SocraticGadfly: Quick hits on the Supreme Court travel ban decision

June 26, 2018

Quick hits on the Supreme Court travel ban decision

Wrapping up several things I've said about the ruling on Twitter.

First, Merrick Garland isn't on the Supreme Court. He could have been, had President Obama responded back to Mitch McConnell's obstinance with a recess appointment. But he did not.

Is there a "Biden rule" about SCOTUS nominations in an election year? Kind of sort of, but it really should be called the Thurmond rule.

Beyond that, we don't know how Merrick Garland would have voted.

Beyond THAT, I agree with Eric Levitz that naming Garland was bad Obama strategy.

It was, per my take on Dear Leader on other things, yet one more example of him compromising away a compromise in advance in public.

Update, June 27: Anthony Kennedy is no longer on the bench as of July 31, announcing his retirement after kicking centrism to the curb. If Kennedy was trying to cement something for future courts in his concurrence comments this term, he has surely failed. Ditto for whatever version of a legacy he might have thought he established a few years ago. Masterpiece Cakeshop, Janus and National Institutes of Family Life (California pro-life clinics) cases showed a turd-polishing level of hypocrisy, especially given that Kennedy had taken just the opposite stance in 1992 on Planned Parenthood vs Casey, requiring doctors to tell people about abortion alternatives, as Justice Breyer pointed out. SCOTUSBlog, among others, has more on Kennedy's career and legacy.

Update 2, June 27: I have expanded the paragraph above into a full blog post about Tony the Pony; go here.

Speaking of, I have a new "Oh, the SCOTUS" piece up for Hillbots, or Dems in general, thinking that will convince the likes of me to rejoin the duopoly.


Now, to matters at hand on the travel ban.

The ban isn't racist, because religions aren't races.

Nor is it anti-religious, even if Trump has called it a "Muslim ban." It of course doesn't apply to every Muslim-majority country. In fact, Sudan was removed from the original version of the ban last September, which #TheResistance ignores.

And, this ignores that Venezuela and North Korea aren't Muslim-majority, in any case.

Why? Because the ban is actually a petro-geopolitical ban, at heart.

Per that link above, Sudan was removed at the behest of Saudi Arabia and the United Arab Emirates, leaders of the Gulf Cooperation Council. Sudan's "help" in the war against alleged Iranian proxies in Yemen trumps all. The ban is oriented against Syria and Iran, ultimately.

As to Anthony Kennedy sending a message to Trump, yet concurring? Doing both are possible, and Kennedy faces constraints that a Jeff Flake or Bob Corker don't.

Also, this decision is nothing like the Korematsu case. Not all Muslims are being banned, and none of them that are being banned are American citizens.

On the idea that the travel ban should be judged by Trump's tweets, rather than its content? That's close to something analogous to two different First Amendment issues. One is speech vs acts; the other is prior restraint.

(If Ken White, aka Popehat, writes something on this from a quasi-First Amendment speech-vs-acts angle, I'll link it here. Until then, let's go with some Tweets of his:
And then:
Followed by:
I knew there was a good legal angle, and just couldn't think of the term.

Now, that said, North Korea and Venezuela may just be listed for show. But, with a better written ban than the Bannon-inked, more clearly Islamophobic first one, with both Trump and Bannon talking that way about it, the justices had a reasonable case to apply rational basis and so dodge the issue of trying to divine intent. And, in law, whether civil, criminal or constitutional, judges tend to shy away from divining intent if empirical evidence isn't highly corroborative.

Whether it truly is justifiable on national security issues? I say no. Venezuela is certainly not an exporter of terrorism, though both duopoly parties might try to have you believe otherwise. North Korea is, but Trump is undermining his own Nobel Peace Prize chances in this case. And, the court steered away from that issue.
“We express no view on the soundness of the policy,” Roberts wrote.
That's typical executive branch deference. Read into it what you will.

And, not only is it not sound, contra wingnuts, there are lies by omission as big as Mack trucks within it.

First, there are still terrorists in Saudi Arabia, even if no "training camps" exist. Second, as late as 2016, the government, the kingdom, still supported fomenters of radicalism.
I argue that Saudi Arabia has made considerable progress on counterterrorism in the last 15 years but still has a long way to go. 
In the end, policymakers would do well to remember that Saudi Arabia is a key partner but not a friend: the United States and Saudi Arabia share many common interests, but they do not share common values or a common worldview.
Though that link is 2016, the problems are still current.
Considerable problems remain. As former senior CIA official Bruce Riedel contends, “Saudi sources remain major funders of groups like the Afghan Taliban and Lashkar­e Taiba in Pakistan. Some accounts suggest Saudi money has gone to al­Qaida’s affiliate in Syria, the al­Nusra Front.” Although Riyadh opposes the Islamic State, it sees the Syrian regime, with its close ties to Iran, as a far greater danger and has focused its energies accordingly. Despite greater regime efforts to reduce the flow of fighters abroad, Saudis still have found it easy to travel and fight on behalf of the Islamic State – they are perhaps the largest source of foreign fighters for the group. ... 
Saudi Arabia considers Al Qaeda to be a mortal enemy, yet its military campaign in Yemen has indirectly assisted the group. 
There you go. Syria and Yemen.

But, the Saudis know how to massage both Trump's greed and Bibi Netanyahu.

Oh, that name.

Basically, this is what Bibi would have written.

(As for a G+ commenter telling me to "get with reality" because I didn't explicitly spell out Trump's Saudi business interests? I think that making clear the Riyadh-Tel Aviv axis speaks loudly enough. Besides, Trump didn't write this himself. It was written by neocons wanting another anti-Iran quiver in the arrow, and it wasn't primarily about Trump's business interests.)

And, if Al Jazeera spiked a video because of Qatari GCC member power, well, there you go.

At the same time, on geopolitics, though the travel ban is directed against Syria and Iran, Robert Fisk says on-the-ground signs indicate a US pullback of some sort, if not completely, in Syria. That leads to another question — whence the Islamic State, if Syria gets too hot? Would it really, per Daniel Bynum, slip back into Turkey? Try to regroup in Iraq?

Otherwise, I find the ruling against California's anti-abortion clinics' "script law" more problematic, especially since in Planned Parenthood v Casey, the Court majority, including Kennedy, voted that states COULD require doctors and PP-type clinics to provide information about alternatives.

Oh, and case it's not clear, this is one of those issues where my desire to be deliberately contrarian has easy fodder. The ban is ... ugly. But it's theoretically constitutional —

That said, if the Court had followed its own lead of a month ago in Masterpiece Cakeshop, it arguably would have rejected the travel ban based on the bias of Trump's Tweets.

Volokh thinks the court is justifying using religion as a screening element. I would disagree if that's true, but I think Volokh is misreading — badly. Plenary power may have been involved, but with caveats. It's also interesting that Volokh appears to consider this a "Muslim ban" when it's not (including Volokh ignoring the listing of Iran and North Korea) that Volokh ignored the Korematsu overturning entirely, and in general, cited relatively old case law.

Per my Kennedy retirement link, and Ken White aka Popehat, clearly and consciously blowing part of his analysis, it just shows that constitutional law lawyers are as capable of motivated reasoning as anybody else.

Marjorie Cohn at TruthOut thinks the ruling violates international law, specifically the International Covenant on Civil and Political Rights. Not even close. First, it is applicable to nations regarding people "within its territory and under its jurisdiction." In other words, it prohibits (theoretically) the US (and other countries) from other people inside its borders, whether citizens or resident aliens. It's not about immigration.

Second, Cohn makes the elementary mistake, committed much more often by Islamophobes than others, of considering Islam a race. Uhh, even given that race as currently understood is culturally defined, religious affiliation has never been understood to be a race or even a marker thereof.


Finally, the "Oh the SCOTUS" and Merrick Garland, with a full post about that coming up.

As for low turnout in 2014 leading to the GOP retaking the Senate? Well, that goes back to 2010. Sure, you can blame the ruling against Holder on the Voting Rights Act for 2014 stuff. But in 2010 as well as 2014, or even more so, Obama did a piss-poor job of campaigning for Senators, Congresscritters, and also governors and state legiscritters.

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