A Failure of Judicial Independence

[tulc]

A Failure of Judicial Independence - The Atlantic

On Tuesday, as Chief Justice John Roberts read an oral summary of his opinion in Trump v. Hawaii, President Trump’s Solicitor General, Noel Francisco, sat a few feet away at counsel table.

Observers could not see Francisco’s lips move, but Roberts’s majority opinion—upholding the administration’s “travel ban” against entrants from a number of countries, most of them majority Muslim—adopted almost verbatim the arguments Francisco had made to the Court during oral argument in April.

Roberts was joined by the Court’s other four conservatives: Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch. At the time of argument, an observer, no matter the view of the case, could easily have felt compassion for conservative judges seeking to apply traditional legal concepts amid the current poisonous political atmosphere. But on Tuesday, that same observer might very well conclude that the chief justice and the majority had resolved that genuine dilemma poorly.
This is not only a bad result; it is a bad opinion, and a bad omen for those who look to an independent judiciary as a stabilizing force amid the current chaos.

At oral argument, Francisco had begun by telling the Court, “After a worldwide multi-agency review, the president’s acting homeland security secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vet their nationals.”

It is a beguiling narrative, though not a soul in the courtroom or the wide world beyond it believed it. In reality, where lawyer’s fictions garner little respect, there was no secret that the idea of “entry restrictions” came from the president and that they were understood both by him and by his supporters to embody his best attempt at a promised “total and complete shutdown of Muslims entering the United States.”
On Tuesday, however, the Court’s majority accepted the official version almost in toto. Though Roberts’s opinion reviewed the earlier, botched executive orders that tried to close the country’s doors to entrants from a number of Muslim countries, it recited their promulgation, lower-court rejection, and withdrawal in solely bureaucratic terms. Only 25 pages later did it mention “a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation.” Before any serious reckoning with the outright bigotry of Trump’s campaign and his statements as president, the majority conducted a dense discussion of the president’s authority under the Immigration and Nationality Act.

That statutory argument was always a heavy lift for the challengers, because, as Roberts phrased it Tuesday, the statutory scheme “exudes deference to the President in every clause.” Chiefly at issue is a provision of the act, § 1182(f), that permits the president to “suspend entry of all aliens or any class of aliens” or impose restrictions on those he chooses. The challengers had argued that this language had to be read against the entire act, which reposes principal responsibility for creating “classes” of foreign entrants with Congress, with delegation to the president limited to emergency responses to foreign events.

But that restriction is not in the text, and Roberts was at pains to read the statute in the most pro-executive way possible—and, indeed, to go beyond the text to imagine a context of all but total deference to the executive, citing both “the broad statutory text and the deference traditionally accorded the President in this sphere.” The challengers had argued that previous presidential orders had been more closely tailored than the current version of Trump’s ban, suggesting that the statute was limited in scope; a few pages later, Roberts rejected that argument, citing the president’s “sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.”

By this point, a reader had gotten the idea.

tulc(is going drink some coffee and get ready for tomorrow)

 

[ubicaritas]

Trump has got his kangaroo court.

 

[tulc]

Trump has got his kangaroo court.

...and I'm sure they'll still find some way to blame the Democrats for the bad things that are going to happen.
tulc("Party of Personal Responsibility")

 

[ubicaritas]

...and I'm sure they'll still find some way to blame the Democrats for the bad things that are going to happen.
tulc("Party of Personal Responsibility")

Of course. Trump's politics demands scapegoats.

 

[tkolter]

A Failure of Judicial Independence - The Atlantic

tulc(is going drink some coffee and get ready for tomorrow)

My defense of the decision is we have open travel with many more Muslim nations than not, Indonesia is largely Muslim but not on the list as well as many other nations. The argument is paper trails we can check on someone easily from the country I mentioned but not from Syria and it leaves open diplomatic travel and allows for waivers. Religion isn't the issue its likely danger allowing in enemy operatives from countries we cannot trust enough and cannot check for their backgrounds adequately. They argued that this is the same as the German and Japanese Internments in WW2 and it is if we couldn't trust them and even a small number were enemy sympathetic its enough to act under extreme condition this action by Trump is a much less impactful action. And its not Christians, Jews, Hindus or Buddhists coming to our shores and whose radical arm feels suicide bombings and the like are sound actions in a holy war so we don't need to worry about them but Muslims are not largely threats but we need to check on them and have said checks be trustworthy.

 

[Steve Petersen]

Now it's the Democrats' turn to whine about judicial activism.

Well politics is all about power. As Obama said 'Elections have consequences.'

Turnabout is fair play, so suck it up Dems.

 

[ubicaritas]

German-Americans were not sent to interment camps in WW2... I wish people would get their facts right. We even had a German-American leading the liberation of Europe! (Eisenhower)

OTOH, what happened to Japanese-Americans was purely down to racism. There were perhaps even more German-Americans sympathetic to Hitler than there were Japanese sympathetic to the Tojo regime. Japanese-Americans in California were prosperous and white people were jealous and Asians, prior to the 50's, were the most hated minority in the US. Even more hated than blacks.

 

[Steve Petersen]

.​

 

[tkolter]

German-Americans were not sent to interment camps in WW2... I wish people would get their facts right. We even had a German-American leading the liberation of Europe! (Eisenhower)

OTOH, what happened to Japanese-Americans was purely down to racism. There were perhaps even more German-Americans sympathetic to Hitler than there were Japanese sympathetic to the Tojo regime. Japanese-Americans in California were prosperous and white people were jealous and Asians, prior to the 50's, were the most hated minority in the US. Even more hated than blacks.

Explain that to my uncles family his father was German-American with questionable pro-Nazi loyalties before the war and ordered many magazines from Germany and pro-Fascist elements in the USA and he and his family were locked away it was by a case by case basis more. But the wife and children were also detained under government orders. This is a fact so don't tell me it wasn't a policy. True more often then not they weren't. And I agreed with locking him and his family up they were pro-Nazi sympathetic so a possible threat.

As for the Japanese again we were at war and had war time concerns even though I agree it was heavy handed.

But the grounds of security is a fair one and we are talking of a small number of nations where we cannot assure of good background checks for possible immigration and entry to our nation most Muslim dominant nations are fine. See we have to do checks how can we check Syrian immigrants if the government is hostile to us or the records not there to look at. Or the government might forge documents to get in hostile agents. That is the issue.

 

[Phil 1:21]

Trump has got his kangaroo court.

Elections have consequences.