[U] The Thus-Far-Undefeated Plaintiffs Tell The Supremes “Nothing To See Here; Move Along” (Smile !)…

UPDATED @ End of Office Day 06.13.2017: quite a bit transpired today, on scheduling, at the nation’s highest court. Amy Howe is your reliable guide to it all, right here. Namaste — and, I’m out. Other family commitments call. . . . [End, updated portion.]

Okay. . . I’ve had a chance to read the filings made at 3:00 PM EDT today, in the US Supreme Court. I was wrong — I guessed. . . incorrectly. No shame — I can openly admit that. [And to be clear — I respect these lawyers, completely.]

The ACLU and the National Immigration Law Center (in a move that I understand, but don’t think puts their strongest foot forward) chose to ask the Supremes not to review the Fourth Circuit decision. While I agree with every argument they do make — I think it would have been worthwhile to make one more argument. One they did not make: the plaintiffs are something like 10-0 now, in putting down Muslim Bans 1.0 and 2.0 in the lower courts. In fact, just this afternoon, the Ninth Circuit also ruled 45 was out of bounds.

So, I see scant risk in encouraging the Supremes to take the case, and finally bury the notion that any President may openly call for Muslim Bans, and openly flout the Johnson amendments to the INA — when issuing specious executive orders (forgetting for a moment the First Amendment). In sum — I’d seek. . . a knockout — 9-0 in the Supremes — and like 11-0 overall. But instead, the ACLU played it safe. That’s okay. I still think the Supremes will take the case — and dump. . . Trump. A bit of the 48 pager, then:

. . . .The INA’s anti-discrimination provision forbids discrimination “in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A).

This provision reflects a common principle in our law: Reducing individuals to such characteristics is “odious to a free people whose institutions are founded upon the doctrine of equality.” App. 91a (Wynn, J.) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 (1943)); cf. Rice v. Cayetano, 528 U.S. 495, 517 (2000) (“One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”). . . .

I still foresee some swift Supremes’ action, in the offing. But almost certainly, now — we will wait a tick — at least until this Thursday morning’s regular conference of the Justices. That would be the logical next time that they might announce a granted cert. petition.

We shall see (but in my mind — the ultimate outcome is almost certain now: Trump loses — either by a declaration that the Supremes won’t review the matter — because 10 or so lower courts all got it right — on slightly varying reasonings; or the Supremes will rule to toss 45’s Ban permantently, and explicitly articulate their own reasoning for doing so). But it will die. Onward.



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