BREAKING: Appeals court denies Trump administration request to reinstate ban

[The_Doctor]

The Trump Administration should withdraw the executive order, make it more constitutional, and reinstate it, if they want to not look like massive idiots in front of the Supreme Court. I can imagine 4 liberals + Kennedy slapping down Trump.

Or maybe Trump should just back down and withdraw the EO completely, for the sake of the country and hope to repair the hash of things?

[The_Doctor]

I changed my mind. I want Kennedy and the four liberals to slap down Trump while Thomas, Alito, and maybe Gorsuch write a cowering dissent. I don't know where Roberts will come down on this; he'll come down on wherever he thinks history will. Most likely, I can see Roberts going "hmm, history is going to judge us for this. OK then, better slap down the President."*

*Roberts has a precedent for behaving this way. It's the only reason he upheld the ACA. He doesn't want to be the Chief on the wrong side of history, a la Taney.

[The_Doctor]

I changed my mind. I want Kennedy and the four liberals to slap down Trump while Thomas, Alito, and maybe Gorsuch write a cowering dissent. I don't know where Roberts will come down on this; he'll come down on wherever he thinks history will. Most likely, I can see Roberts going "hmm, history is going to judge us for this. OK then, better slap down the President."*

*Roberts has a precedent for behaving this way. It's the only reason he upheld the ACA. He doesn't want to be the Chief on the wrong side of history, a la Taney.

History is written by the winners. If Trump achieves is goals during his presidency history will judge him well, and will judge this action of his well. If he doesn't then it won't.

Trump doesn't look like a winner right now. We'll see, but his own Senate Leader is breaking with him, his popularity is in the toilet, etc. We'll see if within a year or two, he decides to execute a u-turn to try to cement a more popular legacy, like Arnold Schwarzenegger did in California.

Also, Koretmatsu v. United States, (1944) contradicts your point. The Justices didn't overrule FDR because it was World War II (demonstrating how much a mandate to govern + a world war can give you immense sums of power), but later it was considered one of FDR"s worst transgressions, something even partisan Democrats acknowledge.

History could well judge that this action of Trump fits within the Korematsu pattern, thus declaring that Trump acted egregiously. I personally agree with this sentiment. The people writing history will probably be the millennial generation who voted against Trump en masse, as well as the most diverse generation in history. These people get to write the history and they can easily rewrite a win into a loss.

Trump should bear in mind that for his legacy. So far, if he goes down as a white nationalist President who acted in the interests of a narrow faction in American history, he will look pretty bad.

[The_Doctor]

Does it now go to an en banc hearing? Or to the SCOTUS?

[The_Doctor]

The man is unhinged. I don't know for sure if it's just the fact we live in a Black Mirror world or something, but the man's tweet is unhinged. Also he's most likely in the residence bathrobe-tweeting.

[The_Doctor]

Does anyone have a link to the ruling? I want to see their reasoning to see why they ruled that the Administration would lose in SCOTUS. FF ruling, although I'm worried about SCOTUS.

[The_Doctor]

And here's where Trump's tweets and commentary have come to bite him in the arse. Apparently in their view it runs afoul of the Lemon test, and thus, the First Amendment. They're also arguing there's Fifth amendment issues here.

Anyway, the fun money quote:

"The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban"as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order."

[The_Doctor]

I highly doubt the Supreme Court would uphold this ruling. It would set a dangerous precedent. You cannot have a judge appointed to a life term overrule an executive decision by the President.

Marbury v. Madison. Come on, it's the first major judicial decision of the Republic and it specifically involves an executive decision by the President.  

[The_Doctor]

I can see Kennedy agreeing with this opinion and Trump being smacked down. The key would be the fact that Trump has consistently called for a Muslim ban and Giuliani confirmed it and there's a long paper trail by the Administration to implement an anti-Muslim ban. Additionally, if you showed Kennedy most of the people detained were of Muslim origin, he would probably look favorably on that to say this ban runs afoul of First Amendment grounds.

Basically their motor mouths might really end up causing the ban to be tossed because of the history behind of the order. We'd call this "legislative history" if it was a Congressional statute, but apply it to the Executive Branch. Had they strictly said from the start the geographic ban was purely, 100% geographic, and not included the prioritization of Christians, I could see the order having a better chance of being upheld. Even then so, I definitely see the order still having a 50-50 chance, given the huge deference the Courts show the Executive Branch in its constitutional prerogative to execute the nation's immigration laws (and the typically wide scope).

Circling back to how the judicial branch usually looks at polling, if the President is still looking like a dumbarse by June, I expect Kennedy to decide to vote against the Administration, believing that Trump will be trashed by public opinion and history. If Trump shapes up and starts behaving and stops running his mouth, Kennedy might cut him some slack.

Any way you slice this, this opinion is a big defeat for the White House and how they do things.

[The_Doctor]

So what are these judges going to do if Homeland Security decides to go ahead anyway? Send RBG to keep them from doing so? lmao

That's pretty dumb. You really don't want to have an unchecked executive branch. Just remember, the Democrats will have power back. Every step Trump takes will one day be available to the Democratic successor he has.

Also, what you're describing is pretty close to a dictatorship, not a democracy. You're advocating that basically we become a dictatorship, where the President is not answerable to the one of the two branches of government.

This is amazingly the very rationale Jackson used in 1838 in the Trail of Tears decision where he ignored Chief Justice Marshall. History was not kind to him in that regard; most people regard it one of the stupidest things Jackson did.

Likewise, defending Trump on this and saying he should ignore the judiciary is going to cause a constitutional crisis. And it's not one Trump would win, because his legitimacy is very much in question.  

EDIT: Political, not constitutional. Jackson won by 11% each time he ran; Trump lost the popular vote. Also fixed "Taney" to "Marshall."

[The_Doctor]

Bring back the camps

That's not a nice thing to say.

And whatever you're saying right now is any more intellectual? Snowflake feelings.