Monday, June 26, 2017




I'm no lawyer, but I find it curious that the Court, in what seems to have been an effort to support the President's executive authority over immigration, made so many broad exceptions on behalf of individuals who are outside of the United States and have neither citizenship nor permanent residency status. I know that the three would not have gone this far, but six of the justices did, and that seems extraordinary to me, even in view of the equities. Equities rarely trump constitutional powers and rarely move the court to overturn the other branches when they are acting constitutionally. I think the only possible interpretation is that six of the justices think that his policy violates other constitutional provisions, and that his prospects in October are unlikely to be better than the outcome today. But I will wait till October, and see how it comes out.


The court was dealing with lower court decisions that made preliminary orders enjoining the operation of the EO on the basis of preliminary assessments that it was unconstitutional on a variety of grounds, differing in emphasis from court to court, those grounds reiterated with some expansion by appeal courts, I think three different circuit courts. The lower courts paid lip service to the president's authority in immigration matters and treated Trump differently than any other president, sub-textually whispering illegitimacy. So that all said, it was a big lift for Trump to get as far as he did. Not only getting unanimous leave to appeal but getting his EO reinstated in relation to the greater number of foreign nationals it applies to. Those enjoined from entering the U.S. under the EO far exceed those exempted temporarily from the EO's ambit. 

My sense is you're reading too much of the merits into the decision today. The court didn't hear oral argument, only had the briefs, and so in fact didn't carve out exceptions to the president's authority. Rather it weighed the equities in light of the appeal without passing finally on the merits, save, effectively, for doing so in relation to unconnected foreign nationals, who, it is blatantly neon clear, don't have a legal leg  to stand on. So I think to say equities don't normally trump constitutional power is misplaced in the context of what the court did today. The constitutional issues have yet to be reached via full briefing, amicus briefs and oral argument, which will happen in October. Which misplacement in my view causes you take the wrong inferences from the decision, confusing rulings on equities with decided substantive rulings, which decisions haven't yet happened. Again, this was a good, not perfect, result for Trump, slightly shocking given the persistent pattern of lower court decisions, which have all been overturned to some extent on a preliminary basis.

Is what I think, at least.

Two other points as PS:

One is that decisions appealed from start with a presumption of correctness, which weighs in the analysis of competing equites.

The second is simply to stress again how unusual it is for the court to be so mindful of itself to speak with one voice in granting cert. I know I'm repeating myself but if even if one justice felt strongly enough that there was no merit to the proposed appeal, s/he could easily have spoken out. I say again it augurs well for Trump that no one did. For me the palpable inference is that there's a common perception of troubling jurisprudence in the lower court decisions. 

There's to be sure some tea leave reading in these auguries: so these are mine.

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