, to Justice Murphy's dissent, as if the dissent is the accurate statement of Constitutional law. (It is.) IRAP thus provides an opportunity for the Supreme Court to specifically adopt the reasoning in the Korematsu dissent as good law, and thereby abrogate one of the most serious errors it ever committed. If, that is, the Drumpf Administration appeals… For that reason alone, I would recommend granting cert.: It's an opportunity to, if nothing else, put a bandage on a self-inflicted wound.