Wham! I Am Joyously… In The WRONG!!! Fourth Circuit Just Hit It RIGHT Out Of The Park! The Fourth BEAT Ninth To The Punch! Muslim Ban 2.0 Is A Dead Letter!

[Silly me. I thought the Ninth’s three judge opinion would appear, and be published, first.] The line-up is 10-3 AGAINST Mr. Trump’s Muslim Ban 2.0. It would not surprise me to see the 3-0 opinion AGAINST it, tomorrow, out of the Ninth Circuit.

I had guessed a minimum of seven were going to lean that way — in the Fourth — and eight did, in full. The language Chief Judge Gregory (writing for the majority in the Fourth Circuit) uses is. . . towering, as the threats presented — by the 45th President himself, were. . . unprecedented, in their audacity — in at least the last three-quarters of a century:

. . . .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. . . .

President Trump, in a speech at a rally [on March 15, 2017] in Nashville, Tennessee, described EO-2 as “a watered down version of the first order. . . .”

To the extent that our review chills campaign promises to condemn and exclude entire religious groups, we think that a welcome restraint. . . .

THACKER, Circuit Judge, concurring: I concur in the majority’s opinion but write separately for three reasons: (1) I would not consider remarks made by candidate Trump before he took his presidential oath of office; (2) I would nonetheless find that Appellees have demonstrated a likelihood of success on the merits of their argument that Section 2(c) of the Second Executive Order (“EO-2”) violates the Establishment Clause, based solely on remarks made or sentiments expressed after January 20, 2017; and (3) I would conclude Appellees have demonstrated a likelihood of success on the merits of their argument that Section 2(c), as it applies to immigrant visas, violates 8 U.S.C. § 1152(a)(1)(A) of the Immigration and Nationality Act (“INA”) [Ed. Note: that is the LBJ-era amendment I’ve written about at length here]. . . .

On to the Supremes. I read an advance sheet of this at [redacted] PM CDT today — and wasn’t taking or making any work calls, since I was of pro-bono aid, on one of the briefs (on the prevailing side, of course). Now it will be a GREAT Memorial Day Weekend, for those of us who still believe in ordered liberty, under the law. . . . Woot! Yep — onward, to the Supremes — where (“Condor predicts”) 45 loses 6-3. As it is, he is 0-for-6, in the courts, if memory serves thus far.

[And with that, I’ve ’bout reached the end of the road, on celestial poetry — I’ll now take Mr. Wonder’s fine advice above — and. . . leave — head for Saturn. Call it a day. That nonsense is decidedly over. Not worth it. I was forever just a joke (to her), apparently, anyway.]



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