Monday, June 26, 2017

Supreme Court Did NOT Uphold Trump's Travel Ban! And Kennedy's Not Leaving!

First, about Justice Kennedy.
All the rumors about him retiring are apparently untrue. He made no retirement announcement today, the traditonal "goodbye day". Thank heaven! He's apparently staying. He's the swing vote in 5-4 decisions. His being replaced by a Trump appointee is too awful to think about. 

Nevertheless, right now Trump is likely strutting and balleyhooing that the Supreme Court has upheld his travel ban. 

That's not what's happened. 

Without having read the actual text of the Court decision (it's not available just yet), my reading of the news coverage is that the Court greatly restricted the ban so that it's virtually a nothing:

"[T]he ban may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.  (Quoted by the Washington Post, 
Supreme Court allows limited version of Trump’s travel ban to take effect.

That's a very porous ban! After all, it typically took two years to get a visa before the whole ban thing started!

Further sticking its finger into Trump's eye, the Court has given his now-decimated ban a very short shelf life,  just three months for the feds to come up with persuasive evidence that something like the ban is actually needed. Further, the lower court orders freezing the Trump ban since February have already gone a long way to running out the clock on Trump's ban. Five months have already gone by without the ban in effect.

The case is set for further Court review in the October session, at which time the executive branch has the burden of showing justification for such a measure. There isn't any.

Since the executive has also been firmly told that it has until October to make good on its claim it needed time to create better vetting, the executive will be faced in October with the weird task of proving that it still has a problem even after having been given a total of eight months to fix it! The Trump folks have had since late January to fix their vetting!

The actual big news is that the Court was willing to limit the executive power at all in the areas of national security, foreign affairs, and immigration — areas generally off limits to the Court by its own long-standing policy. In October it will take up the religious discrimination charged against the ban. That is if the ban is not moot by then. Which it likely will be.

In the meantime, the Court's "limited version" of Trump's ban is a three-legged horse, going nowhere very slowly. Consider the myriad number of court cases the Court's ruling will generate if the feds still try to exclude broadly under this Court-ordered weakening of the ban. Consider the termsit includes!  "[T]he ban may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. 

Almost all the people who were so cruelly excluded under Trump's original ban could have come within those exclusions. And if the feds fight to keep the exclusions narrow, an old attorney like me sees lots of litigation in that one sentence. What's a "credible claim"? A "bon fide relationship"? A "person"? An "entity"? 

It's the "Attorney Full Employment Act"!

I'll write later if a reading of the Supreme Court's complete text seems to warrant more comment from this old attorney. 

Meantime remember that those writing the news stories and the headlines are not attorneys. 

Also in the meantime ignore Trump's ignorant claims about this decision as he foments to his hardcore base. 

Ignoring Trump is a good motto for life! 

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