I would argue that no surprise of this magnitude (i.e., ban upheld) has happened in my lifetime, only because the conflict between the policy and text is so direct. I might have been very surprised, had I been alive, to discover that there was found a right to abort a fetus in the Constitution, but even that would not have been subject to the kind of simple textual juxtaposition that sinks Trumpâs ban. In other words, I would argue that this is so direct that we can simply trust in the implicit âas long as the world continues to operate as it generally has in the past: sky blue, sea green, etc.â But youâre right and I agree. What Iâm saying is sort of two-fold: it SHOULD be found unconstitutional and, given the current court and its general trend, almost certainly WOULD be. I object to the âwell we just donât knowâ that Push is trying his hand at, because we know enough to make a very confident prediction and to pretend otherwise is simply to fudge and hope nobody notices. (I recognize fully that what youâre saying is totally compatible with such predictions.)
Incidentally, hereâs a chart made by the renowned Arab American independent scholar and self made millionaire Nassim Taleb outlining why in a contest between Hillary and Trump one should choose Trump.
I donât disagree with you re: the repugnance of such a ban, but you concede that non-citizens donât have constitutional rightsâŠso how could SCOTUS rule on this one way or another?
Who can sue to challenge it under the EC?
Great point; answer when I have time to get the details correct (tomorrow, porbably).
No, see above. Strict scrutiny for ANY EC challenge with facial discrimination. It isnât the Court, itâs the policy itself that forces this, and therefore defeats itself. âPolicy per nationalityâŠculture, risk to American securityâ has nothing to do with it. If the program/law/policy distributes dis/favor to religion or among religions on its face â strict scrutiny.
Right, and thatâs what Iâve done â argued my case. If you think there is a snowballâs chance in hell that my argument would not stand, and such a ban as Trump has proposed could pass strict scrutiny, I have yet to hear an actual reason why.
It isnât just ânot so fastâ; you have to say ânot so fast, because in factâŠâ and then make an argument.
Better looking than my ride, thatâs for damn sure.
Not nearly enough in light of the progression and precedent Iâve offered. Again, strict scrutiny by mechanical virtue of the content of the policy: we donât need them to have ruled before to know with serious confidence how theyâd rule, in light of the facts, now. If you disagree, itâll have to be a real counterpoint that you bring up.
âŠBut you HAVE posted from the back of more than one cute Philly before, my Friend! (lol!)
Law professor friend, via email:
"For example, it wouldnât be hard to find an American citizen with Muslim family abroad willing to allege the obvious injury that comes with being barred- for reasons of official religious preference- from having oneâs sibling visit one in the hospital (or visit one at all). Another example would be American citizens who are contractually associated with Muslim businesspeople, with these associates suddenly barred from the countryâŠagain, for the sole reason of religious preference enshrined in a federal policy. It would really be quite a mess, and not just from a moral standpoint.
Incidentally, at least some sitting Justices appear to believe that the Establishment Clause is so thoroughly structural as to protect even non-citizens outside the United States (such that a Muslim visa applicant might also have standing even though s/he would never have standing to invoke other constitutional protections). But the challenge would likely originate with a citizen."
With due respect to your law professor friend, I donât think either of those scenarios can provide standing for someone whose rights are directly impacted by a ban on Muslims. The contractual example is the least connected - if you contracted with someone, there are lots of instances where the person with whom you contract with could suffer some legal injury that would hurt your contractual relationship (loss of business, etc.), but you canât sue on that personâs behalf claiming youâd be harmed. Itâs not an option.
Re: a family member: itâs less attenuated, but still, that non-citizenâs interest is not the citizenâs. The citizen has no right under law to have a family member become a US citizen and itâs not a legal injury to not
have them join them as citizens (because, obviously, they have no right to make that so in the first place). And letâs be realistic - as a prudential matter, no court is going to recognize the standing of a citizen to sue on behalf of a non-citizen family member who doesnât enjoy constitutional rights because where would it end? Despite you friendâs thoughts that certain sitting justices may ruminate otherwise, such standing wouldnât stop at challenges under the EC clause, they couldnât, it would by extension apply to every other right a citizen would have, and to decide otherwise is simply the height of arbitrariness. Non-citizens either have constitutional rights or they donât - it ainât mix and match buffet style. And itâs impossible to conceive that the Constitution opens the doors that wide, which would permit non-citizens to bootstrap constitutional rights in all sorts of contexts where they donât otherwise get them.
In short, thereâs really no way for anyone to march into a court and challenge a ban on Muslims and demand strict scrutiny review. Canât happen.
That doesnât mean that I donât think the ban would be unconstitutional - but the constitutionality of it would be determined in the legislative process, which makes it a purely political question.