[U] The Thus-Far-Undefeated Plaintiffs Tell The Supremes “Nothing To See Here; Move Along” (Smile !)…
June 12, 2017

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.



Plaintiffs’ Supreme Court Position Due In Moments — And 45 Loses (Yet Again!) In Ninth Circuit — On The INA Grounds I Discussed In January
June 12, 2017

It is very significant, from a legal perspective — that in some 11 separate close reviews of Mr. Trump’s Muslim Bans 1.0 and 2.0 — not a single court has found that it passes muster [such complete unanimity wasn’t seen — even in the plenary power to tax and spend (by Act of Congress), in the cases putatively brought against the ACA of 2010 — those failed, BTW].

Not one. He’s something like 0-10, now — but maybe worse — since I haven’t been covering the Detroit area federal case, at all.

Here is the Ninth Circuit’s per curium opinion (just published a few moments ago, as a large PDF file) — it primarily relies on the Johnson-era amendments to the INA I first mentioned in January of this year. Here’s that bit — in context:

. . . .Contemporaneous to enacting the Civil Rights Act of 1964 and the Voting Rights Act of 1965, Congress passed the INA of 1965 to eliminate the “national origins system as the basis for the selection of immigrants to the United States.” H.R. Rep. No. 89-745, at 8 (1965). Section 1152(a)(1)(A) was enacted as part of that act, and provides:

[N]o person shall receive any preference or priority or be discriminated against 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) (emphasis added).

Section 1152(a)(1)(A)contains specific exemptions, and § 1182(f) is not among them. . . .

We cannot blind ourselves to the fact that, for nationals of the six designated countries, EO2 is effectively a ban on the issuance of immigrant visas. If allowed to stand, EO2 would bar issuance of visas based on nationality in violation of § 1152(a)(1)(A).

The Government did not dispute this point at oral argument, and it stands to reason that the whole system of the visa issuance would grind to a halt for nationals of the six designated countries whose entry is barred from the United States. Issuance of visas will automatically stop for those who are banned based on nationality.

Yet Congress could not have used “more explicit language” in “unambiguously direct[ing] that no nationality based discrimination shall occur.” Legal Assistance for Vietnamese Asylum Seekers, 45 F.3d at 473. . . .

Indeed. On to the Supremes, where in a few moments, the plaintiffs from the Fourth Circuit will argue that the Supremes should take the case on cert., right now — and decide it, right now. That’s my conjecture. And, those likely very cogent briefs are due — in about 15 minutes at the SCOTUS. Now you know. [Graphics soon.] Sweltering, and twisty copper colored afternoon, this. . . now — with Loving Day 2017 rolling like thunder. . . across our wonderful and re-awakwening. . . nation. . . smile.