Saturday, June 30, 2018

A Note On A Meditation On Trump V Hawaii


A short but acutely thoughtful mediation—that’s how it strikes me, as a mediation—by an independent thinking American Muslim on Trump v Hawaii.

Hamid incisively separates policy from law in thinking through his reactions to the decision, which two get conflated all too often by people who should know better. 

Really, my only criticism here is his confusion between and conflation of motive and intent, though I know what he means: he means motive but he runs them together.

The distinction is crucial to a competent assessment of the EO and imo why the decision is correct.

Broadly, in law motive is the personal reason why something is done, intent is the purpose of the action as derivable from the action itself. So if I shoot you dead it may be fairly inferable my intent was to kill you. My motive may have been (say) to get you out of the way for my own advantage or whatever.

So the intent of the EO is derivable from what its words and structure say. The motive(s) for it may be incredibly varied and murky. 

As best as I can deduce from having read the head note and not the opinions, the governing test is that for a challenge from an American who can show harm from the executive denial of foreigner’s American entry, the test is whether the decision or policy underlying the exclusion is rational and related to a legitimate state purpose. 

The rationale for that lowest level of judicial review—rational basis—is the immense discretion, near to unreviewable discretion—and there are arguments that it is unreviewable—Congress by statute has invested in the executive as to who gets in, including criteria which if applied to Americans would be unconstitutional, in the interest of directly and speedily maximizing American security from foreign threats in the way of who, gets to, and who doesn’t get to, come in. 

But that’s a long digression. 

My short point is, as I began, that this an acutely thoughtful meditation on some of these issues.

Most def worth reading.

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