On the Supreme Court Oral Arguments about the Muslim Ban

1. The government says there are three (3) standards by which the handful of nations were picked out of the fifty-five (55) or so nations which have a primarily Muslim belief population. But, in arguments, Noel Francisco said that someone trying to come to America from a nation designated as a "terrorist state" may still be denied if that nation's government refuses to provide certain documentation. What that means is that there is really only one (1) standard.

I suspect this means there is really an ulterior motive to the Ban. And that is (essentially) to tell those visa applicants their government has refused to cooperate with the United States and that they have to stay in that country and perhaps they should get mad, protest, demonstrate, riot, and even overturn that government to make us happy. This would most likely apply to a nation such as Iran which many Conservatives have wanted to attack for many years. During the 2008 presidential campaign it was the Republican candidate for the presidency, John McCain, who repeatedly chanted "Bomb bomb bomb, bomb bomb Iran".

If this is true it means the Ban may appear to be a political promise kept, but in fact be a foreign policy statement which the public did not vote to put into place.


2. Though the statements of a private citizen during the presidential campaign may have no meaning after that person becomes president, our current president, Donald Trump, has made statements after taking office which confirm his view that his political statements (racist as they are) were in fact the basis for the Ban and that he knew it wouldn't pass muster (as indeed his first tries failed) with SCOTUS, so he specifically had his advising agencies find a set of tests which they believed could pass muster. They did so. This process makes it clear that it was not THEY who were advising the president we had a national security issue he must address with the Ban. Even more clearly, the changed list of nations indicates the original lists were more about finding nations where he could ban individuals and less about national security. In the end, even with the Ban in place, there are many nations with Muslim individuals who might come here to perform terrorist acts. If this were a national security issue that would not be possible.

This shows we can not trust that the Cabinet departments analysis and suggested list has any meaning beyond satisfying the President who views himself as a Unitary with sole power to decide things in the Executive branch (as he has said). We don't know the process by which they chose standards, such that a list of some nations were produced. We don't know what other set of standards might have been considered. Given the proclivity of this president and his assistants to lie on a regular basis we don't know anything about their intents or methods. The only thing we only know for certain is the text of the Ban. We don't know if the process the Ban outlines would be upheld or if a pure and complete Ban of all Muslims would in fact be installed. There is no real oversight or Judicial Review despite the suggestion by Justice Kennedy that review would obviously or naturally occur.

3. There is Congressionally written law on this issue and the Ban attempts to unilaterally change that. We simply do not give any president the power to change law by themselves. That way leads to dictators and disaster.

4. There is no mention in the text of the Ban (according to Mr. Katyal, representing the state of Hawaii) of a limit to the ban. And, despite the suggestion there is a report to be made, there is no time limit or rationale for the Ban to end or "sunset". This kind of unlimited ban makes no sense when the purported reason for the Ban is 'national security dangers'. Those do not last forever. If the Ban were a Presidential Executive Order which enabled a state of national emergency and giving the president sole government power, eliminating Congress and the Courts, then perhaps the Courts could see more easily a reason for such Orders to have a time limit or some other kind of conditions-based duration and/or oversight and review by other interested parties than the Executive branch.

5. I would like to be able to say our president is NOT in the grips of a foreign power and that he has NOT tried to subvert our FBI and judicial processes, but I cannot. He cannot be trusted with any kind of unlimited powers. That isn't a Constitutional Law argument of a normal kind, but it was the very basis for the creation of our nation. The leading lights of the Colonies didn't trust the King of England with such powers to decide matters in the Americas and neither should we trust any individual to decide them for us now. Congress can act if it deems this important.

6. If it were a true national security issue we would have felt the impact by now of not having it. We haven't. There is no national security basis for the Ban.