Next Stop … The Supreme Court

Yesterday a federal appeals court found Trump’s March executive order to ban travel from six predominantly Muslim countries to be unconstitutional, saying it “drips with religious intolerance, animus and discrimination.” Attorney General Jeff Sessions almost immediately vowed to take the matter to the U.S. Supreme Court.  So … what happens now, and what are the odds that the Supreme Court will uphold the lower court ruling?

Sessions offered no timetable for submitting the case to the Supreme Court, but he must file the appeal within 90 days, which would be between now and late August.  Given the case load of the court, it will likely take close to two months before they decide whether or not to hear the case, and assuming they do decide to hear it, it would be late this year or early next year before they begin to hear arguments.  There are some interesting twists here.

In order for the case to be heard, four justices must agree to hear it.  Given that five of the nine justices are conservative-leaning and were put on the bench by republican presidents, and given the national attention this matter has received, it is likely, though by no means certain, that the court will hear the case.  If they do not, however, then the ruling of the appeals court stands and there will be no travel ban.  Though I do not expect this to happen, it would be the best solution in the opinion of this writer.

The first interesting twist is that the travel ban is a temporary ban, intended to last 90 days from the time it was issued.  The order was signed on Monday, 06 March 2017, so technically the ban is set to expire on 04 June 2017, nine days from now.  In other words, by the time the Supreme Court could even decide to hear the case, it would have already expired.  I am fairly confident that it will be interpreted as beginning at whatever point it is actually implemented, but the argument could be made, I think, that it is a moot point since it already expired.

Although the court currently leans toward conservatism, that is not necessarily a predictor for how the justices will vote.  The legal opinions I have read, as well as my own opinion, are mixed.  I would like to think that the court will uphold the decision of the appeals court, as I think it was the right decision, but there is good reason to believe that they may not.

The appeals court ruled as they did based, not solely on the text of the executive order, but also taking into consideration Trump’s rhetoric against Muslims last year when he was campaigning.  The courts that have ruled on the issue thus far have said that even though the text of the order does not mention Islam or Muslims, the intent is clear based on things Trump has said.  I agree with that, from a purely logical standpoint, however, from a legal standpoint, it may not hold water.

The three judges who dissented in Thursday’s decision argued that the court should not look beyond the text of the executive order, and that is the key that will decide this case if the Supreme Court decides to hear it. I can see the reasoning here … can see both sides of this issue, actually.  Lawyers wrote the executive order, making sure there was no mention of religion.  However, Trump’s speech signals the actual intent of the order and I would like to see it considered.  On the other hand, if the court allows what he said as a candidate to be a consideration, it sets a precedent and could open many cans of worms in future cases and rulings.

Another option I should mention is that lawyers for the Trump administration could seek the justices’ approval to put the travel ban in place on an emergency basis, in which case the justices would vote immediately, but the case would still need to be heard at a later date.  If they should agree to allow the ban to take effect on an emergency basis, there is little doubt that they would uphold the policy when it came up later on.  At any rate, it would be a moot point, as either way the 90-day period would have passed by that time.

I cannot predict with any degree of certainty what will happen at this point.  My one final comment, however, is that Donald Trump and cohorts should be barred from any contact with the Supreme Court justices.  Period.  We have been privy to his bullying tactics, have seen how he has swayed certain members of Congress with threats and intimidation tactics. Although I believe the integrity of all nine justices is such that they would not allow themselves to fall prey to such techniques, it is simply better to avoid any appearance of the administration attempting to sway the court.  Donald Trump cannot fire a justice, and has no real power over the court, but I simply do not trust him.

Although I have not always agreed with the decisions of the Supreme Court, I have almost always believed that the decisions were made with great thought, without political considerations, and I have tremendous respect for both the institution and the justices.  I would like to be able to keep that respect.

28 thoughts on “Next Stop … The Supreme Court

  1. Thanks Jill for the background information on the due processes of the Law & Constitution. The President would be unwise to ‘lean’ on the Court as a body; it has a history of being fiercely independent, sometimes I suspect just for its own sake if it suspects it is being pushed

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    • I am hoping that he will be removed from office by whatever means possible. I do not think that his ego will allow him to resign … though I could be wrong. Some analysts have predicted that he will resign if impeachment seems inevitable, then blame it all on somebody, likely Congress. Whatever it takes, he just simply needs to go!

      Liked by 1 person

      • I do not think DDT will resign … His ego is far too great for that, but I do hope he is impeached. He is a ‘loose cannon on deck,’ not just in the US, but seemingly everywhere else too. I cannot understand why our own Prime Minister hasn’t backed away from him, but then, he hasn’t shoved her out of the way or given her a weird, intimidating handshake yet!

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        • I strongly suspect that PM May panders to him because she is hoping for favourable trade agreements going forward. I cannot imagine any other reason. But you are quite right in that he is a threat not only to the U.S., but to the rest of the world. The only good thing, if there is a silver lining to this cloud, is I believe countries like Austria, the Netherlands and France looked at him, saw what he was doing to our country, and rejected their own populist candidates at the polls. Not much consolation, but some.

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  2. I am continuing here as it sent too quickly….

    The travel bans proposed by DT and now going through your courts are discriminatory without reason. Perhaps a tough visa system should be established but outright bans smacks of a totalitarian state where all individuals lose their rights, becoming more like ‘property’ to be redistributed as dictated by policy rather than as real living entities with a soul, a mind and a heart.

    The travel ban will not stop terrorism. Nor will it serve Americans in any positive manner.

    Terrorism is usually the outcome from people radicalized into fighting a system of control. Given no other means to demonstrate their frustration with a life that is distorted, they lash out at everything perceived as ‘the threat.’ What DT doesn’t realise is that his very policies are likely to spawn even more dissatisfaction and terrorism on home soil than anything perceived as an ‘outside threat.’

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    • You offer some very thoughtful and thought-provoking insights … greatly appreciated! Always feel free to comment here … we all engage in a sharing of ideas and, so long as we remain respectful, we learn from each other. The immigration issue is complex and my feelings are mixed. I understand where Jack is coming from, because of Manchester earlier this week. I just think that we must remember that it is not all Muslims who perpetrate these evil acts, but a few individuals who happen to be Muslims. And the reality is that the west is not the primary target of terrorism … the primary targets are actually in the Middle East, which is a large part of the reason there are so many seeking asylum in western nations. My neighbors, for example, are wonderful people and good friends. They came here 3 years ago from Syria, because they feared for their lives and wanted a safe haven in which to raise their three children. It is, again, a complex issue with many grey areas, and no right or wrong answers, but we must at least try to remain humanitarian. Thanks again for your comments!

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      • Agreed, most Muslim people that I have met are lovely people. The problem with Britain is that there is no vetting of who comes in (nor in most EU countries) because of the open border, freedom of movement agreements. While it is a lovely thought that all of us integrate, it actually doesn’t happen. Instead, people migrate to the areas in Britain where others from the same places have already set up homes. It makes us segregated. I have actually been to one town in Britain where no English is spoken at all…and I was stared at as if I were a ‘strange alien.’ This can feel very uncomfortable when you feel unwelcome in your own country! But this isn’t the problem….the main problem is that we do not have enough housing. There are shortages and demand drives prices very high even for the most modest of homes. The social net (health care, education, transportation, and welfare assistance) is now under enormous pressure. Sure, newcomers pay taxes (when they can find jobs), but they do not always have the skillset we want and so they compete for low paid jobs with our own poorest people. When the poor find themselves having to do with less and less, they become disgruntled (regardless of race or religion) and this is where trouble and hate crimes start. You Americans have seen your share of that too.

        When a country doesn’t have the means to support a burgeoning population, it really has no choice but to close its doors to immigration until things get better.

        I hope I have explained this properly. Our predicament is not out of hate for outsiders, but I think a ‘self preservation’ reflex to events. Britain pays out enormous sums of money to the EU. But we also see a lot of that money wasted in countries that haven’t contributed more than a fraction of our contribution and it is rather irksome to watch tax payers money leaving the country when we are experiencing shortfalls in our own welfare.

        A world that works together is great….but it always seems to end up as battles of ‘us verses them’😖

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        • Your points are all certainly valid! Housing shortages, healthcare, jobs, transport, and social welfare programs are all stretched to the limit because of the influx of refugees both in the UK and the US, as well as many other European countries. That is a very real problem for which I do not know the solution. In part, the solution would be, in a perfect world, for the very wealthy in all nations to step up to the plate and do their share, but that will never happen, since we do not live in a perfect world and the very wealthy tend to be unwilling to part with any of their wealth. But even so, that would not be a complete solution. The core of the problem is that the earth is over-populated and becoming more so every year, so there simply are not enough resources to accommodate the ever-growing population. And then people like Trump refuse to provide birth control to poorer nations, and here in the U.S., people want to de-fund organizations like Planned Parenthood that do so much to help educate people about birth control. Sigh … but I digress … 🙂

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      • The travel ban proposed by DT is thoroughly deplorable. Visa requirements are enough to make sure visitors are vetted (to any country) and so to exclude some people just based on where they happen to originate, is absolutely immoral. A visitor is just that…someone who comes as a tourist to spend money on an enjoyable holiday. 😊

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  3. I know that I am new to your blog Jill, but I would like to also answer Jackcollier7 here too with some of my own sentiments on this matter and on immigration in general.

    Many years ago I applied to leave UK to go to Canada as a new immigrant. I was a British 19-yr-old Caucasian Female, so was fairly sure I’d be able to go. But, I had to get a job offer, pass an intensive medical exam and an interview to test my knowledge of Canada and give an account of my reasons for wanting to live there. This process took many months and so I was sure I had failed my application. But I did go, and while I now reside back in UK, still hold dual citizenship.

    It seems to me that this is a process all new immigrants to anywhere must go through, and rightly so. No one can expect anything else just on the basis of colour, creed, or status.

    Travel bans are something else. Jackcollier7 has indicated that Britain doesn’t want all the immigrants that flood across its borders. It is an entirely different situation as Britain currently has no control over immigrants coming from any other EU country due to the open border policy. Britain is a favourite destination for economic migration due to its high living standards and social care network and language. Many Europeans learn some English as a second language. Britain is a tiny country compared to many other EU countries and many native Britons just cannot justify the open border policy if we are to keep our own culture buoyant in what is now a melting pot of diverse but also largely separate settlements by other cultures.

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  4. Dear Jill,
    The good news is that this last decision was done by the 4th circuit court of appeals. This court is known to be conservative in its rulings. DDT can no longer blame the 9th circuit court of appeals for its ruling because of its liberal leaning justices.

    I have noticed that pundits keep stating that what DDT said during the campaign should not be relevant. The distinction here, is that more than one architect of the ban has referred to ii as a Muslim ban after DDT was ensconced in the White House.

    Thanks for a great post.

    Hugs, Gronda

    Liked by 1 person

    • Thanks! You make a very good point, that some of the very people who drafted the order have referred to it as a ‘Muslim ban’, which should be considered. I just don’t trust DDT and Co., mainly Jeff Sessions, not to try some funny business. Sad when you cannot even trust anybody in the White House, but I don’t.

      Hugs!!!

      Liked by 1 person

  5. From a purely legal perspective, your Supreme Court will have to over turn the Appeal Court’s decision because what Donald Trump said before the travel ban cannot be taken into consideration. Unfortunately, the law and justice are two very different beasts. If they weren’t, we wouldn’t need lawyers. 😦

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  6. I agree with you entirely. He is a bully and will attempt to bully the Court — if he can. We will see if the founders were correct in demanding a balance in the government — given that the Congress has failed miserably so far to exhibit any tendency to oppose this man. It will be interesting, to say the least.

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